R v MRB

Case [2021] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MRB [2021] QDC 294

PARTIES:

The Queen

v

MRB

FILE NO:

DIVISION:

Criminal

PROCEEDING:

Judge only trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

23 November 2021

DELIVERED AT:

Southport

HEARING DATE:

2 and 3 November 2021

JUDGE:

Dann DCJ

ORDER:

Not guilty on the count of indecent treatment of a child under 16, under 12, who is a lineal descendant

CATCHWORDS:

CRIMINAL LAW – JUDGE ONLY TRIAL –  PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES  –VERDICT – where the defendant is charged with one count of indecent treatment of a child, under 16, under 12, who is a lineal descendant – where the defendant was previously acquitted by a jury of the other count on the indictment  – where the complainant is the defendant’s daughter – where the defendant and the mother of the complainant were separated at the time of the offending and shared custody of the complainant  – where the alleged offending occurred in 2019 when the complainant was staying with the defendant– where the nanny employed by the defendant went into the complainant’s bedroom one morning and the defendant was in bed with the complainant cuddling her and waking her up  – whether the complainant was in a distressed condition when the nanny came into her room – where the nanny later questioned the complainant about her and the defendant in bed  – whether the nanny pushed the complainant in the questions she asked her with a potential for the complainant to be led – whether the complainant had a motive to lie – whether the complainant’s evidence of the touching is reliable – whether the defendant is guilty or not guilty of the charge 

LEGISLATION:

Criminal Code Act 1899 (Qld), s615B, s 615C
Evidence Act 1977 (Qld), s 93A, s21AK, Division 4A

CASES:

R v GJL [2021] QCA 175 cited
R v Pentland [2020] QSC 231 cited
COUNSEL:

S J Gallagher for the Crown

S W Zillman for the Defendant
SOLICITORS:

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

Sibley Lawyers for the Defendant

Introduction

  1. This is a judge only trial before me on 2 and 3 November 2021. This court granted the application for the trial to be conducted by judge alone on 27 July 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 (MRB) is charged with the following offence:

    That on the twenty-ninth day of April 2019 at Gold Coast in the State of Queensland, [the defendant] unlawfully and indecently dealt with [the complainant] a child under 16 years.

    And [the…

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R v MRB [2021] QDC 294
Case
[2021] QDC 294
Decision Date

CaseChat Overview and Summary

In the matter of R v MRB, the defendant was charged with one count of indecent treatment of a child under 16, under 12, who is a lineal descendant. The complainant, ELB, is the defendant's daughter. The alleged offence occurred in 2019 when the complainant was nine years old and staying with the defendant. The defendant was previously acquitted by a jury of another count on the indictment. The central issue for the court was whether the defendant is guilty or not guilty of the charge based on the evidence presented, particularly the reliability of the complainant's account and whether she had a motive to lie.

The court considered the elements required to prove the offence, including whether the defendant dealt with the child in an indecent manner, whether the child was under 16 and 12 years of age at the time, and whether the complainant was a lineal descendant of the defendant. The court examined the complainant's evidence, including her statements to the police and her descriptions of the alleged events. The court also considered the nanny's observations and the potential for leading questions that may have influenced the complainant's account. Ultimately, the court concluded that there was insufficient evidence to prove the defendant's guilt beyond reasonable doubt.

The court found that there were inconsistencies and uncertainties in the complainant's testimony, and that her evidence was not entirely reliable. The court also noted that there was no physical evidence to support the complainant's allegations. Additionally, the court considered the possibility that the complainant may have had a motive to fabricate the allegations, particularly in the context of the separation of her parents and the shared custody arrangement. Based on these findings, the court determined that the Crown had not proved the case to the required standard and found the defendant not guilty on the count of indecent treatment of a child under 16, under 12, who is a lineal descendant.

Orders

Orders of the court

Not guilty on the count of indecent treatment of a child under 16, under 12, who is a lineal descendant

Background

Background to the litigation

To prove the offence of indecent treatment of a child under 16, under 12, who is a lineal descendent, the crown must satisfy me that:(a)The defendant dealt with a child;“deals with” includes a touching of the child, by any part of the defendant’s body and the touching of the defendant by the child.(b)The dealing was indecent;“indecent” bears its ordinary every day meaning; that is, what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.(c)The dealing was unlawful;“unlawful” means not justified, authorised or excused by law. No justification, authorisation or excuses arise for consideration.(d)The child was under 16 years of age;ELB’s birthday was the subject of a joint admission in the trial. For these reasons it suffices to say the parties admitted the complainant was nine years old on 29 April 2019. Consequently, it is apparent that ELB was under 16 at the time of the alleged offence.(e)The child was under 12 years of age;As for (d), it is apparent that ELB was under 12 at the time of the alleged offence. (f)The complainant was, to the knowledge of the defendant, his lineal descendant. Lineal means being in the direct line of descent from an ancestor. It was jointly admitted in the trial that ELB was, to the knowledge of MRB, his lineal descendant. Factual background ELB was born in September 2009. MRB is ELB’s biological father. At the time of the alleged offending, the defendant and ELB’s mother (CDG) were separated and not living together. MRB and CDG had an approximately equal share custody arrangement of the complainant and her younger sister (JNB). On Saturday 27 April 2019, whilst under MRB’s care, ELB stayed at a friend’s house. The next day, Sunday 28 April 2019 both ELB and her sister were back with MRB. ELB stayed at the defendant’s house that night and woke up in her bed the next morning on Monday 29 April 2019. The charge arises out of events said to have occurred on the morning of 29 April 2019 when the defendant went into ELB’s bedroom and got into her bed to wake her up. The defendant employed a nanny (CHL) who lived on the property to assist him with ELB and her sister (JNB). CHL was in the kitchen of the home on the morning of 29 April 2019 making breakfast. MRB told her he was going into ELB’s room to wake her up. About 10 minutes later CHL went into ELB’s bedroom, got ELB, (there is an issue in the trial as to how CHL got her and ELB’s level of distress), completed the morning routine and dropped the children to school. She had a conversation with ELB that morning. At the end of that school day ELB and JNB returned to their mother’s house. On Thursday 1 May 2019 ELB returned to stay overnight with MRB after school. On 2 May 2019 in the morning before school CHL instigated a further conversation with ELB in MRB’s absence about events on the preceding Monday morning. MRB took ELB to school (it was crazy socks day). As a consequence of the conversation CHL had with ELB, ultimately, later that day, CDG took ELB to a general practitioner and thereafter to the police station where her first interview with the police was recorded. CDG and CHL each gave the police written statements that day.

Evidence

Evidence Before The Court

Noting that the jury acquitted in respect of count 1, that does not necessarily mean I cannot convict of the count before me. I have to consider why I have some, if any, reasonable doubt about that part of her evidence and consider whether it affects the way I assess the rest of her evidence, that is whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to the current count.Evidence Complainant’s first section 93A statement ELB first participated in an interview with police on Thursday 2 May 2019.[6] ELB had a quite large, two legged soft toy bunny rabbit with her in the interview. [6]I have set out the whole of ELB’s evidence in the s 93A that deals with her allegations against MRB. ELB told police that she lives at home with mum. ELB said that she had come to talk to the police about Dad, he’s sometimes mean, sometimes annoying, and sometimes she doesn’t like him. When asked the reasons for those thoughts she said to the police officer: “because when he goes in my bed and gives me cuddles, he touches my private parts and I don’t like it, I keep on whacking him and he doesn’t stop.” She told the police officer she could not remember the first time something happened. She said the very last time she remembered Daddy hopping into bed and touching her privates was ‘yesterday’. She knew it was her Dad in bed with her because she saw his face. When the police officer asked her to tell her everything about yesterday and to start at the beginning the complainant said “I was telling him to stop, and he wouldn’t stop, and I was whacking him to get him to stop and last time my nanny CHL … she came straight away …. She came barging in and Dad … and CHL said come on … and I didn’t like it, so she said come on (ELB) let’s go have breakfast and she got me out of there because I didn’t like it in there.” The complainant’s evidence was that she sleeps in her own room at her Dad’s house, which has a bed and bunks; she sleeps in the bed and the bunks are for her friends, although she’s never had friends over. In response to the police officer asking her to tell her everything she remembered from when she woke up in her bed yesterday the complainant’s evidence was: “He came to give me cuddles and he did that and they wouldn’t stop”, she could not remember everything that happened when Dad first came into her room but “I can remember that I didn’t like it” and “He was touching my privates and he wouldn’t stop”. The complainant did not know another word for her privates, but she said the part of her body which was her privates was ‘the front’ and she used her privates for peeing. When she said the front her gestures indicated her front pubic region. She said he used his hand and ‘he doesn’t use anything else though’. When asked by the police officer to tell what he does with his hand, the complainant made a gesture where she held her palm out flat with the fingers apart and brought them down in a flat motion onto the head of the toy bunny. When asked to “show me on bunny what he does” the complainant touched the rabbit with a flat hand in the front pubic area where the legs joined the body.

Decision

Reasons for decision

Given these matters I do not accept CDG’s evidence that ELB was crying when she saw CDG in the carpark at school. Conclusion My conclusion is that I am not satisfied the Crown has proved the case to the required standard. Accordingly, the verdict is not guilty.

Ratio Decidendi

Legal Principle Established

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