R v TCJ - [2020] QDC 120

DISTRICT COURT OF QUEENSLAND

CITATION:

R v TCJ [2020] QDC 120

PARTIES:

THE QUEEN

v

TCJ

FILE NO/S:

D 341/20

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland at Brisbane

DELIVERED ON:

11 June 2020

DELIVERED AT:

Brisbane

HEARING DATES:

1, 2, 3 and 10 June 2020.

JUDGE:

Muir DCJ

VERDICT:

Count 1: Guilty

Count 2: Guilty

Count 3: Guilty

CATCHWORDS:

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – VERDICT – where defendant is charged with 2 counts of indecent treatment of a child under 16, under care and 1 count of indecent treatment of a child under 16, under 12, under care– whether the defendant is guilty or not guilty of the charges

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – INDECENT DEALING OF A CHILD UNDER 16, UNDER CARE – meaning of ‘under care’

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where similar fact evidence led – separate consideration of charges – where there is a need to scrutinise complainant’s evidence with care due to delay, inconsistencies and other reasons – whether complainants evidence credible and reliable beyond reasonable doubt – where defendant gave evidence – where defence case referred to a motive to lie

LEGISLATION:

Criminal Code 1899 (Qld) ss 210, 615, 615B, 644.
Evidence Act 1977 (Qld) ss 21A, 21AW.

CASES CITED:

Longman v The Queen (1989) 168 CLR 79.
Nguyen v R [2012] ACTCA 24.
Pell v R [2020] HCA 12.
R v FAK [2016] QCA 306.
R v LSS [2000] 1 Qd R 546; [1998] QCA 303.
R v RH [2005] 1 Qd R 180.
R v Markuleski (2001) 52 NSWLR 82.
R v McCallum [2013] QCA 254.
R v McNeish [2019] QCA 191.
R v MMH [2020] QDC 70.
R v Mulcahy [2010] ACTSC 98.

COUNSEL:

Ms C Whelan for the Prosecution
Ms K Bryson for the Accused

SOLICITORS:

Director of Public Prosecutions for the Crown
Howden Saggers Lawyers for the Accused

Overview

This case concerns historical sexual offending said to have been committed by the defendant on the complainant, his biological sister, TQM, over 20 years ago.

The defendant is charged on indictment before the District Court at Brisbane with: one count of indecent treatment of a child under 16, under 12, under care (on a date unknown between the 20^th day of February 1990 and the 24^th day of November 1991 at a suburb in Brisbane’s North side); and two counts of indecent treatment of a child under 16, under care (on dates unknown between the 6^th day of May 1994 and the 24^th day of November 1997 at a suburb in Brisbane’s North side).

On 17 April 2020, the Chief Judge ordered that the defendant’s trial for these charges proceed as a Judge only trial.[1]
[1]Pursuant to s 615 (1) Criminal Code (Qld) 1899; see extempore reasons of the Chief Judge delivered on 17 April 2020.

On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v TCJ

Details

AGLC: R v TCJ [2020] QDC 120
Case: [2020] QDC 120
Decision Date: 11 June 2020

CaseChat Overview and Summary

In the case of R v TCJ, the defendant was charged with two counts of indecently treating a child under 16 who was in their care, and one count of indecently treating a child under 16 who was under 12 and in their care. The trial was conducted before a judge without a jury. The primary issue before the court was whether the defendant was guilty or not guilty of the charges. Additionally, the court had to determine the meaning of the term ‘under care’ in the context of the offence of indecently treating a child under 16, under care. The court also needed to consider whether the evidence of the complainant was credible and reliable beyond reasonable doubt, particularly given the delay and inconsistencies in the evidence. Furthermore, the court had to examine the relevance of similar fact evidence and whether it was properly admitted and considered.

The court found that the term ‘under care’ in the context of the offence of indecently treating a child under 16, under care, referred to a situation where the defendant had a responsibility for the child’s welfare and safety, even if the child was not in their physical custody at all times. The court also determined that the evidence of the complainant, while not perfect, was credible and reliable beyond reasonable doubt. The court scrutinised the evidence carefully, taking into account the delay and inconsistencies, but ultimately found the complainant’s testimony to be trustworthy. The court further held that the similar fact evidence was properly admitted and considered, as it was relevant to establishing the defendant’s motive and propensity to commit the offences.

Consequently, the court found the defendant guilty on all three counts. The court accepted the evidence of the complainant and found it to be credible and reliable beyond reasonable doubt. The court also found that the defendant’s defence, which relied on a motive to lie, was not persuasive. The court found that the similar fact evidence was properly admitted and considered, and that it did not unfairly prejudice the defendant. The court found the defendant guilty of all three charges and imposed a sentence accordingly.

Orders