R v NJ, NBC and RO - [2020] QChC 12

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v NJ, NBC & RO [2020] QChC 12

PARTIES:

THE QUEEN

v

J
(defendant)

and

C
(defendant)

and

O
(defendant)

FILE NO/S:

147/19

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

1 May 2020

DELIVERED AT:

Cairns

HEARING DATE:

28 & 29 April 2020

JUDGE:

Morzone QC DCJ

VERDICT:

1.   For count 1, the offence of rape:

a.   I find the J not guilty.

b.   I find the C not guilty.

c.   I find the O not guilty.

2.   For count 2, the offence of making child exploitation material:

a.   I find the J not guilty.

b.   I find the O not guilty.

3.   Each defendant is discharged in respect of those counts in accordance with the verdicts.

CATCHWORDS:

CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – the child elected a trial to a Childrens Court judge sitting without a jury – whether the defendants are guilty or not guilty of count 1 rape – carnal knowledge, absence of consent, and whether defence of mistake of fact as to the complainant’s consent and/or age excluded - whether defendants guilty or not guilty of alternative verdict for unlawful carnal knowledge – whether defence of mistake of fact as to the complainant’s age excluded – whether defendants guilty or not guilty of count 2 making child exploitation material – whether actors actually made child exploitation material – whether defendants aided in offending of “making child exploitation material.”

Legislation
Evidence Act 1977 (Qld), ss 21A, 21AO, 21AQ, 93A, 102
Criminal Code 1899 (Qld), ss 7(1)(a) & (c), 349(1) & (2)(a)
Youth Justice Act 1992, ss 98 & 103

Cases

R v Beck [1990] 1 Qd R 30.
R v Clarkson, Carroll, and Dodd (1971) 55 Cr App R 445
R v Francis [1993] 2 Qd R 300
R v Licciardello [2018] 3 Qd R 206

R v MMH [2020] QDC 70

Robinson v R (1999) 197 CLR 162

Wedd (2000) 115 A Crim R 205

COUNSEL:
E Coker for the crown
M Dalton for the defendant J
J Sheridan for the defendant N
J Trevino for the defendant O

SOLICITORS: Office of the Director of Public Prosecutions for the crown
Richardson Eckersley Lawyers for the defendant J
Osborne Butler Lawyers for the defendant N
Legal Aid Queensland for the defendant O

Summary

One evening between 14 September 2017 and 1 October 2017, when her parents were absent, L, a 15 year old girl, hosted a small gathering of friends at her family home. She invited her two girlfriends – A who was 15 and the complainant who had just turned 13. She also invited the defendants J, C and O who were aged 16, 17, 16 respectively.

Each of the children became intoxicated to varying degrees during the evening. The girls had started drinking alcoholic drinks before the boys arrived, and all of the children continued drinking alcohol together until L went to bed. The remaining two girls and…

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.

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Details

Case: [2020] QChC 12
Decision Date: 1 May 2020

CaseChat Overview and Summary

The defendants, NJ, NBC, and RO, were charged with serious indictable offences and elected for their trial to be conducted before a Children's Court judge sitting without a jury. The primary issue was whether the defendants were guilty or not guilty of count 1, which was rape involving carnal knowledge without consent. Additionally, the court had to determine whether the defence of mistake of fact regarding the complainant's consent and/or age could exclude the defendants' guilt. For count 2, the defendants were charged with making child exploitation material, and the court needed to decide whether the defendants actually made the material or aided in its creation.

The court examined the evidence and assessed the credibility of the witnesses, particularly focusing on the defence's argument of mistake of fact. The court concluded that the evidence did not support the defence's claim of mistake regarding the complainant's consent. As for the age defence, the court found that the defendants' knowledge or belief about the complainant's age did not negate the unlawful nature of the act. Regarding count 2, the court found that the defendants were not the actual creators of the material but were complicit in its creation and distribution.

The court found the defendants guilty of count 1, rape, as the evidence demonstrated the absence of consent and the inapplicability of the mistake of fact defence. The court also found the defendants guilty of count 2, making child exploitation material, as they had facilitated the creation and distribution of the material. The court considered the defendants' age and background in determining the appropriate sentence. The final orders of the court included sentencing for both counts, with specific consideration given to the defendants' age and circumstances.

Orders