R v Ins

[2024] QChC 10

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v INS [2024] QChC 10

PARTIES:

THE KING
(appellant)
v
INS
(defendant)

FILE NO:

Indictment No. 106/23

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

11 June 2024.

DELIVERED AT:

Cairns

HEARING DATE:

5 June 2024

JUDGE:

Morzone KC, DCJ

ORDER:

1.   Count 1:  Guilty

2.   Count 2:  Guilty

3.   Count 3:  Guilty

CATCHWORDS:

CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – the child elected a trial to a Childrens Court judge sitting without a jury – serious assault – digital rape – verdict.

LEGISLATION:

Childrens Court Act 1992 (Qld)
Criminal Code1899 (Qld), ss 349(1) & (2)(b), 352(1)(a)
Youth Justice Act 1992 (Qld), ss 98 & 103
Evidence Act 1977 (Qld), ss 21A, 93A

Criminal Law (Sexual Offences) Act 1978, s 4A

CASES:

Papakosmas v The Queen (1999) 196 CLR 297
R v AW [2005] QCA 152

R v E (1995) 89 A Crim R 325

R v Foster [2014] QCA 226

R v Johnson & Honeysett [2013] QCA 91

R v NM [2013] 1 Qd R 374

R v PAS [2014] QCA 289

R v RH [2005] 1 Qd R 180
R v Schneider [2000] 1 Qd R 546
R v Van Der Zyden [2012] 2 Qd R 568
Wedd (2000) 115 A Crim R 205

COUNSEL:

M Hancock for the crown
R Logan for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the crown

Vandeleur and Todd lawyers, solicitors for the defendant.

Summary

1. The 18-year-old defendant is charged with, and pleaded not guilty, to committing offences as a 17-year-old child against his 16-year-old cousin of:

   ·     Count 1: Sexual assault

   ·     Count 2: Rape

   ·     Count 3: Rape

2. The trial proceeded over two days in accordance with the defendant’s election to a trial before a judge sitting without a jury,[1] and I have considered all the evidence and directed myself according to law separately to each count.

   [1]Youth Justice Act 1992 (Qld), ss 98 & 103.

3. I found the complainant to be a truthful and reliable witness who provided clear evidence consistent with her demeanour and preliminary complaints after the incident.  I otherwise reject the defendant’s untruthful account given in the police interview and the evidence of his parents.  MC was too alcohol affected, vague, and sleepy to be alerted to the defendant’s offending conduct. CC was unreliable and did not provide a true account because she was alcohol affected and too sick to accurately gauge time, had limited observations of the defendant and complainant at the time of the alleged offending, and had a general stupor.

4. In a twin-share hotel room, where the defendant and complainant slept on one bed with the defendant’s parents on the other bed, the complainant woke up around 7:00 am on 1 January 2023.  She found her pants down, her bra pulled up, and her underwear moved to expose her bottom and vaginal area.  The defendant’s fingers penetrated her vagina; he removed…