R v S
[2008] QDC 339
•6/11/2008
DISTRICT COURT OF QUEENSLAND
CITATION: R v S [2008] QDC 339 PARTIES: R v S (Defendant) FILE NO: DIS 5494/08(7) DIVISION: Criminal PROCEEDING: Judge alone trial ORIGINATING COURT: District Court, Ipswich DELIVERED ON: November 6, 2008 DELIVERED AT: Ipswich HEARING November 5-6, 2008 DATES: JUDGE: Koppenol DCJ ORDER: Verdict: not guilty CATCHWORDS: CRIMINAL PRACTICE - JUDGE ALONE TRIAL – one count of indecent treatment of a girl under 16 and two counts of rape – effect of long delay in matter coming to trial – defendant not giving evidence – whether proof beyond reasonable doubt established by Crown Criminal Code, ss 216(1)(a), 347, 614, 615, 615B, 615C(3) AK v Western Australia (2008) 232 CLR 438, applied
Azzopardi v R (2001) 205 CLR 50, applied
Longman v R (1989) 168 CLR 79, appliedCOUNSEL: R. Swanwick for the Crown
A. West for the DefenceSOLICITORS: Office of Director of Public Prosecutions for the Crown
Baker & Brown for the Defence
The defendant is charged with one count of indecent treatment of a girl under 16 and two counts of rape, contrary to sections 216 and 347 of the Criminal Code (the Code). The events are alleged to have occurred in 1984 or 1985. He pleaded not guilty. The trial was held before me sitting without a jury. I previously made a no jury order under sections 614 and 615 of the Code.
Pursuant to section 615B of the Code, I have applied, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. As required by section 615C(3) of the Code as explained by the High Court in AK v Western Australia (2008) 232 CLR 438, these are my reasons for decision which include the principles of law that I applied and the findings of fact on which I relied.
The Crown case was that on the night concerned, the complainant and her female friend T went to the defendant’s home in Ipswich. The girls went there by arrangement with the defendant. He was to take photographs of them in their swimming costumes. He was to pay them $25 each.
The complainant was then 13 or 14 years of age. T was then about 14 or 15. The girls knew each other from their time in a youth detention centre.
Photographs were taken of the girls separately and together. The defendant then said that he would pay them $50 for nude shots. T agreed as did the complainant, albeit reluctantly. An argument later ensued about payment for the complainant. The defendant said he would pay her $50 if they stayed the night.
T gave the complainant her $50 and encouraged her to sleep on the bed with the defendant and her. The complainant reluctantly agreed. She went to sleep and then awoke with the defendant fondling her breast. He then physically restrained her before pulling her pants and knickers down and inserting his erect condom-covered penis into her vagina. The defendant then removed his penis and the condom and reinserted his penis in the complainant’s vagina, later ejaculating.
The complainant was physically resisting the defendant as best she could. She was distressed and crying. Afterwards she got dressed and the two girls left the house. The complainant complained about the rape to a workmate in 2006, more than 20 years later, when she saw the defendant’s photograph in a newspaper in respect of another sexual matter. Complaints to other workmates were also said to have been made.
The complainant’s evidence was consistent with the Crown Prosecutor’s opening of that evidence. In cross-examination, however, a number of differences emerged between her evidence-in-chief and the contents of her 2007 police statement. In my view, it is not surprising that some matters of detail may not have been restated with absolute consistency, given that the witness was endeavouring to recall events which were alleged to have occurred more than 20 years earlier when she was only 13 or 14.
The Crown also called T. Her evidence had been opened that she went into the defendant’s bedroom alone and was sexually molested with her consent. After she left the room she asked for the complainant to go in, which she did. The complainant stayed in the bedroom for 10 to 15 minutes. When she came out she told T that the defendant had raped her.
Other witnesses were called for the prosecution, but I have not found it necessary to discuss their evidence.
T’s evidence was consistent with the Crown Prosecutor’s opening of that evidence. As will be appreciated, T’s evidence was directly contrary to the complainant’s version of events in a very material respect: did the alleged indecent treatment and rape occur while the complainant, T and the defendant were lying on the bed at the same time as the complainant said, or did whatever occurred happen when the complainant was in the bedroom with only the defendant?
T gave evidence that the events occurred a long time ago and her mind was hazy. She also said that she had been drinking before they went to the defendant’s house. She had gone there on a number of previous occasions, also for photographs, consensual sexual activities and monetary payment.
I found that the complainant and T were genuinely trying to recall the events of the night concerned as best they could.
Having seen each witness and observed their demeanour, I cannot see any reason to prefer one version over another. If the complainant’s version is correct, T’s cannot be. But if T’s version is correct, the complainant’s cannot be.
In the end, I have come to the conclusion on the whole of the evidence that T’s version of the relevant events of that night might be correct. It follows that I cannot be satisfied beyond reasonable doubt that the complainant was indecently dealt with and/or raped by the defendant on his bed while T was also lying on it, as the complainant had said. Further, the complainant and the defendant might have been together in the defendant’s bedroom at one stage without T. But in all of the circumstances, I am not satisfied beyond reasonable doubt that the complainant was indecently dealt with and/or raped by the defendant on any such occasion.
I should also mention two other points:
By virtue of the long delay in this matter coming to trial, the defendant has lost the opportunity of assembling evidence consistent with innocence or throwing doubt on the complainant’s story. As the High Court said in Longman v R (1989) 168 CLR 79, it may be dangerous to convict upon a complainant’s evidence alone.
Although the defendant did not give evidence―as was his right, that, as the High Court said in Azzopardi v R (2001) 205 CLR 50, does not constitute an admission of guilt or fill gaps in the prosecution evidence. It cannot change the fact that the prosecution retains the responsibility of proving the guilt of the defendant beyond reasonable doubt.
Could you stand please, Mr S? My verdict is that in respect of each count, I find you the defendant not guilty; you are discharged.
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