R v CR - [2020] QDC 269

DISTRICT COURT OF QUEENSLAND

CITATION:

R v CR [2020] QDC 269

PARTIES:

THE QUEEN

(Crown)

v

CR

(Defendant)

FILE NO:

Ind 318/20

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

23 October 2020

DELIVERED AT:

Beenleigh

HEARING DATE:

21 – 23 September 2020

JUDGE:

Chowdhury DCJ

ORDER:

Count 1 (Maintaining a sexual relationship with a child): GUILTY

Count 2 (Indecent treatment of a child under 16): GUILTY

Count 3 (Rape): GUILTY

Count 4 (Rape): GUILTY

Count 5 (Rape): NOT GUILTY

Alternatively

Count 5 (Carnal knowledge of a child under 16): GUILTY

Count 6 (Carnal knowledge of a child under 16, under care): GUILTY

Count 8 (Carnal knowledge of a child under 16, under care): NOT GUILTY

Count 9 (Carnal knowledge of a child under 16, under care): NOT GUILTY

Count 11 (Carnal knowledge of a child under 16): GUILTY

Count 12 (Rape): NOT GUILTY

Count 13 (Rape): NOT GUILTY

CATCHWORDS:

SEXUAL OFFENCES – TRIAL BY JUDGE ALONE

LEGISLATION:

Criminal Code 1899 (Qld)

CASES:

Longman v The Queen (1989) 168 CLR 79

R v Markuleski (2001) 52 NSWLR 82

R v Sunderland [2020] QCA 156

R v UC [2008] QCA 194

Robinson v The Queen (1999) 197 CLR 162

COUNSEL:
C. Birkett for the Crown

M Bonasia for the defendant

SOLICITORS:
Director of Public Prosecutions for the Crown

McMillan Criminal Law for the defendant

Introduction

The accused CR is charged with the following offences:
Count 1 – that between 12 August 2001 and 3 July 2005 at Jimboomba and elsewhere in the State of Queensland [the accused] being an adult, maintained an unlawful sexual relationship with [STC], a child under 16 years.
Count 2 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] unlawfully and indecently dealt with [STC], a child under 16 years.
Count 3 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC].
Count 4 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC].
Count 5 – That on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC].
Count 6 – That on a date unknown between 31 December 2002 and 3 July 2005 at Crestmead in the State of Queensland [the accused] had unlawful carnal knowledge of [STC], a child under 16 years, and [the accused] had [STC] under his care.
Count 7 – That on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years.
Count 8 – that on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba or elsewhere in the State of Queensland [the accused] had…

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 CR

Details

AGLC: R v CR [2020] QDC 269
Case: [2020] QDC 269
Decision Date: 23 October 2020

CaseChat Overview and Summary

The defendant, CR, was charged with a series of sexual offences against a child, with the case being heard by the District Court of Queensland. The complainant, who was under the age of 16 at the time of the alleged offences, detailed a history of sexual abuse by the defendant, from the time she was approximately 13 years old until she turned 16. The charges included maintaining a sexual relationship with a child, indecent treatment, and various instances of rape and carnal knowledge. The trial was conducted without a jury, by a judge alone, a procedure permitted under the applicable legislation for serious indictable offences.

The central legal issues for the court to determine were the credibility of the complainant's evidence, the corroboration of specific incidents, and the application of the law to the facts as presented. The court had to assess the weight of the complainant's testimony, which was detailed and consistent across multiple counts, and consider whether each element of the charged offences had been proven beyond reasonable doubt. Corroboration was required for certain counts, and the court examined the evidence to see if it sufficiently supported the complainant's account.

The court found the complainant's evidence to be credible and consistent, and in many instances, corroborated by other evidence. It was noted that the complainant's testimony was detailed and that there were no significant inconsistencies. The court accepted that the defendant had maintained a sexual relationship with the complainant and had committed the various acts alleged. For some counts where the court found the complainant not guilty, it was determined that the prosecution had not met the required standard of proof. The court found the defendant guilty on several counts, including maintaining a sexual relationship with a child, indecent treatment, and multiple instances of carnal knowledge and rape.

The court ordered that the defendant be found guilty on certain counts and not guilty on others, as detailed in the orders section of the judgment. The defendant was convicted of maintaining a sexual relationship with a child, indecent treatment of a child under 16, and various counts of rape and carnal knowledge of a child under 16. For some counts where the defendant was acquitted of rape but found guilty of a lesser offence, the court provided alternative findings of guilt for those specific charges.

Orders

Orders of the court

Count 1 (Maintaining a sexual relationship with a child): GUILTY

Count 2 (Indecent treatment of a child under 16): GUILTY

Count 3 (Rape): GUILTY

Count 4 (Rape): GUILTY

Count 5 (Rape): NOT GUILTY

Alternatively

Count 5 (Carnal knowledge of a child under 16): GUILTY

Count 6 (Carnal knowledge of a child under 16, under care): GUILTY

Count 8 (Carnal knowledge of a child under 16, under care): NOT GUILTY

Count 9 (Carnal knowledge of a child under 16, under care): NOT GUILTY

Count 11 (Carnal knowledge of a child under 16): GUILTY

Count 12 (Rape): NOT GUILTY

Count 13 (Rape): NOT GUILTY

Background

Background to the litigation

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Evidence

Evidence Before The Court

The following particulars were provided in writing at the commencement of the trial, and were marked for identification “A”: Count 1: The complainant describes sexual offending by the defendant from about the age of 13 until she turned 16. [The accused] maintained a sexual relationship with [STC]. The relationship included the accused making contact with the complainant’s vagina and/or penetrating her vagina with his finger/s and/or penetrating her vagina with his penis. Count 2: The complainant describes this as being the first incident of sexual contact, she was sleeping over at the defendant’s house. The accused’s hand made contact with the complainant’s vagina. Count 3: The complainant describes sleeping over in the front spare room at the defendant’s house when he came in and offended against her. He penetrated her vagina with his finger/s. Count 4: The complainant describes a time when she was 13 sleeping in the dining room in Hill Street. The accused penetrated the complainant’s vagina with his penis. Count 5: The complainant describes an occasion when the defendant raped her while she was menstruating. He penetrated her vagina with his penis. Count 6: The complainant describes an occasion where the accused drove her home after he refereed a soccer game. He stopped at his work on the way home, and penetrated the complainant’s vagina with his penis. Count 7: The complainant describes this as being the last particular occasion she can remember in 2003. She describes it being winter, she was in his spare room, he came in, and had intercourse with her. Count 8: The complainant describes an occasion where the defendant was driving her to work at McDonald’s and he had intercourse with her; he was wearing a fluorescent jacket.Count 9: The complainant describes and occasion when the accused was driving her to her friend’s house. He pulled over on the side of the road at a spot he didn’t usually stop at, and had intercourse with her. Count 10: The complainant describes an occasion the pair were having intercourse in the defendant’s house in the spare room. They both heard a noise, paused, the defendant left, but returned a short time later and continued having intercourse.Count 11: The complainant describes an occasion when she and her family went camping at a property in the Gladstone region. She describes an incident where her and the defendant had intercourse in her tent. Count 12: The complainant describes an occasion where she was in a caravan, and she woke up to the defendant with his penis in her mouth, and he ejaculated inside her mouth. Count 13: The complainant describes an occasion the accused put his penis in her anus. She initially allowed him to try, told him no, and that she didn’t want it anymore, but the defendant put his penis back in her anus. Evidence of the complainant The complainant gave evidence that she met the accused through her mother. Her mother met the accused online, and when she was about 10 or 11 years of age, her mother and the rest of her family went to the accused’s house in Jimboomba, in particular in Hill Street. At that time she and her family were living in Murwillumbah in New South Wales.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v CR [2020] QDC 269
PARTIES:	THE QUEEN (Crown) v CR (Defendant)
FILE NO:	Ind 318/20
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	23 October 2020
DELIVERED AT:	Beenleigh
HEARING DATE:	21 – 23 September 2020
JUDGE:	Chowdhury DCJ
ORDER:	Count 1 (Maintaining a sexual relationship with a child): GUILTY Count 2 (Indecent treatment of a child under 16): GUILTY Count 3 (Rape): GUILTY Count 4 (Rape): GUILTY Count 5 (Rape): NOT GUILTY Alternatively Count 5 (Carnal knowledge of a child under 16): GUILTY Count 6 (Carnal knowledge of a child under 16, under care): GUILTY Count 8 (Carnal knowledge of a child under 16, under care): NOT GUILTY Count 9 (Carnal knowledge of a child under 16, under care): NOT GUILTY Count 11 (Carnal knowledge of a child under 16): GUILTY Count 12 (Rape): NOT GUILTY Count 13 (Rape): NOT GUILTY
CATCHWORDS:	SEXUAL OFFENCES – TRIAL BY JUDGE ALONE
LEGISLATION:	Criminal Code 1899 (Qld)
CASES:	Longman v The Queen (1989) 168 CLR 79 R v Markuleski (2001) 52 NSWLR 82 R v Sunderland [2020] QCA 156 R v UC [2008] QCA 194 Robinson v The Queen (1999) 197 CLR 162
COUNSEL:	C. Birkett for the Crown M Bonasia for the defendant
SOLICITORS:	Director of Public Prosecutions for the Crown McMillan Criminal Law for the defendant