R v Dem

Case [2024] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:

R v DEM [2024] QDC 44

PARTIES:

THE KING

v

DEM

(defendant)

FILE NO:

Indictment 2295 of 2022

DIVISION:

Trial

PROCEEDING:

Trial (Judge Only)

ORIGINATING COURT:

District Court of Queensland at Brisbane

DELIVERED ON:

9 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 20 February 2024

JUDGE:

Kent KC DCJ

VERDICT:

Not Guilty.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – RAPE - Trial before Judge without jury – Verdict – Where defendant is charged with one count of rape – Anal penetration – Where the proceedings involved a Tagalog interpreter – Where there was delay in complaint by the complainant – Where the complainant did not particularise anal or vaginal rape in initial complaint – Where the complaint followed a preceding criminal complaint by the complainant’s child – Where allegations of other sexual or discreditable conduct of the defendant were advanced – Whether delay caused forensic disadvantage to defendant – Where the complainant had provided inconsistent versions and had motive to lie – Whether Robinson direction necessary – Whether the prosecution case met the threshold of beyond reasonable doubt – Where the finding was not guilty on the sole count on the indictment

LEGISLATION:

Criminal Code Act 1899 (Qld) ss 349, 614, 615, 615B, 615C, 632

Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A

CASES:

Longman v The Queen (1989) 168 CLR 79

R v Cotic [2003] QCA 435

R v MCJ [2017] QCA 11

R v Pentland [2020] QSC 231

R v Pollard [2020] QCA 188

R v Reynolds [2015] QCA 111

R v VM [2022] QCA 88

Robinson v R [1999] 197 CLR 162

Tully v The Queen [2006] 230 CLR 234

COUNSEL:

D Bainbridge for the prosecution
E Boddice for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the prosecution
Wallace O’Hagan Lawyers for the defendant

Introduction

  1. The defendant is charged with one count of rape alleged to have been committed on a date unknown between 11 November 2010 and 30 June 2011 at Boondall in the State of Queensland.  The particulars, broadly, are that he is alleged to have penetrated the complainant’s anus with his penis without consent.  Although the date is not precisely identified, the timeframe is fixed as being an occasion some months following the birth of the complainant’s daughter in November 2010.

  2. An order was made pursuant to ss 614 and 615 of the Criminal Code that the defendant be tried by a Judge sitting without a jury. Section 615B requires me to apply so far as practicable the same principles of law and procedure as if there were a jury. Section 615C(3) requires that I record:

    (a)The principles of law that I have applied;

    (b)The findings of fact on which I have relied.

    The elements of the offence

  3. Before the defendant could be found guilty of the charge, I must be satisfied beyond reasonable doubt of the following elements:

    (a)That the defendant penetrated, to any extent, the anus of the complainant…

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Details
AGLC
R v Dem [2024] QDC 44
Case
[2024] QDC 44
Decision Date

CaseChat Overview and Summary

In this case, the defendant was charged with one count of rape, specifically involving anal penetration, and the trial was conducted before a judge sitting alone without a jury. The central dispute was whether the defendant had raped the complainant, who provided evidence through a Tagalog interpreter due to her limited English proficiency. The proceedings involved a significant delay in the complainant’s complaint, which she did not initially particularise as anal or vaginal rape. Additionally, the complainant had a motive to lie, and there were allegations of other sexual or discreditable conduct by the defendant, which were not deemed conclusive by the court.

The legal issues before the court included whether the delay in the complainant’s complaint caused a forensic disadvantage to the defendant, the consistency and credibility of the complainant’s evidence, and whether a Robinson direction was necessary given the circumstances. The court also needed to determine whether the prosecution had established the offence beyond reasonable doubt. The court concluded that the prosecution’s case did not meet the threshold of proof beyond reasonable doubt due to significant credibility issues with the complainant’s evidence, the delay in the complaint, and the lack of sufficient evidence to support the allegations against the defendant.

The court found the complainant's evidence to be inconsistent, particularly regarding the detail of anal rape, which was not initially reported to the police. The court also recognised the forensic disadvantage caused by the delay in the complaint, which prevented the defendant from fully testing the complainant's evidence. Furthermore, the court found the complainant's demeanour and the allegations of other discreditable conduct by the defendant insufficient to establish guilt beyond reasonable doubt. As a result, the court acquitted the defendant on the sole count of the indictment. The court did not find it necessary to provide a Robinson direction, as the scrutiny of the evidence was sufficient to conclude that the prosecution had not met the required standard of proof.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There are a number of general principles which apply to all criminal prosecutions and which I must apply. They were conveniently stated by Martin J in R v Pentland [2020] QSC 231 at [12]-[18]. I reproduce and have applied them:“[12] The prosecution has the onus of establishing the offence charged beyond reasonable doubt. There is no onus on the defendant. [13]In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial. [14]The issues that exist must be resolved by taking into account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts. [15]The evidence which 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 which 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 at the committal, and my assessment of other evidence including documents and other material. [16]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. 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. [17]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. [18]I also bear in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw. In this case, the passage of time between the events surrounding the charge and the giving of evidence in this trial is of particular importance.”The evidence The only evidence at the trial was that of the complainant, who is a mature woman, now 43 years of age. She was born in the Philippines and moved to Australia at some time in the past; certainly by 2009. Although she is fluent in English (according to the way she gave evidence at the trial; more of this below) her native language is Tagalog, a language spoken in the Philippines and accordingly the complainant gave evidence with the assistance of a Tagalog interpreter. She gave evidence from a remote witness room in the court complex on 19 February 2024 and her evidence was recorded as it was given. The assistance of the interpreter was via a telephone connection. I heard the evidence as it was given and have had access to the transcript. Interpretation

Decision

Reasons for decision

In all the circumstances, the defence argument is that there are significant credibility issues with the complainant’s evidence. Further:- I must take into account the significant forensic disadvantage flowing from the delay; - There is a motivation to lie; and - In the context of a Robinson direction and the factors giving rise to it, there is simply too much concern about the quality of the complainant’s unsupported evidence to reach a conclusion of guilt beyond a reasonable doubt. Scrutinising it with great care produces the result that it could not be accepted to the required standard.Conclusion It is central that the complainant’s evidence must be carefully assessed; it is the only evidence proving the offence. Referring to some of the features mentioned as assisting the assessment of witnesses in fact finding in the Benchbook:- Demeanour: I do not find the complainant’s demeanour to be of much help, either in favour of or against her creditworthiness. I do not accept her demeanour was damaging to her credit, particularly where English is her second language (see [10] above);- Unlikelihood: Her version contains features which are somewhat unlikely, in my view; in particular, it is difficult to accept that she allowed her daughter to be cared for unsupervised by the defendant in the circumstances in paragraph [64](c) above. This might be easier to understand if it occurred under protest, but the complainant seems to have been somewhat sanguine about it, for reasons I find difficult to accept;- Consistency: Her recent complaint of anal rape does in my view amount to an inconsistency;- Generally I take into account the features outlined in [64] above.Applying the Robinson direction, her evidence must therefore be scrutinised with great care before concluding guilt.Other discreditable conduct I would find it difficult to make definitive findings as to the previous discreditable conduct referred to by the prosecution. It may well be that there were examples of previous misbehaviour by the defendant, but the evidence thereof is not so compelling as to allow definite findings to be made. Thus these matters do not provide a sufficient context to allow the use of them in the way contended for by the prosecution; they do not explain what would otherwise seem curious, in particular the curious acquiescence in the unsupervised care of the daughter.Is the complainant’s evidence inconsistent? I do find the complainant’s evidence to have been inconsistent in that she deliberately withheld the detail from investigating police that her complaint was of anal rape. This is, as outlined, a challenge to her creditworthiness.Delay There is also significant forensic disadvantage to the defendant as a result of the delay. Thus the complainant’s evidence has not been able to be tested fully nor has the defendant been able to bring forward evidence to challenge it. While this does not, of itself, make it dangerous or unsafe to convict – see [56] above – the disadvantage is taken into account.Result

Ratio Decidendi

Legal Principle Established

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