R v SDG

Case [2024] QDC 85

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

  1. 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.

  2. 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…

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Details
AGLC
R v SDG [2024] QDC 85
Case
[2024] QDC 85
Decision Date

CaseChat Overview and Summary

The case before the court involved allegations of sexual offences against a child, with the defendant facing a judge alone trial. The complainant, now aged 17, alleged that the defendant, her father's stepfather, had sexually assaulted her on multiple occasions from the time she was five years old until she was nearly 11. The defendant was married to the complainant's paternal grandmother. The court had to consider the credibility of the complainant's evidence, given her age at the time of the alleged offences and the passage of time since they occurred.

The legal issues before the court included whether the complainant's evidence was reliable and whether the court should give specific directions to itself regarding the need to scrutinise her evidence with great care, particularly in light of the significant forensic disadvantage the defendant faced due to the passage of time. The court also had to consider whether the evidence supported a conviction beyond reasonable doubt on each of the three counts of sexual assault.

The court concluded that while there was some merit in directing itself to consider the need for heightened scrutiny of the complainant's evidence, there was no necessity to do so in this case. The court found that the complainant's evidence was not reliable and that there were inconsistencies and gaps in her testimony that undermined its credibility. The court also noted that the complainant had not been fearful of the defendant and had described the assaults as "our little thing." Ultimately, the court found the defendant not guilty on all three counts of sexual assault.

Orders

Orders of the court

Count 1: Not Guilty

Count 2: Not Guilty

Count 3: Not Guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 162The 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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