R v Stansfield

Case [2020] QDC 296

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Stansfield [2020] QDC 296

PARTIES:

THE QUEEN

(Crown)

v

MARK JAMES STANSFIELD

(defendant)
FILE NO:

Ind 594/19

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

20 November 2020

DELIVERED AT:

Beenleigh

HEARING DATE:

11 – 13 November 2020

JUDGE:

Chowdhury DCJ

ORDER:

Count 1 (Rape): GUILTY

Count 2 (Sexual assault):  GUILTY

Count 3 (Rape): NOT GUILTY

Count 4 (Rape): NOT GUILTY

Count 5 (Attempted rape): NOT GUILTY

Count 6 (Rape): GUILTY

Count 7 (Rape): GUILTY

CATCHWORDS:

SEXUAL OFFENCES – TRIAL BY JUDGE ALONE

LEGISLATION:

Criminal Code 1899 (Qld)

CASES:

R v Makary [2019] 2 Qd R 528

R v Robinson [1977] Qd R 387

R v Sunderland [2020] QCA 156

Robinson v The Queen (1999) 197 CLR 162
COUNSEL:

Z. Kaplan for the Crown 
K. Hillard for the defendant   
SOLICITORS:

Director of Public Prosecutions for the Crown

Aboriginal and Torres Strait Island Legal Service for the defendant

Introduction

  1. The defendant is charged with the following offences on indictment:

    Count 1:That on or about the 23rd day of December 2018 at Logan Reserve in the State of Queensland he raped [KUG].

    Count 2:That on or about the 23rd day of December 2018 at Logan Reserve in the State of Queensland the defendant unlawfully and indecently assaulted KUG.

    Count 3:That on or about the 23rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant raped KUG.

    Count 4:That on or about the 23rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant raped KUG.

    Count 5:That on or about the 23rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant attempted to rape KUG.

    Count 6:That on or about the 23rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant raped KUG.

    Count 7:That on the 23rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant raped KUG.

  2. The defendant pleaded not guilty to each of these charges.  An order had previously been made for the trial to proceed before a judge without a jury.

    Particulars of the charges

  3. Written particulars were provided and were marked for identification “A”.  They were brief, and are as follows:

    Count 1:The defendant penetrated the complainant’s vagina with his finger and/or fingers.

    Count 2:     The defendant:

    (a)kissed the complainant on:

    (i)Her lips; and/or

    (ii)Her neck; and/or

    (iii)Her breast; and/or breasts; and/or

    (b)touched the complainant’s breast and/or breasts.

    Count 3:     The defendant penetrated the complainant’s vagina with his penis.

    Count 4:     The defendant penetrated the complainant’s vagina with his tongue.

    Count 5:The defendant attempted to penetrate the complainant’s anus with his penis.

    Count 6:The defendant penetrated the complainant’s anus with his finger and/or fingers.

    Count 7:The defendant penetrated the complainant’s vagina with his finger and/or fingers.

    Facts not in dispute

  4. There is no dispute in this case that the defendant is the uncle of the complainant; the…

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Details
AGLC
R v Stansfield [2020] QDC 296
Case
[2020] QDC 296
Decision Date

CaseChat Overview and Summary

In the case of R v Stansfield, the defendant was charged with multiple sexual offences against the complainant, who was his niece. The charges included counts of rape, sexual assault, and attempted rape. The case was heard in a court of law in Australia, where the defendant pleaded not guilty to all charges. The court had to determine whether the defendant was guilty of the alleged sexual offences based on the evidence presented.

The key legal issues in this case were the credibility of the complainant and the defendant's evidence, the impact of alcohol and cannabis consumption on their reliability, and the consistency of the defendant's account of events. The court had to assess the reliability of the witnesses and the evidence provided by both parties, including the complainant's testimony, the defendant's testimony, and any other evidence presented. The court also had to consider the impact of alcohol and cannabis consumption on the witnesses' reliability and the consistency of the defendant's account of events with other evidence.

The court found that the complainant's evidence was credible and reliable, while the defendant's evidence was implausible and inconsistent. The court noted that both parties consumed a significant amount of alcohol and cannabis on the day in question, which impacted their reliability. However, the court found that the complainant's evidence was consistent with other evidence and independent of the defendant's evidence. The court also found that the defendant's account of events was implausible and inconsistent with other evidence, including his own statements to the complainant and a medical professional. The court ultimately found the defendant guilty of some of the charges and not guilty of others.

In conclusion, the court found the defendant guilty of some of the charges, including sexual assault and rape, and not guilty of others. The court based its decision on the credibility of the complainant's evidence and the implausible and inconsistent nature of the defendant's evidence. The court also considered the impact of alcohol and cannabis consumption on the witnesses' reliability and the consistency of the defendant's account of events with other evidence. The defendant was found guilty of Count 1 (Rape), Count 2 (Sexual assault), Count 6 (Rape), and Count 7 (Rape), and not guilty of Count 3 (Rape), Count 4 (Rape), and Count 5 (Attempted rape).

Orders

Orders of the court

Count 1 (Rape): GUILTY

Count 2 (Sexual assault): GUILTY

Count 3 (Rape): NOT GUILTY

Count 4 (Rape): NOT GUILTY

Count 5 (Attempted rape): NOT GUILTY

Count 6 (Rape): GUILTY

Count 7 (Rape): GUILTY

Background

Background to the litigation

Written particulars were provided and were marked for identification “A”. They were brief, and are as follows:Count 1:The defendant penetrated the complainant’s vagina with his finger and/or fingers.Count 2: The defendant:(a)kissed the complainant on:(i)Her lips; and/or(ii)Her neck; and/or(iii)Her breast; and/or breasts; and/or(b)touched the complainant’s breast and/or breasts.Count 3: The defendant penetrated the complainant’s vagina with his penis.Count 4: The defendant penetrated the complainant’s vagina with his tongue.Count 5:The defendant attempted to penetrate the complainant’s anus with his penis.Count 6:The defendant penetrated the complainant’s anus with his finger and/or fingers.Count 7:The defendant penetrated the complainant’s vagina with his finger and/or fingers.Facts not in dispute There is no dispute in this case that the defendant is the uncle of the complainant; the defendant is the half-brother of the complainant’s mother. As at 22 December 2018, the complainant lived in a caravan on property at Logan Reserve. A friend, Adam Hilliard, lived nearby in another caravan. The complainant had been in a relationship of sorts with a 23 year old man, Kearin Lees. At that time the complainant worked as a cleaner for a cleaning business operated by the parents Felicity McWaters. The defendant travelled from Western Australia to Queensland some days before 22 December 2018. Arrangements were made for him to meet up with the complainant on 22 December 2018. The defendant, the complainant and Mr Lees travelled to the Wet n Wild Water Park on the Gold Coast. They were only there for about an hour or so due to stormy weather; the park was closed as a result. The complainant, the defendant and Mr Lees went to the hotel called “Fitzys” at Waterford where both the complainant and the defendant consumed a large quantity of liquor. Later that evening the complainant and the defendant went to the home of a friend of Felicity McWaters where more alcohol was consumed. At various points in the evening cannabis was also consumed by both the defendant and the complainant. The defendant spent the night in the complainant’s caravan, and slept with her in her bed.Evidence of the complainant The complainant gave evidence that she was 37 years old in December 2018. She gave evidence of the caravan that she stayed in, and the caravan of Mr Hilliard. She gave evidence that she received a communication from the defendant in March 2018, and from that time on she had been in regular contact with him. She had not seen him before December 2018. She considered that she was at Fitzys for about three hours, or maybe longer. She commenced drinking rum and cokes, thinking she had five or six, “may be more”.[1] She became intoxicated and vomited in the toilets, because she had “reached my limit”. She recalled that they had dinner there.[1]R1-20, l 43. After leaving Fitzys Kearin Lees was dropped home. She and the defendant went back to her caravan at Logan Reserve. Before leaving Fitzys the defendant bought a bottle of Maker’s Mark bourbon. At the caravan the defendant poured her a drink of bourbon and coke. She recalled that the bourbon and coke was poured into a short glass which came with the bottle of bourbon. The complainant recalled that the drink was “more bourbon than coke”.[2] After drinking the bourbon she felt more intoxicated.[2]R1-23, l 20.

Evidence

Evidence Before The Court

The defendant spent the night in the complainant’s caravan, and slept with her in her bed.Evidence of the complainant The complainant gave evidence that she was 37 years old in December 2018. She gave evidence of the caravan that she stayed in, and the caravan of Mr Hilliard. She gave evidence that she received a communication from the defendant in March 2018, and from that time on she had been in regular contact with him. She had not seen him before December 2018. She considered that she was at Fitzys for about three hours, or maybe longer. She commenced drinking rum and cokes, thinking she had five or six, “may be more”.[1] She became intoxicated and vomited in the toilets, because she had “reached my limit”. She recalled that they had dinner there.[1]R1-20, l 43. After leaving Fitzys Kearin Lees was dropped home. She and the defendant went back to her caravan at Logan Reserve. Before leaving Fitzys the defendant bought a bottle of Maker’s Mark bourbon. At the caravan the defendant poured her a drink of bourbon and coke. She recalled that the bourbon and coke was poured into a short glass which came with the bottle of bourbon. The complainant recalled that the drink was “more bourbon than coke”.[2] After drinking the bourbon she felt more intoxicated.[2]R1-23, l 20. The complainant then telephoned Felicity McWaters and asked if she and the defendant could come over. She was also communicating with Felicity McWaters via Facebook Messenger. Exhibit 1 is a copy of a Facebook exchange between the two of them on the evening of 22 December 2018. Felicity McWaters was actually at the house of a friend, James, who lived in Bethania. The complainant drove the defendant’s car to that address. When they arrived the people there were playing cards. The complainant and the defendant consumed more liquor; there was an argument with her and some of the people at this house over her “leading on” Mr Lees. The complainant said:“I drank more and the more I fought with people the more I drank and then I decided I wanted to go home. I didn’t want to fight with people anymore. I just wanted to go home.”[3][3]R1-27, l 1. The complainant and the defendant left James’ house and went back to her caravan. On Facebook Messenger the complainant received a message from Felicity McWaters asking if she was okay. The complainant replied “Yeah, Bub. Just facing facts”.[4][4]R1-28, l 1. The complainant could not recall what she was drinking at James’ house. She said she was drunk, but was aware of her surroundings and still able to make decisions. The complainant said that she was not a particularly heavy drinker, and that she had only been that intoxicated once or twice, 10 or 20 years ago.[5][5]R1-28, l 33. After they got back to the caravan, the complainant said that she and the defendant were talking and drinking a bit more. There was a discussion about her childhood and her mother. The complainant said that she realised she was too drunk and too emotional and decided she wanted to go to bed. She recalled that there was a vague discussion about the defendant sleeping on the couch. The defendant made a joke about it being too small. The complainant offered the defendant her bed, and she was going to go and wake up Mr Hilliard and sleep in his caravan. The defendant told her not to be silly, that it was too late to be waking people up and as they were family they could share a bed.[6][6]R1-29, l 33.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I have directed myself on the elements of each charge.Consideration Aside from the complainant and the defendant, I consider that the witnesses were both credible and reliable. Clearly the police investigation was inadequate, and a prompt cellebrite examination of the complainant and defendant’s mobile telephones may have afforded relevant evidence. It is clear on the evidence that both the complainant and the defendant consumed a prodigious amount of alcohol on the afternoon and evening of 22 December 2018, going into 23 December 2018. I also accept that both of them consumed cannabis. All of this clearly has an impact on both the complainant and the defendant’s reliability. As in many cases, a useful key is to look for evidence independent of both the complainant and the defendant. The telephone call between the complainant and the defendant on the evening of 23 December 2018, which is Exhibit 4, is illuminating. The complainant asks on a number of occasions why the defendant did not stop when she asked him to. The defendant stated that he could only remember “about half of it” due to how drunk he was. He stated that he had way too much alcohol. When the complainant stated that she had asked him to stop, the defendant said “I can’t even remember any of that. No, no.” When the complainant said that she needed to know why it happened, the defendant said “Yeah, I wouldn’t be able to tell you why.” When Dr Mahoney examined the defendant, the defendant said that he did not recall having sex “because he was pissed and stoned”. It is unfortunate that Dr Mahoney did not clarify with the defendant what he meant by “sex”. Frankly, the defendant was a poor witness. While I accept that some of his details of the day of 22 December 2018, such as the visit to Wet n Wild, the visit to Fitzy’s, and the visit to the house where the gathering was is generally consistent with other evidence, his account of the sexual activity in the caravan is simply implausible. There was no evidence that in any way suggested that the complainant before this evening was sexually attracted to the defendant. There had only been two earlier physical meetings, and while there were numerous contacts over the telephone and Facebook Messenger, it was not suggested to the complainant in any way that she had somehow expressed some desire for the defendant. Even in the complainant’s drunken and cannabis affected state, I do not consider it plausible that she would engage in the consensual sexual activity that the defendant described in his evidence. Aside from this, the specific details given by the defendant in his evidence of the physical intimacy and sexual activity, including the conversations, are completely inconsistent with his statement to the complainant in Exhibit 4 that he did not know what had happened, and that he could only remember “about half of it, about how drunk I was”. It is also inconsistent with him telling Dr Mahoney that he did not recall having sex because he was “pissed and stoned”. The defendant’s explanation of what he believed “sex” was, that is “sex is when both persons gets the pleasure out of it. Its – sex, to me, is – how would you put it – I – I don’t class it as sex. I would class it as making love. Sex, to me, means just something on the street that you never met – both want the same thing and that’s it. There’s no – no connection” borders on the risible. The defendant said something different in cross-examination when asked about that conversation with Dr Mahoney. He said “In my book, I didn’t have sex. I didn’t ejaculate. She didn’t ejaculate. That’s sex to me.”[99] This is of course contradictory to what he said in evidence-in-chief.[99]R3-80, l 3.