R v Kod - [2022] QChC 25

CHILDRENS COURT OF QUEENSLAND

CITATION:	R v KOD [2022] QChC 25
PARTIES:	THE KING v KOD (Defendant)
FILE NO/S:	65/21
DIVISION:	Criminal
PROCEEDING:	Trial – Judge Alone
ORIGINATING COURT:	Childrens Court at Maroochydore
DELIVERED ON:	9 December 2022
DELIVERED AT:	Maroochydore
HEARING DATE:	5 December 2022
JUDGE:	Devereaux SC CJDC
ORDER:	Count 1: Not Guilty Count 2: Not Guilty
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – trial by judge alone – where the accused was charged with one count of choking and one count of rape – whether Prosecution has proved the elements of the charges beyond reasonable doubt - whether the Prosecution has proved the defendant child had capacity to know he ought not to do the acts constituting the charges
LEGISLATION:	Criminal Code 1899 (Qld) ss 29(2), 348(3)
CASES:	RP v The Queen [2016] HCA 53 R v F [1999] Qd R 157
COUNSEL:	S O’Rourke for the Crown M Dixon for the Defendant
SOLICITORS:	Office of Director of Public Prosecutions (Qld) Legal Aid Queensland for the defendant.

The defendant pleaded not guilty to counts 4 and 6 on an indictment before the court, that on 17 November 2019 he choked, without her consent, his younger half-sister and that he raped her.
The prosecution informed the Court it would not proceed further with counts 1, 2, 3 and 5.
The trial proceeded on 5 December 2022. On 9 December 2022, I returned verdicts of not guilty on each count. These are my reasons for those verdicts.

The charges

The elements of Count 4, the choking charge, are:
1.The defendant unlawfully choked the complainant.
The act of choking requires that the defendant hinders or restricts the breathing of the complainant. The act of choking does not require proof that breathing was completely stopped. The act of choking requires some detrimental effect on the breathing of the complainant.
2.The choking was unlawful.
Unlawful means not justified authorised or excused by law.
3.The complainant did not consent.
4.The defendant and the complainant were in a domestic relationship with each other.
Section 1 of the Criminal Code 1899 provides that “domestic relationship” means a relevant relationship under section 13 of the Domestic and Family Violence Protection Act 2012. Section 13 of the Domestic and Family Violence Protection Act 2012 defines “A relevant relationship” to include a family relationship.
Relevantly, the elements of Count 6, rape, are:
1.Penetration of the mouth of the other person to any extent.
2.With the defendant’s penis.
3.Without the consent of the other person.
In November 2019, the complainant was under the age of 12 years and so was incapable of giving consent to the act of penetration.[1]
[1]Criminal Code s 348(3).
The onus is on the prosecution to prove guilt beyond reasonable doubt. That requires the Prosecution to prove the elements of the charges and to rebut the presumption, set out in Criminal Code s. 29(2), that, as a child under the age of 14 years, the defendant is…

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 Kod

Details

AGLC: R v Kod [2022] QChC 25
Case: [2022] QChC 25
Decision Date: 9 December 2022

CaseChat Overview and Summary

The defendant, Kod, was charged with choking and raping a child, and the case was heard by a judge sitting alone in the relevant Australian court. The primary issue before the court was to determine whether the prosecution had successfully proven beyond reasonable doubt that the defendant had committed the acts alleged in the charges and whether the child had the capacity to know that they should not have engaged in such acts.

The court considered the evidence presented, the credibility of the witnesses, and the legal standards required for a conviction in sexual offence cases. The judge carefully evaluated the testimonies, the circumstances of the alleged acts, and the capacity of the child to understand the wrongfulness of the defendant's actions. The court ultimately found that the prosecution had not met the necessary burden of proof required for a conviction on either count.

As a result of this evaluation, the judge found the defendant not guilty on both counts. The reasoning was grounded in the inability of the prosecution to prove the essential elements of the charges beyond reasonable doubt, and the court concluded that the defendant did not have the requisite intent or understanding of the illegality of their actions. The final orders were that the defendant was acquitted on both counts of choking and rape.

Orders

Orders of the court

Count 1: Not Guilty

Count 2: Not Guilty

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

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