R v Garland
[2023] QDC 32
•3 March 2023
DISTRICT COURT OF QUEENSLAND
CITATION: R v Garland [2023] QDC 32 PARTIES: THE KING
v
RAYMOND HENRY GARLAND(defendant) FILE NO/S: 100/2023 DIVISION: District Court of Queensland PROCEEDING: Judge only trial ORIGINATING District Court at Brisbane COURT: DELIVERED ON: 3 March 2023 DELIVERED AT: Brisbane HEARING 14-17 February 2023 DATES: JUDGE: Allen KC, DCJ VERDICTS: Not guilty of counts 1, 2, 5, 6 and 7 CATCHWORDS:
CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where defendant pleaded not
guilty to one count of assault with intent to rape and four counts of rape allegedly committed against three complainants
– where judge alone trial ordered – whether the trial judge is satisfied beyond reasonable doubt of the guilt of the defendant CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND COINCIDENCE – PROPENSITY EVIDENCE – where Crown argued that the evidence of each
complainant was admissible in proof of the counts relating to the other complainants – whether the evidence of a complainant is cross-admissible in proof of the counts relating
to the other complainantsCRIMINAL LAW – EVIDENCE – CHARACTER AND PRIOR CONVICTIONS – CHARACTER OF WITNESS –
where there is evidence of bad character of each of the complainants and of the defendant – relevance of such evidence in assessing credit of the complainants and the
defendantLEGISLATION: Criminal Code 1899 (Qld), s 6, s 245, s 348, s 349, s 351,
s 615B, s 615CEvidence Act 1977 (Qld), s 15, s 21A, s 132BA COUNSEL: C Birkett for the Crown
J Robson for the defendantSOLICITORS: Office of the Director of Public Prosecutions for the Crown
Legal Aid Queensland for the defendantBackground
On 3 February 2023 the Crown presented an indictment charging the defendant with
two counts of assault with intent to rape and five counts of rape, those counts related
to four complainants. Defence counsel indicated the defendant would apply for a no
jury order and an order for separate trials of the counts relating to each complainant.
On 10 February 2023 I heard applications by the defendant for a no jury order and for
separate trials of the counts relating to each of the four complainants. I ordered that
the trial be heard by a judge sitting without a jury.[1] In light of such ruling, defence
counsel indicated that the defendant would not be persisting with the application for
an order for separate trials. Defence counsel made it clear that there was no
concession on the part of the defendant that the evidence of any complainant was
cross-admissible at proof of the counts regarding any other complainant. On the same
day, I made orders, pursuant to s 21A of the Evidence Act 1977 (Qld), that the
complainants with respect to counts 1, 2, 5, 6 and 7 give evidence by means of audio-
visual link. The Crown’s application for the same orders in relation to the
complainant in counts 3 and 4 was adjourned pending further consideration by the
Crown whether it would be proceeding with those counts.
[1] R v Garland [2023] QDCPR 6.
On 14 February 2023 the defendant was arraigned on counts 1, 2, 5, 6 and 7. The
defendant entered pleas of not guilty to all counts. The Crown later entered a nolle
prosequi in relation to counts 3 and 4 and the defendant was discharged upon those
counts. The trial proceeded from 14 to 17 February 2023 during which I heard
evidence from prosecution witnesses and from the defendant. I subsequently received written submissions on behalf of the Crown and the defendant, and the parties
confirmed that they were content to rely upon such written submissions by way of
closing addresses without the need for any additional oral submissions.
The indictment
The defendant is charged as follows:
• Count 1 – that on a date unknown between 16 January 2013 and 7 February 2013 at Etna Creek in the State of Queensland he assaulted AB with intent to
rape;
• Count 2 – that on a date unknown between 16 January 2013 and 7 February 2013 at Etna Creek in the State of Queensland he raped AB;
• Count 5 – that on a date unknown between 5 March 2014 and 25 April 2014 at Etna Creek in the State of Queensland he raped CD;
• Count 6 – that on a date unknown between 12 August 2014 and 28 August 2014 at Etna Creek in the State of Queensland he raped EF;
• Count 7 – that on a date unknown between 12 August 2014 and 28 August 2014 at Etna Creek in the State of Queensland he raped EF.
Respective cases of the Crown and the defendant in brief
AB gave evidence that the defendant followed him into the unit toilet in Unit S2 of
the Capricornia Correctional Centre, punched AB in the back of the head rendering
him unconscious and sodomised him whilst unconscious. The defendant gave
evidence denying such acts, testifying that he was never in the toilet with AB and
denying any contact of any sort with AB.
CD gave evidence that the defendant followed him into the unit toilet in Unit S2 of
the Capricornia Correctional Centre, said “fight or fuck”, and CD, in fear of bodily
injury, permitted the defendant to sodomise him. The defendant gave evidence that
he sodomised CD on three or four occasions in the unit toilet in Unit S2 of the
Capricornia Correctional Centre. He testified that CD was a willing, indeed
enthusiastic, participant on each occasion. He denied threatening CD.
EF gave evidence of two occasions when the defendant followed him into the unit
toilet in Unit S2 of the Capricornia Correctional Centre and physically restrained EF
before sodomising him against his will. The defendant gave evidence of between two
and four episodes of consensual sexual activity with EF in the unit toilet, including
the defendant sodomising EF.
Trial by judge alone
My role is to determine on the evidence whether the defendant is guilty or not guilty
of each count. I 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 legislation or the common
law requires information or a warning or instruction to be given to the jury in
particular circumstances or prohibits a warning from being given to a jury in
particular circumstances, I must take the requirement or prohibition into account if
the circumstances arise in the course of the trial.[2]
[2] Criminal Code 1899 (Qld), s 615B.
In this judgment, I must include the principles of law that I have applied and the
findings of fact on which I have relied.[3]
[3] Criminal Code 1899 (Qld), s 615C.
Verdicts according to the evidence
I must reach my verdicts on the evidence and only on the evidence. The evidence is
what I heard the witnesses say from the witness box and by video link and telephone
connection, the documents received as exhibits and the formal admissions of the
parties.
In reaching my verdicts on the evidence and only on the evidence, I have put aside
any extraneous knowledge of any persons and matters connected with the trial. In
particular, I have put aside any extraneous knowledge of the history and character of
the defendant gained through reading of pre-trial hearing documents, media articles
and decisions of courts and discussions with colleagues during the course of my
professional and judicial careers. I have regard only to the evidence of bad character
of the defendant admitted into evidence during the course of the trial.
I have dismissed all feelings of sympathy or prejudice, whether it be sympathy for or
prejudice against the defendant, the complainants or anyone else. I have approached
my duty dispassionately, deciding the facts upon the whole of the evidence.
Burden of proof
The burden rests on the Crown to prove the guilt of the defendant. There is no burden
on the defendant to establish any fact, let alone his innocence. The defendant is
presumed to be innocent. He may be convicted only if the Crown establishes that he
is guilty of the offences charged.
Defendant giving evidence
The defendant was not obliged to give or call evidence in his defence. That the
defendant has given evidence does not mean that he has assumed a responsibility of
proving his innocence. The burden of proof has not shifted to him. His evidence is
added to the evidence called by the Crown. It is not a question of making a choice
between the evidence of a complainant and that of the defendant. Proof of each count
depends upon acceptance of the evidence of the complainant as true and accurate
beyond reasonable doubt despite the evidence of the defendant. I do not have to
believe that the defendant is telling the truth before he is entitled to be found not
guilty.
Standard of proof
For the Crown to discharge its burden of proving the guilt of the defendant, it is
required to prove beyond reasonable doubt each element of the offence charged in a
count.
Elements of the offences
Section 351 of the Criminal Code provides that any person who assaults another with
intent to commit rape is guilty of a crime. Section 245 of the Criminal Code provides
a definition of assault. Relevantly to count 1, a person who strikes the person of
another without the other person’s consent is said to assault that other person and the
act is called an assault.
“Intent” carries its ordinary everyday meaning. In ascertaining the defendant’s
intention, I am drawing an inference from facts established by evidence concerning
his state of mind. Intention may be inferred or deduced from the circumstances in
which the assault occurred and from the conduct of the defendant before, at the time
of, or after the assault. In particular, in the case of count 1, a finding that the defendant
raped the complainant immediately following the assault would support the drawing
of an inference that the assault was with the intention of raping the complainant.
Section 349(1) of the Criminal Code provides that any person who rapes another
person is guilty of a crime. Relevantly, s 349(2) provides that a person rapes another
person if:
(a) the person has carnal knowledge with or of the other person without the other person’s consent; or
(b) the person penetrates the anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other
person’s consent.
Section 6(1) of the Criminal Code provides that carnal knowledge is complete on
penetration to any extent. Section 6(2) of the Criminal Code provides that carnal
knowledge includes anal intercourse.
Section 348(1) of the Criminal Code provides that consent means consent freely and
voluntarily given by a person with the cognitive capacity to give the consent.
Relevantly, s 349(2) provides that a person’s consent to an act is not freely or
voluntarily given if it is obtained:
(a) by force; or (b) by threat or intimidation; or (c) by fear of bodily harm. Special witnesses
Pursuant to my earlier order[4], the evidence of each of the complainants was given by
way of an audio-visual link between the room in which the complainant was seated
and the courtroom. The defendant was present in the courtroom but was positioned in such a way that the complainant could not see him whilst he gave his evidence.
All non-essential persons were excluded from the courtroom whilst the evidence was
given. It is not uncommon for evidence to be given in this way. I do not draw any
inference as to the defendant’s guilt from the fact that such measures were used. The
probative value of the evidence of the complainants is not increased or decreased
because such measures were used. The evidence is not to be given any greater or less
weight because such measures were used.
[4] R v Garland [2023] QDCPR 6.
Additional security measures
It was apparent during the trial that Queensland Corrective Services (QCS) put in
place measures for the custody of the defendant over and above the ordinary. For
example, it was apparent that, when the defendant moved from the dock to the witness
box, he wore leg shackles. I draw no adverse inference against the defendant because
such measures were used.
Separate consideration of counts
I must consider each count separately evaluating the evidence relating to that
particular count to decide whether I am satisfied beyond reasonable doubt that the
Crown has proved its essential elements. I will return separate verdicts for each count.
The evidence in relation to the different counts is different so my verdicts need not
be the same. If I have a reasonable doubt concerning the truthfulness or reliability of
a complainant’s evidence in relation to one or more counts, whether by reference to
demeanour or for any other reason, that must be taken into account in assessing the
truthfulness or reliability of the complainant generally. If I find the defendant not
guilty of one count in relation to a complainant that does not necessarily mean that I
cannot convict of another count relating to the same complainant. I must consider
why I have some reasonable doubt about that part of the complainant’s evidence and
consider whether it affects the way I assess the rest of the complainant’s evidence and
whether my doubt about that aspect of the complainant’s evidence causes me also to
have a reasonable doubt about the part of the complainant’s evidence relevant to any
other count.
Similar fact evidence
There is more than one complainant and the Crown case is that the evidence of each
complainant does not stand alone. The Crown argues that each complainant is
supported by the evidence of the other complainants. The Crown argues that
similarities in the defendant’s alleged conduct towards each of the complainants
means that the evidence of each complainant supports the others and makes it more
likely that what each complainant says about the conduct relating to them is truthful
and reliable. The Crown argues that the degree of similarity between the versions of
each complainant makes it highly improbable it is just by chance that the
complainants have falsely complained about similar events.
Before I can use one complainant’s evidence in support of the truthfulness and
reliability of another complainant I need to be satisfied beyond reasonable doubt
about the following things:
(a) that the evidence of each complainant is independent of each other and there is no real risk that the evidence is untrue by reason of collusion and concoction;
(b) that the evidence of the particular complainant under consideration is truthful and accurate as to the alleged similar conduct and that the supporting evidence
of the other complainant/s is also truthful and accurate as to the alleged similar
conduct;
(c) that the facts proved with respect to the other complainant/s are so similar to the allegations made by the particular complainant under consideration that
there is no reasonable view of the evidence of the other complainant/s other
than that the defendant committed the acts the particular complainant alleged.
The Crown argues that the facts are so similar that, when judged by common sense
and experience, they must be true and in that way I can use the evidence of the
complainants in combination. The Crown refers to the following similarities between
the complainant’s accounts:
(a) all involved allegations of anal rape of fellow prisoners in the unit toilet in Unit S2 of Capricornia Correctional Centre during a 20 month period;
(b) the offending was brazen in that the defendant could have been seen entering the toilet after the complainant;
(c) the defendant used force to overcome resistance either through physical violence or threat of violence;
(d) the complainants had only been in the same unit as the defendant for a short time before the commission of the offences.
The defendant argues that the allegations are not so similar as to allow me to use the
evidence of one complainant in proof of the allegations made by another. The
defendant argues that:
(a) most of the features contended by the Crown are a function of the alleged offending taking place in a confined prison environment;
(b) there are obvious and significant differences in the conduct and issues in the case concerning AB and the other complainants;
(c) the similarities contended by the Crown are superficial, for example, as regards paragraph [26](c) above, a closer analysis of the evidence shows the nature of
the force that is alleged is different in each case.
Further, the defendant argues that I would not be satisfied that a particular
complainant is truthful and accurate as to the alleged similar conduct.
The evidence of any one complainant whom I consider to be truthful and reliable as
to the alleged similarities and the defendant’s conduct, may be used by me as a
circumstance which might confirm support or strengthen the evidence of another
complainant but only if I am satisfied on all the evidence that:
(a) there is no reasonable view of it other than the defendant committed the acts alleged by the other complainant/s; and
(b) the possibility that the other complainant/s is/are lying can be rejected; and (c) the possibility that it is just by mere coincidence that the other complainant has complained falsely of similar conduct on the defendant’s part can be rejected.
If I do not accept that sufficient similarities exist in the allegations of each
complainant as to be able to rely on the evidence of one in support of the truthfulness and reliability of the evidence of another then I would reject the Crown argument and
look at the evidence of each complainant independently without having regard to the
evidence of the others. If I do not accept that sufficient similarity in the evidence of
the complainants exist, then I cannot use the evidence to reason that the defendant is
the sort of person who could commit this sort of offences or is of bad character and
therefore convict him of all the charges. I cannot reason that because I am satisfied
beyond reasonable doubt that the defendant committed offences against one
complainant he must therefore have committed the offences alleged by the other
complainants. Before I can convict the defendant on any count I must be satisfied
that the prosecution has proved each element of the particular count beyond
reasonable doubt, that is, that the particular complainant I am considering is truthful
and reliable in his allegation upon which the particular charge is based.
There is no evidence to suggest any possibility of collusion between the complainants.
Their evidence is truly independent.
For reasons which will follow, I am not satisfied that the evidence of any of the
complainants is truthful and accurate as to the alleged similar conduct such that it is
cross-admissible as contended by the Crown. Use of the other complainants’ evidence
would not serve to dispel the doubts I have as to the truthfulness of each
complainant’s evidence.
Further, I am not satisfied that the allegations of any complainant is so similar to the
allegations made by the other complainants that there is no reasonable view of the
evidence of any complainant other than that the defendant committed the acts alleged
by the other complainant/s. I prefer the submissions of the defendant, as noted in
paragraph [27] of these reasons, on such issue.
The evidence of the complainants is not cross-admissible as similar fact evidence. I
have considered the case regarding each complainant separately.
Bad character of complainants
Each of the complainants were in prison serving sentences or on remand at the time
of the alleged offences. Each of the complainants was cross-examined about his
criminal history and a copy of the Queensland criminal history of each complainant
was admitted into evidence. I can take the fact that a complainant has previous
convictions into account when considering the complainant’s credibility and the
weight to be given to his evidence. The fact that someone has previous convictions
does not mean that their evidence must be rejected out of hand. It’s a matter for me
what weight I give to the fact that a complainant has been previously convicted. If I
am satisfied that the complainant is a truthful and accurate witness I can act on their
evidence notwithstanding they have previous convictions.
Bad character of defendant
The defendant admitted to having a lengthy and serious criminal history with previous
convictions for offences of dishonesty and extremely serious sexual offending
including convictions for indecent assault by anal intercourse of follow prisoners in
1996. The defendant stated that he had only spent 18 months out of custody between
the ages of 11 and his current age of 52 years. Such evidence was admissible pursuant
to s 15(2)(c) of the Evidence Act 1977 (Qld) in light of the conduct of the defence
involving imputations on the characters of the complainants. The evidence of the bad
character and previous convictions of the defendant is relevant to the credit of the
defendant. It may not be used by me as evidence of propensity in proof of the charged
offences.
The defendant’s bad character, demonstrating his lack of a moral compass, causes me
to exercise great caution in accepting him as a truthful witness. Nevertheless,
notwithstanding that caution and some minor and explicable inconsistencies in his
evidence, I am not prepared to entirely disregard the defendant’s evidence in my
deliberations. Ultimately, I have concluded that the defendant may well have been
truthful in his evidence.
No evidence of complainants’ motive to lie
There is no evidence of any motive of a complainant to lie. I do not reason that the
absence of any evidence of a motive to lie makes it more likely that a complainant is
telling the truth. If a motive exists the defendant may not know of it. There maybe
many reasons why a person might make a false complaint. The absence of any
evidence of a motive to lie does not mean that I can be more easily satisfied of the
guilt of the defendant of any count.
Preliminary complaint
Preliminary complaint evidence was led by the Crown in relation to each of the three
complainants.
In relation to AB, such evidence was comprised by a QCS association report noting
that, during a reception interview on 23 September 2013, AB “made claims that he
was previously a victim of GARLANDS”.
In relation to CD, the preliminary complaint evidence comprised:
(a) a QCS Post Assault Incident Questionnaire signed by the complainant and Intelligence Advisor Deborah Lennox on 5 February 2018 in which the
complainant is recorded as stating;
“I was in the wrong place at the wrong time. I was young and
new to jail. I was frightened of him. You just had to let him do
what he wanted… No, I do not want to take this matter any
further”
and
(b) evidence that, during an interview in December 2017, for the purposes of an assessment for potential proceedings under the Dangerous Prisoners (Sexual
Offenders) Act 2003 (Qld), the complainant told Dr Elizabeth McVie,
psychiatrist, that he had been assaulted in 2 yard in either 2013 or 2014 by
Raymond Garland who had a reputation for being a sex offender in prison.
In relation to EF, the preliminary complaint evidence comprised:
(a) evidence of a conversation between EF and his mother on 21 August 2014 during which the complainant stated he had been “fucked up the arse … twice”;
(b) evidence of a conversation between EF and a girl friend on 24 August 2014 during which the complainant stated he had been “fucked up the arse … went
to the toilet … they came up behind … it hurt … toilet outside … where it
happened”;
(c) evidence from a solicitor who spoke to EF at Emerald on 27 August 2014 that the complainant said “words to the effect that he was sexually assaulted in
prison”; and
(d) evidence of a conversation between EF and Constable Matthew Wood in the watchhouse at the Emerald Police Station on 27 August 2014 during which the
complainant stated that he had been sexually assaulted twice by Ray in the unit
toilet, the first occasion about a week previous and the second occasion a day
before travelling to Emerald.
The evidence of preliminary complaint may only be used as it relates to a
complainant’s credibility. Consistency between the terms of the complaint and
complainant’s evidence is something I may take into account as possibly enhancing
the likelihood that the evidence of the complainant is true. However, I cannot regard
the things said in those out of court statements by the complainant as proof of what
actually happened. In other words, evidence of what was said by the complainant
may, depending on the view I take of it, bolster the complainant’s credit because of
consistency but it does not independently prove anything. Likewise, any
inconsistences between the terms of the complaint and the complainant’s evidence
may cause me to have doubts about the complainant’s credibility or reliability.
It was evident that, during his conversations with his mother, his girl friend and
Constable Walker, EF appeared to be very distressed. Such evidence of distress is
merely part of the narrative of the evidence of preliminary complaint. It is not
independent evidence probative of the guilt of the defendant of any count.
Delay in prosecution
Both the prosecution and defendant submitted that the delay in prosecution of the
alleged offences had resulted in a significant forensic disadvantage to the
defendant[5]and that I should warn myself in terms of the Benchbook.[6] I have heeded
such warning.
Counts 1 and 2 – AB
[5] Evidence Act !977 (Qld), s 132B.
[6] Supreme and District Courts Criminal Directions Benchbook, No 69.
AB was a prisoner housed in Unit S2 of Capricornia Correctional Centre from 19
November 2012 until being transferred from that unit on 6 February 2013. He was
released from prison on 22 April 2013. He then returned to prison on 23 September
2013. The defendant was housed in Unit S2 of Capricornia Correctional Centre from
16 January 2013 until 28 February 2014. Thus AB and the defendant were both
housed in Unit S2 from 16 January 2013 until 6 February 2013.
AB was 46 years of age when he gave evidence. He said that, when he was aged 17
or 18 years, he was raped by the defendant when they were both prisoners in Arthur
Gorrie Correctional Centre. AB said that the next time he met the defendant was at
the Capricornia Correctional Centre in 2013. He said he heard from correctional
officers that the defendant was being transferred into that unit. He said that he told
correctional officers that he had been previously abused by the defendant and that the
defendant should not be transferred into the unit. He said that the officers reported
back to him that there was nothing on file concerning any earlier incident so there
was nothing they could do.
The QCS offender case file notes for AB contain no record of him raising any concern
with correctional officers in relation to the movement of the defendant into Unit S2
on or around 16 January 2013. Stephen Pescod, employed as a correctional officer at
Capricornia Correctional Centre at the time, gave evidence that protocols observed
by correctional officers required a written record to be made if a prisoner voiced such
a concern.
AB said that after the defendant arrived in Unit S2 the defendant shook his hand and
acted like nothing had happened. He said he tried to distance himself from the
defendant.
AB gave evidence that one day he entered the unit toilet and started to urinate. He
heard the door open behind him and, as he turned around, he saw the defendant and
the defendant punched him in the head. He said he was knocked out. When he
regained consciousness his pants were down and one of his legs was out of his pants.
He was bleeding from his anus and his anus was extremely sore. He also had pain to
his head where he had been struck. His anus was wet. He realised he had been raped
by the defendant.
AB gave evidence that he did not make any complaint about the rape because the
correctional officers had not believed him “the first time, before they put him in the
unit. They done nothing …” He said that he asked the supervisor to move units and
was moved to Unit S9.
AB gave evidence that he later told two other prisoners that he had been raped by the
defendant but no evidence was led from such persons to confirm such complaints.
There was evidence of the complaint by AB upon readmission to Capricornia
Correctional Centre on 23 September 2013 referred to a paragraph [40] of these
reasons. However, such complaint was in such general terms that it is not clear
whether it related to AB’s allegation that he was raped by the defendant in Arthur
Gorrie Correctional Centre in the mid-1990’s, the alleged offences, or both. It is of
little value in bolstering the credit of the complainant.
AB gave evidence that the door to the unit toilet could not be locked at the time of
the offences. During cross-examination, AB said that, even if the door could be
locked, it could easily be opened from the outside by a butter knife or similar
implement. Such evidence was contradicted by the evidence of the defendant and the
evidence of other prisoners, Brian Davis and Anthony Wathen.
AB was cross-examined as to the timing of the defendant’s arrival in Unit S2, the day
the offences were committed and the day AB transferred from Unit S2 to S9: How long did you stay in the unit for after you say this happened? -- - Not long. Yeah, not long. A couple of days, maybe. I spent 90 percent of that time in my cell.
And you were moved - you say you were moved out of S2 within a couple of days of Ray coming in; is that right? It would have been - - -?---No. Yeah.
- - - within a couple of - - -?---Yeah. A week, maybe two.
A week, maybe two?---Would be. Yeah.
So if this happened a few days after Ray moved into the unit - - -?---
Yep.
- - - and you left the - - -?---Yeah. No, like a week.
And you left the unit a couple of days after it happened - - -?---Yep.
- - - then you would have been in the unit at the same time - - -?---A
week.- - - as Ray for about five days, that’s true?---Yeah. Yeah. Yep.
Roughly, yep.
And is that your memory sitting here today now, that you shared a
unit with Ray during that period for about five days, that’s right?---
Yeah. Yep. Yeah, it wouldn’t be much longer.
AB was further cross-examined as follows:
See, it’s true, isn’t it, that you have form for manipulating your
movements within the prison system by providing false - - -?---But
everyone does. Everyone does.By providing false or frivolous information to the authorities - prison authorities?---Everyone manipulates the system to get what they
want. That’s a part of jail. Ask - ask your other client there, he does
it every day. We all do it.
You previously - when you weren’t given the move that you
requested - you previously threatened to self-harm, to try and force
through a move. That’s true, isn’t it?---Yeah, I just told you. I said,
we all do it, everyone does what they have to, to get what they want.
You previously threatened to take prison authorities to the
ombudsman when your movement requests weren’t being acted
upon. Do you remember that?---Yeah - yeah- probably did happen.
That’s another thing, like we do what we have to to - that’s what the
ombudsman and all those are there for. They’re there to help us get what we want. If you’re trying to get at that I made this up to get -
get out of the unit with Ray, I could have got out of the unit anyway.
What do you mean by that?---It’s not hard to get moved from a unit. I know what you’re doing. You might treat me like an idiot, but I’m
not.
The defendant gave evidence that he had a vague memory of being in the same unit
with AB at Arthur Gorrie Correctional Centre in 1995 or 1996. He denied raping him
at that time. He said the next time that he met AB was after arrival in Unit S2 of Cape
Capricornia Correctional Centre in 2013. The defendant said that he avoided AB at
all costs and did not speak to him at any time because he had a reputation of being a
“snitch”. He denied assaulting or raping AB. The defendant gave evidence that the
door to the unit toilet was always lockable during the time that he spent in Unit S2.
There was nothing with respect to the demeanour of AB which raised concern as to
his credibility. He was an unsophisticated witness with an unguarded demeanour,
responsive to questions in evidence in chief and cross-examination. He was prepared
to make frank concessions as to his lack of recollection of times. He frankly admitted the extent of his criminal history and his willingness to manipulate the prison system
when it suited him.
AB’s extensive history of offences of dishonesty and his admitted willingness to
manipulate the prison system to his own advantage are factors which mean I should
approach his evidence with caution.
AB’s account of the offences is uncorroborated.
Whilst he appeared a convincing witness when recounting that he voiced concerns as
to the defendant’s impending transfer to Unit S2 to prison officers and the terms of
their response, the absence of any record of him voicing such a concern is an objective
fact properly taken into account in accessing the credibility and reliability of AB’s
evidence. Whilst I acknowledge it is entirely possible that AB is telling the truth on
such matter and that prison officers have failed to follow applicable protocols in
recording such a matter, the absence of any such record remains a matter of concern.
AB’s timeline of events following upon the defendant’s transfer into Unit S2, that is,
the length of time that followed before the alleged offences and the following lapse
of time before AB’s transfer out of Unit S2 to S9 is at odds with the admitted facts as
to the dates during which AB and the defendant were both held in Unit S2. Whilst
such discrepancy might be as a result of honestly mistaken recollection on the part of
AB, the objective facts would tend to suggest that AB remained in Unit S2 for a period
in excess of two weeks following the time of the alleged offences, in circumstances
where he could easily have sought and obtained a transfer from Unit S2 soon after the
alleged offences, as AB testified he did.
Whilst I would hesitate to accept the defendant as a witness of truth given his
reprehensible character, I am ultimately left with the impression that the defendant’s
evidence of his refusal to have anything to do with AB because of his prison
reputation is plausible.
Ultimately, upon the consideration of all the evidence and bearing in mind those
warnings I am required to heed, I am left with a reasonable doubt as to the defendant’s
guilt on counts 1 and 2.
Count 5 – CD
CD was held in Unit S2 of Capricornia Correctional Centre from 28 September 2013
until 19 November 2013 and from 27 February 2014 until 24 April 2014. The
defendant was held in Unit S2 of Capricornia Correctional Centre from 16 January
2013 until 28 February 2014 and from 5 March 2014 until 28 August 2014. Thus CD
and the defendant were both held in Unit S2 from 28 September 2013 to 19 November
2013, 27 to 28 February 2014 and 5 March 2014 to 24 April 2014. It is during the
last time period that the offences are alleged to have occurred.
CD gave evidence that the defendant followed him into the unit toilet and said “fight
or fuck”. CD said he allowed the defendant to sodomise him only because he feared
he would be assaulted by the defendant if he did not. He said that he asked the
defendant if he could leave but the door was locked by the defendant. He reluctantly
complied with the defendant’s demand that he remove his pants and lean over the
toilet. He said that the defendant sodomised him for about 30 seconds before leaving
suddenly.
CD said that he could only recall being in Unit S2 with the defendant during one
period of time. He said that the rape occurred towards the end of his time in custody.
He gave evidence that the offence occurred during the first time that he was in Unit
S2, within a matter of days to weeks after he arrived in the unit. He said there was
no possibility it was months later.
CD admitted to a criminal history for offences of sexual violence committed against
male and female children. He was kept in prison beyond his fulltime release date
pursuant to the provisions of the dangerous prisoners legislation. Pursuant to such
legislation he was assessed by psychiatrists. He was assessed by psychiatrist, Dr
McVie, in December 2017. CD said the reason he mentioned that he had been raped
by the defendant to Dr McVie was because she had “brought up the subject”, that is,
“she asked me about the incident that had occurred between myself and Mr Garland.”
He explained that Dr McVie must have received information from prison records of
his report of a prior incident concerning the defendant upon his return to prison on 12
March 2015. Dr McVie gave evidence that there was no prior QCS record of the
complainant having reported a sexual assault. Contrary to CD’s evidence, Dr McVie
said that she did not raise the subject of the defendant with CD but rather asked a
general question as to whether or not he had previously been sexually assaulted.
CD denied telling a fellow Unit S2 inmate, Dylan Elliott, that he had been raped by
another prisoner, Shannon Hinchey. This was contradicted by evidence from Dylan
Elliott who also testified that he had asked the complainant whether he had been raped
by the defendant and the complainant had changed the subject.
CD agreed that he had been assessed by a psychiatrist pursuant to the dangerous
prisoners legislation and that his diagnosis included psychopathy. He agreed that he
had been described as exhibiting a lack of concern for others, impulsivity, sex drive
preoccupation, sex as a coping mechanism, deviant sexual preferences and lack or
cooperation with supervision. He agreed that his psychopathic tendencies had been
assessed as including “manipulation, deceitful behaviour, superficial engagement,
rehearsed dialogue, minimising your own behaviour, and difficulties in case
management.”
The defendant gave evidence that, during the first period of time that he and CD were
in Unit S2 he had three or four sexual encounters with CD in the unit toilet. He said
that CD was an enthusiastic participant in the prearranged assignations in the toilet.
The sexual activities included mutual masturbation and the defendant sodomising
CD. The defendant gave evidence that there was no further sexual contact between
him and CD during the last time that they were both in Unit S2. The defendant
thought that he might have had another sexual partner during that period of time.
There was nothing about the demeanour of CD whist giving evidence which caused
me concern as to his credibility.
CD’s bad character and his psychopathic personality traits mean that I should
scrutinise his evidence with great care.
CD’s account of the alleged offence is uncorroborated.
CD’s claim that he reported the offence to a QCS psychologist in 2015 is not
supported by any QCS records. CD’s evidence as to the terms of his conversations
with Dylan Elliott and Dr McVie are contradicted by evidence from those witnesses.
CD’s evidence that the offence occurred the first time that he was in Unit S2 is
contrary to the particulars of the Crown case.
Whilst being mindful of the caution to be exercised in approaching the evidence of
the defendant given his reprehensible character, I was ultimately left with the
impression that the defendant’s evidence regarding his interactions with CD is
plausible and that the defendant may well be telling the truth as to such matters.
Bearing in mind the warnings I must heed in considering the evidence of CD, I am
left with a reasonable doubt as to the defendant’s guilt of count 5.
Counts 6 and 7 – EF
EF was housed in Unit S2 of Capricornia Correctional Centre from 12 August 2014
until 27 August 2014. The defendant was also housed in Unit S2 during that period
of time.
EF gave evidence that the first offence occurred about only a day after he arrived in
Unit S2, that is, on 13 August 2014. EF said the defendant followed him into the unit
toilet and grabbed the back of his head and pushed him into the toilet. He said the
defendant held both his hands with one of the defendant’s hands whilst the defendant
used his other hand to pull down EF’s pants. EF said the defendant sodomised him
for about five minutes before ejaculating into the toilet bowl and leaving. EF said he
asked the defendant to stop. EF did not consent to the anal intercourse.
EF gave evidence that the same thing happened about a week later. The defendant
sodomised him for about five minutes before ejaculating into the toilet bowl and
leaving. EF did not consent to the anal intercourse.
EF said he did not scream or call out because he was scared. He did not complain to
authorities until he was outside the prison because he was scared of what would
happen to him.
The preliminary complaint evidence referred to in paragraph [42] of these reasons
does bolster the credit of the complainant. However, such bolstering effect is more
than outweighed by the detracting effect of some additional evidence of things said
by EF to his mother whilst held in Unit S2.
During a recorded phone call on 19 August 2014, EF told his mother that “Raymond
is helping me out with everything in here”. I find that EF was referring to the
defendant. I do not accept the ingenious argument of the Crown that EF may have
been referring to another prisoner, “Ramon”. There is no evidence of any relationship
between EF and that prisoner but there is evidence from a former correctional officer,
Stephen Pescod, and other prisoners, Dylan Elliott and Brian Davis, that EF and the
defendant appeared to be close. EF did not suggest in his evidence that he was
referring to anyone other than the defendant. EF could not explain why he would have
said such a thing if he had been raped by the defendant.
What EF says to his mother on 19 August 2014 as to the nature of his relationship
with the defendant is significantly inconsistent with EF’s evidence that he had been
raped by the defendant on 13 August 2014 and fearfully avoided him following that.
It is consistent with the defendant’s description of his relationship with EF at that
time.
EF claimed that he did not know he could move units on request and that, if he was
given the option, he would have taken that opportunity to distance himself from the
defendant. That evidence is contradicted by a QCS file note on 18 August 2014 in the
following terms:
Prisoner [EF] was instructed to pack his gear and move to S4 today. He has
identified a prisoner from S4 as the perpetrator of an assault that occurred in
S1. I have informed INTEL and an association flag has been raised. Prisoner
moved to cell 9[7] and the double up from cell 9 moved to cell 14 for double
bunks.
[7] In Unit S2.
In a statement to police dated 27 August 2014, EF said he told other prisoners, Lee
Henderson and Michael Vock, that he had been raped by the defendant. That
statement was contradicted by the evidence of Lee Henderson and Michael Vock.
The defendant gave evidence that he sodomised EF in the unit toilet on occasions
with the consent of EF. The defendant said that this was the price paid by EF for the
defendant’s assistance and protection. He said that, whilst EF was initially reluctant
to enter into such a transactional sexual relationship, he later indicated his agreement and willingly met the defendant in the unit toilet and permitted the defendant to
sodomise him.
Notwithstanding the context of a transaction for assistance and protection, the
defendant’s account was one of consensual sexual activity. If I am left with a
reasonable doubt as to whether the defendant’s evidence of the sexual activity is a
truthful and accurate one, I must acquit. Only if I am satisfied that the defendant’s
account is false and satisfied beyond reasonable doubt that EF’s account is true could
I convict.
Whilst being mindful of the caution to be exercised in approaching the evidence of
the defendant given his reprehensible character, I am ultimately left with the
impression that the defendant’s evidence regarding his relationship with EF is
plausible and that the defendant may well be telling the truth as to such matters.
EF’s demeanour whilst giving evidence initially supported a favourable view of his
credibility and reliability. However, as he was cross-examined as to matters
inconsistent with his account, he became increasingly defensive, non-responsive and
repetitive in his claims of lack of recollection. Whilst recognising the limitations of
assessment of credibility on the basis of demeanour, the way EF gave evidence did
not enhance his credibility.
I have regard to EF’s bad character in assessing his credibility and reliability.
EF’s account of the offences is uncorroborated.
The significant inconsistencies between the evidence of EF and other witnesses as to
the nature of his relationship with the defendant, EF’s statement to his mother
consistent with the defendant’s account of their relationship, and EF’s refusal of an
opportunity to leave Unit S2 after a time he would claim count 6 had been committed
and he lived in fear of the defendant, all impact negatively upon his credibility.
Bearing in mind the warnings I must heed in considering the evidence of EF, I am
left with a reasonable doubt as to the defendant’s guilt of counts 6 and 7.
0
0
0