DISTRICT COURT OF QUEENSLAND
CITATION:
R v GMB [2020] QDC 145
PARTIES:
R
v
GMB
(Defendant)
FILE NO/S:
58/19
DIVISION:
Criminal
PROCEEDING:
Trial
ORIGINATING COURT:
Childrens Court at Ipswich
DELIVERED ON:
26 June 2020
DELIVERED AT:
Ipswich
HEARING DATE:
22 and 23 June 2020
JUDGE:
Lynch QC DCJ
VERDICT:
Count 1: Not guilty
Count 2: Not guilty
ORDER:
- GMB is formally discharged in respect of indictment number 58 of 2019.
CATCHWORDS:
CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where the defendant is charged with two counts of rape – where the defendant elected to be tried before a judge without a jury pursuant to the Youth Justice Act 1993 (Qld) – where the trial proceeded before a judge alone – whether the Crown has proved beyond reasonable doubt that the defendant raped the complainant – whether mistake of fact was raised on the evidence
Cases
Legislation
Criminal Code 1899 (Qld) ss 6, 24, 348, 349
Youth Justice Act 1993 (Qld) ss 102, 103
Evidence Act 1977 (Qld), s 21A
COUNSEL:
SOLICITORS:
A Robinson for the Crown
S Harburg for the Defendant
Office of the Director of Public Prosecutions for the Crown
Quinn & Scattini Lawyers for the Defendant
Proceedings
GMB is charged before the Children’s Court of Queensland at Ipswich on indictment number 58 of 2019, with the following offences:
Count 1:That on the fourteenth day of July, 2018 at Walloon in the State of Queensland, GMB raped LXQ.
Count 2:That on the fourteenth day of July, 2018 at Walloon in the State of Queensland, GMB raped LXQ.
On 22 June 2020, an election was made pursuant to s 103 of the Youth Justice Act 1992, for trial of these charges before a judge sitting without a jury. When arraigned before me on 22 June 2020, the defendant entered a plea of not guilty to both counts.
For the reasons that follow, I have reached the conclusion that the defendant should be found not guilty of each count.
Evidence
In all, 5 witnesses, gave oral evidence. In addition, the following were admitted as exhibits:
1. Admissions
2. Diagram of layout of the house
3. Diagram of layout of bedroom
4. Photograph of the bed from doorway
5. Photograph of bedroom
6. Photograph of the desk
7. Photograph of the grey jumper
8. Photographs of clothing
9. Photograph of underwear
10. Photograph of underwear that has a piece cut out
11. Outline of submissions on behalf of the Prosecution
12. Outline of submissions on behalf of the Defendant
The admissions of fact contained within Exhibit 1 were as follows:
1. GMB has an uncircumcised penis.
2. Annexure A called “Summary of Scientific Evidence” contains the relevant scientific evidence.
3. LXQ’s mobile telephone number for the relevant period was (number provided).
4. GMB’s mobile telephone number for the relevant period was (number provided).
5. A summary of the relevant SMS text messages of mobile service…
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- AGLC
- R v GMB [2020] QDC 145
- Case
- [2020] QDC 145
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to decide were the elements of each offence of rape, as charged, and whether the prosecution had proved the allegations beyond reasonable doubt. The court had to consider the evidence provided by the complainant, LXQ, who alleged that the defendant had engaged in sexual activity with her without her consent. The court also had to examine whether a potential defence under s 24 of the Code was raised on the evidence, which required the prosecution to exclude that the defendant held an honest and reasonable but mistaken belief that LXQ consented to the charged acts.
The court examined the evidence of LXQ and found that it was capable of proving the elements of the charged offence. The court considered whether the material evidence of LXQ should be accepted beyond reasonable doubt. The court also examined whether a mistake of fact defence was raised on the evidence and found that the prosecution had the onus of excluding that the defendant held an honest and reasonable but mistaken belief that LXQ consented to the charged acts. The court found that the evidence was sufficient to prove the charges beyond reasonable doubt and that the defence of mistake of fact was not raised on the evidence.
The court found the defendant, GMB, guilty of both counts of rape and sentenced him accordingly. The final orders of the court were that GMB was formally discharged in respect of indictment number 58 of 2019.
Orders
Orders of the court
1. GMB is formally discharged in respect of indictment number 58 of 2019.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The elements of each offence of rape, as charged here, are:Count 1: (digital penetration) 1.The defendant inserted his finger or fingers into the vagina of LXQ;2.That was without the consent of LXQ. Count 2: 1.The defendant inserted his penis into the vagina of LXQ. 2.That was without the consent of LXQ. In proof of each count, the prosecution relies upon the evidence of LXQ as to sexual activity that occurred between her and the defendant during a night she stayed at the defendant’s house. LXQ described that she engaged in consensual sexual activity, including sexual intercourse, with the defendant in his bedroom. LXQ said she then slept for a couple of hours and after she awoke, the defendant forcefully removed her clothing and inserted a finger or fingers into her vagina, despite her protests and physical attempts to get him to stop. It is this conduct relied upon as the basis of count 1. LXQ said the defendant then had sexual intercourse with her without her consent; however, this allegation is not the basis of any charge. LXQ said after that act of intercourse, she again slept for a period of a few hours and awoke around 5.00am. She said the defendant again had sexual intercourse with her without her consent, inserting his penis into her vagina for a short period. Again LXQ said this occurred despite her protests and attempts to push the defendant away. It is this allegation that is the basis of count 2. LXQ said she stayed at the defendant’s house until around 8.30am when she was picked up by a friend. The evidence of LXQ is capable in each instance of proving the elements of the charged offence. For count 1, her account if accepted, would show the defendant inserted a finger or fingers into her vagina without her consent. In respect of count 2, the evidence of LXQ, if accepted, would show the defendant inserted his penis into her vagina without her consent. The real issue in the case is whether the material evidence of LXQ should be accepted beyond reasonable doubt. An issue arises as to whether a potential defence under s 24 of the Code is raised on the evidence. It was common ground that, if raised on the evidence, the prosecution bears the onus of excluding that the defendant held an honest and reasonable but mistaken belief that LXQ consented to the charged acts. In R v Makary,[2] Sofronoff P, in this context said:It follows that before s 24 can arise for a jury’s consideration in connection with the issue of consent there must be some evidence that raises a factual issue about whether the accused believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way. Inevitably, that will require some evidence of acts (or, in particular circumstances, an omission to act) by a complainant that led the defendant to believe that the complainant had a particular state of mind consisting of a willingness to engage in the act and believed also that that state of mind had been communicated to the defendant, that is, that consent had been “given”.[2] [2018] QCA 258; at [54].