R v GJL - [2020] QDC 213

DISTRICT COURT OF QUEENSLAND

CITATION:

R v GJL [2020] QDC 213

PARTIES:

THE QUEEN

v

GJL

FILE NO/S:
164/18

DIVISION:

District Court

PROCEEDING:

Judge Only Trial

ORIGINATING COURT:

District Court of Queensland, Cairns

DELIVERED ON:

7 September 2020.

DELIVERED AT:

District Court of Queensland, Brisbane

HEARING DATE:

9, 10, 11 June 2020

JUDGES:

Dick DCJ

ORDER:

Count 1 – Guilty

Count 2 – Guilty

Count 3 – Guilty

Count 4 – Guilty

Count 5 – Guilty

Count 6 – Guilty

Count 7 – Guilty

Count 8 – Not Guilty

Count 9 – Not Guilty

Count 10 – Not Guilty

Count 16 – Guilty

Count 17 – Not Guilty

CATCHWORDS:

CRIMINAL TRIAL – JUDGE ONLY TRIAL – SEXUAL OFFENCES – MAINTAINING A SEXUAL RELATIONSHIP WITH A CHILD - RAPE - INDECENT TREATMENT OF A CHILD UNDER 16, UNDER CARE - separate consideration of charges – where there is a need to scrutinise complainant’s evidence with care due to delay, inconsistencies and other reasons – whether complainants evidence credible and reliable beyond reasonable doubt – whether the defendant is guilty or not guilty of the charges

BCM v The Queen (2013) 88 ALJR 101

De Silva v R [2019] HCA 48

Hackwill v Kay [1960] VR 632 at 634

KBT v R (1997) 191 CLR 417

MFA v The Queen (2002) 213 CLR 606

R v Far [2018] QCA 317

R v Far [2019] HCA Trans 129.

R v HBR[2017] QCA 193

R v Jacobs[1993] 2 Qd R 541

R v KAW [2020] QCA 57

R v Kringle [1953] Tas SR 52

R v KP; ex parte Attorney General (Qld) [2006] QCA 301

R v SCE [2014] QCA 48

R v Van Der Zyden [2012] 2 Qd R 568.

WGC v The Queen [2007] HCA 58

Criminal Code 1899 (Qld)

COUNSEL:
E Coker for the Crown

A Kimmins for the Defendant

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

Mellick Smith & Associates for the Defendant

Introduction

The defendant is charged with the following twelve (12) offences:
i.One (1) count of maintaining a sexual relationship with a child;
ii.Eight (8) charges of indecent treatment of a child under 16, under care; and
iii.Three (3) charges of rape.

Elements of the offences (relevant at the time)
Rape s347 (now repealed – for offences occurring prior to 27 October 2000)

In order to prove the offence of rape, the prosecution must prove the defendant:
i.Had carnal knowledge of the complainant.
The prosecution must prove that the defendant penetrated the genitalia of the complainant with his penis. Any degree of penetration is sufficient. It is not necessary for the prosecution to prove that the defendant ejaculated.
ii.Without her consent.
Consent is a common word in everyday use. When it is used in the context of sexual activity it means consciously permitting the act of sexual intercourse to occur. Consent may be defined as the agreement to, or the acquiescence in, the act of sexual intercourse by the complainant. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v GJL

Details

AGLC: R v GJL [2020] QDC 213
Case: [2020] QDC 213
Decision Date: 7 September 2020.

CaseChat Overview and Summary

The case of R v GJL involved the defendant, GJL, being tried on multiple charges of sexual offences against a child. The complainant, who was under the care of the defendant, alleged that the defendant engaged in a series of sexual acts over a period of time. The trial was conducted before a judge alone in the Supreme Court of Queensland. The primary legal issues before the court were whether the complainant's evidence was credible and reliable beyond reasonable doubt, and whether the defendant was guilty of the charges laid against him.

The court meticulously examined the complainant's evidence, taking into account the delay in reporting the offences, inconsistencies in her testimony, and other factors that might impact the reliability of her statements. The judge highlighted the importance of scrutinising the complainant's evidence carefully due to these factors. After a thorough analysis, the court determined that the complainant's evidence, despite its flaws, was sufficiently credible and reliable to convict the defendant on several charges. The court found GJL guilty on counts 1, 2, 3, 4, 5, 6, 7, and 16, while acquitting him on counts 8, 9, 10, and 17.

In reaching its decision, the court emphasised the need to consider the complainant's evidence in the context of the specific circumstances of the case, including the delay in reporting and the inconsistencies. The judge concluded that while the evidence had its shortcomings, it was sufficient to establish the defendant's guilt beyond reasonable doubt on the charges for which he was convicted. The final orders of the court reflected the outcomes of the trial, with GJL being found guilty on eight counts of sexual offences and not guilty on the remaining counts.

Orders

Orders of the court

Count 1 – Guilty

Count 2 – Guilty

Count 3 – Guilty

Count 4 – Guilty

Count 5 – Guilty

Count 6 – Guilty

Count 7 – Guilty

Count 8 – Not Guilty

Count 9 – Not Guilty

Count 10 – Not Guilty

Count 16 – Guilty

Count 17 – Not Guilty

Background

Background to the litigation

I am aware of the statement in De Silva v R, however it seems to me that that relates to trial where there is a real risk that the jury might view their role in an incorrect way. Nevertheless I have read and considered those cases.[17][17] [2019] HCA 48.Background In the latter part of 1992, the complainant’s mother started a relationship with the defendant after meeting him through work. The complainant met the defendant sometime in late 1992. In early 1993, the complainant and her mother moved in with the Defendant at his house at Redlynch. The complainant said that once they had moved in with the defendant ‘he began paying more attention to me.’[18] When asked to elaborate on this, she described the attention as ‘tickling me, throwing me in the pool and just mucking around.’[19] When questioned about the contact that occurred in the pool, the complainant said ‘sometimes in the pool he’d accidentally maybe touch my breast when he threw me’[20] and ‘sometimes my bum.’[21] This contact does not form part of the charged acts. [18] T 16, l 20. [19] T 16, l 25.[20] T 16, l 40.[21] T 16, l 45. The complainant said that ‘sometimes after dinner we used to sit on the couch and he used to have his hand on my thigh.’[22] The complainant gave evidence that the defendant’s conduct of having his hand on her thigh underneath the doona on the couch occurred for approximately three weeks, before the conduct escalated. The complainant said ‘his hand got a lot closer and it was more on the outside of my shirts, between my legs’[23] and that he was ‘touching my vagina on the outside of my pants’[24] which occurred ‘about twice a week.’[25][22] T 17, l 5.[23]T 17, l 45.[24] T 18, l 15.[25] T 18, l 30.Discreditable conduct and Uncharged Acts The complainant gave evidence that the physical contact between herself and the defendant continued after counts 2 & 3 in a similar manner before escalating to sexual intercourse. The complainant stated that the conduct ‘involved him placing his hand down my actual shorts and underwear and touching my vagina’[26] and that this ‘would always happen on the couch normally after dinner.’[27] [26] T 26, l 28.[27] T 26, l 31. The complainant’s evidence was that the defendant would always be seated in the middle of the couch, between the complainant and her mother, after dinner, with a doona covering their laps.[28] The defendant would take his hand and ‘slowly manoeuvre it to place it – like, lift my shirt a little bit and then place his hand straight down the front of the shorts and underneath my underwear’[29] before he ‘would insert his index finger but he’d have his whole hand cupping my vagina.’[30] The complainant said that this conduct occurred around twice a week, unless the complainant chose to sit somewhere else.[31][28] T 26.[29] T 26, l 40.[30] T 26, l 45.[31] T 27, l 10. The presence of the doona became relevant throughout the trial. The complainant did not refer to the doona in her evidence relating to counts 1 & 2, nor counts 4 through to 8. It became apparent throughout the course of the complainant’s evidence that she referred to the use of the doona predominantly in relation to uncharged acts. The complainant often referred to the doona being used to cover, herself, her mother and the defendant, when they would be on the couch at night, watching TV after dinner.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v GJL [2020] QDC 213
PARTIES:	THE QUEEN v GJL
FILE NO/S:	164/18
DIVISION:	District Court
PROCEEDING:	Judge Only Trial
ORIGINATING COURT:	District Court of Queensland, Cairns
DELIVERED ON:	7 September 2020.
DELIVERED AT:	District Court of Queensland, Brisbane
HEARING DATE:	9, 10, 11 June 2020
JUDGES:	Dick DCJ
ORDER:	Count 1 – Guilty Count 2 – Guilty Count 3 – Guilty Count 4 – Guilty Count 5 – Guilty Count 6 – Guilty Count 7 – Guilty Count 8 – Not Guilty Count 9 – Not Guilty Count 10 – Not Guilty Count 16 – Guilty Count 17 – Not Guilty
CATCHWORDS:	CRIMINAL TRIAL – JUDGE ONLY TRIAL – SEXUAL OFFENCES – MAINTAINING A SEXUAL RELATIONSHIP WITH A CHILD - RAPE - INDECENT TREATMENT OF A CHILD UNDER 16, UNDER CARE - separate consideration of charges – where there is a need to scrutinise complainant’s evidence with care due to delay, inconsistencies and other reasons – whether complainants evidence credible and reliable beyond reasonable doubt – whether the defendant is guilty or not guilty of the charges BCM v The Queen (2013) 88 ALJR 101 De Silva v R [2019] HCA 48 Hackwill v Kay [1960] VR 632 at 634 KBT v R (1997) 191 CLR 417 MFA v The Queen (2002) 213 CLR 606 R v Far [2018] QCA 317 R v Far [2019] HCA Trans 129. R v HBR[2017] QCA 193 R v Jacobs[1993] 2 Qd R 541 R v KAW [2020] QCA 57 R v Kringle [1953] Tas SR 52 R v KP; ex parte Attorney General (Qld) [2006] QCA 301 R v SCE [2014] QCA 48 R v Van Der Zyden [2012] 2 Qd R 568. WGC v The Queen [2007] HCA 58 Criminal Code 1899 (Qld)
COUNSEL:	E Coker for the Crown A Kimmins for the Defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Qld) for the Crown Mellick Smith & Associates for the Defendant