R v CM

Case [2022] QChC 11

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v CM [2022] QChC 011

PARTIES:

R

v

CM
(defendant)
FILE NO:

CCJ 634/21

DIVISION:

Childrens Court

PROCEEDING:

Trial – Judge alone

ORIGINATING COURT:

Childrens Court of Queensland, Beenleigh

DELIVERED ON:

18 February 2022

DELIVERED AT:

Beenleigh

HEARING DATE:

14 and 15 February 2022

JUDGE:

Jackson QC, DCJ

ORDER:

Not guilty on all counts

CATCHWORDS:

CRIMINAL LAW – JUDGE ONLY TRIAL –  PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – RAPE AND SEXUAL OFFENCES  – VERDICT – where the defendant is charged with three counts of rape – where there was a delay in any complaint being made – whether the complainant’s evidence was reliable and established the rape allegations beyond reasonable doubt – whether the defendant is guilty or not guilty of the charges.

LEGISLATION:

Criminal Code Act 1899 (Qld), ss 6(1), 348, 349, 615B, 615C
Evidence Act 1977 (Qld), ss 21AK, 93A

CASES:

R v Pentland [2020] QSC 231, cited
COUNSEL:

A Vanenn for the Crown

L Dollar for the Defendant
SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown
YFS Legal for the Defendant

Introduction

  1. This is a judge alone trial. Section 615B of the Criminal Code Act 1899 (Qld) (“Criminal Code”) provides that so far as is practicable the same principles of law and procedure are to be applied as would the case in a jury trial. Subsection 615C(3) of the Criminal Code requires these reasons to include the principles of law that I have applied as well as the findings of fact on which I have relied.

  2. The defendant is charged with three counts of rape of the complainant on a date unknown between the first day of July 2019 and the thirty-first day of July 2019 at Beenleigh in the State of Queensland.  He has pleaded not guilty to these charges.

  3. The Crown particulars[1] are that:

    “Count 1The defendant penetrated the complainant’s mouth with his penis without her giving her consent.

    Count 2The defendant penetrated the complainant’s vagina with his finger/s, without her giving her consent.

    Count 3The defendant penetrated the complainant’s vagina with his penis, without her giving her consent.”

    [1]MFI “A”.

  4. There is no issue as to the defendant and the complainant having met at or around the time of the charged date range.  Otherwise, the defendant’s position is that the charged acts simply did not occur. 

    Elements of the offence

  5. In respect of the charge of rape which is alleged to arise from penetration of the complainant’s mouth by the defendant’s penis, the Crown must satisfy me beyond reasonable doubt that:

    1.   The defendant penetrated the complainant’s mouth with his penis;

    The Crown needs to prove penetration of the complainant’s mouth to any extent by the defendant’s penis.

    2.   Such penetration was without her consent.

    Consent means consent freely and voluntarily given by a person with a cognitive capacity to give the consent.  Amongst other things, a person’s consent to an act is not freely and voluntarily given if…

Continue reading R v CM

Sign in free to access the full text

Details
AGLC
R v CM [2022] QChC 11
Case
[2022] QChC 11
Decision Date

CaseChat Overview and Summary

The case of R v CM involved the defendant being charged with three counts of rape. The complainant alleged that the defendant had forced her to engage in sexual acts on two separate occasions. The case was heard in a Magistrates Court in Australia. The central legal issues were whether the complainant's evidence was reliable and if it established the rape allegations beyond reasonable doubt. Additionally, the court had to consider whether the defendant was guilty or not guilty of the charges.

In reaching its decision, the court examined the complainant's evidence, including her s 93A statement and her demeanour during the pre-recording of her evidence. The court identified several inconsistencies and gaps in the complainant's account, leading to doubts about her reliability. The complainant's delay in reporting the alleged offences and her actions following the incidents were also scrutinized. The court concluded that the evidence did not establish the rape allegations to the required standard, resulting in the defendant being found not guilty on all counts.

The court's decision was based on a thorough evaluation of the complainant's evidence and the identified inconsistencies. The court determined that the complainant's evidence was not sufficiently reliable to prove the charges beyond reasonable doubt. As a result, the defendant was acquitted of all charges. The court emphasized that each charge must be considered separately, and the verdicts need not be the same due to differences in the evidence and elements of the charges. The final orders of the court were that the defendant was found not guilty on all counts.

Orders

Orders of the court

Not guilty on all counts

Background

Background to the litigation

I will now set out the factual background and a summary of the evidence and rival submissions, followed by the directions I have given myself and my disposition. Factual background The complainant described that she and her then best friend, N, travelled on a bus to Beenleigh Station, probably on 23 or 24 July 2019. There was no evidence as to why they travelled on a bus to Beenleigh at that time. The complainant described that when they got to the station, there were a few “sort of friends” being the defendant and some other boys - M, U and K. [2] She and N went to say hi to them, then, when it was getting dark and she wanted to leave, the complainant said the group would not let them leave and, later, it was too late and they had missed their bus. The group of children hung around for a period of time at the train station.[2]The complaint had seen the defendant once before but not met him and knew of U but had not met him. It is alleged that later the defendant forced the complainant to give him oral sex. Then, some time after that and in a different location, he raped her both digitally and with his penis.Evidence Complainant’s section 93A statement On 13 September 2020, the complainant participated in a formal interview with the police which led to the production of her s 93A statement. During the complainant’s s 93A interview, she explained that she and N travelled on the bus to Beenleigh Station. She believed that this happened in July the year before the interview, that is, July 2019. When asked how she knew that it was July last year, she said she just remembered because it was July. She said maybe it was on the 23rd or 24th of July. When asked if there was any reason why she remembered it was that date, she said “it’s traumatic”. When asked whether there was anything else that happened around that time (that might allow one to identify the occasion), she said no. The complainant was born on 4 July 2005, making her 14 at the time of the alleged incident, 15 at the time she spoke to police and about 16 and a half years of age at the time she participated in the pre-recording of her evidence pursuant to s 21AK of the Evidence Act 1977 (“Evidence Act”), in this Court on 2 December 2021. The complainant says that when they got to the station “a few like, sort of friends of ours” were there. She said that was the defendant M, U and K. She and N went to say hi to them where they were sitting on the stairs near the shops. She explained that when she wanted to leave “cause it was getting dark” they would not let her and N leave and then later it was too late and they had missed their bus to get home and U had taken her phone. She explained that the significance of that was that she could not call anyone and she did not think that her friend had a phone. She described that they just wandered about while at the train station although, then she said she did not really remember that part, but they were there (that is, at the station) for a while and were mucking around with a speaker.[3] Then it got dark and she started getting scared because she was about to miss the bus and then they did miss the bus and she said that she was “freaking out” even more. The bus apparently would have left at about 6.20pm. She described that she was shaking and stuff. She also said she was cold. She says that then they were taken to Subway or near Subway.[4]The complainant explained that U took her phone and was using it to look at Instagram. When she asked for it back, he would routinely say “no” and/or “in a bit”.[5] It should be noted that initially the complainant said that her phone was taken later in the night. It was only when she was asked this question: “[s]o, that was before they took you to Subway to (sic)?”, that she clarified that it had been taken at this earlier time. [3]Whether that was a speaker used through one of their phones was not the subject of any evidence.[4]See page 13 of the complainant’s s 93A statement. [5]See page 14 of the complainant’s s 93A statement.

Evidence

Evidence Before The Court

It is alleged that later the defendant forced the complainant to give him oral sex. Then, some time after that and in a different location, he raped her both digitally and with his penis.Evidence Complainant’s section 93A statement On 13 September 2020, the complainant participated in a formal interview with the police which led to the production of her s 93A statement. During the complainant’s s 93A interview, she explained that she and N travelled on the bus to Beenleigh Station. She believed that this happened in July the year before the interview, that is, July 2019. When asked how she knew that it was July last year, she said she just remembered because it was July. She said maybe it was on the 23rd or 24th of July. When asked if there was any reason why she remembered it was that date, she said “it’s traumatic”. When asked whether there was anything else that happened around that time (that might allow one to identify the occasion), she said no. The complainant was born on 4 July 2005, making her 14 at the time of the alleged incident, 15 at the time she spoke to police and about 16 and a half years of age at the time she participated in the pre-recording of her evidence pursuant to s 21AK of the Evidence Act 1977 (“Evidence Act”), in this Court on 2 December 2021. The complainant says that when they got to the station “a few like, sort of friends of ours” were there. She said that was the defendant M, U and K. She and N went to say hi to them where they were sitting on the stairs near the shops. She explained that when she wanted to leave “cause it was getting dark” they would not let her and N leave and then later it was too late and they had missed their bus to get home and U had taken her phone. She explained that the significance of that was that she could not call anyone and she did not think that her friend had a phone. She described that they just wandered about while at the train station although, then she said she did not really remember that part, but they were there (that is, at the station) for a while and were mucking around with a speaker.[3] Then it got dark and she started getting scared because she was about to miss the bus and then they did miss the bus and she said that she was “freaking out” even more. The bus apparently would have left at about 6.20pm. She described that she was shaking and stuff. She also said she was cold. She says that then they were taken to Subway or near Subway.[4]The complainant explained that U took her phone and was using it to look at Instagram. When she asked for it back, he would routinely say “no” and/or “in a bit”.[5] It should be noted that initially the complainant said that her phone was taken later in the night. It was only when she was asked this question: “[s]o, that was before they took you to Subway to (sic)?”, that she clarified that it had been taken at this earlier time. [3]Whether that was a speaker used through one of their phones was not the subject of any evidence.[4]See page 13 of the complainant’s s 93A statement. [5]See page 14 of the complainant’s s 93A statement.

Decision

Reasons for decision

It was apparent from Senior Constable Alfred’s evidence that he had sought to do the best he could having regard to the lapse of time and that all appropriate steps have been taken to seek to obtain other evidence which might be relevant to the investigation.Conclusion My conclusion is that the evidence does not establish the rape allegations to the required standard. Accordingly, I find the defendant not guilty of rape.

Ratio Decidendi

Legal Principle Established

I am conscious that there are three separate charges and I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the Crown has proved its essential elements. The evidence in relation to the separate offences is different, and so my verdicts need not be the same. Also, the elements differ between some of the charges and for that reason, too, my verdicts need not be the same. I keep in mind that if I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence generally. I also bear in mind that each of the offences is said to have occurred over a relatively brief period and to involve the same complainant.ConsiderationThe complainant There were several features of the complainant’s evidence which when considered with other evidence led me to have doubts as to the Crown case. Firstly, I thought that the passage from her s 93 statement which I set out in paragraph [21] above was quite remarkable that is she ended up having oral sex with him but did not remember why. Secondly, in a similar passage which I have set out in paragraph [22] above, she said that in terms of the threat that proceeded that oral sex she did not really think that he could do much because they were out in an open area. As I have said, it is readily apparent from the photographs that it was a very open area. If she thought that he could not really do anything it is hard to understand why the threat had any great significance to her. But also, as I have set out in paragraph [23] above, if she thought that the reason he could not do anything was because they were in the open that makes it very difficult to understand why she would thereafter go on a long walk with him, to a restaurant and then spend the night with him. I found her evidence on this topic generally unsatisfactory including as I have also mentioned above in paragraph [41] that although she initially readily agreed that she had told police that she did not think he could do much in term of a threat she then seemed to seek to retreat from that position. Thirdly, she explained that after the encounter in the grassy area she may have stayed there with the defendant for a bit, then gone back with the defendant to the others behind Subway and then proceeded to stay with him for the balance of the night including going to a restaurant and on a long walk. During all of that she did not disclose to anyone what had happened or that she was scared or anything else. She sought to explain that by reference to her phone having been taken from her which is a topic I return to below. Fourthly, immediately adjacent the bed she spent the night in she appears to have believed that her then best friend and another boy were having sex. She says that during the time she was in the bed with the defendant she was regularly saying stop, seriously struggling, trying to push him off and so on. Despite all of that, no opportunity was taken to tell N anything and nor did N seemingly notice anything untoward happening in the bed next her. She says in this context that she kept saying stop. It is clear from her evidence otherwise that from her point of view U and N who in the adjacent bed were awake during this time.