R v CTD - [2022] QDC 22

DISTRICT COURT OF QUEENSLAND

CITATION:

R v CTD [2022] QDC 22

PARTIES:

R

v

CTD

(defendant)

FILE NO:

705/21

DIVISION:

Crime

PROCEEDING:

Trial - Judge alone

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 February 2022

DELIVERED AT:

Brisbane

HEARING DATES:

8 February 2022; 9 February 2022; 10 February 2022

JUDGE:

Loury QC DCJ

ORDER:

1.   Count 1 – guilty of indecent dealing with a child under 16 under 12.

2.   Count 2 – guilty of indecent dealing with a child under 16 under 12.

3.   Count 3 – guilty of indecent dealing with a child under 16 under 12.

4.   Count 4 – guilty of indecent dealing with a child under 16 under 12.

5.   Count 5 – guilty of rape.

6.   Count 6 – guilty of indecent dealing with a child under 16 under 12.

7.   Count 7 – not guilty.

8.   Count 8 – guilty of rape.

CASES:

Hofer v The Queen [2021] HCA 36

R v Barlow (1997) 188 CLR 1

R v Markuleski [2001] 52 NSWLR 82

COUNSEL:
S Harrison for the Crown

S Lynch for the Defendant

SOLICITORS:
Office of the Director of Public Prosecutions for the Crown

Files Stibbe Lawyers for the Defendant

Introduction

The defendant is charged with eight offences, two counts of rape and six counts of indecent treatment of a child under 16; under 12 who is his lineal descendant. The complainant in each of those counts is his granddaughter. He is her maternal grandfather. The offending is said to have occurred on unknown dates in 2018 for counts 1 and 2; unknown dates in 2019 for counts 4 and 5; on 25 or 26 August 2019 for count 6 and on unknown dates in the first half of 2020 for counts 7 and 8. The defendant entered pleas of not guilty at the commencement of his trial. The trial proceeded pursuant to an order made by his Honour Judge Smith on 31 January 2022 that it proceed by judge sitting without a jury.
As this is a criminal trial, the defendant is presumed to be innocent. The burden of proving the guilt of the defendant falls on the prosecution. The standard of proof is beyond a reasonable doubt. I must be satisfied that the prosecution has proved beyond reasonable doubt, each of the elements of the offences including the circumstances of aggravation.
The evidence in the trial comprised the following:
1.evidence from the complainant’s mother, Mrs S;
2.evidence from the complainant’s father, Mr S;
3.evidence of the complainant, admitted pursuant to section 93A of the Evidence Act 1977;
4.evidence of the complainant, pre-recorded pursuant to section 21AK of the Evidence Act 1977 on 14 September 2021;
5.evidence from the complainant’s brother, O; in the form of a section 93A statement and pre-recorded evidence taken on 14 September 2021;
6.evidence from the complainant’s sister, B; in the form of a section 93A statement and pre-recorded evidence taken on 14 September 2021;
7.evidence from the complainant’s friend, C; in…

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 CTD

Details

AGLC: R v CTD [2022] QDC 22
Case: [2022] QDC 22
Decision Date: 18 February 2022

CaseChat Overview and Summary

The defendant was charged with multiple counts of indecent dealing and rape against a child under the age of 16. The incidents spanned several locations, including bedrooms and poolside areas, and were alleged to have occurred over a period of time, starting when the complainant was eight years old. The case was heard in the relevant Australian court, where the defendant denied all allegations.

The court was tasked with determining the credibility and reliability of the complainant's evidence, given that her testimony was provided through special measures under the Evidence Act 1977, which included recording her evidence via audio-visual link and ensuring a support person was present. The court acknowledged that these measures did not inherently increase or decrease the weight of her testimony. The defendant's testimony was also considered, but the burden of proof remained on the prosecution to establish the complainant's claims beyond reasonable doubt.

After evaluating the complainant's evidence in detail, the court found that it was satisfied beyond reasonable doubt of the truthfulness and accuracy of her account for each of the charges except counts 7 and 8, where the complainant's evidence was not deemed reliable. The court found the defendant guilty on counts 1, 2, 3, 4, 5, 6, and 8, and not guilty on counts 7.

The court issued final orders convicting the defendant on counts 1, 2, 3, 4, 5, 6, and 8, while acquitting him on counts 7. The specific charges and corresponding convictions included indecent dealing with a child under 16, and rape.

Orders

Orders of the court

1. Count 1 – guilty of indecent dealing with a child under 16 under 12.

2. Count 2 – guilty of indecent dealing with a child under 16 under 12.

3. Count 3 – guilty of indecent dealing with a child under 16 under 12.

4. Count 4 – guilty of indecent dealing with a child under 16 under 12.

5. Count 5 – guilty of rape.

6. Count 6 – guilty of indecent dealing with a child under 16 under 12.

7. Count 7 – not guilty.

8. Count 8 – guilty of rape.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The particulars of the offences are as follows: (a)Count 1 (“First Bedroom Incident”) – The defendant rubbed his penis on the complainant’s stomach and/or legs, skin on skin;(b)Count 2 (“Second Bedroom Incident”) – The defendant rubbed his penis on the complainant’s vagina, skin on skin;(c)Count 3 (“First Pool Incident”) – The defendant rubbed his penis on the complainant’s vagina, skin on skin;(d)Count 4 (“Second Pool Incident”) – The defendant rubbed his penis on the complainant’s vagina, skin on skin;(e)Count 5 (“Second Pool Incident”) – The defendant touched inside the complainant’s vagina with his hand;(f)Count 6 (“Gold Coast Incident”) – The defendant rubbed his penis on the complainant’s chest and/or stomach and/or legs, skin on skin;(g)Count 7 (“Third Pool Incident”) – The defendant touched the complainant’s vagina with his penis and/or hand, skin on skin;(h)Count 8 (“Third Pool Incident”) – The defendant touched inside the complainant’s vagina with his finger/s.Summary of complainant’s evidence The complainant was nine years of age when interviewed by police on 30 July 2020. She said “my poppy would touch my private parts” and “he’d rub his on me”. She described the last occasion he touched her being at her cousin’s birthday. Her family, her cousin’s family, the defendant and his wife, and others were staying at a house on the Gold Coast for the event. The evidence of Mrs and Mr S confirmed that this event occurred around 26 August 2019. The complainant said that her mother and father left to go to the beach and her “Nanny” left to have a shower. The complainant’s brother and sister were playing a card game. The complainant said that she had entered the defendant and his wife’s bedroom to say good morning. She was talking to them about a painting that was hanging above the bed. When her “Nanny” left the room to have a shower the defendant laid the complainant on his bed and rubbed his “private parts” on her. Later in her interview she was again questioned about this event. She said that when her Nanny left to have a shower the defendant laid her down on the bed and said “finally we get a moment to ourselves”. He removed his pants and rubbed his penis all over her stomach and legs. She said that his penis wasn’t soft, it was “kind of squishy”. She said that she didn’t touch it but that the defendant was “squishing it”. She said that he was holding it and “squishing it”, to move it around. It felt hard on her skin. She went on to say that he moved his bottom half around (a reference to his hips) and that action would move his penis. She described him moving his penis over her nipples. She demonstrated that he would move his penis against her chest (between what would be breasts). She said that she would have been eight years of age and she thought her cousin’s birthday was in 2019. (Count 6). The complainant described that the offending first started when she was eight years of age. The evidence of her mother established that she was born on 27 June 2011. She said that the defendant took her to his neighbour’s house where there was a pool with the intention of going for a swim. The complainant said that the defendant took off his togs and she could see his “private parts” (she was able to identify what she meant by this expression as the defendant’s penis). She was swimming around the defendant and he grabbed her legs. She was wearing a bikini and he took her “bottoms” off. While hugging her he rubbed his penis on her private parts (she was able to identify what she meant by this expression as “vagina”). She said that his “thing” was quite big and he rubbed it all over hers. He said to her “do you like this?”. She nodded her head. She said that she received the bikinis for Christmas in the year 2018. This event occurred “a month or two” after she received the bikinis. (Count 3).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The defendant again denied that the door to his bedroom at his home was ever shut. He said that it “is never closed”. Even when visitors were staying, he said that the bedroom door was never shut. Considerations – general The issue in the trial with respect to each of the offences is whether I am or can be satisfied beyond reasonable doubt of the essential features of the complainant’s evidence. That requires me to assess her credibility and the reliability of her evidence. Her evidence (as with all children in this trial) was given by way of section 93A statement and pre-recorded evidence pursuant to section 21AK of the Evidence Act 1977. For each of those witnesses their evidence was given by audio-visual link from a remote room when the witness, with the presence of a support person. The witness could not see the defendant. I direct myself, pursuant to section 21AW(2) of the Evidence Act 1977 that these measures used are the routine practices of the court for taking the evidence of children. I draw no inference as to the defendant’s guilt from these measures; the probative value of the evidence is not increased or decreased because of these measures and I give the evidence no greater or lesser weight because of these measures. As the defendant gave evidence in his defence, I acknowledge that he has not assumed the responsibility of proving anything. I caution myself against making a choice between his evidence and that, in particular, of the complainant. The prosecution, in carrying the burden of proof must persuade me that the complainant’s evidence is true and accurate beyond a reasonable doubt, despite the defendant’s sworn testimony. Whilst a motive was suggested as to why the complainant might have made the allegations up, I bear in mind that it is nonetheless for the prosecution to satisfy me that the complainant is telling the truth and not for the defendant to establish why she might be lying. I do not consider that it is at all likely that the complainant would have concocted these allegations in order to avoid visiting her paternal grandparents. It is not her paternal grandfather against whom she made the allegations but rather her maternal grandfather. Despite my rejecting that suggested motive to lie, I must not jump to a conclusion that the complainant is telling the truth. Rather, after a consideration of the evidence that I do accept, I must be satisfied beyond reasonable doubt of the essential features of her evidence, if I am to be satisfied of the guilt of the defendant on any of the offences. In considering the complainant’s evidence I have considered each charge separately, evaluating the evidence relating to that particular charge in deciding whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements. I am also cognisant of the fact that my general assessment of the complainant as a witness is relevant to each of the charges. If I have a doubt about one or more aspects of her evidence whether by reference to her demeanour or for some other reason, I must take that into account in assessing the truthfulness and reliability of her evidence generally.[1][1]R v Markuleski [2001] 52 NSWLR 82.Consideration – complainant’s evidence

CITATION:	R v CTD [2022] QDC 22
PARTIES:	R v CTD (defendant)
FILE NO:	705/21
DIVISION:	Crime
PROCEEDING:	Trial - Judge alone
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 February 2022
DELIVERED AT:	Brisbane
HEARING DATES:	8 February 2022; 9 February 2022; 10 February 2022
JUDGE:	Loury QC DCJ
ORDER:	1. Count 1 – guilty of indecent dealing with a child under 16 under 12. 2. Count 2 – guilty of indecent dealing with a child under 16 under 12. 3. Count 3 – guilty of indecent dealing with a child under 16 under 12. 4. Count 4 – guilty of indecent dealing with a child under 16 under 12. 5. Count 5 – guilty of rape. 6. Count 6 – guilty of indecent dealing with a child under 16 under 12. 7. Count 7 – not guilty. 8. Count 8 – guilty of rape.
CASES:	Hofer v The Queen [2021] HCA 36 R v Barlow (1997) 188 CLR 1 R v Markuleski [2001] 52 NSWLR 82
COUNSEL:	S Harrison for the Crown S Lynch for the Defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Files Stibbe Lawyers for the Defendant