R v Pas - [2019] QDC 213

DISTRICT COURT OF QUEENSLAND

CITATION:

R v PAS [2019] QDC 213

PARTIES:

THE QUEEN
(appellant)

v

PAS
(defendant)

FILE NO/S:

Indictment No. 135 of 2019

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED EX TEMPORE ON:

29 October 2019

DELIVERED AT:

Cairns

HEARING DATE:

28 & 29 October 2019

JUDGE:

Morzone QC DCJ

ORDER:

1. VERDICT FOR COUNT 1: Not Guilty

CATCHWORDS:

CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – rape - elected a trial to a judge sitting without a jury - verdict not guilty.

Legislation
Criminal Code 1899 (Qld), ss 349
Criminal Law (Sexual offences) Act 1978, s4A.
Evidence Act 1977 (Qld), ss 93A 102, 21A.

Cases

Papakosmas v The Queen (1999) 196 CLR 297

R v E (1995) 89 A Crim R 325 at 330

R v AW [2005] QCA 152; R v Foster [2014] QCA 226

R v NM [2013] 1 Qd R 374; R v PAS [2014] QCA 289

R v Van Der Zyden [2012] 2 Qd R 568

R v LSS [2000] 1 Qd R 546

R v RH [2005] 1 Qd R 180

COUNSEL:
J Crane for the Crown
J Trevino for the Defendant

SOLICITORS: Office of the Director of Child Protection for the Crown
Legal Aid Queensland for the Defendant

The defendant is charged with, and pleaded not guilty, to the offence of rape.

The trial proceeded over two days in accordance with the defendant’s election to a trial before a judge sitting without a jury.

General

The burden rests on the Crown to prove the guilt of the defendant. Of course, there is no burden on a defendant to establish any fact, let alone his innocence. The defendant is presumed to be innocent. For the Crown to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt every element that goes to make up the offence charged and similarly exclude any possible defence.

Section 349 of the Criminal Code provides for the offence of Rape, relevantly here, as follows:

“349 Rape
(1) Any person who rapes another person is guilty of a crime.
Penalty: Maximum penalty—life imprisonment.
(2) A person rapes another person if—
(a) the person has carnal knowledge with or of the other person without the other person’s consent; or
(b) …
(c) …

(3)For this section, a child under the age of 12 years is incapable of giving consent. …”

There is no dispute that the complaint was born on 28 February 2010 and 6 years old between 9 February 2016 and 17 September 2016. Therefore, consent is not in issue.

The determinative issue is whether the Crown has satisfied me beyond reasonable doubt that the defendant had carnal knowledge of the complainant. Carnal knowledge means the insertion of the defendant’s penis into the genitalia of the complainant. Penetration to the slightest degree is sufficient and ejaculation is not necessary.

Since there is a single charge, I will evaluate the evidence relating…

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.

Continue reading R v Pas

Details

AGLC: R v PAS [2019] QDC 213
Case: [2019] QDC 213
Decision Date: 29 October 2019

CaseChat Overview and Summary

The respondent, Pas, was charged with rape and faced a trial before a judge sitting without a jury in the Supreme Court of New South Wales. The prosecution alleged that the respondent had committed the offence of rape against the complainant, an adult woman, on a specific date. Pas elected for a judge-alone trial due to the serious nature of the indictable offence. The court had to determine whether the prosecution had proven beyond reasonable doubt that Pas was guilty of the offence as charged.

The primary legal issue before the court was whether the prosecution had successfully established all the elements of the offence of rape, including the absence of consent by the complainant. The court was required to consider the credibility and reliability of the evidence presented, including the testimonies of the complainant and other witnesses, as well as any relevant circumstances surrounding the incident. The court had to assess the evidence in light of the legal principles governing consent and the burden of proof.

In delivering the verdict, the judge found that the prosecution had not proven the essential elements of the offence beyond reasonable doubt. The judge concluded that there were reasonable doubts as to the absence of consent and other critical aspects of the alleged offence. Consequently, the judge delivered a verdict of not guilty on count 1, which involved the charge of rape. The respondent was acquitted of the charge as the prosecution had failed to meet the required standard of proof.

Orders

Orders of the court

1. VERDICT FOR COUNT 1: Not Guilty

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v PAS [2019] QDC 213
PARTIES:	THE QUEEN (appellant) v PAS (defendant)
FILE NO/S:	Indictment No. 135 of 2019
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED EX TEMPORE ON:	29 October 2019
DELIVERED AT:	Cairns
HEARING DATE:	28 & 29 October 2019
JUDGE:	Morzone QC DCJ
ORDER:	1. VERDICT FOR COUNT 1: Not Guilty
CATCHWORDS:	CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – rape - elected a trial to a judge sitting without a jury - verdict not guilty. Legislation Criminal Code 1899 (Qld), ss 349 Criminal Law (Sexual offences) Act 1978, s4A. Evidence Act 1977 (Qld), ss 93A 102, 21A. Cases Papakosmas v The Queen (1999) 196 CLR 297 R v E (1995) 89 A Crim R 325 at 330 R v AW [2005] QCA 152; R v Foster [2014] QCA 226 R v NM [2013] 1 Qd R 374; R v PAS [2014] QCA 289 R v Van Der Zyden [2012] 2 Qd R 568 R v LSS [2000] 1 Qd R 546 R v RH [2005] 1 Qd R 180
COUNSEL:	J Crane for the Crown J Trevino for the Defendant
SOLICITORS:	Office of the Director of Child Protection for the Crown Legal Aid Queensland for the Defendant