R v RT - [2018] QChC 24

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v RT [2018] QChC 24

PARTIES:

THE QUEEN

v

RT
(defendant)

FILE NO/S:

Indictment No. 35/18

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

17 September 2018

DELIVERED AT:

Cairns

HEARING DATE:

12, 13 & 14 September 2018

JUDGE:

Morzone QC DCJ

ORDER:

1.   Count 1: Not Guilty.

2.   Count 2: Guilty.

3.   The defendant is discharged in respect of count 1.

4.   I will hear the parties about appropriate orders for bail and sentence in accordance with this decision.

CATCHWORDS:

CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – the child elected a trial to a Childrens Court judge sitting without a jury – for Count 1: Rape (digital) – undisputed that the defendant inserted his finger into the complainant’s vagina - whether the complainant did not consent, and whether the prosecution excluded the defence of mistake of fact – for Count 2 Rape (carnal knowledge) – undisputed that the defendant had carnal knowledge of or with the complainant by inserting his penis into her vagina – whether the complainant did not consent - preliminary complaint – distressed condition as evidence supporting evidence of offence - defendant gave evidence – whether prosecution proved essential facts beyond reasonable doubt – separate verdicts.

Legislation
Childrens Court Act 1992 (Qld)
Criminal Code 1899 (Qld), ss 24, 348, 349
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld) ss 21A, 93A, 102
Youth Justice Act 1992, ss 92A, 21A, 98, 103.

Cases

Papakosmas v The Queen (1999) 196 CLR 297

R v AW [2005] QCA 152

R v Coss [2016] QCA 44

R v E (1995) 89 A Crim R 325.

R v Foster [2014] QCA 226

R v Foster [2014] QCA 226.

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

R v RH [2005] 1 Qd R 180.

R v Schneider [2000] 1 Qd R 546

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

COUNSEL:
N Rees for the Crown
M Dalton for the defendant

SOLICITORS: Office of the Director of Public Prosecutions for the Crown
Legal Aid Queensland for the defendant.

The defendant (who I refer to when recounting evidence as “T”) is charged with, and pleaded not guilty, to the following offences:[1]
[1] Count 1: that on or about the thirteenth day of December, 2017 at Holloways Beach in the State of Queensland, T raped Ki.; and Count 2: that on or about the thirteenth day of December, 2017 at Holloways Beach in the State of Queensland, T raped Ki.

Count 1: Rape

Count 2: Rape

The trial proceeded over two days in accordance with the defendant’s election to a trial before a judge sitting without a jury.[2]
[2] Youth Justice Act 1992, ss 98 & 103.

General

The burden rests on the prosecution to prove the guilt of the defendant. Of course, there is no burden on a defendant to establish any…

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 RT

Details

AGLC: R v RT [2018] QChC 24
Case: [2018] QChC 24
Decision Date: 17 September 2018

CaseChat Overview and Summary

In the case of R v RT, the defendant was charged with serious indictable offences following an incident involving a child complainant. The case was tried before a judge alone in the Children’s Court of Queensland, with the child electing for this mode of trial. The defendant was charged with two counts of rape, the first involving digital penetration and the second involving carnal knowledge.

The court was required to determine several legal issues, including whether the complainant did not consent to the acts alleged in each count, and whether the prosecution successfully excluded the defence of mistake of fact. The court had to assess the credibility of the complainant's evidence, including her distressed condition at the time of the complaint, and whether the prosecution proved the essential facts beyond reasonable doubt. The defendant also provided evidence, which the court had to consider in the context of the overall evidence presented.

The court found that, for Count 1, the prosecution had not excluded the defence of mistake of fact, as there was no clear evidence that the complainant did not consent. Consequently, the defendant was acquitted of this charge. However, for Count 2, the court found that the prosecution had proved the essential facts beyond reasonable doubt, and the defendant was found guilty. The court discharged the defendant in respect of Count 1, and indicated it would hear submissions on appropriate orders for bail and sentence.

The orders made by the court included a discharge in respect of Count 1, a finding of guilt for Count 2, and a direction to the parties to address the court regarding bail and sentencing in light of the decision.

Orders

Orders of the court

1. Count 1: Not Guilty.

2. Count 2: Guilty.

3. The defendant is discharged in respect of count 1.

4. I will hear the parties about appropriate orders for bail and sentence in accordance with this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v RT [2018] QChC 24
PARTIES:	THE QUEEN v RT (defendant)
FILE NO/S:	Indictment No. 35/18
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	Childrens Court of Queensland
DELIVERED ON:	17 September 2018
DELIVERED AT:	Cairns
HEARING DATE:	12, 13 & 14 September 2018
JUDGE:	Morzone QC DCJ
ORDER:	1. Count 1: Not Guilty. 2. Count 2: Guilty. 3. The defendant is discharged in respect of count 1. 4. I will hear the parties about appropriate orders for bail and sentence in accordance with this decision.
CATCHWORDS:	CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – the child elected a trial to a Childrens Court judge sitting without a jury – for Count 1: Rape (digital) – undisputed that the defendant inserted his finger into the complainant’s vagina - whether the complainant did not consent, and whether the prosecution excluded the defence of mistake of fact – for Count 2 Rape (carnal knowledge) – undisputed that the defendant had carnal knowledge of or with the complainant by inserting his penis into her vagina – whether the complainant did not consent - preliminary complaint – distressed condition as evidence supporting evidence of offence - defendant gave evidence – whether prosecution proved essential facts beyond reasonable doubt – separate verdicts. Legislation Childrens Court Act 1992 (Qld) Criminal Code 1899 (Qld), ss 24, 348, 349 Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld) ss 21A, 93A, 102 Youth Justice Act 1992, ss 92A, 21A, 98, 103. Cases Papakosmas v The Queen (1999) 196 CLR 297 R v AW [2005] QCA 152 R v Coss [2016] QCA 44 R v E (1995) 89 A Crim R 325. R v Foster [2014] QCA 226 R v Foster [2014] QCA 226. R v NM [2013] 1 Qd R 374 R v PAS [2014] QCA 289 R v RH [2005] 1 Qd R 180. R v Schneider [2000] 1 Qd R 546 R v Van Der Zyden [2012] 2 Qd R 568
COUNSEL:	N Rees for the Crown M Dalton for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Legal Aid Queensland for the defendant.