R v Perry (a pseudonym)

Case [2021] QDC 102

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Perry (a pseudonym) [2021] QDC 102

PARTIES:

The Queen

v
PERRY (a pseudonym)

FILE NO:

455 of 2020

DIVISION:

District Court

PROCEEDING:

Judge only trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

11 June 2021

DELIVERED AT:

Southport

HEARING DATE:

27 April 2021, 28 April 2021, and 29 April 2021

JUDGE:

Judge Jackson QC

ORDER:

Count one- maintaining a sexual relationship with a child: not guilty

Count two- rape: not guilty

CATCHWORDS:

CRIMINAL LAW – JUDGE ONLY TRIAL – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES –VERDICT – where the defendant is charged with one count of maintaining a sexual relationship with a child and one count of rape – where the complainant is the defendant’s biological daughter – where there was a serious episode of domestic violence by the defendant against the complainant’s mother two days prior to the complainant’s disclosure – where, on the day of the complainant’s disclosure, her mother found out about the defendant’s infidelity – where there are suggestions of coaching – where the complainant could not recall the offending at the s 21AK hearing – where there is a need to scrutinize the complainant’s evidence with care –whether the complainant’s evidence is reliable – whether numerous witnesses had a motive to lie – whether the defendant is guilty or not guilty of the charges

LEGISLATION:

Criminal Code Act 1899 (Qld), s 615B, s 615C
Evidence Act 1977 (Qld), s 21AK, s 93A, s 102, Division 4

CASES:

R v Allen (a pseudonym) [2020] QCA 233, cited
R v LAS [2021] QCA 65, cited
R v Pentland [2020] QSC 231, cited
COUNSEL:

J Guy for the Crown

S Kissick for the Defendant
SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown
Karsas Lawyers for the Defendant

Introduction

  1. This is a judge only trial. The application for the trial to be conducted by judge alone was granted on 18 December 2020. 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 is charged with two offences to which he has pleaded not guilty:

    (a)Count one: that between the thirtieth day of April 2018 and the second day of March 2019 at Gold Coast in the State of Queensland, [the defendant] being an adult maintained an unlawful sexual relationship with [the complainant] a child under 16 years.

    (b)Count two: that on the first day of March 2019 at Gold Coast in the State of Queensland, [the defendant] raped [the complainant].

  3. The prosecution has particularised count one as:[1]

    [1]The particulars are MFI “B”.

Count one

Maintaining…

Continue reading R v Perry (a pseudonym)

Sign in free to access the full text

Details
AGLC
R v Perry (a pseudonym) [2021] QDC 102
Case
[2021] QDC 102
Decision Date

CaseChat Overview and Summary

In the case of R v Perry, the defendant was charged with maintaining a sexual relationship with a child and rape, both involving the defendant's biological daughter. The court was tasked with determining the reliability of the complainant's evidence, given her young age, the serious domestic violence incident two days prior to the disclosure, and the discovery of the defendant's infidelity by the complainant's mother on the day of the disclosure. The court also had to consider whether other witnesses had motives to lie. The defendant pleaded not guilty to both charges. The central legal issues were whether the complainant's evidence was reliable and whether there was any motive for other witnesses to provide false testimony.

The court meticulously examined the evidence, including the complainant's statements, the domestic violence incident, and the potential for coaching. It noted that the complainant could not recall the alleged offences at a s 21AK hearing, which required careful scrutiny of her evidence. The court found the defendant's evidence credible and reliable, and concluded that the prosecution had not established the case beyond reasonable doubt. The court emphasised the need for impartiality and dispassion in evaluating the evidence and highlighted the difference between honesty and reliability.

Ultimately, the court found the complainant's evidence insufficient to meet the burden of proof. It concluded that the evidence did not prove the charges to the required standard, resulting in verdicts of not guilty on both counts. The court ordered that the defendant be found not guilty of maintaining a sexual relationship with a child and rape.

Orders

Orders of the court

Count one- maintaining a sexual relationship with a child: not guilty

Count two- rape: not guilty

Background

Background to the litigation

I will now set out the factual background, then the directions I have given myself, followed by a summary of the evidence and rival submissions and my comments on each. I have italicised my comments for ease of reference.Factual background The complainant was aged between six and seven years of age at the time of the alleged offending and is the defendant’s biological daughter. The complainant’s mother is Alanna. Alanna and the defendant have three children together: the complainant, Lucas who was aged five to six at the time and Baxter who was aged two to three. The defendant and Alanna were in a relationship for about nine years. Alanna also has a son, Jordan, from a previous relationship and he was aged 12 at the time. The defendant also has a son, Leo, from a previous relationship who was seven to eight at the relevant times. Leo’s biological mother is Diana. All of these children lived with the defendant and Alanna. Alanna’s mother and the complainant’s maternal grandmother is Fern. Fern lived with her oldest daughter Katherine. The defendant’s mother and the complainant’s paternal grandmother is Violet. Leo has since the events described elsewhere in this judgment lived with his maternal grandmother, Julia. The offending is said to have occurred at the family home situated at Upper Coomera (“the house”). On 9 March 2019 there was a serious episode of domestic violence at the house. Alanna came home from work and she and the defendant argued. That escalated into the defendant smashing Alanna’s phone and hitting her numerous times to the head and arms. He then poured accelerant of some kind in the lounge room and over her car. He set her car alight. Some of the children saw this, including the complainant. The complainant described that the defendant: “wanted to kill mum and take care of us kids”. She also described the defendant dragging her mother across the floor by her hair and smashing her phone and punching her in the head, arms and body. The complainant said that she was screaming “dad friggin stop” really loudly and that she was “crying so bad” because she loves her mother and she did not want her to die. After the defendant set Alanna’s car alight, he left the house. He was arrested by police on 11 March 2019, taken into custody and charged with the conduct relating to that domestic violence episode. He subsequently pleaded guilty to the offences arising from that conduct.[3] Relevant principles [3]The admissions document which became exhibit 18 set out the specific charges that the defendant pleaded guilty to and how long he was remanded in custody for. General application In R v Pentland [2020] QSC 231 Martin J conveniently collected a number of general principles applicable in any criminal prosecution which I have applied and reproduce as follows:“[12]The prosecution has the onus of establishing the offence charged beyond reasonable doubt. There is no onus on the defendant.[13]In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.[14]The issues that exist must be resolved by taking account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.[15]The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.[16]It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’ evidence. I may accept parts of it if I think it is worthy of acceptance.[17]In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance, it should have.[18]I also bear in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw. ...”[4][4]R v Pentland [2020] QSC 231 at [12]-[18].Reasonable doubt

Evidence

Evidence Before The Court

In the present matter there is no challenge to the expert evidence. I would be slow in such circumstances to not accept the opinions offeredEvidence Complainant’s first section 93A statement- 12 March 2019 The complainant first participated in an interview with police on 12 March 2019 when she was seven years old. She did not give any detail about the alleged sexual offending until the male police officer who had been present left. The complainant said that “daddy has been doing rude stuff to me all these times when mum went to work”. She initially said that she could not remember when the alleged offending stopped but that it started when her mother began doing ‘beer work’, which is a reference to working in a bottle shop, which commenced in May 2018. She later recounted that the alleged offending stopped after her mother went to Melbourne on 28 February 2019. She said that she thinks the defendant was doing rude stuff for “300 days”. She said that she thinks the defendant has put his penis in her bottom “like 100 times” and in her mouth “50 times”. She said that the defendant told her that he would smack her if she told anyone about the alleged offending. When asked what the rude stuff is, the complainant responded ‘X’ and it was suggested to her that she was trying to describe ‘sex’ and she agreed. She said that the defendant has been putting his ‘D’ into her, which was suggested to be his penis, and she then motioned to her mouth and bottom using her hands. She did not say the words ‘penis’, ‘mouth’ or ‘bottom’ when initially describing what had happened and appeared to be very uncomfortable saying those words. When asked if the defendant had ever put his penis in her vagina the complainant responded no. She said that the defendant “does put spit on his ‘D’ and on her bottom.” She then recounted one of the specific times that she says this had happened. She said that it was when her mother went to Melbourne about 10 weeks ago and the defendant ‘did X E X’ to her that morning. When asked what she meant by ‘X E X’ she said “he put his D in there” and pointed to her bottom. This is the incident of rape charged as count two on the indictment. She said that she slept in the bed with the defendant that night and that the defendant woke her up the next morning because she “took over the bed” and that he told her not to take over. When further questioned about what the defendant said to her when she woke up she said he said nothing and that “nan was there, but in my room sleeping”. When asked if he put anything on his penis, the complainant said no and when asked if he spat on his hand the complainant said “not again when mum left no”. She said that she felt very guilty when it happened and that it “feeled weird every time he did it and he put it right in and it hurts that’s why I’m telling him to stop”. That seemed a strange emotion to describe in the context of her age in relation to this alleged offending.

Decision

Reasons for decision

Finally, I found the defendant’s evidence credible and reliable. Conclusion My conclusion is that the evidence as a whole (including the defendant’s sworn denials) does not prove the case to the required standard. Accordingly, the verdicts are not guilty.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.