R v SBY

Case [2021] QChC 37

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v SBY [2021] QChC 37

PARTIES:

R

v

SBY

(defendant)

FILE NO/S:

21 of 2021

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Townsville Childrens Court

DELIVERED ON:

4 November 2021

DELIVERED AT:

Townsville

HEARING DATE:

1 to 3 November 2021

JUDGE:

Dearden DCJ

ORDER:

I find the defendant guilty in respect of count 1 – rape and count 2 – rape.

CATCHWORDS:

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

LEGISLATION:

Criminal Code 1899 (Qld) ss 349, 644

Evidence Act 1977 (Qld) ss 21AK, 93A

CASES:

R v MMH [2020] QDC 70

COUNSEL:

A Walklate for the Crown

D Honchin for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Rennick Lawyers for the defendant

Introduction

  1. The defendant, SBY, is charged with two counts of rape as follows:

    Count 1 that between the thirty-first day of October, 2019 and the first day of January, 2020 at Townsville in the State of Queensland, SBY raped HK.

    Count 2that on or about the twenty-second day of January, 2020 at Townsville in the State of Queensland, SBY raped HK

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

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

    Particulars

  4. In respect of each of counts 1 and 2, the prosecution alleges that the defendant penetrated the complainant’s vagina with his penis, without her consent.

    Elements

  5. In respect of each of counts 1 and 2, the prosecution must prove beyond reasonable doubt that the defendant:

(1)   had carnal knowledge of the complainant

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.

(2)   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 threats 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.

  1. In respect of count 1, if I am not persuaded beyond reasonable doubt in respect of the element of penetration, then I must consider the alternative count of indecent treatment of a child under 16. The elements of that offence are as follows:

    The prosecution must prove, beyond…

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AGLC
R v SBY [2021] QChC 37
Case
[2021] QChC 37
Decision Date

CaseChat Overview and Summary

In the case of R v SBY, the defendant was charged with two counts of rape. The case was heard in a court of law, with the trial being conducted as a judge-alone trial. The primary legal issues that the court had to address were whether the defendant was guilty of the two counts of rape, and if so, whether the prosecution had proved the offences beyond reasonable doubt.

The court examined the evidence presented by the prosecution, including the complainant’s testimony, admissions made by the defendant during an interview, and the credibility of the witnesses. The court was required to assess the truthfulness and reliability of the evidence, and determine if the prosecution had met the burden of proof beyond reasonable doubt. The court also considered the defendant’s evidence and the inferences that could be drawn from it.

The court found that the complainant’s evidence was credible, believable, and consistent, which led to the conclusion that the defendant was guilty of both counts of rape. The court rejected the defendant’s version of events, finding that his evidence was not convincing and did not provide a satisfying answer to the prosecution’s case. The court concluded that the prosecution had proved each element of the offences beyond reasonable doubt, and the defendant was found guilty of both counts of rape.

The final orders of the court were that the defendant was found guilty of count 1 – rape and count 2 – rape.

Orders

Orders of the court

I find the defendant guilty in respect of count 1 – rape and count 2 – rape.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I set out the following further directions, with which I must conduct these proceedings in a judge only trial:1. I must reach my verdict only on the evidence, which I have detailed in these reasons. 2. In addition to facts proved by evidence, I may draw inferences, but only reasonable inferences, and if there is more than one inference reasonably open, I must draw the inference that most favours the defendant.3. The burden rests on the prosecution to prove the guilt of the defendant, beyond reasonable doubt. There is no burden on the defendant, who is presumed to be innocent. I dismiss all feelings of sympathy or prejudice, regardless of who is involved, and regardless of the nature of the allegations or charges.4. I am required to assist the credibility and reliability of witnesses, and I may accept or reject such parts of the evidence as I see fit in fulfilling that fact-finding function.5. Defendant giving and calling evidenceThe defendant gave evidence and called evidence in this trial. That he has done so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called for the prosecution. The prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.I understand that in a criminal trial it is not a question of me making a choice between the evidence of the prosecution’s principal witness or witnesses, and the evidence of the defendant and his witness. The proper approach is to understand that the prosecution case depends upon me accepting that the evidence of the prosecution’s principal witness or witnesses was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant; so I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty. Where, as here, there is defence evidence, usually one of three possible results will follow:I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, my verdicts would be not guilty; ora.I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, my verdicts will be not guilty; or b.I may think that the defence evidence should not be accepted. However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt. If I find the defence evidence unconvincing, I set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.6. Records of interviewThe prosecution relies on answers said to have been given by the defendant in an interview with police as supporting its case against him. In order to rely on that evidence, I must be satisfied that he did give the answers that are attributed to him, and that they were true.Electronically recorded interviewsThe evidence of the defendant’s admissions is in the form of a videotape, which I have seen and heard played, and I am entitled to have played again as often as I wish. During the course of the trial, I was given transcripts to look at while the tape was played. I remind myself that those transcripts are really nothing more than someone else’s opinion of what was said by the police officer and the defendant, and although they might have been of some help, it is for me to determine what I heard and saw. If my view of any part of the conversation differs from what the transcript shows, it is my view which must prevail.Whether the confession is true and accurateIf I am satisfied that the statement was indeed made by the defendant, the second aspect I must consider is whether those parts that the prosecution relies on as indicating guilt are true and accurate. It is up to me to decide whether I am satisfied that those things said by the defendant which would tend to indicate that he is guilty of the offence or offences were true; because if I am not satisfied, I cannot rely on them as going to prove his guilt. Use of the interviewDuring the course of the interview a number of questions were asked by the police officer of the defendant. If the defendant did not agree to or in some way accept the contents of a question asked of him, the question cannot become any evidence against him. In the course of the interview, it is said, the defendant made statements which the prosecution relies on as pointing to his guilt. If I accept them as having been made by the defendant and as true, it is up to me to decide what weight I give them, and what I think they prove. He also gave answers which I might view as indicating his innocence. I am entitled to have regard to those answers if I accept them, and to give them whatever weight I think appropriate. In relation to both the answers which the prosecution relies on as indicating guilt, and those which point to innocence, it is entirely up to me what use you make of them and what weight you give them.Where, as here, the defendant has given a record of interview, and given and called evidence, so there is a defence version before me to consider, then usually one of three possible results will follow:a.I may think the defence version is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, my verdicts would be not guilty; orb.I may think that, although the defence version was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, my verdicts will be not guilty; orc.I may think that the defence version should not be accepted. However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt. If I find the defence version unconvincing, I set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of each the offences.7. Admissions by defendant – count 1 The prosecution also relies on the evidence from the complainant that the defendant apologised the morning after the events the subject of count 1.In respect of that evidence, I need to be satisfied that the defendant made the apology, as the complainant attests in her s.93A interview. If I am satisfied about the truth of the complainant’s account, I then need to decide if the content of the complainant’s evidence of the conversation would tend to indicate that the defendant is guilty of count 1. If I am not so satisfied, then that evidence cannot be used against him. 8. Lies going to creditI have heard submissions from the prosecution which attribute lies to the defendant in respect of his evidence that there was no sexual contact between the complainant and the defendant prior to him going to Mackay in December, 2019, and that the sexual intercourse on 22 January, 2020 was consensual. I will make up my own mind about whether the defendant was telling lies and, if so, whether he was doing that deliberately. If I conclude that the defendant deliberately told lies, that is relevant only to his credibility. It is for me to decide whether those suggested lies affect his credibility.However, I should bear in mind this warning: I must not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.9. Separate chargesSeparate charges have been preferred. I must consider each charge separately, evaluating the evidence relating to that particular charge, to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements. I will return separate verdicts for each charge.The evidence in relation to the separate offences is different and so my verdicts need not be the same.10. Markuleski direction If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one count, whether by reference to her demeanour or for any other reason, that must be taken into account by me in assessing the truthfulness or reliability of her evidence generally, and in particular in respect of the other count.11. s.93A evidence of child witnessesPart of the evidence of the complainant is comprised of a conversation with police officers on 25 January, 2020. The evidence of ZK is comprised in part of a conversation with police on 30 September, 2020.The conversations were recorded and the recordings were played to me. The presenting of the evidence of HK and ZK in this way is a routine practice of the court. This measure is adopted in every case involving children in matters such as these. I should not draw any inference adverse to the defendant because these routine measures were used.12. Pre-recorded evidence of child witnessesa.The evidence of the child witnesses, HK and ZK, was taken before Judge Lynham on 7 October 2021. b.At the time each child gave evidence, the child was in a room remote ie separate from the courtroom.c.The evidence was given by use of an audiovisual link between the room in which the child was seated and the courtroom.d.At the time the child gave evidence there was a support person sitting in the room with the child, and no other person.e.Whilst the child gave evidence, all non-essential persons were excluded from the courtroom.f.At the time of each pre-recording, the defendant was present in the courtroom but was so positioned that the child could not see the defendant on the monitor, or at all.g.In each case, the child’s evidence was recorded as it was given and then played to me.In respect of the pre-recording played in evidence in this trial, I direct myself as follows:a.All of the measures which I have just outlined, used for the taking and showing of the evidence of children, are routine practices of the court for taking and showing evidence of children in trials such as this one, and I must not draw any inference as to the defendant’s guilt because these measures were used.b.The probative value of the evidence is not increased or decreased because these measures were used. c.This means it is not better evidence, or worse evidence, than if the evidence had been given before me from the witness box.d.The evidence is not to be given any greater or lesser weight because these routine measures were used.13. Transcripts Transcripts were provided in respect of the s.93A interviews of HK and ZK; the s.21AK evidence of HK and ZK; and the record of interview of the defendant. I direct myself that transcripts provided are only aids, and I have formed my own conclusions about what I saw and heard, making appropriate amendments to the supplied transcripts when necessary.14. Preliminary complainant evidencePreliminary complainant evidence was given by the witnesses KY, Vicky Piggott, and PSCS Dion Reed (in respect of his conversations with the complainant before she commenced her Evidence Act s.93A interview at 4:45pm on 25 January 2020). In relation to that evidence of preliminary complaint contained within the evidence given by those witnesses I direct myself as follows: a.That evidence may only be used as it relates to the credibility of the complainant. Consistency between the account of the complainant about the alleged offence and what the complainant said as reported by the preliminary complainant witnesses is something I may take into account as possibly enhancing the likelihood that the complainant’s testimony is true.b.In addition, I may also take into account any inconsistency between the accounts given by the complainant witnesses and the accounts as given by the complainant in assessing the complainant’s credibility. I cannot, however, regard the things said in the out of court statements by the complainant as proof of what, if anything, actually happened. In other words, evidence of what was said on those occasions to the preliminary complainant witnesses may, depending on the view I take of it, bolster the complainant’s credit because of consistency, but it does not independently prove anything.15. Expert witnesses Evidence was called from expert witnesses Dr Sara Fraser and Forensic Nurse Vicky Piggott. Although Dr Fraser and Ms Piggott are expert witnesses and each is entitled to express an opinion in a particular area of expertise, their evidence does not have to be automatically accepted by me as the tribunal of fact. I should note, however, that there appears to be no dispute about the evidence of either expert. I note further that Dr Fraser gave her evidence by audio-visual link. I must not give that evidence any more or less weight, or draw any adverse inferences against a party, simply because that evidence was by telephone.16. Written admissions Some of the evidence in this trial is by way of written admissions agreed to by the prosecution and the defendant, pursuant to Criminal Code s.644. Those admissions are to facts only, and do not constitute an admission, in any way, to the indicted counts. 17. Failure by prosecution to call a material witnessIt may appear to me that a witness other than those who have given evidence might have been able to give some relevant evidence on some aspect of the case. I must not speculate about what others who were not called might have said if they had been called. I should act on the basis of the evidence that has been called and only on that evidence.Overview

Decision

Reasons for decision

What has concerned me is whether, mechanically, the defendant could have achieved full penetration of the complainant’s vagina, in the position she describes him, above her with his legs apart. However, given that the elements of rape are satisfied if there is any penetration of the vulva or vagina, I have no hesitation in accepting, beyond reasonable doubt, that at the least, the defendant’s penis was penetrating her vulva, that the intercourse continued to ejaculation, and that her lack of consent, although not verbal, was communicated by her physical attempts to struggle and his holding of her wrists above his head. As noted above, I also consider that the defendant’s apology the next day indicates an acceptance, by him, that the sexual encounter occurred without her consent. Conclusion In summary, I reject the defendant’s evidence that the events of count 1 did not occur, and that the events of count 2 were consensual. I have set his evidence aside, examined the balance of the evidence, in particular, the evidence of the complainant, whose evidence I considered to be credible, believable and with the clear ring of truth in respect of each of the sexual encounters that she described. She was not shaken in cross-examination, her accounts were plausible, believable, consistent with ordinary human experience and persuaded me, beyond reasonable doubt, as outlined above, that each of the elements of rape, in respect of counts 1 and 2, are satisfied.Verdict I find the defendant guilty in respect of count 1 – rape and count 2 – rape.

Ratio Decidendi

Legal Principle Established

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