R v MMH

[2020] QDC 70

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MMH [2020] QDC 70

PARTIES:

The Queen

v

MMH

FILE NO/S:

1795/2019

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 and 28 April 2020

JUDGE:

Smith DCJA

ORDER:

I find the defendant not guilty.

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – CONSENT –  GENERALLY – whether the defendant is guilty or not guilty of rape – whether absence of consent proved beyond reasonable doubt

Criminal Code 1899 (Qld) ss 1, 348, 349, 615B, 615C
Evidence Act 1977 (Qld) ss 21AK, 21AW, 93A
Butera v DPP (1987) 164 CLR 180; [1987] HCA 58, applied
Fleming v R (1998) 197 CLR 250; [1998] HCA 68, applied
Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334, cited
Robinson v R (1999) 197 CLR 162; [1999] HCA 42, applied
R v Armstrong [2006] QCA 158, applied
R v Coss [2016] QCA 44, applied
R v E (1995) 89 A Crim R 325, applied
R v LSS [2000] 1 Qd R 546; [1998] QCA 303, applied
R v Mulcahy [2010] ACTSC 98, cited
R v RH [2005] 1 Qd R 180; [2005] QCA, applied
R v Rutherford [2004] QCA 481, applied

COUNSEL:

Ms C Ahern for the crown

Mr M Bonasia for the defence

SOLICITORS:

Office of the Director of Public Prosecutions for the crown

McMillan Criminal Lawyers for the defence

Introduction

1. This is a judge only trial.

1. The defendant is charged with the following count:

“That on or about 16^th day of December 2018, at Kuraby in the state of Queensland, the defendant raped SJ.”

1. The defendant has pleaded not guilty to the charge and it is my role to determine on the evidence whether the defendant is guilty or not guilty.

1. The offence of rape is set out in section 349 of the Criminal Code. The elements of the offence are carnal knowledge[1] without consent.

   [1]Defined in section 1 of the Criminal Code.

1. Consent is defined in section 348 of the Criminal Code as: 

“ 348     Meaning of consent

(1)         In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

(2)         Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained—

(a)       by force; or

(b)       by threat or intimidation; or

(c)       by fear of bodily harm; or

(d)      by exercise of authority; or

(e)       by false and fraudulent representations about the nature or purpose of the act; or

(f)       by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.”

1. The only issue in dispute in the trial is whether the complainant consented to sexual intercourse.

Principles to be applied

1. In a judge only trial, the judge must apply,…