R v CPG

Case [2020] QDC 251

DISTRICT COURT OF QUEENSLAND

CITATION:

R v CPG [2020] QDC 251

PARTIES:

THE QUEEN

v

CPG
(defendant)

FILE NO/S:

DIS 5407/19(2)

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Warwick

DELIVERED ON:

30 September 2020

DELIVERED AT:

Warwick

HEARING DATE:

28 and 29 September 2020

JUDGE:

Kefford DCJ

VERDICTS:

Count 1 (Rape): Guilty

Count 2 (Rape): Guilty

Count 3 (Rape): Guilty

Count 4 (Rape): Guilty

CATCHWORDS:

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where the defendant is charged with four counts of rape – where the defendant is charged, in the alternative, with indecent treatment of a child under 16, under 12, who is a lineal descendent – whether the complainant’s evidence was reliable

LEGISLATION:

Criminal Code Act 1899 (Qld), s 210, s 349, s 615B, s 615C

CASES:

Middleton [2000] WASCA 200; (2000) 114 A Crim R 141, applied

R v Armstrong [2006] QCA 158, applied

R v E (1995) 89 A Crim R 325, applied

R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, applied

R v McBride [2008] QCA 412, applied

COUNSEL:

E Kelso for the Crown

J Goldie for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Philip Cooke Lawyers for the defendant

TABLE OF CONTENTS

Overview

General principles of law

Onus and standard of proof

Separate consideration of the charges

Assessment of evidence

The elements of the offences and the prosecution’s particulars

Alternative charges

The issues in contest

The evidence adduced by the prosecution

Evidence of affected children

Audio-visual link evidence

The defence case

How should the evidence of the defendant be treated?

The defendant’s good character

Consideration of the defendant’s evidence

The complainant’s evidence in the police interview

Count 1: Robot Movie

Count 2: In the car

Count 3: Sorting the erasers

Count 4: TV time

The complainant’s evidence in Court

The other evidence

CB’s evidence

CM’s evidence

CF’s evidence

CGM’s evidence

Detective Senior Constable Ashton’s evidence

Preliminary complaint evidence

Has the prosecution proved its case on each count beyond reasonable doubt?

The defence submissions about the complainant’s evidence

Count 1: watching a “robot movie” in the bedroom

Count 2: In car driving around the yard

Count 3: sorting the erasers in the bedroom

Count 4: watching television in the bedroom

General comments about the complainant’s evidence

My findings about the complainant’s evidence

Conclusion

Verdicts

Overview

  1. At times during the period between 28 August 2018 and 8 November 2018, the complainant, together with her brother and mother, lived with her paternal grandparents while her dad started a new job in Cairns.  On 8 November 2018, the complainant moved to Cairns with her father, mother and brother.  A short time later, the complainant spoke to her mother about interactions with her paternal grandfather that she said occurred while they had been living with them. 

  2. On 31 July 2020, a no jury order was made.  When arraigned before me on 28 September 2020, the defendant entered a plea of not guilty to…

Continue reading R v CPG

Sign in free to access the full text

Details
AGLC
R v CPG [2020] QDC 251
Case
[2020] QDC 251
Decision Date

CaseChat Overview and Summary

This case concerns the conviction of the defendant, who was charged with four counts of rape and, in the alternative, with indecent treatment of a child under 16, under 12, who is a lineal descendent. The case was heard by a judge alone, without a jury. The primary issue before the court was whether the complainant's evidence was reliable and credible.

The court assessed the complainant's evidence concerning each count separately, taking into account her demeanour and the consistency of her statements. The court noted that any reasonable doubts about the reliability of the complainant's evidence in relation to one count must be considered when assessing the reliability of her evidence generally. However, this did not necessarily mean that the defendant could not be convicted on other counts if the evidence was sufficiently reliable.

The court found the complainant's evidence credible and reliable. It accepted that the defendant had penetrated the complainant's vulva or vagina with his finger on each of the four occasions described. Consequently, the court found the defendant guilty of all four counts of rape.

The court concluded that the prosecution had established each offence charged beyond reasonable doubt. It emphasised the importance of considering each charge separately and evaluating the evidence relating to each charge. The court found the defendant guilty on all four counts of rape.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

My assessment of the complainant as a witness will be relevant to all counts, but I must consider her evidence in respect of each count when considering that count. If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of the counts, whether by reference to her particular demeanour or for any other reason, I must take that into account in assessing the truthfulness or reliability of her evidence generally. If I am not sufficiently confident of the evidence of the complainant to convict on one count, I must find the defendant not guilty in relation to that count. That does not necessarily mean I cannot convict of any other count. I have to consider why I have some reasonable doubt about that part of her evidence and consider whether it affects the way I assess the rest of her evidence. I must consider whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to the other count.[3] [3]R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82.Assessment of evidence In arriving at a verdict, I must act impartially and dispassionately and only on the evidence properly admitted during the trial. The issues that exist must be resolved by taking into account all of the evidence. That does not mean that I have to resolve all of the questions or inconsistencies that may have been raised by the evidence or which conceivably arise about the facts. The evidence that I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression that he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or in the pretext call, and my assessment of other evidence including documents and other material. It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. I might reject parts of the evidence of a witness if I find it unreliable or because I consider the witness had some motive to conceal or embellish that part of the evidence that he or she gave, or to distort the truth. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’s evidence. I may accept parts of it if I think it is worthy of acceptance. If I conclude that particular evidence is not truthful or reliable, I will not take that evidence into account in determining whether the prosecution has established guilt. In the case of conflicts, it is for me to decide whether they are important to resolve, or unnecessary, given the views that I reach about other parts of the evidence when I assess the evidence and the cases which the parties have advanced. In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and, if I do, what weight or significance it should have.

Decision

Reasons for decision

For the reasons provided above, I am satisfied that the complainant’s evidence of the alleged offending is credible and reliable.Conclusion For the reasons provided above, I am persuaded, beyond reasonable doubt, that the defendant penetrated the complainant’s vulva or vagina with his finger on each of the four occasions described by her. It follows the defendant should be found guilty of each of the four counts of rape. Verdicts In relation to count 1, a charge of rape, I find the defendant guilty. In relation to count 2, a charge of rape, I find the defendant guilty. In relation to count 3, a charge of rape, I find the defendant guilty. In relation to count 4, a charge of rape, I find the defendant guilty.

Ratio Decidendi

Legal Principle Established

The prosecution has the onus of establishing each offence charged beyond reasonable doubt.[2] There is no onus on the defendant. The defendant is presumed to be innocent. This means that in order to convict of an offence, I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. To convict of the more serious offences alleged, the prosecution must satisfy me of each circumstance of aggravation beyond reasonable doubt.[2]Unless otherwise noted, where I have used words describing the burden on the prosecution such as: prove, establish, demonstrate and the like, they are to be read as meaning “prove beyond reasonable doubt” and so on. Separate consideration of the charges A number of charges have been brought against the defendant. 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 prosecution has proved its essential elements. I must return separate verdicts for each charge. The evidence in relation to the separate offences is different. I understand that my verdicts need not be the same. My assessment of the complainant as a witness will be relevant to all counts, but I must consider her evidence in respect of each count when considering that count. If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of the counts, whether by reference to her particular demeanour or for any other reason, I must take that into account in assessing the truthfulness or reliability of her evidence generally. If I am not sufficiently confident of the evidence of the complainant to convict on one count, I must find the defendant not guilty in relation to that count. That does not necessarily mean I cannot convict of any other count. I have to consider why I have some reasonable doubt about that part of her evidence and consider whether it affects the way I assess the rest of her evidence. I must consider whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to the other count.[3] [3]R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82.Assessment of evidence In arriving at a verdict, I must act impartially and dispassionately and only on the evidence properly admitted during the trial. The issues that exist must be resolved by taking into account all of the evidence. That does not mean that I have to resolve all of the questions or inconsistencies that may have been raised by the evidence or which conceivably arise about the facts. The evidence that I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression that he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or in the pretext call, and my assessment of other evidence including documents and other material.