R v Pog

[2020] QChC 46

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v POG [2020] QChC 46

PARTIES:

THE QUEEN

v

POG

(defendant)

FILE NO:

285 of 2020

DIVISION:

Criminal

PROCEEDING:

Trial

DELIVERED ON:

22 October 2020 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

21 and 22 October 2020

JUDGE:

Dearden DCJ

ORDER:

I find the defendant guilty in respect of each of counts 1 and 2.

CATCHWORDS:

CRIMINAL LAW – SEXUAL OFFENCE – INDECENT TREATMENT OF A CHILD – JUDGE ALONE TRIAL – whether the defendant is guilty or not guilty of indecent treatment of a child under 16, under 12 – whether the offences charged are proved beyond reasonable doubt

LEGISLATION:

Criminal Code 1899 (Qld) ss 210, 644

Evidence Act 1977 (Qld) s 21AK

CASES:

R v MMH [2020] QDC 70

COUNSEL:

Ms J Malouf for the Crown

Mr Kennedy for the accused

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Aboriginal and Torres Strait Islander Legal Service for the defendant

Introduction

1. The defendant, POG, is charged with two counts of indecent treatment of a child under 16 under 12, as follows:

   Count 1 – that on or about the 24^th day of August 2019, at Runcorn, in the state of Queensland, POG unlawfully and indecently dealt with KP, a child under 16 years, and KP was under 12 years.

   Count 2 – that on or about the 24^th day of August 2019, at Runcorn, in the state of Queensland, POG unlawfully and indecently dealt with KP, a child under 16 years, and KP was under 12 years. 

2. The defendant is a juvenile and has elected to proceed with a judge-only trial.

3. The defendant pleaded not guilty to each of the counts on the indictment.

Particulars

1. The prosecution particularised the charges as follows:

   In two separate events, the defendant touched the complainant on the outside of her vagina, and/or grabbed her buttocks.

Elements

1. In respect with each count of indecent treatment of a child under 16 under 12, the prosecution must prove, beyond reasonable doubt, that:

   (1)the defendant dealt with the complainant;

   (2)the dealing was indecent;

   (3)the dealing was unlawful;

   (4)the complainant was under 16 years;

   (5)the complainant was under 12 years.

2. The complainant was born on 12 April 2011.

3. It is not then in dispute that the complainant was under 16 and under 12, as at 24 August 2019, the date of the alleged offences.

4. The alleged touching by the defendant’s hand and/or fingers of the complainant’s vagina and bottom (or buttocks) under her underwear is clearly a “dealing”; is clearly “indecent” by ordinary community standards (a 16 year old boy touching an eight year old girl in bed on the vagina and/or buttocks); and would clearly be unlawful, i.e., not authorised, justified or excused by law.

5. What is in dispute is whether the events, the subject of the two charges, occurred at all.

Principles to be Applied

1. In respect to the principles to be applied in the judge-only trial, I refer to, and respectfully adopt,…