R v SDG
[2024] QDC 85
•26 July 2024
DISTRICT COURT OF QUEENSLAND
CITATION:
R v SDG [2024] QDC 85
PARTIES:
THE KING
v
SDG
(Defendant)
FILE NO: IND 116 of 2023
DIVISION: Crime
PROCEEDING: Trial
ORIGINATING COURT:
Bundaberg
DELIVERED ON: 26 July 2024
DELIVERED AT: Bundaberg
HEARING DATE: 23 and 24 July 2024
JUDGE: Clarke DCJ
ORDER:
Count 1: Not Guilty
Count 2: Not Guilty
Count 3: Not Guilty
CATCHWORDS:
CRIMINAL LAW – JUDGE ALONE TRIAL – allegations of sexual offences against a child – appropriate directions
This is a judge alone trial, following an order made by another judge on 17 July 2024 at Bundaberg. The parties did not explain the reason for that order and I am not influenced or prejudiced in any way towards either party, because that order was made.
The defendant pleads not guilty. Following amendment, the indictment charges three offences, particularised by the prosecution as follows, and requiring proof beyond reasonable doubt of these elements:
Count 1: Repeated Sexual conduct with a child.
That between the fifth day of June 2012 and the first day of October 2018 at Bundaberg or elsewhere in the State of Queensland, SDG being an adult, maintained an unlawful sexual relationship with the complainant, a child under 16 years.
Particulars:
SDG maintained an unlawful sexual relationship with the complainant that comprised the acts of:
- Touching her on the vagina
- Touching her on the bottom
- Touching her on the breasts
- The defendant would touch inside her vagina with his finger/s
The prosecution must prove beyond reasonable doubt:
1. That the defendant was an adult, that is, a person over 18 years of age.
2. That the complainant was at the time a child under the age of 16 years.
3. An unlawful sexual relationship is a relationship that involves more than one unlawful sexual act (as particularised) over any period. “Unlawful sexual act” means an act that constitutes an offence of a sexual nature which is not authorised, justified or excused by law. No authorisation, justification or excuse is raised on the evidence. All allegations are denied.
4. Maintained carries its ordinary meaning. That is, carried on, kept up or continued. It must be proved that there was an ongoing relationship of a sexual nature between the defendant and the complainant. There must be some continuity or habituality of sexual conduct, not just isolated incidents.
5. Usually, a jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sex acts existed and it is not necessary that all the jury be satisfied about the same unlawful sexual acts.
If satisfied beyond reasonable doubt of the guilt of the defendant in relation to either Counts 2 or 3, the relevant sexual act or acts would be used in my consideration of Count 1.
In this case, as well as relying on the specific sexual acts identified in Counts 2 and 3, the prosecution relies upon the sexual acts the complainant was not specific about, as to times or circumstances under which the acts occurred.
If there is a doubt about the specific offences in Counts 2 and 3, I should only convict the defendant on the basis of the evidence of the other alleged acts if, after carefully scrutinising the evidence of the complainant, I am satisfied beyond reasonable doubt that the defendant did these other acts during the period alleged in the indictment.
A reasonable doubt with respect to the complainant’s evidence on any specific count should be taken into account and considered in my assessment of the complainant’s credibility generally; ultimately, it is up to me what evidence I accept and reject.
Count 2: Rape.
That on a date unknown between the first day of March, 2012 and the twenty-fourth day of September, 2015 at Bundaberg in the State of Queensland, SDG raped the complainant.
Particulars:
SDG touched the complainant on the vagina including touching the inside of her vagina. This was the last time it happened at Dunn Road.
The prosecution must prove beyond reasonable doubt that the defendant:
1. Penetrated the vulva or vagina of the complainant to any extent with a thing or a part of his body that is not his penis.
2. Without the complainant’s consent. As the complainant was under the age of 12, the issue of consent is irrelevant.
Count 3: Rape.
That on a date unknown between the thirty-first day of August 2018 and the first day of October, 2018 at Mount Maria in the State of Queensland, SDG raped the complainant.
Particulars:
SDG touched the complainant on the vagina including putting his fingers into her vagina. This was the last time it happened which was in September 2018.
The elements for Count 3 are the same as for Count 2 and does not require repetition.
Fundamental principles
There are two fundamental principles which apply to every criminal trial: firstly, a defendant is presumed to be innocent; secondly, the onus is on the prosecution to prove the guilt of the defendant, if it can, beyond reasonable doubt. To succeed, the prosecution must prove every element of an alleged offence. The defendant has no obligation to prove any matter in the trial, least of all their innocence. The defendant can elect to give and call evidence in their case, but there is no obligation to do so, and if they do, they (generally) take on no burden of proof. In this case, the prosecution has to satisfy me of the guilt of the defendant beyond a reasonable doubt. The defendant is entitled by law to the benefit of any reasonable doubt that may be left in my mind after considering all of the evidence.
I have had regard to the relevant directions that would usually be given to a jury, in my consideration of all of the evidence.
The defendant is not to be prejudiced by the fact there is more than one charge. The charges are simply being tried as a matter of convenience and because they are connected. The presumption of innocence is maintained. I must consider each charge separately and deliver a separate verdict. The Crown has to prove each charge beyond reasonable doubt. If there is a question mark concerning the credibility, or reliability of the evidence given by the complainant in relation to one Count, I must take that into account, in conjunction with all the other circumstances of the case, when considering the reliability or credibility of her evidence in relation to another count.
In this case, there is evidence of other uncharged acts, relied on by the prosecution as part of the allegation of repeated sexual conduct in Count 1. The crown prosecutor correctly confirmed the evidence was not relied on as discreditable conduct, relevant to an issue of sexual interest, or to understand the context of the alleged offending.
The complainant has given two recorded statements to police, admissible under section 93A of the Evidence Act 1977 (Qld). Her first statement followed the complainant leaving a letter in a blue envelope for her mother (Exhibit 3) which disclosed the defendant’s alleged conduct. That document was edited. I draw no adverse inference from that; to do so would be wrong and unfair. Further to that, the complainant gave evidence at pre-recorded proceedings pursuant to section 21AK of that Act.
As to the recorded statements, it is routine for evidence to be given in this way. The first recording had been edited to remove irrelevant information. I do not speculate about what has been edited and do not consequently draw any adverse inference. I had the benefit of reference to transcripts to understand the evidence, which was what I heard on the recording, not what I read.
As to the pre-recording, I draw no inference adverse to the defendant, nor do I consider the evidence to be of greater or lesser weight, because orders had been made: to record the evidence in closed court; allow the witness to give evidence from a remote room by audio visual link and with a support person. The editing of that document is irrelevant to the defendant’s guilt. It would be wrong and unfair to draw an adverse inference from that. Again, I only used the transcript to understand the audible evidence.
The preliminary complaint evidence only comes in the form of another letter (Exhibit 4) the complainant pushed under her mother’s door after leaving the letter in the blue envelope. It came about as a consequence of questions her mother asked and answers given, as they communicated over Snapchat and Messenger, while in the same house, about what was in the first document (because the complainant refused to talk to her mother about it).
The fact the complainant wrote that document to her mother does not mean those things happened. I can only use this evidence to consider it and see if it is similar or differs from what she said in her evidence. The evidence may only be used as it relates to the complainant’s credibility. It does not prove anything. If there is consistency, that may bolster my assessment of the complainant as an honest and reliable witness. Any inconsistencies between that document and the complainant’s evidence may cause doubts about the complainants’ credibility or reliability.
Formal joint admissions of fact were made between the parties, pursuant to s 644 Criminal Code. I treated those facts as proved, without the need for further evidence to prove those facts. Having regard to the admitted facts, consistent with the authority of Jones v Dunkel,[1] I have not speculated about what any other person who was not called, might have said, if they had been called. Instead, I have acted on the basis of the evidence that has been called and only that evidence.
[1] (1959) 101 CLR 298
The defendant chose to give and call evidence. He does not have to do either of those things, and in doing so has not assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence and his wife’s testimony are added to the evidence called for the prosecution. The prosecution still bears the onus and burden of proof, despite their sworn evidence.
In circumstances where there is defence evidence, I direct myself in terms of the Liberato direction:[2]
1. If I think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case, I would acquit; or
2. If I am uncertain about it but consider that it might be true, I would acquit; or
3. If I do not accept the defence evidence, I disregard it, consider the evidence I am prepared to accept and decide whether the prosecution has proved their case.
[2] (1985) 159 CLR 507)
Mr Cassidy asked me to also consider directing myself about the need to scrutinise the complainant’s evidence with great care, as contemplated by R v Robinson [3] and to have regard to the significant forensic disadvantage the defendant has belaboured under, being confronted with an allegation from some time ago, consistent with s 132BA Evidence Act 1977 (Qld). With respect, although I think there was some merit to the argument, I do not think there is a need to direct myself in those terms.
[3] (1999) 197 CLR 162
The evidence
The complainant is now aged 17 and was 12 and 16 when she spoke to police and was cross-examined in court. The defendant is married to her paternal grandmother; he is the complainant’s father’s stepfather.
In the letter in the blue envelope, she disclosed that when she was younger her “Pop” used to touch her “in a place he should never. He done it often basically every time I went out to theres.”[4] She said he told her it was “our little thing” and that “I never stopped him, well I did say ‘no’ a few times.” The words “and lick me” had been crossed out in that document. In the absence of any cross-examination which may have explained how that came about, I have disregarded that.
[4] Typographical and grammatical errors have not been corrected. No disrespect is intended.
In her first recorded statement, the complainant spoke of her Pop sexually assaulting her in places he shouldn’t, saying it could happen at his house and at her old house where she lived, when she was five years old. She said she did not see her Pop much, “don’t go to his house much anymore”, and it finished when she was about ten or nearly 11 (years old). She said it happened nearly every time he came over and she went to out to “his” except when there was family around or a party, saying she went to his house very often. She said she could not remember how it started, or the first time it happened, before saying a little later that the earliest was probably when she was six.
The complainant gave evidence of uncharged incidents where he would come into a bus she was sleeping in at his place, saying he would start talking to her, and then would start touching her on her vagina, butt and breasts. He touched her with his finger or fingers (she could not recall either way) “inside” her vagina. She said she was playing on her iPad, or her tablet, or her (Nintendo) DS. She said she would stay over for weekends and help her Nan at the markets. She said was not fearful of him, saying that he said: “it was our little thing and that and told me not to tell anyone.”
The complainant gave evidence of the last time, which she said was in September 2018 (Count 3). She was in the loungeroom of the defendant’s house. Her grandma went for a shower. The complainant was on a portable fold out bed playing on her phone or DS or something. He came and sat on it and started talking and then started touching her. She said she carried on the conversation and started playing (she thought) with her tablet again and he touched her butt and her vagina. She agreed with a leading question that the defendant had put his fingers inside her vagina. She confirmed her grandmother was in the shower when this happened. The police officer had to continually prompt the witness about what had happened and what the defendant did.
The complainant was not able to remember any other time anything had happened at her Nan and Pop’s house.
As to what happened at her house (Count 2), she said she was at home with her mother, father and two brothers, when her Nan and Pop were over visiting. She was playing on a trampoline in the backyard. He gestured by moving his head and got her to go out to the front. She said “no” because she was playing on the trampoline, but he got her to come out the front and sat her on the back of his “trailer” and they started talking and then he started touching her vagina. Again, when prompted she said the touching was “inside.” She agreed she was still quite young, and the complainant said that she “carried on my day, I ran back out to the backyard and started playing on the trampoline again.” She shook her head “no” when asked by the female police officer if she had felt pain or had any injuries. She shook her head “no” when asked if she could remember anything happening any other time at that house. She then said it happened at that house whenever he came over and she wasn’t with her parents or brothers or anyone. She said she did not think anything had happened at any other places.
In her second recorded statement, the complainant confirmed she had watched her first statement. When asked how often she went to her Pop’s house, she said she wasn’t sure, did not recall, but it was a fair bit, because she helped her grandmother with markets, did sewing with her and used to go there and hang out with her, before saying it was every now and then, and that sometimes her cousins were out there, as well. She had earlier said that in addition to having a third younger brother, she had three cousins living with her in kinship care; her older brothers were respectively over four and two years older than her. She said she would see her grandparents at their place every two weeks, but she wasn’t always alone when she visited. She said the markets were every six months.
When asked if she remembered how many times anything happened at her house, she said she only lived there for two years, when she was about five to seven (years old), and can’t recall how many times it happened. She said “there’s like, little glimpse that pop up every now and then of like, different times or the same time. If that makes sense. Flashbacks of it.”
The complainant was asked how many times something had happened at her house or her Pop’s house. Before saying she did not want to put a number on it, she said it was more than once, and then volunteered: “but I know, know it was 10 or more.” She said she only remembered the last time (Count 3) because it was when her dog had died. She later said her dog died at the end of 2018 (and not in September).
Called as a witness in May this year, the complainant adopted as the truth what was in her letter in the blue envelope, subsequent ‘question and answer’ letter and two recorded police statements (which she had again watched), before saying she did not want to put a number on how many times the assault occurred in the second statement, but she ended up agreeing with a number because the police officer continued to say numbers. That did not seem to me to be consistent with how that questioning was conducted. She said she “didn’t want to give a number just in case it was to be wrong, and I was also unsure.” Without giving any detail, she said it had happened over a period of about five years, whenever he had the chance to be alone, so when there were no family or cousins around.
The cross-examination commenced by addressing that she had told the second police officer it had happened more than ten times and had told the crown prosecutor the day prior to giving evidence it had instead happened “more than once”, which prompted this evidence: “I can recall about five incidents.” When asked why she hadn’t told police or the crown prosecutor about that, she said “Because as time has went on, I have uncovered more, and remembered more, and put puzzle pieces together.”
There was a non-acceptance or lack of memory of telling her mother she did not want to go to her grandparent’s place because they had no internet, and because her Nan was cranky – although agreeing her Nan was less tolerant of “us kids” following a diagnosis of Parkinson’s disease in 2017. Her mother’s evidence (which I am prepared to accept) on that point contradicted the complainant directly.
She agreed her mother regularly told her from a young age that no one was allowed to touch her, and to tell her mother if anyone did.
When asked about how often she visited her grandparents alone, she gave different evidence, saying it was “a couple times”. In my view, the complainant’s evidence changed when she was reminded her other grandmother used to look after her. As to the reasons for visits, she said they were a couple of times a year, for Mother’s and Father’s Day, could not recall how many adults and cousins there would be there, but agreed she had “30-odd” cousins who would regularly visit the grandparents place when she did. There was unconvincing evidence about how often a female cousin went there with her, especially after she was shown a photograph of them there, together. She said she could not recall if anything happened when the others were there; she had earlier been consistently adamant nothing had happened when anyone else was there.
For the first time, cross-examination brought out the evidence that the grandparent’s “house” was a shed on a property in a rural area, which had no internal walls or doors. Cupboards and white goods partitioned areas in the residence.
As to the bus, immediately after saying she (as a very young child) slept in the bus alone, said that there might have been one or two other cousins in it with her, before saying it only happened once, when her brother was in the bus with her. Contrary to her evidence in the first statement about the uncharged incidents in the bus, she said (for the first time) her next older brother was in the bus with her on the one time that happened. The complainant wasn’t sure if he was asleep, but said the lights were on, when her grandfather came in, “unplugged” the lights, started talking to her and touched her.
She said the detail about her brother being there had only come to her in the past year or two, and she did not tell the police officer in the second statement less than a year ago, “Because I’ve only just put it together.” She confirmed she hadn’t told the crown prosecutor about this recollection. She said she was playing on her pink DS, and believed she was playing Mario, her favourite game, when her Pop came in to say goodnight to her. He did not say goodnight to her brother. She said she honestly could not remember whether she was five or 12 then, but said it was in between those ages, before immediately saying “I believe I was in Year 5” (at school). She later agreed there were dogs and dingoes that would howl, and she recalled that she was scared of them, but denied that made her fearful of sleeping in the bus alone, as a young child.
Further on, her evidence was that she had only visited her grandparents five times between the ages of five and 10, and her female cousin was there one of those times. She could not remember how often the markets were, but seemed to accept they may have only started in 2018 (at the end of the period of the alleged offending), and also agreed her Pop was away “a bit” with work. This was a significant contradiction: the complainant had originally told police something happened every two weeks over the period of five years.
As to the incident in Count 3, when asked what happened, the complainant gave evidence in some detail (for the first time) that her Nan was in the room before that incident happened; describing how the chairs were set up and where she was seated on the fold out bed. She was playing on her DS and her Pop came over to her and was talking to her about what they were doing the next day, going to the dam. He talked to her for five minutes while her grandmother was in the room. She said it was after dinner. She could recall what she was wearing, a purple nightie. She said that as her Nan went to go for a shower, he kind of stopped talking and she could feel his hand going up her nightie, to her vagina and her butt. She gave evidence (for the first time) that he continued to touch her as her Nan walked back into the room, from a side door (the shower was in a shed outside the bigger shed).
As to Count 2, she agreed she could only recall the one incident at that house she used to live at. Again, for the first time, the witness said this had happened at morning tea-time before lunch, in broad daylight, and that her parents and brothers were there with her, as she played on the trampoline. She said her Pop gave a head gesture and she was a bit worried he’d be angry if she did not go with him, so she ended up walking out the front where their ute was, in the driveway. When asked to go on, she said: “That was everything.”
Asked again what happened, she said he put her up on the tray of the ute, talked to her about “like, school, day care, whatever it was. And then while we were talking, he started putting his hands between my legs.” She said he touched her vagina, not anywhere else. She said the ute had a canopy. She said she shook her head at him but did not say anything when he gestured for her to leave the back yard. She was reminded that in her ‘question and answer’ letter she had said she had “repeatedly told him to stop, but he took me to the front of the house.”
The admitted facts were that the complainant was not medically examined; no photographs of either of the properties were taken as part of the police investigation, and no statements were taken of any other potential witnesses, such as the complainant’s cousins, siblings or her Nan. A second joint admission was that the lease the complainant’s parents had at the house where Count 2 is alleged to have occurred was between 2 March 2012 and 23 September 2015, which conflicted with both the recollection of the complainant and her mother.
The complaint ‘question and answer’ letter conflicted and was not consistent with the complainant’s evidence, stating it happened “nearly every time they came over or I slept over there house, even if there was other kids with me.” I have dealt with the discrepancy in the evidence about Count 2 in that document.
The complainant’s mother provided the complainant’s date of birth and gave evidence about where the family unit lived from time to time, contradicting her daughter’s evidence about how long they lived at the place where Count 2 is alleged to have occurred. She gave inconsistent evidence about whether there was limited opportunity for the defendant to offend in the way alleged. The complainant’s mother was shown to have given conflicting evidence at committal proceedings about how often family celebrations occurred and how many people would be in attendance. She confirmed telling her daughter regularly, “at least monthly…perhaps more” that no one was allowed to touch her, and she should tell her mother if anyone did. She said she had those conversations from when the complainant was “probably younger” than three or four years of age and had also given her a “safe word” she could use.
The complainant’s mother confirmed she would keep a close eye on the defendant when she was in his presence with her daughter, and only saw that he sat in close proximity to her.
The father of the complainant confirmed some basic recollections around the family celebrations and how often they were held, who was there and agreed with his evidence at committal that the complainant’s female cousin was also there when his daughter went to help his mother at the markets.
The defendant gave evidence which was not challenged or diminished by cross-examination. In denying the offending, although he was prepared to concede there were times he was in the company of the complainant, his evidence was that he was away with work for about three weeks in each month. The complainant most often visited his place with her siblings and the female and other cousins. The family interaction was not as frequent as the complainant had stated.
No children ever slept in the bus alone and only did that when there was a group of them visiting; even the adults were fearful of the howling dogs. The residence and the bus were in such a state that considerable noise would be caused by coming and going from the bus, residence, and makeshift bath area. There were weathered metal doors, some of which opened on aluminium runners. The photographs independently confirmed this evidence (and it was supported by his wife’s testimony). He said the bus had normal light switches that did not need to be unplugged. Photos tendered showed his ute did not have a canopy. There was no fold out bed – there was a photograph of the old metal bedframe that the complainant and other visiting grandchildren regularly slept on.
Although displaying the effects of her diagnosis, there appeared no impediment to the complainant’s Nan’s evidence. I found her to be a thoughtful, calm, spontaneous witness. She was perhaps the most impressive witness, and I had no difficulty accepting her evidence. She made concessions but was also able to politely provide cogent reasons why her recollection was correct.
The complainant’s grandmother confirmed the very limited opportunity the defendant had to offend; he was away often with work; there was some disharmony with her daughter in law (the complainant’s mother); the complainant only attended their house a limited number of times, and almost always was there with her female cousin and siblings and other cousins. I accept her evidence that her grandchildren, especially the complainant, did not see her as frequently as she would have liked.
The complainant never slept in the bus alone. There was no fold out bed. Being an avid craft worker herself, she confirmed there was only ever one occasion the complainant did any sewing with her. The complainant did not assist her at the markets as often as she said she had.
Verdict
Ultimately, the case rises and falls on the evidence of the complainant. With respect, I did not find her to be a compelling witness. Her demeanour was more consistent with a witness trying not to ‘slip up’ rather than talking about a lived event which would have been incredibly upsetting for her. She contradicted herself or was vague on topics that I considered important. She gave evidence which was not consistent with other evidence I am prepared to accept. She provided very little detail from which I could make an assessment of her credibility and only served to confuse the evidence when she did give detail, belatedly. She admitted to having a poor memory, partially based on flashbacks.
I was left in a state of uncertainly about what had happened, where, and how often. Her evidence changed quite remarkably about the charged allegations in Counts 2 and 3. The uncharged evidence of the bus incident (or incidents) was quite implausible and contradictory.
The evidence of complaint was limited but detracted from the complainant’s credibility. I was left in a state of uncertainty about what opportunity the defendant had to do the things he is accused of. There was no tangible independent support for the complainant’s evidence.
There was independent evidence, including photographs, which undermined the crown case. I am prepared to find the defendant’s evidence, and that of his wife, to be reliable and credible.
Specifically, in respect of Count 2, I am not satisfied beyond reasonable doubt of the guilt of the defendant. In relation to Count 3, I am not satisfied of the guilt of the defendant beyond reasonable doubt. Not being satisfied of the allegations in Counts 2 and 3, I am also not satisfied as to the uncharged incident or incidents in the bus, nor as to other uncharged acts, to the requisite standard. It follows that I am not satisfied beyond reasonable doubt as to the guilt of the defendant in relation to Count 1. The defendant is acquitted.
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