R v MJC

Case [2020] QDC 143

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MJC [2020] QDC 143

PARTIES:

THE QUEEN

v

MJC

FILE NO:

Ind 780/19

DIVISION:

Crime

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

26 June 2020

DELIVERED AT:

Beenleigh

HEARING DATES:

15, 16 and 17 June 2020

JUDGE:

Chowdhury DCJ

ORDER:

Guilty on count 3 of rape.

Not Guilty on count 4 of rape.

Not Guilty on the alternative charge on count 4 of attempted rape.

Guilty on count 4 of the alternative charge of indecent treatment of a child under 16, under 12, under care.

Guilty on count 5 of rape.

CATCHWORDS:

CRIMINAL LAW – SEXUAL OFFENCES – WHERE DEFENDANT PLEADED NOT GUILTY TO 3 COUNTS OF RAPE – WHETHER CROWN HAS PROVEN THEIR CASE BEYOND REASONABLE DOUBT

COUNSEL:

C Birkett for the Crown

T Ryan for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Ide Lawyers for the defendant 

Introduction

  1. The defendant is charged on indictment with two counts of maintaining a sexual relationship with a child, three counts of rape, five counts of indecent treatment of children under 16, under care, six counts of indecent treatment of a child under 16, under 12, under care.[1]  The defendant pleaded guilty to counts 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16 and 17, and pleaded not guilty to each count of rape, counts 3, 4 and 5.

    [1]Count 15, a charge of attempted indecent treatment of a child under 16, under care, was discontinued by the prosecution at the commencement of the trial.

  2. Consequently the trial of counts 3, 4 and 5 commenced on 15 June 2020, and concluded on Wednesday 17 June 2020.

    Essential background facts

  3. At the relevant time, the defendant was in a long term de facto relationship with the complainant AH’s mother, Ms H.  According to Ms H, she and the defendant had been in a relationship for “about 11 to 14 years”, ending in about February 2018.[2]

    [2]R1-21, l 38.

  4. Ms H had three children, KH, the complainant AH, and AC, who is the biological daughter of the defendant.  AH was born on 14 January 2004.  She was born before Ms H entered into the relationship with the defendant. 

  5. Ms H recalled that the first home that she, the defendant and the children lived together was at 17 Copernicus Street, Inala.  It was a housing commission home, and she thought they lived there for about three or four years.[3]  Ms H recalled that they then moved to Holland Park, and the complainant went to the Seville Road State School.  They then moved to Wellington Point, and the family then moved to an address at Thanbarran Place, Inala. They then moved to Ms H’s aunt’s house at Kenny Street, Woodridge.  She could not remember how long they lived in Kenny Street but thought it was a couple of years.[4]  The last house they moved to was 2 Lynch Street, Woodridge. 

    [3]R1-22, l 40.

    [4]R1-24, l 30.

  6. Ms H…

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Details
AGLC
R v MJC [2020] QDC 143
Case
[2020] QDC 143
Decision Date

CaseChat Overview and Summary

The defendant, MJC, was charged with three counts of rape and faced trial in the District Court of Queensland. The complainant, AH, alleged that MJC, her stepfather, had committed multiple acts of sexual violence against her between 2009 and 2014. AH alleged that the first incident occurred when she was approximately five years old, while she was asleep in her bed, and MJC penetrated her with his penis. The subsequent incidents involved MJC orally and then vaginally penetrating AH, who was between the ages of seven and ten at the time. The defence argued that the complainant's evidence was not reliable due to inconsistencies and the influence of substances consumed by MJC at the time.

The court had to determine whether the Crown had proven the defendant's guilt beyond reasonable doubt. Key issues included the credibility of the complainant's evidence, the consistency and reliability of her account, and whether there were any reasonable doubts about the defendant's guilt. The court examined the complainant's police interview, her demeanour during the trial, and the defendant's admissions and denials during his police interview. The court also considered the defendant's substance use at the time of the alleged offences and its impact on his memory.

The court found the complainant to be a credible witness, noting her natural and unforced manner during the police interview. The court accepted her account of the events, despite some inconsistencies, due to the traumatic nature of the events and her young age at the time. The court did not find the defendant's statements during his police interview to be reliable, particularly given his admission to substance use at the time. The court concluded that the complainant's evidence, when considered in light of all the circumstances, was sufficient to prove the defendant's guilt beyond reasonable doubt for counts 3 and 5 of rape. However, the court found reasonable doubt in relation to count 4, as the complainant's account was less clear and there were inconsistencies in her testimony.

The court found the defendant guilty on count 3 and count 5 of rape. For count 4, the court found the defendant not guilty of rape but guilty of the alternative charge of indecent treatment of a child under 16, under 12, under care.

Orders

Orders of the court

Guilty on count 3 of rape.

Not Guilty on count 4 of rape.

Not Guilty on the alternative charge on count 4 of attempted rape.

Guilty on count 4 of the alternative charge of indecent treatment of a child under 16, under 12, under care.

Guilty on count 5 of rape.

Background

Background to the litigation

Consequently the trial of counts 3, 4 and 5 commenced on 15 June 2020, and concluded on Wednesday 17 June 2020.Essential background facts At the relevant time, the defendant was in a long term de facto relationship with the complainant AH’s mother, Ms H. According to Ms H, she and the defendant had been in a relationship for “about 11 to 14 years”, ending in about February 2018.[2][2]R1-21, l 38. Ms H had three children, KH, the complainant AH, and AC, who is the biological daughter of the defendant. AH was born on 14 January 2004. She was born before Ms H entered into the relationship with the defendant. Ms H recalled that the first home that she, the defendant and the children lived together was at 17 Copernicus Street, Inala. It was a housing commission home, and she thought they lived there for about three or four years.[3] Ms H recalled that they then moved to Holland Park, and the complainant went to the Seville Road State School. They then moved to Wellington Point, and the family then moved to an address at Thanbarran Place, Inala. They then moved to Ms H’s aunt’s house at Kenny Street, Woodridge. She could not remember how long they lived in Kenny Street but thought it was a couple of years.[4] The last house they moved to was 2 Lynch Street, Woodridge. [3]R1-22, l 40.[4]R1-24, l 30. Ms H said that the first school that AH went to was Richlands State School, while they were living in Copernicus Street, Inala. Other than Seville Road Primary School, she could not remember other schools that AH attended. Particulars At the conclusion of the evidence the prosecution was given leave to amend the dates of counts 3, 4 and 5. Count 3 reads as follows:“That on a date unknown between the 13th day of January 2009 and the 15th day of January 2014 at Woodridge or elsewhere in the State of Queensland, [the defendant] raped [AH]. Counts 4 and 5 are in the same terms, and read as follows:“That on a date unknown between the 14th day of January 2011 and the 15th day of January 2014 at Woodridge or elsewhere in the State of Queensland, [the defendant] raped [AH]. The crown prosecutor in her opening briefly gave particulars of each count. Count 3 related to an incident which AH says is the first time that something happened to her. She was in her bed asleep when the defendant came into her room and put his penis in her vagina. AH recalls that she was about five years old at the time that happened. Counts 4 and 5 occur on the same occasion. AH alleges that the defendant told her to go into his room, holding her hand at the time. He told AH to take off her pants and put her on the bed. The defendant put his mouth on her “rude parts”, which AH clarifies to be her vagina, and alleges that the defendant’s mouth went inside her vagina. The defendant then told her to move into different positions and he inserted his penis into her vagina.[5][5]R1-12, ll 35-45.Evidence of the complainant AH was interviewed by officers of the Logan Child Protection Unit on 9 February 2018. The interview was video recorded. It became Exhibit 1, the Transcript became “MFI A”.

Evidence

Evidence Before The Court

Counts 4 and 5 occur on the same occasion. AH alleges that the defendant told her to go into his room, holding her hand at the time. He told AH to take off her pants and put her on the bed. The defendant put his mouth on her “rude parts”, which AH clarifies to be her vagina, and alleges that the defendant’s mouth went inside her vagina. The defendant then told her to move into different positions and he inserted his penis into her vagina.[5][5]R1-12, ll 35-45.Evidence of the complainant AH was interviewed by officers of the Logan Child Protection Unit on 9 February 2018. The interview was video recorded. It became Exhibit 1, the Transcript became “MFI A”. AH said that she was at the police station to talk about her stepfather molesting her. In respect of the first time she could remember, she said that she was “really little”, she was in bed and she didn’t know what he was doing. The defendant said “it was ok, because um, he said that um, everyone does it so that, ok.” AH went on to say that she thought it was a “good thing” when she was little, and she let him do it. However when she started to get older, she understood what was happening, so she told him to stop. The defendant said that he would “call his friends, to do it to me. So then I was like ok. So then when I got older he stopped.” In respect of the first time, AH said that “I was sleeping and then he came in my room. He took my blanket off, but then he was like, sorta like inside me, um, I, I was, what are you doing? And, like, it’s ok, um, it’s not a bad thing. And he was like just go to sleep. And I was like ok.” The following exchange took place during the interview:“Q:So, [AH], I think we do know what you mean but we can’t we wanna make sure that we’re not misunderstood and we understand exactly what happened to you. So when you said that he came into your room and took your blanket off and he was inside you.A:Mmm.Q:What do you mean he was inside you?A:Like, I don’t know how to explain it.Q:What part of his body was inside what part of your body?A:In the rude parts.Q:The rude parts.A:Mmm.Q:Do you know the proper names for your rude parts?A:Um, the vagina, penis.Q:So can you use those proper terms to tell me exactly what, what was happening?A:Mmm.Q:Yeah. Can you tell me?A:Um, he was doing that, and then yeah he done that few times. Q:So you said he, you, his rude parts.A:Mmm.Q:Um, and you said his penis, what was he doing with his penis?A:Um, put in my vagina. Q:So, he put it in your - - A:Mmm.Q:Yeah.A:MmmQ:Then what happened?A:And then I just let him do it.Q:So he put his penis in your vagina. What was he doing when he put his penis in your vagina?A:He told me to um, go back to sleep, and I was wondering what he was doing. And he said it was the right thing, and I was like ok. And then so I believed him, because um, he was my father. And yes.Q:Ok. Ah. What, what could you feel [AH]?A:Pardon?Q:What could you feel?A:Like emotions or something?Q:Yeah.A:I felt, I didn’t, like, feel anything cos he – I didn’t feel anything because he said it was the right thing to do, and I didn’t know why he was doing it.[6][6]The recording in Exhibit 1 is clearer as I heard it, than what the transcriber heard. I have relied solely on my hearing and watching of Exhibit 1. Q:Do you remember what house this happened at?A:Ah, house, um, I don’t remember sorry.Q:Ok. I - , have you, the house you’re living in now, did it happen in that house?A:Pardon?Q:The house, where you live now?A:Now? Oh.Q:Is it the same house?A:No.Q:No?A:Was a different house.Q:Ok, do you know what suburb that was in?A:I, cos we moved a lot, so he’d a done it like a few times, but, and we kept moving houses, like, um a unit, we used to live in a unit, he done that there too. And then, um, the time when we lived in Inala, we moved houses. And then, I think it’s Rochedale, we moved like [indistinct] houses.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Similarly, the factors highlighted by counsel for the defendant lead me to conclude that it would be dangerous to convict upon the complainant’s evidence alone, unless after scrutinizing it with great care, considering the circumstances relevant to its evaluation, I am satisfied beyond reasonable doubt of the complainant’s truth and accuracy of the critical elements of each offence.Consideration I did not find the defendant’s statements in the course of the police interview on 2 February 2018 convincing. Clearly his memory was affected by his admitted use of the drug “Ice”, suboxone patches and marijuana consumption. Relevantly, he conceded that he “probably did” put his mouth on the complainant’s genitals, adding “I would’ve been intoxicated with something at the time as well I don’t recall it very well. She wouldn’t lie about it so.” Despite that concession, he accused the complainant of lying about the incident in the shower where she said that he had come in, grabbed her hand and asked her to come close. It is difficult to accept that he would have a clear memory in respect of that incident, and not the others. The defendant simply was not impressive as a historian. I do not accept his statements that there was never any penetration, in the light of my findings set out below. On the other hand, I found the complainant to be a good witness. During the course of the police interview on 9 February 2018 she is clearly apprehensive. She spoke in a natural, unforced manner, and was clearly doing her best to recall events that actually happened. At times the complainant was downcast and slightly tearful, consistent with the unpleasant subject matter she had to detail. The complainant initially used the expression “rude parts” to describe the defendant’s penis and her vagina. It is common enough for girls and adult women to use the word “vagina” as a general expression for the genitals. It is rare for a child complainant to use precise anatomical terms. In respect of count 3, she clearly said that the defendant had come into her room, removed her blanket and put his rude parts inside her. When asked what she meant by “inside you”, the complainant said she did not know how to explain it. Later she was asked what the defendant did with his penis, to which she replied “put in my vagina”. Once that happened, she “just let him do it”. The investigating police attempted to elicit more details, asking the complainant what she could feel. The complainant queried whether that meant emotions, to which the police officer said “yeah”. She then responded that she didn’t feel anything because he said it was the right thing to do. It is unfortunate that the police officers did not specifically ask what she physically felt, and to ask the complainant to describe the penis, whether it was erect, and to precisely ascertain what part of her genitals were penetrated. The complainant when asked by the police again if the first incident occurred when she was five years old, she conceded that she wasn’t sure if she was exactly five years old, but that it occurred when she was young.