R v JCN

Case [2021] QDC 224

DISTRICT COURT OF QUEENSLAND

CITATION:

R v JCN [2021] QDC 224

PARTIES:

THE QUEEN

V

JCN

FILE NO:

89 of 2019

DIVISION:

Criminal

PROCEEDING:

Judge only trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

15 September 2021

DELIVERED AT:

Southport

HEARING DATE:

1 and 2 September 2021

JUDGE:

Jackson QC DCJ

ORDER:

Not guilty on the count of indecent treatment of a child under 16, under 12, under care

CATCHWORDS:

CRIMINAL LAW – JUDGE ONLY TRIAL –  PARTICULAR OFFENCE – OFFENCE AGAINST THE PERSON – SEXUAL OFFENCE  –VERDICT – where the defendant is charged with one count of indecent treatment of a child, under 16, under 12 and under care – where the complainant was in foster care and the defendant provided respite care to the complainant – where the alleged offending occurred in late 2010 or early 2011– where there was a delay in prosecution and the police investigation was deficient in some respects– whether the complainant’s evidence as to the identity of the defendant lacks reliability– whether the defendant is guilty or not guilty of the charge

LEGISLATION:

Criminal Code Act 1899 (Qld), s 615B, s 615C
Evidence Act 1977 (Qld), s 93A, s 21AK, Division 4A

CASES:

R v Pentland [2020] QSC 231, cited
COUNSEL:

M Whelan for the Crown

L Reece for the Defendant
SOLICITORS:

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

Potts Lawyers for the Defendant

Introduction

  1. This is a judge only trial. The application for the trial to be conducted by judge alone was granted on 19 May 2021. Section 615B of the Criminal Code Act 1899 (Qld) (“Criminal Code”) provides that so far as is practicable the same principles of law and procedure are to be applied as would the case in a jury trial. Section 615C (3) of the Criminal Code requires these reasons to include the principles of law that I have applied as well as the findings of fact on which I have relied.

  2. The defendant is charged with one offence to which he has pleaded not guilty:

    That on a date unknown between the thirtieth day of December 2010 and the fourteenth day of March 2011 at Gold Coast in the State of Queensland, [the defendant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

    And [the complainant] was under 12 years.

    And [the defendant] had [the complainant] under his care, for the time being.

  3. The crown particulars are that the defendant indecently dealt with the complainant by touching her inner thigh under her nightgown with his hand. The complainant was under the care of the defendant, as the Department of Child Safety (“the department”) had placed the complainant with the defendant for respite care.

  4. The defendant’s position is that the incident as described by the complainant simply did not occur. However, the defendant submitted that should the court be satisfied that the incident occurred, the question of whether the conduct was indecent must be considered in light…

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AGLC
R v JCN [2021] QDC 224
Case
[2021] QDC 224
Decision Date

CaseChat Overview and Summary

In the matter of R v JCN, the defendant was charged with one count of indecent treatment of a child, under 16, under 12, and under care. The complainant, who was in foster care at the time, alleged that the defendant, who provided respite care, indecently dealt with her during one of the respite placements. The key issues for the court to decide were whether the complainant’s evidence regarding the identity of the defendant was reliable, given the delay in prosecution and the deficiencies in the police investigation, and whether the defendant was guilty of the charge.

The court considered the complainant's initial disclosure, which occurred when she was 14 years old, and her subsequent statements to police. The complainant described the defendant as the only other full-grown male in the house and recalled details of the room and the incident. However, the court was mindful of the delay in reporting the incident and the inconsistencies in the complainant's statements. The court also noted the deficiencies in the police investigation, including the failure to properly record the complainant's initial disclosure and the lack of a formal interview until several years later.

After weighing the evidence, the court concluded that the evidence as a whole, including the defendant's sworn denials, did not prove the case to the required standard of beyond reasonable doubt. The court found that the complainant's evidence, while compelling in parts, was undermined by the delay in reporting and the inconsistencies in her statements. The court ultimately accepted the defendant's denials and found him not guilty of the charge.

The final orders of the court were that the defendant was not guilty on the count of indecent treatment of a child under 16, under 12, and under care.

Orders

Orders of the court

Not guilty on the count of indecent treatment of a child under 16, under 12, under care

Background

Background to the litigation

I will now set out the factual background and a summary of the evidence and rival submissions, followed by the directions I have given myself and my consideration of the issues. Factual background The complainant and her five siblings were placed into foster care with their foster parents when the complainant was eight months old. At the time of the alleged offending the complainant was seven years old, her younger brother was six, her older sister was 10 and her three older brothers were aged nine, 13 and 14. The complainant’s foster parents were provided respite through the organisation ‘Life Without Barriers’. The complainant and her siblings would be placed into respite care, usually from Friday to Sunday. Respite was provided fortnightly from when the children were placed into care with their foster parents, although at a later time (which is not relevant to the alleged offending) respite changed so as to be less frequent but for longer periods. The complainant and her siblings went to numerous different respite carers throughout the years. The defendant and his wife were respite carers and it is admitted that the defendant had the complainant under his care on 10-16, 28 and 30 January 2011 and 11-13 and 25-27 February 2011. The crown and the defendant are at odds about whether the defendant also had the complainant under his care between 31 December 2010 and 2 January 2011 and whether all the complainant’s five siblings were placed together with the defendant and his wife each time. It is alleged that the defendant indecently dealt with the complainant during one of those respite placements. The complainant’s disclosure of the offending occurred in the context of the department investigating the defendant for allegations not related to this trial. Evidence Complainant’s first section 93A statement The complainant first participated in an interview with police on 19 September 2017 when she was 14 years old. She told police that she had come to speak with them about something that happened to her in a respite home when she was six or seven years old. She said that it happened when she was sleeping in her bed on the first or fourth time that she and her siblings stayed there. She said that she was wearing a nightgown, with no underwear on, and that she was sleeping alone in a room. She said that her youngest two brothers slept in a room on the top floor of the house that had bunkbeds in it, but that the older of those two moved downstairs onto a fold out bed. She said that her sister slept in the other room on the top floor of the house and that she slept in the big room on the first floor of the house. She said that she and her sister would swap rooms every time they went there. In this interview she said that she could not remember whether her oldest two brothers went to the respite placement with her. In any event, she did not give any evidence about where the older two would have slept or what they were doing. She described the room in which she slept as having a double or queen bed that had a white bed frame in the middle, two bedside tables with lamps, white drawers and that the bedspread was pink, and the window had pink curtains.[1] [1]The complainant drew a diagram of the room which became exhibit 5.

Evidence

Evidence Before The Court

It is alleged that the defendant indecently dealt with the complainant during one of those respite placements. The complainant’s disclosure of the offending occurred in the context of the department investigating the defendant for allegations not related to this trial. Evidence Complainant’s first section 93A statement The complainant first participated in an interview with police on 19 September 2017 when she was 14 years old. She told police that she had come to speak with them about something that happened to her in a respite home when she was six or seven years old. She said that it happened when she was sleeping in her bed on the first or fourth time that she and her siblings stayed there. She said that she was wearing a nightgown, with no underwear on, and that she was sleeping alone in a room. She said that her youngest two brothers slept in a room on the top floor of the house that had bunkbeds in it, but that the older of those two moved downstairs onto a fold out bed. She said that her sister slept in the other room on the top floor of the house and that she slept in the big room on the first floor of the house. She said that she and her sister would swap rooms every time they went there. In this interview she said that she could not remember whether her oldest two brothers went to the respite placement with her. In any event, she did not give any evidence about where the older two would have slept or what they were doing. She described the room in which she slept as having a double or queen bed that had a white bed frame in the middle, two bedside tables with lamps, white drawers and that the bedspread was pink, and the window had pink curtains.[1] [1]The complainant drew a diagram of the room which became exhibit 5. She said that at around 7:30-8:30pm the defendant came home from work and that she went to bed at around 9:00pm. She said the defendant worked in construction. She said that when the defendant got home, everyone was chatting. When asked who she was referring to the complainant said the defendant’s wife’s name and then got confused as she said that there was a different respite carer who had that same name. She said that when she went to bed, she was in the big room alone and she was positioned in the middle of the bed and on top of the blankets. She said she remembers the lamp was still on and that she woke up to the defendant touching her. She said that he was not fully lifting up her nightgown but that he was touching her upper inner thigh and that when she woke up, he just pulled his hand away. She said the defendant was on the right side of the bed towards the middle. She said she froze when she first awoke and then asked the defendant what he was doing to which he responded that he was just checking up on her. She said that they may have talked for a minute and then the defendant left, and she got under the blankets and went back to sleep. She said that she knew it was the defendant as the lamp was on and she remembered his face and that ‘he was the only other full-grown male in the house’. She said that when she was younger she would talk and scream in her sleep.

Decision

Reasons for decision

The defendant’s wife impressed me as a witness diligently seeking to do her best to answer the questions she was asked. Conclusion My conclusion is that the evidence as a whole (including the defendant’s sworn denials) does not prove the case to the required standard. Accordingly, the verdict is not guilty.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.