R v James (a pseudonym)
[2023] QChC 22
•13 October 2023
CHILDRENS COURT OF QUEENSLAND
CITATION:
R v James (a pseudonym) [2023] QChC 22
PARTIES:
THE KING
v
JAMES (a pseudonym)
(defendant)
FILE NO:
194 of 2023
DIVISION:
Crime
PROCEEDING:
Trial
DELIVERED ON:
13 October 2023
DELIVERED AT:
Brisbane
HEARING DATES:
11, 12 and 13 October 2023
JUDGE:
Clarke DCJ
VERDICTS:
Count 1: Not Guilty
Count 2: Not Guilty
Count 3: Not Guilty
LEGISLATION:
Childrens Court Act 1992 (Qld) ss 5(2), 6, 23
Criminal Code 1899 (Qld) ss 578, 615D
Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A
Evidence Act 1977 (Qld) ss 21AK, 93A, 93B, 93C
Youth Justice Act 1992 (Qld) ss 98, 99, 102, 134, 140, 141
COUNSEL:
Ms C.B. Farnsworth for the prosecution
Mr H.E. Farr for the defendant
SOLICITORS:
Office of the Director of Public Prosecutions for the prosecution
Aboriginal and Torres Strait Islander Legal Service for the defendant
Jurisdiction
The provisions of the Youth Justice Act 1992 (Qld) and Childrens Court Act 1992 (Qld) apply when dealing with a child in respect of indictable offences. Section 98 of the Youth Justice Act 1992 (Qld) provides that a child (through their legal representatives) may elect to be committed to be tried by a Childrens Court judge sitting without a jury; section 99 confirms the power of a Childrens Court judge to decide all indictable offences, in the event the election is not withdrawn pursuant to section 102. Further, sections 5(2) and 6 of the Childrens Court Act 1992 (Qld) confirm the constitution of the court and jurisdiction of the judge. Pursuant to section 23, issues of law and fact are to be decided by the judge as if the trial were a trial on indictment in the Supreme Court. Section 615D of the Criminal Code 1899 (Qld) which is in Chapter 62 division 9A and which deals with judge alone trials, confirms those provisions specifically do not apply to Childrens Court judge alone trials.
The defendant child (whom I shall call James) was born in January 2005 and is now 18 years old. He is still considered to be a child for these proceedings, by operation of sections 134, 140 and 141 of the Youth Justice Act 1992 (Qld), despite the definition of ‘adult’ in Schedule 1 and by operation of section 36 of the Acts Interpretation Act 1954 (Qld).
There was an election for trial by judge on 13 June 2023 which has not been withdrawn.
Fundamental principles
There are two fundamental principles which apply to every criminal trial: firstly, a defendant is presumed to be innocent; secondly, the onus is on the prosecution to prove the guilt of the defendant, if it can, beyond reasonable doubt. To succeed, the prosecution must prove every element of an alleged offence. The defendant has no obligation to prove any matter in the trial, least of all their innocence. The defendant can elect to give and call evidence in their case, but there is no obligation to do so, and if they do, they (generally) take on no burden of proof. In this case, the prosecution has to satisfy me of the guilt of the defendant beyond a reasonable doubt. The defendant is entitled by law to the benefit of any reasonable doubt that may be left in my mind after considering all of the evidence.
I have had regard to the relevant directions that would usually be given to a jury, in my consideration of the evidence.
The charges
James has pleaded not guilty to an indictment charging three sexual offences against a girl (whom I shall call Mary) who is now 15 years old. The offences are all alleged to have occurred on the same evening, on 25 June 2022 at Deception Bay.
In count 1 (sexual assault with a circumstance of aggravation) the allegation is that he brought his penis into contact with Mary’s lips without her consent.
The prosecution must prove beyond reasonable doubt that the defendant:
1.Assaulted the complainant, without consent, by reference to the definition in section 245 of the Criminal Code 1899 (Qld).
2.The assault was unlawful, that is: not authorised, justified or excused by law.
3.The assault was indecent.
4.That the indecent assault consisted of bringing his penis into contact with her lips.
In count 2 (rape) the prosecution case is that the defendant penetrated Mary’s anus with his penis.
The prosecution must prove beyond reasonable doubt that the defendant:
1.Penetrated the complainant’s anus with his penis. Penetration to any extent is sufficient to prove this element.
2.Without the consent of the complainant.
In count 3 (rape) the prosecution case is that the defendant penetrated the complainant’s vagina with his penis.
The prosecution must prove beyond reasonable doubt that the defendant:
1.Penetrated the complainant’s vagina with his penis. Penetration to any extent is sufficient.
2.Without the consent of the complainant.
Of course, James is not to be prejudiced by the fact there is more than one charge. The charges are simply being tried as a matter of convenience and because they are connected. The presumption of innocence is maintained. I must consider each charge separately and deliver a separate verdict. The Crown has to prove each charge beyond reasonable doubt. If there is a question mark concerning the credibility, or reliability of the evidence given by the complainant Mary in relation to one count, I must take that into account, in conjunction with all the other circumstances of the case, when considering the reliability or credibility of her evidence in relation to another count.
The evidence
Mary has given three recorded statements to police, admissible under section 93A of the Evidence Act 1977 (Qld). Further to that, there have been pre-recorded proceedings pursuant to section 21AK of that Act.
As to the recorded statements, it is routine for evidence to be given in this way. Two of the recordings had been edited to remove irrelevant information. I do not speculate about what has been edited and do not consequently draw any adverse inference. I had the benefit of reference to transcripts to understand the evidence, which was what I heard on the recording, not what I read.
As to the pre-recording, I draw no inference adverse to the defendant, nor do I consider the evidence to be of greater or lesser weight, because orders had been made: to record the evidence in closed court; allow the witness to give evidence from a remote room by audio visual link and with a support person, and there was an intermediary to assist. The editing of that document is irrelevant to the defendant’s guilt. Again, I only used the transcript to understand the audible evidence.
The first two recorded statements were taken on the day after the alleged offences, in the house of Mary’s friend’s mother. I will call that friend Sally. Mary often stayed at Sally’s place; it was near to her own house. She referred to Sally’s mother as ‘Mum’ or ‘Mumsie’. At the time Mary was talking to police she did not want to make a formal complaint about James. She did not consent to undergoing a medical procedure and refused to go with police to show them where the incidents had happened.
Police had been called after Mary woke up in Sally’s bed, played the video game ‘Fortnite’ for a while and went to the toilet. In the toilet, Mary said she noticed she had both of her legs through one leg of her underwear. That caused her to remember what James had done to her the night before. She went out and asked Sally’s mother (who is now deceased) where Sally was. On being told Sally was at James’ sister’s place (where the defendant also lived), Mary remembered that she told Sally’s mother that James had taken her down to the beach and “fucked” her. That caused Sally’s mother to call the police, who subsequently attended.
The police chose to record those conversations on body worn camera, which is understandable in the circumstances that prevailed, but (with respect) was an entirely inappropriate way to preserve what then became evidence for a court. In the first recording, the child was in a far corner of a lounge room. It was not possible to clearly make out her facial expressions. There was outside noise. At one stage, a police officer came into the room, interrupted the conversation and the main interviewing officer left so she could have a conversation just outside, which impacted the ability to hear the conversation the other officer continued to have with Mary.
Also, the officer operating the camera appeared to be making notes. Consequently, her elbow and free hand were often moving, obscuring any limited opportunity there was to see the complainant. In the second recording, an officer was showing something on a map application on an electronic tablet device to the complainant. Screenshots of two map images were tendered at the trial, supposedly representative of what Mary was looking at. The footage did not show what was being shown, but instead captured the floor, a chair, the complainant’s arm, and a rug she had wrapped around herself. Surely there is a better way to record a witness in the field, in this day and age.
Mary gave this account: she and Sally and James’ younger sister and younger brother were in the backyard at Sally’s house the night before. The girls were drinking alcohol which they had stolen on a “bottle run” earlier that day. They had a fire going. Sally and James’ sister were her best friends. After drinking for about an hour, James turned up. She started to get really tipsy and really drunk and she was “about” to fall over. James moved a chair close to her and was looking at her. She didn’t even talk to him. The other girls went inside. Sally gave different evidence to that.
Mary told police James picked her up under her arms or by her shoulders and took her outside, through the front gate. She later said he had one arm around one shoulder. She gave different descriptions of how he moved her from the backyard and took her away from Sally’s house. She asked where he was taking her; he said around the corner. She later said he said something about going to a mate’s place. When Mary was asked by police what James’ little brother did while she was being either pulled or picked up and carried (or at one stage dragged) away from the backyard, she said he was focussing on the fire, because it was cold.
After they walked away from the house, Mary said he leant over her, kissing her. She said “Wow, what the fuck, stay away from me.” She also said she said nothing and was shocked at that point. James forced her to walk to some trees, took down her pants to her ankles, walked to a table and started to “fuck me there again” and she passed out.
When asked where he had initially kissed her, she said on her lips, then saying with his “thing…his dick.” That is count 1. She said he pushed her head down to his dick near a whole bunch of trees, but was unable to say where that was, because it was so hard to remember.
Mary said they then got up (although I had understood her to say they were standing) and started walking to a table, and he pulled her pants down and slid “it right in and it hurt. I’m telling you.” That is the allegation in count 3, the penile vaginal penetration, without consent. She said he “then” pushed her head against his dick, rather than that having happened before he raped her (or what she later alleged to have happened in count 2, after the sexual assault).
When asked specifically how James had penetrated her vagina in count 3, she said she didn’t know. She then said she was laying down on her stomach and he was behind her. She said she could feel tree bark on her stomach. That also seemed to explain why she was saying she had woken up in Sally’s bed with tree bark all over her stomach, and in the pockets of her jumper (which she also called a hoodie at one stage) and in the pockets of the Everlast baggy pants she had been wearing. She said she didn’t know what happened next; she passed out. In her third statement taken in a police station five weeks later Mary directly contradicted how she was positioned, saying that she was standing and bent over a table when James penetrated her vagina with his penis from behind.
As to the alcohol, Mary said she didn’t drink much because she didn’t like the taste of it, while also saying she would “only drink it like once a month”, which she immediately contradicted by saying: “not even a month, like five months”, before confirming she liked to get drunk. She said she didn’t have much to drink that night and was only drinking out of a little black cup, had only 5 to 7 of them, but also said she was so drunk she “directly fell down the stairs like seven times”; “fell over the chair three times. I almost fell into the fire.” If that wasn’t enough, she followed that with “I fell a few times onto the floor, sorry, I fell, pretty few times. Um yeah.”
The formal complaint and third statement some weeks after the first police contact occurred when Mary was also complaining about James’ sister (who by that stage was her “ex-best friend”) having bashed her and stolen her mobile phone the day after the alleged rape.
About three-quarters of the way into the third (edited) recorded statement Mary spoke (for the first time) of the anal penetration in count 2. She gave an account of being on her belly on the ground and James penetrating her from behind. In giving that version, she did not mention the allegation in counts 1 and 3 at all. She said that had happened when she heard her friends calling out for her. When asked, she couldn’t explain how he had done that. She said he did that for “fifteen to ten minutes basically” and then said he did that for “five to ten minutes”. He said nothing. She said she felt pain, but “didn’t feel anything basically” the next morning.
An hour into the third recorded statement, after being asked multiple times whether that was all that had happened, and after confirming it was, she said: “Oh wait! Um, no. I remember another bit.” Mary then gave the account of being raped while being bent over a park bench table. Again, no mention was made of the sexual assault. She said the next day her vagina was sore as well, until she stopped thinking about it.
I have given examples of embellishment and exaggeration. In cross-examination, allowing for her lack of formal education and sophistication, I found Mary to be an evasive witness. She seemed to be able to answer questions spontaneously until the answers became obviously difficult and she could see where the questioner was heading. She would not answer and would engage the intermediary or show some contrived short-lived emotional outburst. With respect, the questions had already been framed in the way recommended by the intermediary. To the intermediary she said defence counsel was making her angry. Despite having been given the benefit of numerous breaks to compose herself, she announced she was not answering any more questions and would address the intermediary rather than the questioner. Eventually, she begrudgingly complied with the polite request of the judge to continue if she didn’t need another break.
Mary was not particularly compelling when asked about whether she had communicated a lack of consent, or whether she had in fact communicated that she was giving consent. She gave conflicting evidence about consent, saying she said nothing and that she said “no”. She gave differing descriptions about her level of intoxication from being tipsy, drunk or dizzy. She gave conflicting evidence about how the alcohol had impacted her cognitive ability to give consent.
Mary gave evidence which was contradictory within itself about matters I consider to be crucial. She claimed to have suffered a significant injury to her vagina, which she mentioned for the first time at the pre-record. She rejected the suggestions about the extensive conversation between she and James that evening, I thought a little too enthusiastically and quickly. She tripped herself up when being asked about whether James had told her he was single and demonstrated an awareness of having made that mistake. When reminded about conflicting things she had told police, she claimed a lack of recollection.
I was left confused about how and what had happened.
Mary confirmed she had told Sally’s mother James had taken her down to the beach and fucked her. She agreed the house rules were not to leave the yard after night fall. She knew Sally’s mother was angry about that. She agreed she also found out that Sally had slept the night at James’ family’s place and his sister (who she agreed had a temper) might know that she had had sex with James and would not be happy with Mary about that. Mary agreed that Sally’s mother’s mood changed from anger to concern when Mary told her she hadn’t consented to the sex. Whether this is the motive for a false complaint, one will never know. It is not for the defendant to uncover a motive for a false complaint, but Mary was not strident in her answers around that topic, which caused me concern.
As to the evidence of complaint to others preliminary to speaking with the police, the detail was quite limited, which made it difficult to gauge consistency. Where there was detail, it had a negative impact on credit.
Sally’s mother told police in body worn camera footage that Mary had come out of Sally’s room that morning, cried and told her that she didn’t know what to do. She said James had taken her to the beach and had sex with her. Sally’s mother asked if she had said “no” and the child agreed she had. Mary claimed she told James she had been told not to leave the gate and he pushed her out.
The witness had died prior to trial. The evidence was admitted pursuant to section 93B of the Evidence Act 1977 (Qld). Consequently, I have had regard to the caution in deciding whether to accept that hearsay evidence, where it has not been tested in cross-examination. Having said that, I do not think the evidence was particularly unreliable. There appears to be only a short delay between the conversation with Mary and then telling the police what Mary had told her that day.
The lack of detail of that account was such that the complaint evidence did not bolster the complainant’s credit.
Sally’s mother had some other relevant evidence. She was unwell and stayed in the house on the night of the incident. She was allowing the children to drink. She had been asked if it was okay for James to come over. She was aware they had all decided to go and stay at James’ sister’s place later that night. She seemed confused why Mary was saying she had told her she couldn’t leave the gate, because she had allowed them to go. In fact, she had encouraged it: her head was pounding, she was cranky with the children for being noisy and that was why they all left.
Sally’s mother told police they weren’t gone for long when James came to her bedroom door that night, telling her he had brought Mary back, she was drunk and needed a bowl in case she was sick. Mary walked past her bedroom door, spoke to her, and went into Sally’s bedroom with James following. That seemed to support that while Mary had consumed alcohol, she was aware of her surroundings and able to walk and talk. Mary’s evidence was that she had passed out in the park and woke hours later in the bed in the house.
Mary's friend Sally gave evidence that Mary came to James’ sister’s place the next morning and told her that he had raped her. Sally and the others were wondering where she had been because she was supposed to go to James’ sister’s place with them the night before. Again, there was insufficient evidence in that basic allegation to reach a conclusion whether it bolstered the complainant’s credit.
Sally also gave evidence of her observations between Mary and James in her backyard. She agreed they were seated together, “leaning over a little bit close” and interacting with each other in an intimate or personal way. She saw Mary move her chair closer to James. Crucially, she gave evidence of watching Mary and James walk from the backyard to the front of the house. The group had all planned to go to James’ family home. She was not inside her house as Mary had said, when they were getting ready to leave. She was in the backyard and saw them walk down the side of the house together, out the front. She followed two minutes later. When she got to the front of the house they were nowhere to be seen. Sally and the others went to James’ house, but they were not there. She and the others called out to them on the way but heard nothing.
Mary’s mother was also called to give evidence. The complainant had given evidence she did not complain to her mother. But her mother said that the second day after the incident, after Mary showed some signs of being assaulted by James’ sister, her daughter told her about what James had done. Defence counsel did not argue against the admissibility of the evidence: although the child had spoken to police by that stage, she had not made a formal complaint. The evidence from Mary’s mother was that someone had given her alcohol and James had taken her to the beachfront and had his way with her, after he asked if she wanted to go to a party. Mary had told her mother she was screaming out as he was raping her. That evidence negatively impacted the credit of the complainant.
Other witnesses who were in the company of James and Mary immediately before the alleged incidents were not called to give evidence. They could have given relevant evidence if they had been called by the prosecution. An unsatisfactory explanation was provided for that. The younger brother, only two years younger than the others and the only one not drinking who was also in the backyard when James was said to have effectively abducted Mary, was not approached for a statement. The police officer gave evidence that she thought he was too young. The defendant’s sister was not approached because the officer decided she was averse to the complainant. I have not speculated whether those witnesses may have given evidence that supported either Mary or Sally’s recollections, but the opportunity was lost to hear important relevant evidence.
In this case, there was evidence of the complainant’s character introduced where she volunteered she had stolen the alcohol, the clothes she was wearing at the time of the incident and some cosmetics. She also gave evidence she had gone out and bought a bud or stick of cannabis after complaining to Sally’s mother and after speaking to police. She had gone to her mother’s, sourced $20 from her, not complained of the events the night before and went to get the drugs before walking to a skate park. Although I took that character evidence into account in evaluating Mary’s evidence, it had no real impact in my overall assessment of Mary as a witness. I also did not have regard to the sympathy for her that that and other evidence generated.
Generally, the complainant said she didn’t know, or couldn’t remember crucial events. She contradicted herself about matters I considered to be relevant. She provided a reason for not being able to remember things she had also given evidence of having a memory about. For example, at one stage when asked what had happened after James kissed her on her lips, she said “I absolutely don’t remember.” She said her next memory was waking in her friend’s bed the next morning. Overall, I did not find Mary to be a reliable or credible witness.
Mary’s evidence was clearly contradicted by other evidence I was prepared to accept. I found Sally to be an honest and reliable witness. She was eager to correct a small error, when she had incorrectly recalled that another younger brother of the defendant was there that night. I saw that as a hallmark of her willingness to be an accurate and honest witness.
James chose to neither give nor call evidence. That is his right. He is entitled to insist on the prosecution proving its case against him if it can. I draw no inference as to James’ guilt from exercising his right to silence and have not taken that into account at all in reaching a verdict.
Defence counsel fairly raised for my consideration whether section 578 of the Criminal Code 1899 (Qld) operated in relation to natural alternate verdicts, particularly in respect of the rape counts, the offence of carnal knowledge of a child under 16 (now called engaging in penile intercourse with a child). To convict of that alternative, I would need to be satisfied beyond reasonable doubt as to the unlawful penetration to any extent of Mary’s anus and/or vagina, she being under 16. Consent is not an element. Also, a charge of indecent treatment of a child under 16 would seem to be a natural alternative to Count 1. To convict of that alternative, I would need to be satisfied that incident occurred.
The verdict
On a consideration of all of the evidence and for the reasons I have stated, I am not satisfied beyond reasonable doubt the allegation in Count 1 occurred. I am also not satisfied beyond reasonable doubt the allegation in Count 2 occurred. Further, I am not satisfied beyond reasonable doubt the allegation in Count 3 occurred. Having reached that determination, I am accordingly not satisfied beyond reasonable doubt the natural alternatives have been proved to the requisite standard.
I find the defendant child not guilty of all counts.
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