R v Desatge; R v Dawita
[2024] QSC 205
•17 September 2024
SUPREME COURT OF QUEENSLAND
CITATION: R v Desatge; R v Dawita [2024] QSC 205 PARTIES: THE KING v DESATGE, Tane Saul THE KING v DAWITA, Sinitta Tammy FILE NO/S: Indictment No 95 of 2023 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING Supreme Court at Toowoomba COURT: DELIVERED ON: 17 September 2024 DELIVERED AT: Toowoomba HEARING DATE: 22, 23, 24, 25, 26, 29, 30 and 31 July 2024; 2, 5 and 6 August
2024JUDGE: Cooper J ORDER: TANE SAUL DESATGE
Count 1: Guilty
Count 2: Guilty of murderSINITTA TAMMY DAWITA
Count 1: Not guilty
Count 2: Not guilty of murder.Not guilty of manslaughter
CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – where the co-accused Desatge and Dawita are
charged with the murder of their stepdaughter and daughter,
respectively – where the case for murder against both accused is circumstantial – where the prosecution’s case is that an
accumulation of mistreatment by the defendants was a substantial or significant cause of, or contributed substantially
to, Kaydence’s death – where each accused ran a “cutthroat”
defence, seeking to blame the other for the death of Kaydence
– where Dawita’s case was that Desatge acted alone in
committing acts of mistreatment and violence which led to
Kaydence’s death; Desatge’s case was that he was not present
when Kaydence died and Dawita was responsible for supervising Kaydence when she sustained injuries which
caused her death – where there was evidence that Kaydence
was last seen lying on a red couch with laboured breathing and
that she had bruising on her head and face – where Kaydence
disappeared from the house where the defendants and other children under their care were living after she was last seen
lying on the red couch – where both defendants told lies about
the whereabouts of Kaydence after her disappearance from the
house – where there was evidence that Desatge beat Kaydence with a bamboo stick – where there was evidence that Dawita
slapped or smacked Kaydence and the other children with an
open hand – where there was evidence that Kaydence was made to sleep in the toilet on occasions – where Desatge gave
an account of what happened to Kaydence to undercover police and, on his version, he was not present when Kaydence sustained injuries by falling down stairs which caused her death, and Dawita did not subsequently allow him to obtain
medical assistance – where both co-accused were involved in Kaydence’s clandestine burial – where Desatge subsequently
led undercover police to Kaydence’s burial site – where
medical evidence demonstrated that Kaydence had suffered a base of skull fracture but that evidence did not establish
whether that fracture caused her death – where Desatge’s
accounts to undercover police sought to minimise his
involvement in the events which caused Kaydence’s death but
certain statements he made amounted to an implied admission that he was present when Kaydence suffered the injuries which
led to her being placed on the red couch – where Desatge told
lies to undercover police about the circumstances of
Kaydence’s death – where there was evidence that both co-
accused disposed of Kaydence’s belongings after her death –
where Desatge had significant animosity towards Kaydence’s
biological father and this animosity influenced his treatment of
Kaydence – whether one or both of the defendants are guilty
of murder, or alternatively, manslaughter
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – ACTS INTENDED
TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY
HARM OR SERIOUS INJURY – OTHER OFFENCES –
where the co-accused Desatge and Dawita are charged with
torturing Kaydence – where the Crown alleged that the co-
accused tortured Kaydence by: confining Kaydence to the toilet during the day and night; not properly clothing Kaydence; not providing Kaydence with sufficient nourishment; forcefully striking Kaydence; and not seeking or
providing adequate medical care for Kaydence – where there
was evidence that Desatge hit Kaydence with a bamboo stick
– where there was evidence that Kaydence was made to eat her
own faeces on multiple occasions by Desatge – where there
was evidence that Dawita slapped and smacked Kaydence out
of frustration – where there was evidence that Dawita fed Kaydence her own faeces on one occasion – whether one or
both of the defendants are guilty of torture
Criminal Code 1899, s 7, s 8, s 31, s 286, s 291, s 293, s 302,
s 303, s 320A, s 615BEvidence Act 1977, s 21AK, s 21H, s 21KA, s 93A
R v Baden-Clay (2016) 258 CLR 308, cited
R v Beckett [2011] 1 Qd R 259, cited
R v Roughan and Jones (2007) 179 A Crim R 389, citedWebb v The Queen (1994) 181 CLR 41, cited
COUNSEL: MB Lehane with NE Friedewald for the Prosecution
FH Martin for the Defendant, Tane Saul Desatge
DP Jones KC for the Defendant, Sinitta Tammy DawitaSOLICITORS: Office of the Director of Public Prosecutions (Qld) for the
Prosecution
Skuse Graham Criminal Lawyers for the Defendant, Tane
Saul Desatge
Legal Aid Queensland for the Defendant, Sinitta TammyDawita And the offence is a domestic violence offence.
Count 3
That on a date unknown between the sixteenth day of February, 2017 and the sixth day of May, 2017 at Chinchilla in the State of Queensland, TANE SAUL DESATGE and SINITTA TAMMY DAWITA without lawful justification or excuse, improperly interfered with a dead human body.
And the offence is a domestic violence offence.
Count 4
That on a date unknown between the sixteenth day of February, 2017 and the sixth day of May, 2017 at Chinchilla in the State of Queensland, TANE SAUL DESATGE and SINITTA TAMMY DAWITA without lawful justification or excuse, improperly interfered with a dead human body.
And the offence is a domestic violence offence.
Upon arraignment each defendant pleaded not guilty to counts 1 and 2.
Each defendant pleaded guilty to counts 3 and 4. The particulars of count 3 are that, on an unknown date in the specified period, the defendants buried the body of the deceased, Kaydence Hazel Mills (Kaydence), at 10 Inverai Rd, Chinchilla, that being the address of the house they rented from 10 February 2017 (the Chinchilla house). The particulars of count 4 are that, on an unknown date in the specified period, the
defendants removed Kaydence’s body and then reburied her at a different location
near the Chinchilla weir.
From each defendant’s plea of guilty to both counts 3 and 4 and the particulars of
those counts, it follows that they each accept that Kaydence died between 16 February
2017 and 6 May 2017.
Kaydence was Ms Dawita’s daughter. She was born in the Cairns Hospital on 23
September 2014. Her father was Robert Mills, a former partner of Ms Dawita.
In November 2014, Kaydence was removed from Ms Dawita’s care by the
Department of Child Safety and placed into foster care. At that time, Kaydence’s
older half-sisters, MT (born 5 February 2008) and MS (born 3 September 2010), were
also placed in foster care.
Ms Dawita and Mr Desatge commenced a relationship in 2015, although there appear to have been breaks in that relationship for parts of 2015 and 2016. At the commencement of the relationship, both Ms Dawita and Mr Desatge were living on the Atherton Tablelands. In September 2015, Ms Dawita relocated to a flat at 1/11 Gorge Road, Tully (the Tully flat).
On 2 January 2016, Ms Dawita gave birth to Mr Desatge’s son, DT. By around the
time DT was born, Mr Desatge had taken up residence with Ms Dawita at the Tully flat. Ms Dawita and Mr Desatge had two more children together: DS who was born on 3 August 2017, and DC who was born in December 2019.
Between April 2015 and September 2016, Ms Dawita participated in supervised visits with MT, MS and Kaydence overseen by the Department of Child Safety.
On 18 September 2016, Kaydence was returned to Ms Dawita’s care. MT and MS were also returned to Ms Dawita’s care on the same date. From that time until mid-
December 2016, Ms Dawita and Mr Desatge resided at the Tully flat with MT, MS,
Kaydence and DT.
The family then moved to Chinchilla in mid-December 2016. They initially stayed at the Chinchilla Motor Inn for approximately two months. They then moved into the Chinchilla house.
After Kaydence died (between 16 February 2017 and 6 May 2017), the defendants sought to conceal her death: first, by wrapping the body and placing it in an outhouse in the backyard of the Chinchilla house; then, subsequently, burying the body at the Chinchilla weir. The defendants told the other children that Kaydence had gone to live with someone else. Ms Dawita subsequently lied on numerous occasions to
members of her family and others about Kaydence’s whereabouts. Mr Desatge also
told lies which concealed his knowledge that Kaydence was dead.
Kaydence’s body was eventually located by police after Mr Desatge made admissions
to law enforcement participants involved in a covert investigation into Kaydence’s
disappearance.
The defendants were arrested and charged with Kaydence’s murder on 1 March 2020.
The trial commenced on 22 July 2024 without a jury after orders to that effect were made pursuant to s 615 of the Criminal Code.
Section 615B(1) of the Criminal Code provides that, in a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If a statute or the common law requires information, a warning or an instruction to be given to the jury in particular circumstances, the judge in a trial by a judge sitting alone must take that requirement into account if those circumstances arise in the course of the trial: s 615B(2)(a). The judge may make any findings or give any verdict that a jury could have made or given if the trial had been before a jury, and any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury: s 615C(1). The reasons for the verdict must include the principles of law that the judge has applied and the findings of fact on which he or she has relied: s 615C(3).
The prosecution case
On both counts 1 and 2, the prosecution particularised the case against each defendant on alternative bases. The particulars of counts 1 and 2 are relevantly the same against both defendants.
Count 1 – torture
A person who tortures another person commits a crime (s 320A(1) of the Criminal Code). Torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on one or more occasions (s 320A(2) of the Criminal Code).
The elements of the offence of torture are:
(a) the defendant inflicted severe pain or suffering on Kaydence; (b) the defendant inflicted the severe pain or suffering intentionally; (c) the defendant did so by an act or series of acts done on one occasion or more than one occasion.
The Crown’s primary case is that each of the defendants is liable as a principal
offender (s 7(1)(a) of the Criminal Code). The particulars of count 1 state that each defendant intentionally inflicted severe pain or suffering on Kaydence by the following acts or series of acts done on one or more than one occasion:
(a) confining Kaydence to the toilet during the day; (b) confining Kaydence to the toilet during the night; (c) not properly clothing Kaydence; (d) not providing Kaydence with sufficient nourishment; (e) forcefully striking Kaydence; (f) not seeking or providing adequate medical care for Kaydence.
As an alternative to liability as a principal offender, the particulars also set out a basis for establishing the guilt of each defendant on count 1 relying upon s 7(1)(c) of the Criminal Code. That is that each defendant, with knowledge that the other had the intention to inflict severe pain or suffering on Kaydence, aided that other defendant (that is, Mr Desatge aided Ms Dawita, or Ms Dawita aided Mr Desatge) who intentionally inflicted severe pain or suffering on Kaydence by the particularised act(s) or series of acts done on one or more than one occasion. In each case, the
conduct alleged to constitute aiding is the aiding party’s deliberate presence at the
Chinchilla house.
If I am satisfied beyond reasonable doubt that one of the defendants committed the offence of torture (the principal offender), the following issues arise concerning the potential application of s 7(1)(c) to the other defendant:
(a) whether that defendant’s deliberate presence at the Chinchilla house aided the principal offender to commit the offence of torture;
(b) if so, whether the defendant provided the aid intending to help the principal offender commit the offence of torture; and (c) whether the defendant had actual knowledge or expectation of the essential facts of the offence of torture, including the principal offender’s intention to
inflict severe pain or suffering on Kaydence.
Count 2 – murder
The killing of another is unlawful unless it is authorised, justified or excused by law (s 291 of the Criminal Code). A person kills another if he or she causes the death of that other directly or indirectly, by any means whatever (s 293 of the Criminal Code).
The prosecution relies on two provisions as a basis to establish each defendant’s guilt
for the offence of murder: ss 286 and 302 of the Criminal Code.
Section 286 of the Criminal Code
Section 286 provides:
“286 Duty of person who has care of child
(1) It is the duty of every person who has care of a child under 16 years to—
(a) provide the necessaries of life for the child; and (b) take the precautions that are reasonable in all the circumstances to avoid danger to the child’s life, health or
safety; and
(c) take the action that is reasonable in all the circumstances to remove the child from any such danger; and he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty, whether the child is helpless or not.
(2) In this section— person who has care of a child includes a parent, foster parent, step parent, guardian or other adult in charge of the child, whether or not the person has lawful custody of the child.”
The section comprises the following elements:
(a) the defendant has care of a child; (b) the defendant fails to perform the duty imposed by the section by failing to perform any of the actions specified in subsections 1(a), (b) or (c); (c) that failure results in consequences to the life and health of the child.
If those elements are proved beyond reasonable doubt, the defendant is held to have caused the consequences to the life and health of the child. In this case, the
prosecution case is that each defendant’s failure to perform the duty imposed by s 286
resulted in Kaydence’s death.
The prosecution’s primary case is that each of the defendants is liable as a principal
offender for failing to perform the duty they owed. The particulars state that each
defendant failed in performing the duty by:
(a) confining Kaydence to the toilet during the day; (b) confining Kaydence to the toilet during the night; (c) not properly clothing Kaydence; (d) not providing Kaydence with sufficient nourishment; (e) forcefully striking Kaydence; (f) not seeking or providing adequate medical care for Kaydence.
The particulars further state that each defendant did those things or omitted to do those things (as the case may be), with the intention of ultimately killing Kaydence through the combination of some or all of the particularised acts; and that the combination of some or all of the particularised acts were a substantial or significant
cause of, or contributed substantially to, Kaydence’s death.
As an alternative to liability as a principal offender for the consequences of breaching the duty imposed by s 286, the particulars of count 2 also set out a case relying on s 8 of the Criminal Code.
The case set out in the particulars against each defendant under s 8 is that:
(a)
they formed a common intention with the other defendant, who also had care of Kaydence, to mistreat Kaydence in the manner set out in [28] above;
(b)
it was a probable consequence of the prosecution of such an unlawful purpose that the other defendant would form the intention of ultimately killing Kaydence through the combination of some or all of the particularised acts set out in [28] above (that is, in the s 8 case against Mr Desatge it was a probable consequence that Ms Dawita would form the relevant intention; in the s 8 case against Ms Dawita it was a probable consequence that Mr Desatge would form the relevant intention);
(c) the combination of some or all of the particularised acts were a substantial or significant cause of, or contributed substantially to, Kaydence’s death.
Section 302 of the Criminal Code
The second basis which the prosecution relies upon to establish that each defendant is guilty of murder is under s 302 of the Criminal Code.
Section 300 provides that unlawfully killing another is a crime “which is called
murder or manslaughter, according to the circumstances of the case”. Section 302 defines “murder” by prescribing circumstances in which an unlawful killing
constitutes murder rather than manslaughter.
The particulars of the case under s 302 are that each defendant did an act or acts that
were a substantial or significant cause of, or contributed substantially to, Kaydence’s
death and, at the time of doing the act or acts, had an intention to kill Kaydence or do grievous bodily harm to her. The particularised acts in the prosecution case under s
302 are the act or acts which led to Kaydence’s condition as observed by MT on
the last day she saw Kaydence alive.
The particulars raise the circumstance prescribed by s 302(1)(a) of the Criminal Code, namely:
“302(1) Definition of murder
Except as hereinafter set forth, a person who unlawfully kills another under any
of the following circumstances, that is to say—
(a)
if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
… is guilty of murder.”
This means that in the case against each defendant under s 302, the elements of the offence of murder are:
(a) Kaydence is dead; (b) an act or omission of the defendant was a substantial or significant cause of, or contributed substantially to, Kaydence’s death;
(c) the defendant killed Kaydence unlawfully; (d) the defendant intended, at the time the act or omission that caused Kaydence’s death, to kill her or to do her grievous bodily harm.
As an alternative to liability as a principal offender, the particulars of count 2 also set out a case based on s 8 of the Criminal Code that each defendant formed a common intention with the other defendant.
The case set out in the particulars against each defendant under s 8 is that:
(a)
they formed a common intention with the other defendant, who also had care of Kaydence, to mistreat Kaydence in the manner set out in [28] above;
(b)
it was a probable consequence of such an unlawful purpose that the other defendant would form the intention to kill Kaydence or do grievous bodily harm to her when committing the particularised act or acts as set out in [34] above (that is, in the s 8 case against Mr Desatge it was a probable consequence that Ms Dawita would form the relevant intention; in the s 8 case against Ms Dawita it was a probable consequence that Mr Desatge would form the relevant intention);
(c) the particularised act or acts were a substantial or significant cause of, or
contributed substantially to, Kaydence’s death.
Count 2 – manslaughter
By s 576 of the Criminal Code, manslaughter is an alternative verdict on a count of murder. A person charged with murder may be convicted of manslaughter on the
count of murder if manslaughter “is established by the evidence”: see s 576(1) of the
Criminal Code.
Section 286 of the Criminal Code
The particulars of count 2 identify each defendant’s alleged breach of the duty
imposed by s 286 of the Criminal Code as one basis for establishing his or her guilt
for the offence of manslaughter.
The particulars of the offence of manslaughter relying upon breach of the duty owed under s 286 are relevantly the same as set out above for the offence of murder under s 286 (see [28]-[29] above), save that the particulars do not contain the assertion that the relevant defendant acted with the intention of ultimately killing Kaydence through the combination of some or all of the particularised acts.
As an alternative to liability as a principal offender for the consequences of breaching the duty imposed by s 286, the particulars of count 2 also set out a case based on s 8 of the Criminal Code.
The case set out in the particulars against each defendant under s 8 is that:
(a)
they formed a common intention with the other defendant, who also had care of Kaydence, to mistreat Kaydence in the manner set out in [28] above;
(b) the combination of some or all of the particularised acts were a substantial or significant cause of, or contributed substantially to, Kaydence’s death;
(c)
it was a probable consequence of the prosecution of such an unlawful purpose that death would occur in this manner.
Section 303 of the Criminal Code
The second basis which the prosecution relies upon to establish that each defendant is guilty of manslaughter is under s 303(1) of the Criminal Code.
Manslaughter will be established where the prosecution proves beyond reasonable doubt an unlawful killing (the first three elements of the offence of murder under s 302(1)(a)) but do not prove the circumstances which make the unlawful killing murder (the fourth element): see ss 300 and 303(1) of the Criminal Code.
The particulars of the offence of manslaughter under s 303(1) against each of the defendants are relevantly the same as set out above for the offence of murder under s 302(1)(a) (see [34] above), save that the particulars do not contain the assertion that, at the time of doing the act or acts that are alleged to have been a substantial or
significant cause of, or to have contributed substantially to, Kaydence’s death, the
relevant defendant had an intention to kill Kaydence or do grievous bodily harm to
her.
As an alternative to liability as a principal offender under s 303(1), the particulars of count 2 also set out a case based on s 8 of the Criminal Code.
The case set out in the particulars against each defendant under s 8 is that:
(a)
they formed a common intention with the other defendant, who also had care of Kaydence, to mistreat Kaydence in the manner set out in [28] above;
(b)
it was a probable consequence of such an unlawful purpose that the other defendant would unlawfully commit one of the particularised acts as set out in [34] above (that is, in the s 8 case against Mr Desatge it was a probable consequence that Ms Dawita would unlawfully commit one of the particularised acts; in the s 8 case against Ms Dawita it was a probable consequence that Mr Desatge would unlawfully commit one of the particularised acts);
(c) the particularised act or acts were a substantial or significant cause of, or contributed substantially to, Kaydence’s death.
Compulsion as a defence
In the case against Ms Dawita, if I am satisfied that the prosecution has proved beyond reasonable doubt that she is criminally responsible for:
(a) an act or acts amounting to the torture of Kaydence; or (b) an act or acts which were a substantial or significant cause of, or contributed substantially to, Kaydence’s death but without the element of an intention to
kill or to cause grievous bodily harm (that is, an unintentional killing),
I must consider whether the prosecution has excluded beyond reasonable doubt the defence of compulsion (s 31 of the Criminal Code).
Principles governing the trial
The burden rests on the prosecution to prove the guilt of the defendants. The defendants are presumed innocent and there is no burden on either of them to establish their innocence. The defendants may be convicted only if the prosecution establishes that they are guilty of the offence charged or some other offence of which they may be convicted on the indictment.
For the prosecution to discharge its burden of proving the guilt of a defendant of an offence, it is required to prove, beyond reasonable doubt, that the defendant is guilty of that offence. This means that to convict, I must be satisfied beyond reasonable doubt of every element of the offence charged. If I am left with a reasonable doubt about the guilt of a defendant, my duty is to acquit; that is, to find that defendant not guilty. If I am not left with any such doubt, my duty is to convict; that is, to find the defendant guilty. Proof beyond reasonable doubt is the highest standard of proof known to the law. It may be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities. That is, the case must be proved to be more likely than not. In a criminal trial the standard of satisfaction required for conviction is much higher; the prosecution must prove the guilt of each defendant beyond reasonable doubt.
I have not been influenced by public opinion about these offences in general, or in this particular case, nor what I might expect public opinion to be about any particular verdict I might return.
I have dismissed all feelings of sympathy or prejudice: whether it be sympathy for, or prejudice against, either of the defendants or anyone else, including the deceased. I have approached my duty dispassionately, deciding the facts upon the whole of the evidence.
I have not drawn any adverse inference because the defendants have been charged with murder and are in custody on remand.
I have not drawn any adverse inference from the fact that the defendants were guarded while in court. The presence of corrective services staff guarding defendants during a trial is a daily occurrence in a criminal court.
On the first morning of trial, Ms Dawita applied for orders that, for the duration of the trial, she be separated from Mr Desatge by way of a screen located so that she could not see Mr Desatge, and further that she be seated, separately from Mr Desatge, in the jury box. The separation of the defendants with Mr Desatge seated in the dock and Ms Dawita seated in the jury box was not opposed by Mr Desatge. The application for the positioning of a screen preventing Ms Dawita from seeing Mr Desatge was opposed.
The basis for Ms Dawita’s application was set out in an affidavit sworn on
information and belief by her solicitor recording instructions he had received from Ms Dawita about incidents of alleged domestic violence committed against her by Mr Desatge, and further that she remained fearful of Mr Desatge and was concerned she would not be able to properly concentrate during the trial if she could see Mr Desatge or if Mr Desatge could see her.
Mr Desatge disputed much, but not all, of the hearsay evidence of alleged domestic violence. It was neither necessary nor appropriate for me to attempt to resolve that conflicting evidence. Ultimately, I allowed the application in circumstances where it was conceded on behalf of Mr Desatge that he would suffer no prejudice on the basis that this is a judge-alone trial, and it was common ground between all parties that I cannot use the presence of the screen in reaching my verdicts. I have not drawn any inference adverse to Mr Desatge, nor any inference favourable to Ms Dawita, by reason of the screen being positioned between the defendants during the trial.
One of the law enforcement participants involved in the investigation into Kaydence’s
disappearance gave evidence under an assumed name. The formal admissions which were tendered at the conclusion of the prosecution case referred to a statement which Mr Desatge made to a second law enforcement participant who also utilised an assumed name. A witness identity protection certificate for each of those law enforcement participants was filed with the Court pursuant to s 21H of the Evidence Act 1977. In accordance with s 21KA of the Evidence Act 1977, I have not given the
evidence given by the first law enforcement participant, or the formal admission setting out the statement made by Mr Desatge to the second law enforcement
participant, any more or less weight because there is a witness identity protection certificate for each of those law enforcement participants or because orders were made protecting the identity of those law enforcement participants. Nor have I drawn
any adverse inferences against the defendants because of those matters.
Evidence was given about Ms Dawita having a history of abusing alcohol and illicit drugs. I have not drawn any adverse inferences against Ms Dawita because of those
matters. I have not used that evidence to reason that Ms Dawita’s history makes it
more likely that she would commit the present offences.
There was also reference in the evidence to Mr Desatge having a criminal record. I have not drawn any inferences against Mr Desatge because of that. I have not used the fact that Mr Desatge has a criminal record to reason that because he has previously committed offences, he must be guilty of the present offences. Nor have I had regard to that fact in assessing the truthfulness of statements which Mr Desatge made to law enforcement participants.
Evidence was given about Ms Dawita striking MT and MS. The prosecution does not rely on that evidence in its case against Ms Dawita as establishing a relevant propensity on her part. In deciding if the prosecution case against Ms Dawita has been proved, I have not used that evidence to reason that Ms Dawita has a propensity to strike her children that would make it more likely that she committed the offences
that she has been charged with. Evidence of Ms Dawita’s violent propensity can only
be relevant in the case against Mr Desatge in considering whether it was more likely that Ms Dawita, rather than Mr Desatge, was guilty of the offences of violence with which Mr Desatge was charged.[1]
[1] Knight v Jones; Ex parte Jones [1981] Qd R 98; R v Randall [2004] 1 WLR 56; R v Roughan & Jones (2007) 179 A Crim R 389, 403-404 [68]-[72], 406 [88] and 410 [102]; R v Beckett [2011] 1 Qd R 259, 263-267 [25]-[32].
There was evidence of alleged sexual offending by Mr Desatge against MT and MS. The prosecution does not rely on that evidence to prove that Mr Desatge is guilty of the present offences. I have not considered that evidence at all when deciding if the prosecution case has been proved against Mr Desatge.
There was evidence that Mr Desatge committed acts of domestic violence towards Ms Dawita. The prosecution does not rely on that evidence to prove that Mr Desatge had the propensity to commit violent offences. In deciding if the prosecution case against Mr Desatge has been proved, I have not used that evidence to reason that Mr Desatge has a propensity to act violently that would make it more likely that he committed the present offences.
On Ms Dawita’s case, evidence of domestic violence by Mr Desatge is relevant in three ways. First, in ascertaining Ms Dawita’s intention. Secondly, in assessing
whether Ms Dawita aided Mr Desatge in his mistreatment of Kaydence (which is only relevant to count 1). Thirdly, in assessing whether Ms Dawita was party to a plan with Mr Desatge to mistreat Kaydence (which is only relevant to count 2). The evidence will also fall to be considered if it becomes necessary to consider the defence of compulsion under s 31 of the Criminal Code. In these circumstances, I have had regard to the provisions of part 6A, div 3 of the Evidence Act 1977 (inserted by the
Domestic and Family Violence Protection (Combating Coercive Control) and Other
Legislation Amendment Act 2023) which address jury directions related to domestic violence.
Domestic violence –
(a) is not limited to physical abuse and may, for example, include sexual abuse, psychological abuse or financial abuse; (b) may amount to violence against a person even though it is immediately directed at another person; (c) may consist of a single act; (d) may consist of separate acts that form part of a pattern of behaviour that can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial.
Behaviour, or patterns of behaviour, that may constitute domestic violence include,
but are not limited to, the following –
(a) placing or keeping a person in a dependent or subordinate relationship; (b) isolating a person from family, friends or other sources of support; (c) controlling, regulating or monitoring a person’s day-to-day activities; (d) depriving a person of, or restricting a person’s, freedom of movement or action; (e) restricting a person’s ability to resist violence; (f) frightening, humiliating, degrading or punishing a person, including punishing a person for resisting violence; (g) compelling a person to engage in unlawful or harmful behaviour.
Experience shows that –
(a)
people may react differently to domestic violence and there is no typical response to domestic violence;
(b)
it is not uncommon for a person who has been subjected to domestic violence to stay with an abusive partner after the domestic violence, or to leave and then return to the partner;
(c)
it is not uncommon for a person who has been subjected to domestic violence not to report domestic violence to police or seek assistance to stop domestic violence;
(d)
decisions made by a person subjected to domestic violence about how to address, respond to or avoid domestic violence may be influenced by a variety of factors including, for example:
(i) the domestic violence itself;
(ii) social, cultural, economic or personal factors, or inequities experienced by the person, including, for example, inequities associated with race, poverty, gender, disability or age;
(iii) responses by family, the community or agencies to the domestic violence or to any help-seeking behaviour or use of safety options by the person;
(iv) the provision of, or failure in the provision of, safety options that might
realistically have provided ongoing safety to the person, and the person’s
perceptions of how effective those safety options might have been to
prevent further harm; or(v) further violence, or the threat of further violence, used by a family member to prevent, or in retaliation for, any help-seeking behaviour or use of safety options by the person;
(e) it is not uncommon for a decision to leave an intimate partner who is abusive, or to seek assistance, to increase apprehension about, or the actual risk of, harm.
A number of witnesses who gave evidence were Indigenous. I have had regard to draft directions contained in Appendix C of the Equal Treatment Benchbook which address the use of Aboriginal English:
(a)
Many Indigenous people in North Queensland, including Indigenous people of mixed descent, do not speak English as their first language. And many, in all parts of the State, who do speak English as their first language have learnt to speak English in a manner which is different from other speakers of English in Australia: they are speakers of Aboriginal English.
(b) Aboriginal English is not the same all over the State, and varies from person to person, and situation to situation. It ranges from “heavy” Aboriginal English
to “light” Aboriginal English. Heavy Aboriginal English is harder for non-
Indigenous people to understand fully, but even with speakers of light Aboriginal English there are some important things I must be aware of. Speakers of heavy and light Aboriginal English are found all over the State, and even with people I may think do not look distinctively Aboriginal or Torres Strait Islander.
(c) There are a number of grammatical differences between Aboriginal English and other kinds of English. For example, the verb “to be” may not be used in
sentences, and all the verbs may be in the present tense, even though the context shows that it is the past or the future that is being talked about. I may notice
that pronouns, such as “he”, “she” and “you”, are used differently at times.
Many Indigenous people have trouble with some of the consonants used in the English language, especially f, v and th. F and v are often replaced with p or
b, so the word ‘fight’ might sound like ‘pight’ or ‘bight’, and so on.
(d)
Aboriginal English speakers may also have different cultural values which affect the way they speak and behave. Many Aboriginal and Torres Strait Islander cultural values and ways of communicating are strong even in places like Brisbane. It is very common for Aboriginal people to avoid direct eye contact with those speaking to them, because it is considered to be impolite in some Aboriginal societies to stare. On the other hand, in most non-Aboriginal societies people who behave like this might be regarded as shifty, suspicious or guilty. I must be very careful not to jump to conclusions about the demeanour of an Aboriginal witness on the basis of the avoidance of eye
contact, as it cannot be taken as an indicator of the Aboriginal witness’s
truthfulness.
(e) It is customary among many speakers of Aboriginal English to have long lapses of silence from time to time, even in everyday speech. I must be careful not to jump to the conclusion that a witness who is doing this is being evasive or untruthful about the matter he or she is being asked about. Many Aboriginal English speakers are not used to direct questioning in the way in which it is used in the courtroom, and they are used to having the chance to think carefully before talking about serious matters, so it may take time for them to adjust to this method of imparting information. (f) It is very common for witnesses to be asked questions in the form of a ‘leading question’. Many Aboriginal English speakers will answer “yes” to this type of question, even if they do not agree with the proposition being put to them in
the question, and even if they do not understand the question.(g) Similarly the answers “I don’t know” and “I don’t remember” do not always refer directly to the Aboriginal English speaker’s knowledge or memory. They can be responses to the length of the interview, or to the length of the question, or to the difficulty which a number of Aboriginal people have in adjusting to the use of repeated questioning.
(h) Many Aboriginal English speakers use gestures which are often very slight and quick movements of the eyes, head or lips to indicate location or direction. (i) Some concepts, such as time and number, are understood by Aboriginal English speakers very differently from Standard English speakers.
(j) Sometimes, especially in formal situations, Indigenous people speak very softly to non-Indigenous people and are hard to hear, even with a microphone. (k) Many Indigenous people suffer from hearing problems. It may be that if a witness has a hearing difficulty, he or she may have had problems understanding questions put to him or her. In such a situation the witness might have answered inappropriately or asked for the question to be repeated. (l) Aboriginal English can differ in many important ways from other kinds of
English. Even if an Aboriginal person’s language sounds like English, I cannot
always make the same assumptions about their meaning.
I have decided the case on the evidence which has been presented to me in court and only that evidence. That evidence consists of the testimony of the witnesses that I have heard, the exhibits and the formal admissions that have been made. I have not taken into account any outside information or other outside influence. I have not made my own enquiries or investigations about the case or anyone connected with it.
I have approached the task of reaching a verdict on the basis that I may accept evidence in whole or in part. 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 have accepted or rejected such parts of the evidence as I have thought fit. It is for me to decide whether a witness is telling the truth and correctly recalls the facts upon which he or she has testified.
In this case, I have drawn inferences from proven facts. That is, I have used evidence circumstantially by using facts, which I accepted as having been proved, in an indirect or circumstantial way as pointing to the existence of another fact.
I have approached the drawing of inferences on the basis that any inferences must be reasonable ones drawn from the evidence. I have not engaged 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.
I have drawn inferences bearing in mind that where there are reasonable inferences consistent with guilt and reasonable inferences consistent with innocence, I must not draw an inference consistent with guilt. Further, I must not convict either defendant based on inferences unless I have excluded beyond reasonable doubt any reasonable inference consistent with innocence. Guilt must be the only rational inference. These principles are an incident of the burden of proof which rests upon the prosecution.
One of the matters which the prosecution must prove as an element of the offence of torture and the offence of murder is that the relevant defendant held a specific intention.
In respect of the offence of torture, proof of intention to produce a particular result, namely to inflict severe pain or suffering on Kaydence is an element of the offence. Accordingly, the prosecution must prove beyond reasonable doubt that the defendant meant to produce that result by his or her conduct.
Likewise, in respect of the offence of murder, proof of intention to produce a particular result, namely to kill Kaydence or to cause grievous bodily harm to her is an element of the offence. Accordingly, the prosecution must prove beyond reasonable doubt that the defendant meant to produce that result by his or her conduct.
The prosecution relies on evidence which it says proves that the defendants had a motive to mistreat Kaydence in the manner they are said to have done, namely their
animosity towards Kaydence’s father, Robert Mills. The motive by which a person
is induced to do an act or form intent is immaterial to the question of criminal responsibility. If I decide that the evidence is not evidence of motive, that does not necessarily mean that the prosecution has failed to prove guilt because of lack of motive. In that event, I would have to base my verdict on the evidence that I do accept. However, the existence of motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks me to infer guilt. If there is motive then what might otherwise be inexplicable becomes explicable. I have borne in mind that the existence of motive without any more would not be sufficient to found a finding of guilt.
Positive evidence that the accused lacked motive is clearly a matter to be taken into account, particularly in a case based on circumstantial evidence.
Neither of the defendants gave evidence or called other people to give evidence on their behalf or otherwise produced evidence. That was their right. The defendants were not obliged to add to the evidence of the prosecution. The fact that a defendant did not get into the witness box and give evidence is not evidence against him. It does not constitute an admission of guilt by conduct. Nor may it be used to fill in any gaps in the prosecution case. It proves nothing at all. I have not assumed that, because each defendant did not give or call evidence, that adds in some way to the case against him. I have not considered it at all in deciding whether the prosecution has proved its case beyond reasonable doubt. The fact that the defendants did not give evidence
does not make the prosecution’s task any easier. It does not change the fact that the
prosecution is responsible for proving the guilt of the defendants beyond reasonable
doubt.
Various witnesses gave evidence by audio-visual link. I have not given that evidence any more or less weight or drawn any adverse inferences against either defendant because the evidence was given in that way.
Dr Ong and Dr Skellern each gave opinion evidence as an expert witness. The ordinary rule is that witnesses may only give evidence about facts and not express their opinions. An exception to the general rule is that persons qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise. The expertise of both Dr Ong and Dr Skellern was not challenged. Each of them was clearly qualified to give opinion evidence on the matters which they did.
The fact that witnesses such as Dr Ong and Dr Skellern are referred to as experts does not mean that their evidence must automatically be accepted. I am the sole judge of the facts and I am entitled to assess and accept and reject any such opinion evidence as I see fit. It is up to me to give such weight to the opinions of expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness and whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved. It is up to me to decide what weight or importance I give to their opinions or indeed whether I
accept their opinions at all. It is important to remember that an expert’s opinion is
based on what the expert witness has been told of the facts. If those facts have not
been established to my satisfaction, the expert’s opinion may be of little value.
Two of the prosecution witnesses, MT and MS, were children at the time they were spoken to by police about relevant events. Their conversations with police were electronically recorded and the electronic record was tendered under s 93A of the Evidence Act 1977. The receipt of the evidence of children in this way is routine. I have not given it disproportionate weight and have not considered it without also considering the cross-examination of each of those witnesses.
The evidence of both MT and MS was recorded prior to the trial pursuant to s 21AK of the Evidence Act 1977. At the time each child gave evidence, she was in a room remote (separate) from the courtroom. The evidence was given by use of an audio- visual link between the room in which the child was seated and the courtroom. At the time the child gave evidence there was a support person sitting in the room with her, and no other person. Whilst the child gave evidence, all non-essential persons were excluded from the courtroom. At the time, the defendants were present in the courtroom but were positioned so that the child could not see the defendants on the
monitor, or at all. The child’s evidence was recorded as it was given and that is the
recording that was played during the trial. The courtroom was closed and all non- essential persons were excluded while part of the pre-recorded evidence of each child was played.
All of those measures, used for the taking and showing of each child’s evidence, are
the routine practices of the Court for taking and showing evidence of children. I have not drawn any adverse inference against either defendant because those measures were used.
The probative value of the evidence is not increased or decreased because those measures were used. That is, the evidence of MT and the evidence of MS is not better evidence, or worse evidence, than if the evidence had been given before me from the witness box. I have not given that evidence any greater or lesser weight because those routine measures were used.
Transcripts were prepared of the recordings of the s 93A evidence, the 21AK evidence
and Mr Desatge’s conversations with law enforcement participants. Transcripts were
also prepared of the evidence given by the witnesses called at the trial. Those
transcripts are an aid only. They are an unknown person’s opinion about what the
witness said. It is what I saw and heard which is evidence. And if I heard something
which differed from the transcript, then it is my view which has prevailed.
In cross-examination by Mr Desatge’s counsel, witnesses who are members of Ms Dawita’s family or her friends (Isobel Banu, Leighton Dickman and Pamela
Dickman) were asked questions suggesting that their relationship with Ms Dawita gave them a motive to lie in their evidence by placing the greatest amount of blame on Mr Desatge. If I reject the motive to lie put forward on behalf of Mr Desatge, that does not mean that the witness is telling the truth. It is for the prosecution to satisfy
me that the witness is telling the truth; for it is the prosecution’s burden to satisfy me
beyond reasonable doubt of the guilt of the defendants.
Finally, although the defendants have been tried together, each is entitled to have his or her case decided solely on the evidence admissible against them. In respect of each charge, each defendant is entitled to have the case decided on the evidence, and on the law, that applies to them, and as it relates to each particular charge.
The fundamental issue for me to decide in the case against each defendant is whether, on the evidence admissible against that defendant, I am satisfied, beyond reasonable doubt, that defendant is criminally responsible for the torture of Kaydence (on count 1) and for the unlawful killing of Kaydence (on count 2). If the prosecution fails to prove beyond a reasonable doubt that either defendant is criminally responsible for either offence, then I must acquit that defendant of that offence.
My conclusion as to whether I am satisfied beyond reasonable doubt of the guilt of one defendant has no bearing on my consideration whether I am satisfied beyond reasonable doubt of the guilt of the other defendant. If I conclude that one defendant is guilty, I cannot draw any inference against the other defendant from that conclusion. That is, if I find one defendant guilty that does not mean that the other defendant must necessarily be guilty. Likewise, if I find one defendant not guilty on the evidence admissible against that defendant that does not necessarily mean that the other defendant is not guilty. That is, I may be satisfied beyond reasonable doubt as to the guilt of one defendant and fail to be satisfied beyond reasonable doubt as to the guilt of the other defendant. Finally, if I find one defendant not guilty on the evidence admissible against that defendant that does not necessarily mean that the other defendant is guilty. That is, I may not be satisfied beyond reasonable doubt as to the guilt of either of the defendants, in which case I would acquit both defendants. In this last case, I note the observation of Deane J in Webb v The Queen,[2] that in a case like this, while I may think it apparent that the crime was committed by at least one of the defendants, there would be nothing inconsistent in my finding that the guilt of neither defendant has been proved beyond reasonable doubt.
[2] (1994) 181 CLR 41, 80. Deane J was in the minority in Webb but the observations I have noted were
I have given the cases against each defendant and for each defendant separate consideration. For each particular charge, I have separately considered the evidence admitted in relation to each defendant and have returned separate verdicts in respect of each defendant.
The evidence
The following witnesses gave evidence in the prosecution case:
(a) Sally-Ann Pearson; (b) Leanne Davis-Collier; (c) Despina Parakas; (d) Angus Lindsay; (e) Isobel Banu; (f) Pamela Dickman (g) Allan Low; (h) Leighton Dickman; (i) Raymond Hicks; (j) Eleanor Hicks; (k) Melissa Jackson; (l) Kira Brett; (m) MT;
(n) MS; (o) Maureen Yasserie; (p) Chantal Dickman; (q) June Cook; (r) Leisha Robinson; (s) Codie Thornton; (t) Nathan McBride; (u) Melissa Hodge; (v) Plain Clothes Senior Constable Junior Savaliga; (w) Detective Senior Sergeant Adrian Sala; (x) Detective Senior Sergeant Glenn Kite; (y) Detective Sergeant Rodney Messer; (z) Senior Constable Elise Vanderwalt; (aa) Detective Sergeant Craig Ellis; (bb) Dr Beng Beng Ong; and (cc) Dr Catherine Skellern.
A number of exhibits were also received in evidence. All were tendered by the prosecution. These included:
(a)
recordings of interviews which police conducted with MT on 9 September 2019, 12 November 2019 and 9 June 2020;
(b)
recordings of interviews which police conducted with MS on 9 September 2019, 13 November 2019 and 9 June 2020;
(c) the recording of MT’s evidence pursuant to s 21AK of the Evidence Act; (d) the recording of MS’s evidence pursuant to s 21AK of the Evidence Act; (e)
diagrams of the Chinchilla house: the first drawn by MT during her second police interview; the second prepared by police;
(f) photographs of the Chinchilla house; (g)
photographs of Facebook messages between Mr Desatge and Ms Dawita retrieved by police during the covert investigation;
(h)
recordings of conversations between Mr Desatge and various law enforcement participants during the covert investigation;
(i)
recordings of telephone calls involving Mr Desatge and Ms Dawita that were intercepted during the police investigation;
(j)
photographs of a bamboo stick located by police after a search of a storage shed which Mr Desatge had rented in Mission Beach;
(k)
documents evidencing the dates on which Mr Desatge was employed by different entities.
Pursuant to s 644 of the Criminal Code, admissions of fact were made. The document recording those admissions was marked as exhibit 35 and the admissions were read into the record. Those admissions were sufficient proof of the facts stated therein, without the need for further evidence of those facts. Rather than setting the admissions out in full, I have referred to relevant paragraphs of the admissions in the reasons below.
Kaydence’s health when she was in foster care
Between November 2014 and 18 September 2016, Kaydence was cared for by Sally- Ann Pearson and her partner, Nicholas Pearson. The Pearsons also received
assistance from Ms Pearson’s mother, Leanne Davis-Collier, who filled the role of
grandmother.
There was a formal admission that, among other reasons, Kaydence was placed into
Ms Pearson’s care due to a concern that the Department of Child Safety had in relation
to Mr Mills. Specifically, Mr Mills had committed domestic violence against Ms
Dawita and the children. Mr Mills’ mental state was deemed to be unstable at the
time. He was not taking his medication and had been abusing illegal drugs. Mr Mills himself admitted to threatening to kill Ms Dawita and to arguing with her whilst armed with a knife.[3]
[3] Exhibit 35, para 3.
[99] Ms Pearson gave evidence about difficulties she experienced bottle-feeding Kaydence when she first came into foster care. Those issues were addressed with the assistance of a paediatrician and the trial of various formulas. Kaydence was also diagnosed with bronchiolitis and had to be admitted to hospital on two or three occasions due to difficulties with her breathing. As Kaydence grew, Ms Pearson took her to attend specialist appointments with paediatricians, an occupational therapist, and a speech therapist to address some developmental issues.
Ms Pearson said that by the time that Kaydence was returned to Ms Dawita’s care, Kaydence’s bronchiolitis was no longer an ongoing concern. She was in very good
health and meeting all developmental milestones.
Ms Pearson’s evidence is supported by formal admissions. Kaydence was reviewed
four times by general paediatric consultant, Dr Marnie Fraser. Those reviews occurred when Kaydence was aged five months, eight months, 14 months and 20
months. Because of Kaydence’s normal developmental progress, she was discharged
from further paediatric follow-up.[4] Advanced occupational therapist Holly Webster also assessed Kaydence during the same timeframe and noted that she was displaying normal development. At an assessment in March 2016, Ms Webster recommended that Kaydence be assessed again at the two-year developmental screen in September 2016.[5]
[4] Exhibit 35, para 4.
[5] Exhibit 35, para 5.
Shortly before Kaydence was returned to Ms Dawita’s care, Ms Pearson spoke to Ms
Dawita and offered to help with anything Ms Dawita needed in looking after
Kaydence and the other girls.
Ms Pearson said that she only saw Ms Dawita interacting with Kaydence on a few
occasions during the first year she was in Ms Pearson’s care, but that she noticed Ms
Dawita did not exhibit much affection towards Kaydence.
[104] After Kaydence was returned to Ms Dawita’s care, Ms Pearson unsuccessfully
attempted to contact Ms Dawita because she wanted to speak to Kaydence on her birthday. Ms Dawita sent a message to Ms Pearson apologising that she had missed
Ms Pearson’s call but stating that “Kaydence is good”. That was the last contact Ms
Pearson had with Ms Dawita.
The period in Tully after the children returned from foster care
On 29 September 2016, Ms Dawita sent a message to Mr Desatge which said:[6]
[6] Exhibit 17.
“I just want u here I’ve been smacking Kaydence not a lot just a little”
Ms Dawita then sent further messages to Mr Desatge which said:
“Idk I can feel myself getting frustrated really quick it’s not good my old self is
coming back to haunt me
I feel myself heading down the wrong path again
I’m stressing out”
[107] Ms Webster, the occupational therapist who had previously assessed Kaydence, called Ms Dawita in September 2016. Ms Dawita advised Ms Webster that she was
happy with Kaydence’s development. She consented to Ms Webster arranging for
Kaydence to be assessed at the Tully Hospital. Staff at the Tully Hospital contacted Ms Dawita and arranged for appointments on 1 November 2016 and 10 November 2016. On 14 November 2016, a hospital staff member contacted Ms Dawita about having missed those appointments. Ms Dawita said that she would not be rebooking as she was leaving the district and moving to the Gold Coast. She could not provide a forwarding address.[7]
[7] Exhibit 35, para 7.
Ms Davis-Collier gave evidence about two occasions when she saw Ms Dawita by chance. They both occurred when Ms Davis-Collier took a different foster child to
the flats in Tully where Ms Dawita lived, to visit that foster-child’s mother.
On the first occasion, sometime in October 2016, Ms Davis-Collier saw Ms Dawita holding DT while MT, MS and Kaydence played outside the Tully flat. Ms Davis- Collier said that on that first occasion, Ms Dawita was happy for her to say hello and to give the girls a hug. All the girls, including Kaydence, looked happy. Ms Davis- Collier stated that Ms Dawita was acting protectively of the children while they played outside. On that occasion, Ms Davis-Collier did not see or hear any other
adults at Ms Dawita’s flat and had the impression that only Ms Dawita and the
children were present.
As I have found that Ms Dawita is not liable for the unlawful killing of Kaydence, whether as a principal offender or as party to the prosecution of a common unlawful purpose, I find her not guilty of murder and not guilty of manslaughter.
Reasoning to verdict on count 1 – Ms Dawita
Liability as a principal offender
As already explained in reasoning to my verdict on count 1 in the case against Mr Desatge, for me to find Ms Dawita guilty as a principal offender on count 1 the prosecution must prove beyond reasonable doubt that she intentionally inflicted severe pain or suffering on Kaydence.
I am not satisfied that when, as I have found, Ms Dawita slapped Kaydence or forced her to eat her own faeces, she did so with the intention of inflicting severe pain or suffering on Kaydence.
I have found that Ms Dawita slapped Kaydence out of frustration (see [549] and [643] above). Based on that finding, the prosecution has not excluded the reasonable
possibility that Ms Dawita’s acts of slapping Kaydence are explained by her acting
out of frustration but without an intention to inflict severe pain or suffering on
Kaydence.
I also accept MT’s evidence that Mr Desatge sometimes criticised Ms Dawita for not
doing a good enough job disciplining the children and this led to arguments between them, but that Mr Desatge would not make this criticism if Ms Dawita smacked the children (see [442] above). My acceptance of that evidence means that the
prosecution has not excluded the reasonable possibility that Ms Dawita’s acts of
slapping Kaydence are explained by her acting out of a desire to placate Mr Desatge and avoid his criticism, but without an intention to inflict severe pain or suffering on Kaydence.
As to Ms Dawita forcing Kaydence to eat her own faeces, I have found that Ms
Dawita did this at Mr Desatge’s insistence (see [580] above). I also accept MT’s
evidence that Ms Dawita told her that they should all do what Mr Desatge told them to, and they should not make Mr Desatge angry (see [443] above). On that basis, the prosecution has not excluded the reasonable possibility that Ms Dawita forced Kaydence to eat her own faeces because she felt compelled to comply with Mr
Desatge’s demand and avoid his anger, but without an intention to inflict severe pain
or suffering on Kaydence.
Ultimately, I am not satisfied that the prosecution has proved beyond reasonable doubt that Ms Dawita committed any of the alleged acts of mistreatment with the intention of inflicting severe pain or suffering on Kaydence.
Accordingly, I find that Ms Dawita is not liable as a principal offender on count 1.
Liability as a party who aided in the intentional infliction of severe pain or suffering
It remains for me to consider whether the prosecution has established that Ms Dawita is liable for the torture of Kaydence under s 7(1)(c) of the Criminal Code. That section provides:
“7 Principal offenders
(1)
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that
is to say—
…
(c) every person who aids another person in committing the offence; …”
[719] Section 7(1)(c) makes each person who intentionally aids another to commit an offence guilty of that offence. It is not only the person who actually does a criminal act (or makes a criminal omission) who may be found guilty of an offence. Anyone
who aids – that is, assists or helps or encourages – that person to do it may also be
guilt of the same or a less serious offence if they did it for the purpose of, or with an
intention to, aid.
Proof of aiding involves proof of acts and omissions intentionally directed towards the commission of the principal offence by the perpetrator, and proof that the defendant was aware of at least the essential matters constituting the crime in contemplation.
The prosecution must prove that the defendant knew that the type of offence which was in fact committed was intended; but not necessarily that that particular offence would be committed on that particular day at that particular place. It is not enough if the prosecution prove the defendant knew only of the possibility that the offence might be committed.
The particulars of the prosecution case against Ms Dawita under s 7(1)(c) are that, by her deliberate presence in the Chinchilla house, she aided Mr Desatge in his intentional infliction of severe pain or suffering on Kaydence.
I accept that a person’s deliberate presence at a place where an offence is committed
can, in some circumstances, amount to aiding the principal offender to commit the offence. In the circumstances of this case, however, the requirement that Ms Dawita provide aid with the intention of assisting Mr Desatge to commit the offence of torture raises similar issues to those addressed in considering the case against Ms Dawita under s 8 for the unlawful killing of Kaydence.
I accept it is open on the whole of the evidence to infer that Ms Dawita’s continued
presence at the Chinchilla house, when she was aware that Mr Desatge was mistreating Kaydence, is explained by her having held a subjective intention to aid in his intentional infliction of severe pain or suffering on Kaydence. I do not accept, however, that is the only rational inference that can be drawn from the circumstances. I am not satisfied that the prosecution has excluded, as a reasonable explanation for
Ms Dawita’s continued presence at the Chinchilla house, an apprehension on her part
that Mr Desatge might inflict harm on her, or the children, if she attempted to leave
the relationship.
Ultimately, I am not satisfied that the prosecution has proved beyond reasonable doubt that Ms Dawita intended, by her continued presence in the Chinchilla house, to aid Mr Desatge in his intentional infliction of severe pain or suffering on Kaydence. Accordingly, I find that Ms Dawita is not liable for the torture of Kaydence as party who aided in the commission of that offence under s 7(1)(c) of the Criminal Code.
Conclusion
As I have found that Ms Dawita is not liable for the torture of Kaydence, whether as a principal offender or as a party who aided in the commission of that offence, I find her not guilty on count 1.
Conclusion on the case against Mr Desatge
On count 1, I find Mr Desatge guilty.
On count 2, I find Mr Desatge guilty of murder.
Conclusion on the case against Ms Dawita
On count 1, I find Ms Dawita not guilty.
On count 2, I find Ms Dawita not guilty of murder and not guilty of manslaughter.
Introduction
Tane Saul Desatge and Sinitta Tammy Dawita are charged on indictment with four offences. Following amendment of the indictment on the first morning of the trial, the charges are as follows:
Count 1
That on divers dates between the sixteenth day of February, 2017 and the sixth day of May, 2017 at Chinchilla in the State of Queensland, TANE SAUL DESATGE and SINITTA TAMMY DAWITA tortured KAYDENCE HAZEL MILLS.
And the offence is a domestic violence offence.
Count 2
That on a date unknown between the sixteenth day of February, 2017 and the sixth day of May, 2017 at Chinchilla in the State of Queensland, TANE SAUL DESATGE and SINITTA TAMMY DAWITA murdered KAYDENCE HAZEL MILLS.
not dependent upon his Honour’s dissenting views.
before 7 May 2017 and the fact that DS was not born until 3 August 2017. Later, when asked who was living in the house on the last day that MT saw Kaydence, MT said she did not think DS had been born.
Tane slapped her around. I don’t know if Big Tane (unintelligible)”, however the statement I have set
out above is what I heard when listening to the recording of the interview.
recording of the interview.
seen it happen once. Could’ve happened like”, however the statement I have set out above is what I
heard when listening to the recording of the interview.
count 4 on the basis that they each buried Kaydence at the Chinchilla weir before 7 May 2017 and the
fact that DS was not born until 3 August 2017what I heard when listening to the recording.
Exhibit 21.
statement about taking Kaydence to the hospital but I was able to hear it on the recording.
statement about taking Kaydence to the hospital but I was able to hear it on the recording.
Dawita’s “ex” to be a reference to Robert Mills.
on the recording. I interpret these words to be a reference to moving Kaydence’s body.
0