R v Fax

Case [2020] QChC 30

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v FAX [2020] QChC 30

PARTIES:

THE QUEEN

v

FAX

(defendant)
FILE NO:

67/2019

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Childrens Court at Southport

DELIVERED ON:

21 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8 and 9 September 2020

JUDGE:

Smith DCJA

ORDER:

I find the defendant guilty of rape.

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT –  GENERALLY – DIRECTIONS whether the defendant is guilty or not guilty of rape – whether Robinson direction should be given and basis of direction

EVIDENCE- PRELIMINARY COMPLAINT- Whether should be excluded- whether the product of leading questions 

Childrens Court of Queensland Act 1992 (Qld) s 23
Criminal Code 1899 (Qld) ss 1, 348, 349, 615B, 615C
Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A
Evidence Act 1977 (Qld) ss 21AK, 21AW, 93A, 130
Youth Justice Act 1992 (Qld) s 101

Butera v DPP (1987) 164 CLR 180; [1987] HCA 58, applied
Fleming v R (1998) 197 CLR 250; [1998] HCA 68, applied
Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334, cited
Robinson v R (1999) 197 CLR 162; [1999] HCA 42, applied
R v Armstrong [2006] QCA 158, cited
R v Coss [2016] QCA 44, cited
R v E (1995) 89 A Crim R 325, cited
R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, cited
R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited
R v Mulcahy [2010] ACTSC 98, applied
R v NM [2012] QCA 173; [2012] 1 Qd R 374, cited
R v RH [2005] 1 Qd R 180; [2005] QCA, cited

R v Rutherford [2004] QCA 481, cited
R v Van der Zyden [2012] QCA 89; [2012] 2 Qd R 568; 222 A Crim R 463; 261 FLR 419, applied
COUNSEL:

Mr M Hynes for the Crown

Mr A Kimmins for the Defence
SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

PVB Lawyers for the Defence

Introduction

  1. This is a judge only trial.

  2. The defendant is charged with the following count:

    “That between the 29th day of January 2016 and the 1st day of February 2016, at Oxenford in the State of Queensland, the defendant raped ED.”

  3. The defendant has pleaded not guilty to the charge and it is my role to determine on the evidence whether the defendant is guilty or not guilty.

  4. The offence of rape is set out in s 349 of the Criminal Code.

  5. Relevantly, the elements of the offence are the penetration of the vulva or vagina of the complainant by the defendant’s fingers without the complainant’s consent.

  6. Consent is defined in s 348 of the Criminal Code as: 

    “348   Meaning of consent

    (1)In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

    (2)Without limiting subsection…

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Details
AGLC
R v Fax [2020] QChC 30
Case
[2020] QChC 30
Decision Date

CaseChat Overview and Summary

The case of R v Fax is a criminal proceeding concerning a conviction for rape. The defendant was accused of sexually assaulting his cousin while she was asleep on a couch at a house. The complainant provided a statement to the police and gave evidence in court, while the defendant argued that the complainant's evidence was not credible. The Queensland District Court was responsible for adjudicating on the case.

The primary legal issue for the court to decide was whether the prosecution had proven the elements of the offence of rape beyond reasonable doubt. This involved assessing the credibility of the complainant's evidence and determining whether the defendant's actions constituted the necessary elements of the offence. The court also considered whether a Robinson direction should be given to the jury and, if so, what the basis of such a direction should be.

In delivering the decision, the court found that the complainant's evidence was credible and that the defendant's actions constituted the offence of rape. The court emphasised the importance of assessing the credibility of the complainant's evidence and rejected the defence's argument that the complainant had a motive to lie. The court also found that the measures taken to protect the complainant's anonymity during the trial did not affect the weight of her evidence.

Ultimately, the court found the defendant guilty of rape, having been satisfied beyond reasonable doubt that the prosecution had proven the elements of the offence. The court's decision was based on a thorough assessment of the evidence and a careful consideration of the legal issues involved.

Orders

Orders of the court

I find the defendant guilty of rape.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I also direct myself that the cross-examination and submissions by the defence may have left one with the impression there was a motive to lie on the part of the complainant. Even if I reject such a motive, it does not mean the complainant is telling the truth. It remains necessary for the prosecution to satisfy me that she is telling the truth as to the charged act beyond reasonable doubt.[13] Also, if there is any motive to lie a defendant may not know of it. There can be many reasons why people make false complaints.[14] [13] R v Coss [2016] QCA 44 at [22].[14] R v Van der Zyden [2012] QCA 89; [2012] 2 Qd R 568; 222 A Crim R 463; 261 FLR 419 at [32].Complainant’s evidence The complainant gave evidence by way of a section 93A Evidence Act interviews and by way of a section 21AK Evidence Act prerecording. I also note that the Court was closed during the taking of the 21AK evidence, during the playing of the s93A statement, and the 21AK recording and during the taking of the complainant’s further evidence. There was a support person present during the pre-recording and during the taking of her further evidence. I specifically record that the measures for the taking of her evidence are a routine practice of the Court and the Court should not draw any inference as to the defendant’s guilt from those measures. The probative value of the evidence is not increased or decreased because these measures were used and the evidence is not to be given any greater or lesser weight because of these measures.[15][15] Section 21AW of the Evidence Act1977 (Qld). My reference to the transcripts is for ready reference. I am aware of course that the actual evidence is contained in the recording and the transcripts are an aid to my understanding of the recording.[16][16] Butera v DPP (1987) 164 CLR 180 at 188; [1987] HCA 58.Section 93A statement The complainant provided a s 93A statement to the police dated 30 June 2018.[17] She told the police that two years prior, her cousin (the defendant) sexually assaulted her.[18] She said it was night time, they were sitting watching a movie and all of the adults were outside.[19] She fell asleep under a blanket and she ended up leaning against him a bit and she woke up to his hand down her pants and his fingers inside her vagina.[20] After she woke up, he snatched his hands away and she pushed him away.[21] She was groggy at that stage.[22] [17] Exhibit 1.[18] Transcript page 2.25-26.[19] Transcript page 2.32-33.[20] Transcript page 2.37-50.[21] Transcript page 2.54-56.[22] Transcript page 2.57. She was then yanked up and she tripped over, and she was pulled by the defendant through the living room down a hallway.[23] She thought they were going to look at movies but she started panicking.[24] She tried to pull away and he pushed her into the bathroom and she realised something was wrong and she said to him “no I want to get out M”. [25][23] Transcript page 3.1-5.[24] Transcript page 3.13-21.[25] Transcript page 3.26-33.

Decision

Reasons for decision

I find beyond reasonable doubt that whilst they were on the couch in the evening at GW’s house on 30 January 2016, the complainant was asleep and her head was on the defendant’s shoulder. I find beyond reasonable doubt that without the complainant’s consent, he put his hand into her pants and inserted his finger or fingers into her vagina as she described. I therefore find that the act relied on by the prosecution occurred.Conclusion In all of the circumstances, I am satisfied beyond reasonable doubt that the crown has proved the elements of the offence I find the defendant guilty of rape.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.