R v P

[2020] QDC 197

DISTRICT COURT OF QUEENSLAND

CITATION: 

R v P [2020] QDC 197

PARTIES:

THE QUEEN

v

P

(defendant)

FILE NO/S:

1 of 2020

DIVISION:

Crime

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Roma

DELIVERED ON:

19 August 2020, ex tempore

DELIVERED AT:

Roma

HEARING DATE:

18 August 2020

JUDGE:

Rackemann DCJ

ORDER:

Count 1: Not guilty

CATCHWORDS:

CRIMINAL LAW – JUDGE ALONE TRIAL – VERDICT – where defendant charged with one count of indecent treatment of a child under 16 – whether the dealing constituted by touching was “indecent” – where the dealing did not unequivocally carry a sexual connotation – whether the dealing was done by the defendant with the intention of obtaining sexual gratification

LEGISLATION:

Criminal Code 1899 (Qld) Sch 1 – Criminal Code ss 23(1)(a), 615C

CASES:

R v MMH [2020] QDC 70

COUNSEL:

CMZ Wilkins for the prosecution

MJ Copley QC for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution

McMillan Criminal Law for the defendant

1. P is charged that on the 17th of November 2018 at Roma, in the State of Queensland, he unlawfully and indecently dealt with HC, a child under 16 years. To this charge he says that he is not guilty. On the 7th of July 2020 a no jury order was made. Accordingly, it is my duty to determine on the evidence whether he is guilty or not guilty. In determining this matter, I may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury. Any finding or verdict has the same effect as a finding or verdict of a jury: see section 615C(1) of the Criminal Code.

1. The principles of law which I have applied and the findings of fact upon which I have relied are set out in these reasons: see section 615C(3). The defendant is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged. In order to discharge its burden of proof, the prosecution must prove beyond reasonable doubt that the defendant is guilty. That must be proved on the evidence. I adopt, with respect, the principles set out by Smith DCJA in R v MMH [2020] QDC 70 at 10.

1. The defendant elected not to give or call evidence.  That is his right.  His decision does not alter the burden of proof, which remains on the prosecution.  Nor is it evidence or any form of admission.  It proves nothing at all and is of no significance in determining whether the prosecution has proved the defendant’s guilt beyond a reasonable doubt.

1. The prosecution called five witnesses: namely, the complainant, each of her parents, SC and JC, as well as family friends, BC and WC. The complainant’s evidence was given by way of video recording of her interview with the police and the pre-recording of her evidence. As I stated in the course of the hearing, I am conscious of…