R v PRO

Case [2024] QChC 2

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v PRO [2024] QChC 2

PARTIES:

THE KING

v

PRO

(defendant)

FILE NO:

CCJ 332/23

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane Childrens Court

DELIVERED ON:

26 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

12-14 March 2024

JUDGE:

Dearden DCJ

ORDER:

I find the defendant not guilty in respect of each of counts 1, 3 and 4 (sexual assault) and counts 2, 5 and 6 (rape).

CATCHWORDS:

CRIMINAL LAW – SEXUAL OFFENCE – RAPE – SEXUAL ASSAULT – JUDGE ALONE TRIAL – whether the defendant child is guilty or not guilty of three counts of sexual assault and three counts of rape – whether the offences charged are proved beyond a reasonable doubt

LEGISLATION:

Evidence Act 1977 (Qld) s 93A

Criminal Code 1899 (Qld) ss 349, 352, 644.

CASES:

R v MMH [2020] QDC 70
COUNSEL:

G Wong for the Crown

C Bernardin for the defendant
SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Hodgson Lawyers for the defendant

Introduction

  1. The defendant, PRO is charged as follows:-

    “Count 1:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently assaulted CDE;

    Count 2:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO raped CDE;

    Count 3:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently assaulted CDE;

    Count 4:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently assaulted CDE;

    Count 5:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO raped CDE;

    Count 6:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO raped CDE;

    Count 7:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently dealt with FGH, a child under 16 years;

    Count 8:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently dealt with FGH, a child under 16 years; and

    Count 9:that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently dealt with FGH, a child under 16 years.”

  2. The defendant is a juvenile and elected to proceed with a judge alone trial.

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

  4. On day three of the trial (14 March 2024) the prosecution, having been unable to locate and call the complainant in respect of counts 7-9, FGH, entered a nolle prosequi in respect of each of counts 7, 8 and 9 and the defendant was discharged.[1]  

    [1] T3-6.

    Particulars

  5. The particulars in respect of counts 1-6 are as follows:-

    “Count 1:the defendant touched the breast/s of CDE with his hand on…

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AGLC
R v PRO [2024] QChC 2
Case
[2024] QChC 2
Decision Date

CaseChat Overview and Summary

In the case of R v PRO, the defendant was charged with three counts of sexual assault and three counts of rape. The matter was heard in a judge alone trial within the Queensland jurisdiction. The key legal issues the court had to address involved determining whether the prosecution had proven each element of the charges beyond a reasonable doubt. Specifically, the court had to assess whether the defendant had carnal knowledge of the complainant without her consent.

The court examined the evidence provided by the complainant, CDE, as well as testimonies from other witnesses and admissions made during the trial. The complainant's credibility was scrutinised due to inconsistencies and exaggerations in her statements, as well as her memory lapses regarding the events in question. The court noted that the complainant had a motive to lie, given her strained relationship with her mother and her history of running away from home. Despite the complainant's assertions, the court found that the prosecution had not met the burden of proving the charges beyond a reasonable doubt.

The reasoning of the court was based on the lack of clear and consistent evidence to support the allegations. The inconsistencies in the complainant's testimony, coupled with her admitted exaggerations and memory issues, led the court to doubt the reliability of her account. Additionally, the court considered the complainant's motive to lie and her strained relationship with her mother, which further undermined her credibility. Consequently, the court found the defendant not guilty on all counts of sexual assault and rape.

The final orders of the court were that the defendant was acquitted on all charges brought against him. The court concluded that the prosecution had not proven the elements of the charges beyond a reasonable doubt, leading to the defendant's acquittal.

Orders

Orders of the court

I find the defendant not guilty in respect of each of counts 1, 3 and 4 (sexual assault) and counts 2, 5 and 6 (rape).

Background

Background to the litigation

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Evidence

Evidence Before The Court

In respect of each of each counts 5 and 6 (rape), the prosecution must prove beyond reasonable doubt that the defendant:(1)Had carnal knowledge of the complainant.(2)To prove “carnal knowledge” the prosecution must prove that the defendant penetrated the genitalia, that is the vulva and/or vagina of the complainant, with his penis. The offence is complete upon penetration. Any degree of penetration is sufficient. It is not necessary for the prosecution to prove that the defendant ejaculated.(3)The carnal knowledge was without the complainant’s consent. “Consent” means consent freely and voluntarily given by a person with the ability to know and understand what she is doing in giving consent.A person’s consent to an act is not freely and voluntarily given if it is obtained –(a)by force; or(b)by threat or intimidation; or(c)by fear of bodily harm; or(d)by exercise of authority; or(e)by false and fraudulent representations about the nature or purpose of the act; or(f)by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.Evidence The complainant, CDE took part in an Evidence Act 1977 (Qld) (‘EA’) s.93A interview with Senior Constable Aaron Kerridge and Senior Constable Chris Shortis at the Inala Police Station on 17 October 2022.[2] [2] Exhibit 8; Exhibit E (transcript). The complainant, CDE’s oral evidence was given before me, as a special witness pursuant to EA s.21A, on 13 March 2024. Evidence was also given by:(a)ZZ;(b)CM (mother of the complainant, CDE);(c)FM (mother of the complainant, FGH);(d)Senior Constable Natasha Krause;(e)Plain Clothes Senior Constable Aaron Kerridge; and finally(f)AA. The following exhibits were also tendered:Exhibit 1 – photograph of defendant’s house;Exhibit 2 – photograph of McDonalds;Exhibit 3 – photographs (x 3) of dog park;Exhibit 4 – photographs (x 3) of basketball court;Exhibit 5 – photographs (x 7) showing general surroundings of basketball court;Exhibit 6 – photographs (x 6) of property located in the defendant’s house;Exhibit 7 – screenshots (x 8) of the defendant’s Instagram account;Exhibit 8USB of EA s.93A interview with complainant, CDE dated 17 October 2022; andExhibit 9 – map of the relevant area at Inala marked by complainant, CDE;Exhibit A – Particulars;Exhibit B – Admissions;Exhibit C – Admissions - re relevant locations on a map;Exhibit D – Admissions;Exhibit E – Transcript of EA s.93A statement of CDE dated 17 October 2022; andExhibit F – Closing submissions on behalf of defendant child.AdmissionsExhibit B(1)The map below depicts the locations of certain places described by CDE and FGH in their s.93A statements to the police:(a)The defendant’s home (A);(b)The dog park (B);(c)The park where basketball can be played (C);(d)The McDonalds restaurant (D).(2)The route from locations C and D in the map shown at paragraph 1 along [redacted] is approximately 1.7 kilometres.(3)On 12 October 2022 at 3.48 am, CDE and FGH walked to the McDonalds Restaurant depicted at location D in the map shown at paragraph 1. According to CCTV footage:(a) CDE and FGH went to the bathroom immediately upon entering the restaurant;(b) After leaving the bathroom, CDE and FGH went to the counter area.(c) CDE approached the counter while FGH sat down in the seating area.(d) CDE had a conversation with a store attendant. The store attendant then gave four cups (with lids on) and straws to CDE.(e) CDE and FGH walked out of the restaurant, each carrying two cups. The time was 3.55 am.(4)On 12 October 2022 at 5.06 am, CDE, FGH, the defendant and a female individual walked into the Richlands Train Station.(5)The defendant was the sole user of the Instagram account ‘[redacted]’, between 11 October 2022 and 18 October 2022.(6)On 18 October 2022 at 00:16 am, a sexual assault nurse examiner conducted a sexual assault forensic examination upon CDE. CDE declined to participate in a vaginal speculum examination. During the examination that was conducted, the following observations were made:(a) There was no visible injury to the external genitalia, perineum and perianal areas of CDE.(b) CDE reported tenderness over the lower back near buttocks.(c) On the lower back of CDE, between the left and right hips, at hip-line level, there were three small oval shaped bruises, dark brown in colour. The bruises measured 0.5 cm – 1.0 cm wide and 0.5 cm in length.(d) On a diagram the examiner depicted the location of the three bruises as follows:[The agreed admissions contained a diagram with three bruises indicated on the complainant’s buttocks.]Principles – judge alone trial

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In the light of that evidence, it is obvious that the complainant is unsure whether or not digital penetration occurred (count 2 – rape).Exaggeration The complainant in cross-examination accepted that she had exaggerated when she told police that she and her cousins were “drunk out of their heads”;[42] when she told police that PRO had contacted her on numerous Instagram accounts;[43] and when she said that the defendant kept “asking her out” and that she said “no” but he kept asking until she said “yes”.[44] In cross-examination, the complainant accepted that the Instagram messages[45] actually demonstrated that on 13 October 2022 (the day after the alleged sexual offending) the defendant asked her “do you think we can meet?” and she replied “if you want, but I don’t want to fuck and shit”. In cross‑examination, the complainant accepted that it was not the case that the defendant had persisted and kept asking her out until she said “yes”.[46][42]T2-18, l 20-25.[43]T2-18, ll 30-35.[44]T2-23, ll 15-35.[45]Exhibit 7.[46]T2-23, ll 30-35. The obvious exaggeration in these three examples is clearly an issue in considering the reliability and credibility of the evidence of the complainant.Reliability The complainant admitted that she could not remember if she hugged and kissed the defendant[47] and when presented with the photographs of the dog park she could not say where anything had occurred.[48][47]T2-29, ll 30-35.[48]T2-9, ll 14-16; T2-10, ll 4-5. The complainant accepted in cross-examination that her memory of the night with the defendant “wasn’t very good” and accepted there were a number of things that she simply couldn’t remember.[49][49]T2-30, ll 10-20.Motive to lie The complainant accepted in cross-examination that she ran away from home twice during the week of these allegations and that her mother was asking her to come home and had threatened to ground her which she did not like.[50][50]T2-27, ll 30-42. The complainant accepted that she was struggling with her mental health at the time of the alleged sexual offences and that when her mother threatened to ground her, it caused her a level of stress.[51][51]T2-28, ll 26-27. The complainant accepted that she had run away from home before and had got into trouble with her mother.[52][52]T2-28, ll 29-30. The complainant accepted that when she saw her mother, the first thing she said to her mother was that she had been raped and she couldn’t remember if her mother did ground her.[53] However, the complainant’s mother CM gave evidence that the complainant was not grounded.[54][53]T2-28, ll 1-5.[54]T1-28, ll 1-5. The complainant rejected the suggestion that she had made up the complaint of rape to avoid getting into trouble and being grounded by her mother.[55][55]T2-28 ll 35-36.Preliminary complaint evidence The preliminary complaint evidence in this trial comes from three witnesses. The first of those was ZZ. He said that the complainant “did tell me about being sexually assaulted” and he “told her the right thing to do was go tell police”, although she didn’t tell him any details.[56][56]T1-13.