R v CX - [2021] QChC 46

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v CX [2021] QChC 46

PARTIES:

R

V

CX
(defendant)

FILE NO:

CCJ 438/21

DIVISION:

Childrens Court

PROCEEDING:

Trial – Judge alone

ORIGINATING COURT:

Childrens Court of Queensland, Brisbane

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8, 9,10 and 13 December 2021

JUDGE:

Jackson QC, DCJ

ORDER:

Not guilty on all counts on IND 438/21.

CATCHWORDS:

CRIMINAL LAW – JUDGE ONLY TRIAL – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – RAPE AND SEXUAL OFFENCES – VERDICT – whether the complainant and defendant engaged in consensual sexual activity – where the complainant is a child – whether defendant believed, on reasonable grounds, that the child was of or above the age of 16 years – where the defendant’s position is that he had consensual sexual intercourse with the complainant – where inconsistent evidence between accounts of the complainant and preliminary complaint witnesses – where police investigation lacking

LEGISLATION:

Criminal Code Act 1899 (Qld), ss 210(1)(c), 215, 349(1), 615B, 615C
Evidence Act 1977 (Qld), ss 21AK, 93A

CASES:

R v Pentland [2020] QSC 231, followed

COUNSEL:
S Hedge for the Crown

I Munsie for the Defendant

SOLICITORS:
Office of the Director of Public Prosecutions (Qld) for the Crown
MacDonald Law for the Defendant

Introduction

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. Section 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.
The defendant is charged with five offences to which he has pleaded not guilty:
“That on or about the nineteenth day of June 2021 at Wynnum in the State of Queensland, the defendant raped the complainant.
That on or about the nineteenth day of June 2021 at Wynnum in the State of Queensland, the defendant unlawfully procured the complainant, a child under 16 years, to commit an indecent act.
That on or about the nineteenth day of June 2021 at Wynnum in the State of Queensland, the defendant raped the complainant.
That on or about the nineteenth day of June 2021 at Wynnum in the State of Queensland, the defendant raped the complainant.
That on or about the nineteenth day June 2021 at Wynnum in the State of Queensland, the defendant raped the complainant.”
The crown particulars are that:
“Count 1The defendant penetrated the complainant’s vagina/vulva with his penis, without her giving her consent.
Count 2The defendant put the complainant’s hand on his penis. She was 12 years old.
Count 3The defendant penetrated the complainant’s vagina/vulva with his penis, without her giving her consent. The complainant was on top of the defendant.
Count 4At a point during the episode, the defendant penetrated the complainant’s vagina/vulva with his finger or fingers,…

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 CX

Details

AGLC: R v CX [2021] QChC 46
Case: [2021] QChC 46
Decision Date: 16 December 2021

CaseChat Overview and Summary

In the case of R v CX, the defendant was accused of raping and indecently dealing with a complainant, who was a child at the time of the alleged offences. The central issue for the court was to determine whether the defendant and the complainant had engaged in consensual sexual activity, given the complainant’s age. The court also had to assess whether the defendant held a reasonable belief that the complainant was 16 years old or older, which would negate the charges of rape and related offences under the circumstances.

The court meticulously evaluated the testimonies of the complainant and the defendant, along with the evidence from the police investigation. The complainant alleged that the defendant engaged in non-consensual sexual acts, while the defendant claimed that the sexual activity was consensual and that he reasonably believed the complainant was of legal age. The court took into account the inconsistencies in the complainant's statements, the police interview procedures, and the overall credibility of the evidence provided by both parties. The court determined that the defendant’s belief that the complainant was 16 or older was reasonable and grounded in the information available to him at the time.

Consequently, the court concluded that the prosecution had not proven the allegations of rape and related offences beyond a reasonable doubt. The court accepted the defendant’s evidence that he believed the complainant was 16 years old or older, based on her assertion and her appearance, and found no reason to doubt his belief. The court found the defendant not guilty on all counts related to the charges of rape, carnal knowledge, and indecent dealing.

The final orders of the court were that the defendant was acquitted on all counts in the indictment numbered IND 438/21.

Orders

Orders of the court

Not guilty on all counts on IND 438/21.

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 On 18 June 2021 the complainant and her best friend AJ decided that they wished to run away from their respective homes together. They travelled by train from their school at Balmoral to the Wynnum Central Train Station. In Wynnum they met a group of boys which included the defendant. They spent some significant time in each other’s company that evening. It is alleged that the defendant raped the complainant and indecently dealt with her. Evidence First interview with the complainant The complainant first participated in an interview with police on 19 June 2021, a large part of which occurred when she and AJ, (who was also in the room where the offending conduct is alleged to have occurred) were together (“the first interview”). The first interview was recorded on the body worn camera of Senior Constable Cara Danello (“SC Danello”).[2] [2]Exhibit 16. During the first interview, the complainant described the sleeping arrangements when she and AJ went to the defendant’s house. SC Danello identified at this stage that AJ was in the room. The complainant said she (AJ) heard everything, which AJ confirmed, (although she did not in subsequent interviews) but the complainant gave subsequent evidence inconsistent with this. Despite it being clear that AJ was going to be a witness of some significance, SC Danello did not separate the complainant and AJ. AJ only ceased to take part in the conversation when she became uncomfortable with the subject matter being discussed. As I have set out below each of the police officers who gave evidence recognised that this was not best practice for interviewing given the risks of contamination. The complainant and AJ each indicated that the defendant had told them he had weapons in the house – a gun and a taser. The complainant explained that she agreed to get into the defendant’s bed when he said that he was unable to sleep without anyone sleeping with him. She explained that it was after that that he started touching her. AJ said that the complainant was asking her whether she should go and sleep with him and she said no. AJ explained that she was sitting down with the complainant’s phone watching the complainant and the defendant and that she heard some weird noises and then knew something was happening, but she just ignored it. AJ explained that she woke up and the complainant was on her phone, and when AJ lifted the blanket, she saw that the complainant was not wearing any clothes. It is not clear whether she meant she had underwear on as she has referred to elsewhere in her evidence.[3] At that point AJ started yelling at them. [3]Page 30. The complainant explained that the offending commenced sometime after she moved into his bed. He said words to the effect of “let’s fuck”. She said she did not want to. He began to “finger” her. She tried to pull his hands away. He then started removing her pants. Soon after he got on top of her and penetrated her vagina with his penis. She explained that he then got off and made her give him a “hand job”. Following that, he made her get on top of him. Throughout the offending he was choking her. He made her give him a hickey. The complainant said that she stayed in his bed all night because he would not let her go. She gave no evidence at this stage about getting up out of bed to go to the toilet after having been “fingered” and finding that she was bleeding from her vagina. Complainant’s section 93A statement

Evidence

Evidence Before The Court

It is alleged that the defendant raped the complainant and indecently dealt with her. Evidence First interview with the complainant The complainant first participated in an interview with police on 19 June 2021, a large part of which occurred when she and AJ, (who was also in the room where the offending conduct is alleged to have occurred) were together (“the first interview”). The first interview was recorded on the body worn camera of Senior Constable Cara Danello (“SC Danello”).[2] [2]Exhibit 16. During the first interview, the complainant described the sleeping arrangements when she and AJ went to the defendant’s house. SC Danello identified at this stage that AJ was in the room. The complainant said she (AJ) heard everything, which AJ confirmed, (although she did not in subsequent interviews) but the complainant gave subsequent evidence inconsistent with this. Despite it being clear that AJ was going to be a witness of some significance, SC Danello did not separate the complainant and AJ. AJ only ceased to take part in the conversation when she became uncomfortable with the subject matter being discussed. As I have set out below each of the police officers who gave evidence recognised that this was not best practice for interviewing given the risks of contamination. The complainant and AJ each indicated that the defendant had told them he had weapons in the house – a gun and a taser. The complainant explained that she agreed to get into the defendant’s bed when he said that he was unable to sleep without anyone sleeping with him. She explained that it was after that that he started touching her. AJ said that the complainant was asking her whether she should go and sleep with him and she said no. AJ explained that she was sitting down with the complainant’s phone watching the complainant and the defendant and that she heard some weird noises and then knew something was happening, but she just ignored it. AJ explained that she woke up and the complainant was on her phone, and when AJ lifted the blanket, she saw that the complainant was not wearing any clothes. It is not clear whether she meant she had underwear on as she has referred to elsewhere in her evidence.[3] At that point AJ started yelling at them. [3]Page 30. The complainant explained that the offending commenced sometime after she moved into his bed. He said words to the effect of “let’s fuck”. She said she did not want to. He began to “finger” her. She tried to pull his hands away. He then started removing her pants. Soon after he got on top of her and penetrated her vagina with his penis. She explained that he then got off and made her give him a “hand job”. Following that, he made her get on top of him. Throughout the offending he was choking her. He made her give him a hickey. The complainant said that she stayed in his bed all night because he would not let her go. She gave no evidence at this stage about getting up out of bed to go to the toilet after having been “fingered” and finding that she was bleeding from her vagina. Complainant’s section 93A statement

Decision

Reasons for decision

I accept the defendant’s version as to the complainant telling him that she was also 16 and that he believed she was 16. I accept his evidence that there was nothing about the way she acted or her appearance which caused him to doubt what she had told him. I accept that there were reasonable grounds for his belief. Conclusion My conclusion is that the evidence as a whole (including the defendant’s version) does not establish the rape allegations to the required standard. Accordingly, in respect of Counts 1, 3, 4 and 5, I find the defendant not guilty of rape. Further, I am satisfied that the defendant believed on reasonable grounds that the complainant was 16 or older and thus I find the defendant not guilty on the alternative charges of carnal knowledge of the complainant on counts 1, 3 and 5 and of indecent dealing on count 4 and procuring the complainant to perform an indecent act on count 2.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v CX [2021] QChC 46
PARTIES:	R V CX (defendant)
FILE NO:	CCJ 438/21
DIVISION:	Childrens Court
PROCEEDING:	Trial – Judge alone
ORIGINATING COURT:	Childrens Court of Queensland, Brisbane
DELIVERED ON:	16 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	7, 8, 9,10 and 13 December 2021
JUDGE:	Jackson QC, DCJ
ORDER:	Not guilty on all counts on IND 438/21.
CATCHWORDS:	CRIMINAL LAW – JUDGE ONLY TRIAL – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – RAPE AND SEXUAL OFFENCES – VERDICT – whether the complainant and defendant engaged in consensual sexual activity – where the complainant is a child – whether defendant believed, on reasonable grounds, that the child was of or above the age of 16 years – where the defendant’s position is that he had consensual sexual intercourse with the complainant – where inconsistent evidence between accounts of the complainant and preliminary complaint witnesses – where police investigation lacking
LEGISLATION:	Criminal Code Act 1899 (Qld), ss 210(1)(c), 215, 349(1), 615B, 615C Evidence Act 1977 (Qld), ss 21AK, 93A
CASES:	R v Pentland [2020] QSC 231, followed
COUNSEL:	S Hedge for the Crown I Munsie for the Defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Qld) for the Crown MacDonald Law for the Defendant