R v RKC and RJK

[2014] QChC 4

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v RKC & RJK [2014] QChC 4

PARTIES:

THE QUEEN

v

RKC

and

RJK

FILE NO/S:

6/2014

DIVISION:

Criminal

PROCEEDING:

Trial by Judge alone

ORIGINATING COURT:

Childrens Court, Southport

DELIVERED ON:

6 June 2014

DELIVERED AT:

Southport

HEARING DATE:

26, 27, 28 May 2014

JUDGE:

Judge CF Wall QC

VERDICT:

Not guilty each defendant

CATCHWORDS:

CRIMINAL LAW – JUVENILE ACCUSED – RAPE – sufficiency of evidence – complainant almost 5 at the time of the alleged offences – considerations relevant to an assessment of the evidence of young children.

COUNSEL:

Mrs J A Geary for the Crown

Mr P E Nolan – for  RKC

Mr J P Benjamin – for RJK

SOLICITORS:

Director of Public Prosecutions for the Crown

Hannay Lawyers – for RKC

Legal Aid Queensland – for RJK

Introduction

1. The defendants are each charged with 2 counts of rape.  The charges are

Count 1

That on a date unknown between the first day of January, 2011 and the fourth day of March, 2012, at Gold Coast in the State of Queensland, RKC and RJK raped ECW.

Count 2

That on a date unknown between the first day of January, 2011 and the fourth day of March, 2012, at Gold Coast in the State of Queensland, RKC and RJK raped ECW.

1. According to the complainant the alleged offences occurred in about April 2011 in the backyard of the house next door to his in a narrow strip between the garage and the fence shown in the photo, ex 6.  There was a trampoline in the backyard but those playing on it would not necessarily see this area. 

1. Count 1 involves RJK making the complainant ECW suck his penis aided by RKC.  The aiding is said to be constituted by RKC doing one, some, or all of the following

·     preventing the complainant leaving the area

·     encouraging RJK by his presence

·     physically assisting RJK make ECW suck his penis.

1. Count 2 involves RKC making ECW do the same to him aided in the same way by RJK.

1. They each pleaded not guilty.

1. RKC was born on 18 July 1998 and RJK on 4 July 1999.  ECW was born on 4 May 2006 and was thus almost 5 when the alleged offences occurred.  No reliance is placed by the defence on s 29(2) of the Criminal Code.

1. ECW is the only witness to relevant events.  The case against RKC is uncorroborated whilst that against RJK is said to be corroborated by an admission he is alleged to have made to TW, a young friend of the boys.  Neither defendant gave or called evidence and in a Record of Interview RKC denied touching ECW “in any way”.

Evidence

1. Varying accounts were given by ECW which Mrs Geary accepted could adversely reflect on his reliability as a historian and as a witness but she contended he “is generally consistent”. The accounts, commencing with the first in time, are as follows

(1)       Mrs McK, the mother of LMcK, a friend of ECW’s

On about 1 March 2013, TW, in the presence of ECW (who agreed with what was said), said to Mrs McK
“Do you know RKC made ECW suck his dick?”
She said
“Is that true?  Did that really happen?”
TW said
“RKC told me that he made ECW suck his dick”
Mrs McK agreed there was “never any mention of anyone named RJK”.
Mrs McK told ECW’s father, SW, what TW had said.

(2)       SW

He is separated from KH, ECW’s mother.  On 4 March 2013 he went to her house and in her presence spoke to ECW.  SW said to ECW
“Did something happen with RJK and RKC?”
ECW started to get upset and said
“Yes”
SW said
“What happened”
ECW said
“RKC made me suck his dick.  RJK held me”
ECW didn’t use the words “suck his dick” but that “was the essence of what he said”
SW continued
“ECW said that RKC and RJK got him behind the shed in that yard and they wouldn’t let him go.  RKC pulled ECW’s head down to his penis and I don’t know what happened.  ECW told me that he tried to get away but they wouldn’t let him go”.
SW then went to call the police.
In relation to this conversation SW, not ECW, first mentioned RJK.  SW also agreed that ECW “made no mention at all of RJK dong the same thing… It was just RKC”.
KH’s recollection of the start of the conversation is that SW sat ECW down and said
“Did you suck RKC’s dick?”
and ECW said
“No”
KH said “he didn’t say yes right away.  I kind of had to egg him on a bit, kind of say it’s ok, you’re not going to get into trouble if you speak about this.  You can tell us what happened” and he said something about I couldn’t get away from him. 
KH then spoke to ECW, in the absence of SW.

(3)       KH

She said ECW said
“He had a hold of me”
She said
“Who”
He said RJK held his shoulders and “put” his head down towards RKC’s penis.
She then said
“Did you put your mouth on his diddle”
He said
“Yes”
She said
“Did RJK have his pants down?”
He said
“Yes”
She said
“Did the same thing happen with RJK?
He said
“Yes”
What is apparent from this conversation is that ECW did not volunteer that RJK made ECW put his penis in his mouth and some of KH’s questions were quite leading.
KH also agreed that ECW said that when “this happened”
“we were at the trampoline at G’s house.  They grabbed me and took me to the corner of the shed.  I tried to get away from them”

(4)       Section 93A Statement, Surfers Paradise Police Station, 5 March 2014

Initially he was asked
“ECW tell me what you’ve come to talk to me about” and he said “this kid ..(who asked to be my friend)…. made me…. He pulled my head down (demonstrating) and made me suck his doodle…. my other friend was on the other side…. blocking the way out…. he wouldn’t let me out”.
He identified RKC as the one who made him suck his penis and RJK as the other “friend’.
He said they took him into a gap at the side of the garage.
He was then asked
“What happened after that?”
and he said
“Then they let me go”
Later in the interview there was this exchange
“…. Now you said that they pulled your head down” (he had not said this at all)
“Yeah”
“… and they made you suck his doodle…. who pulled your head down?”
and he replied “RJK pushed it into RKC….. and that’s all”
He then said RKC had pulled his pants down, RJK was “just at the back” and pushed his head from the back down to RKC (demonstrated) who made him “suck his doodle”.
He was then asked
“What happened after that?”
and he said
“They just let me go jump on the trampoline…. I ran back to the trampoline”
In this interview he did not allege that he was forced by one or both of the defendants to suck RJK’s penis, only RKC’s.

(5)       Conference with Mrs Geary, 23 April 2014

When asked what had occurred ECW said he was made to suck RKC’s doodle first while RJK blocked the way out from behind the shed.  He said he was then made to suck RJK’s doodle while RKC blocked the way out.

(6)       Mrs Geary’s opening, 26 May 2014

Mrs Geary said[1]

[1] T1-6

“ECW provided a recorded Section 93A Statement to police.  In this statement, he disclosed that there were two boys, one called RKC and one called RJK.  He said they took him to the area behind the garage in the back yard of the house next door. 
He said when they went behind the garage RJK was blocking him from getting out of the area.  RKC pulled down his pants and his head had been pushed towards RKC’s penis or doodle as ECW described it.  He said that RKC’s doodle went into his mouth for about two seconds.  In his evidence that he will give today, he will describe that before this occurred he – he will describe that at this time RJK was standing behind him and blocking him from exiting the passageway behind the shed.  In his evidence, he will tell you that before this occurred he had been made to suck RJK’s doodle while RKC had blocked the way out and that they had then swapped places.
HIS HONOUR:  So RJK was first.
MS GEARY:      Yes.”
According to this account RJK went first followed by RKC.

(7)       ECW’s evidence in Court, 26 May 2014

He said RKC was first, then RJK.  He said
“RJK swapped with RKC…. He did that after RKC did it”
He was then asked
“When you say ‘swapped with RKC’, can you tell me exactly what happened”
and he said
“One of them would still hold me and the other would go to the corner bit and then the one that’s their turn would be holding me…. by the head”
He was then asked
“Who held you first”
and he said
“RJK”
He then agreed that he said RJK was first to hold his head “down on his doodle” and said that after RJK they swapped and “RKC did the exact same thing to me”.  He denied that when his head was on RJK’s doodle RKC was touching him or that when his mouth was on RKC’s doodle RJK was touching him.  Therefore, according to this account, RKC did not physically assist RJK to make ECW suck RJK’s penis and RJK did not physically assist RKC to make ECW suck RKC’s penis.
In cross-examination by Mr Nolan he said neither defendant dragged him to where the alleged offences happened; they asked him to follow them and he did.  In cross-examination by Mr Benjamin he said he was on the trampoline when RJK asked him to come over to him.  RKC was already behind the garage.  ECW walked over to RJK and “followed him behind the shed”.  RJK didn’t grab him and pull him behind the shed.  Once behind the shed RJK went first.  RJK never pushed his head down onto RKC’s doodle and RKC never pushed his head down onto RJK’s doodle.  He denied he had ever said RJK pushed his head down onto RKC’s doodle. 

1. ECW’s evidence in respect of RJK is said to be corroborated  by the evidence of  ECW’s friend TW.  TW was born on 23 February 2004.  He knows RJK.  In his s 93A statement to police on 21 March 2013 he said that in about July 2012 RJK said to him

“Did you know that once ECW sucked RKC’s dick…. he was like he was like really hanging onto it and RKC was like ‘suck it’.  He was sort of making him…. He pulled his pants down and said ‘suck my dick’”

1. He doesn’t know where he was when RJK told him this.  His friend LMcK was with him when RJK told him.  LMcK was not a witness and it is agreed that he spoke to police on 11 May 2013 and “gave no admissible evidence”.  TW is thus the only witness to the admission he said RJK made (of presence at the time RKC did what he said he did).  TW told Mrs McK what RJK said. 

1. Later in his statement TW said, when asked what he said to Mrs McK

“I told her ‘did you know that ECW has once sucked RJK’s thing?’”

He said RJK told him not to tell anybody otherwise he “might get into trouble” but

“…. he might by lying.  I don’t know cause he is a really naughty boy”.

In evidence he said when RJK told him he at first didn’t believe him – “it was the sort of thing he would say to gross me out”.  TW also said in evidence that there were a lot of rumours going about and he’d “heard about this sort of thing supposedly happening from all sorts of places” and “all sorts of different people had talked about it”.

1. Mrs McK’s account of what LMcK told her is that it was RKC not RJK who told him that the other made ECW suck his penis.[2] 

Assessment of the evidence

[2] See para [8](1) hereof.

1. ECW was nearly 5 when he said the alleged offences occurred in about April 2011.  He gave his statement to police on 5 March 2013 and his evidence on 26 May 2014.  TW gave his statement to police on 21 March 2013 and his evidence on the same day as ECW.

1. ECW and TW were both bright and likeable young boys and seemed quite intelligent. 

1. Mrs Geary agreed that in a case of this nature the evidence of the complainant must be approached with great care and caution; it needs to be scrutinised carefully.  She also agreed that young children have fertile and sometimes fanciful imaginations and have been known to make up things and to invent accounts; they can be imaginative and suggestible and their memories may not necessarily be reliable.  She submitted though that I should conclude that ECW’s evidence is not the product of his imagination.

1. Other reasons the complainant’s evidence must be scrutinised with great care are

(1)       the delay between April 2011 and when he told Mrs McK.  Such a delay, whilst not particularly great in a Longman[3] sense does assume more importance having regard to the complainant’s age at relevant times and has probably somewhat limited the defence’s ability to test and meet the evidence;

(2)       the absence of any evidence corroborating the complaint.  The evidence of TW is internally inconsistent and of doubtful reliability; and

(3)       ECW’s complaint to his father is not consistent with his evidence.  The more detailed account was given by ECW to his mother and that is also inconsistent with his evidence that he was held by RJK when he sucked RKC’s penis and by RKC when he sucked RJK’s penis.  These are not minor inconsistencies. 

[3]R v Longman (1989) 168 CLR 79

1. I am not satisfied that either ECW or TW have given reliable accounts of events.  I have significant reservations about the accuracy and reliability of the evidence given by each.  ECW has said different things at different times.  Because of his age he was not able to appreciate this and thereby explain himself.  I think he is quite suggestible in the sense that he is inclined to accept what is suggested or put to him even if that did not in fact happen.  The reliability of his answers to leading questions or suggestions is, in my view, clearly doubtful.  TW has also said different things at different times.

Result

1. In all of the circumstances I am unable to be satisfied beyond reasonable doubt that the defendants are guilty of the offences charged.  In my view the evidence against each is insufficient to support a conviction and I therefore find each defendant not guilty of the offences charged.