R v TDR

[2018] QChC 18

DISTRICT COURT OF QUEENSLAND

CITATION:

R v TDR [2018] QChC 18

PARTIES: 

R
v
TDR
(defendant)

FILE NO/S: 

CC No 62 of 2017

DIVISION: 

Childrens Court

PROCEEDING: 

Judge Alone Trial

ORIGINATING COURT: 

District Court at Townsville

DELIVERED ON: 

20 July 2018

DELIVERED AT: 

Townsville

HEARING DATE: 

23 - 24 April 2018

JUDGE: 

Coker DCJ

ORDER: 

1.    Verdict: Not Guilty.

CATCHWORDS:

CRIMINAL LAW – JUDGE ALONE TRIAL – where the defendant was charged with two counts of rape and one count of attempted rape – whether complainant is in her specific circumstances a credible witness – whether proof beyond reasonable doubt established by the Crown

Criminal Code (Qld), s 24, s 349, s 350

COUNSEL:

N Crane for the Crown
M Hibble for the defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Crown
Aboriginal and Torres Strait Islander Legal Service for the defendant

1. The defendant is charged with two counts of rape and one count of attempted rape, contrary to sections 349 and 350 of the Criminal Code.  The offences are alleged to have occurred in the early morning of the 10th of September 2016.  The defendant has pleaded not guilty to those offences.

2. The trial was held before me, on the 23rd and 24th of April 2018.  It was conducted as a judge-only trial, with me sitting without a jury.  An order had previously been made by another judge on the 21st of March 2018, to proceed in that way.

3. As required by law, I have applied, as far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.  At the conclusion of the trial, counsel for the Crown and for the defendant discussed with me the various directions that would be appropriate to be considered in the circumstances if it were to be the case, for example, that directions were to be provided to a jury.  I have been mindful of those various considerations in this determination.

4. For the purposes of completeness, I note that the matters which were raised by counsel included: a consideration of the specific definition of rape; a consideration of section 24; consideration of issues with regard to preliminary complaint, as well as being mindful of the direction that would normally be given in respect of there being evidence given or called by a defendant. It was also suggested by counsel, that issues of intoxication and their relevance to any defence arising pursuant to the provisions of section 24 of the Criminal Code should be considered.

5. The prosecution’s case was basically outlined in the evidence of the complainant in these proceedings.  The complainant is AO.  AO is a mature woman, though, with respect, it would appear that there have been difficulties in her life, and that such difficulties, including those relating to matters with regard to mental health, were in existence at the time of the alleged offending in September of 2016.  One of the first examples of concerns with regard to the complainant’s full grasp of her current circumstances arose when, in virtually the first questions directed to her after she indicated her name, she was asked how old she was.  She responded that she was 45 or 46, and that she was:

   ... not certain.

   That lack of certainty, in many instances, continued throughout the evidence that was given in relation to this matter.  I make reference, particularly, to that uncertainty which related to the actual circumstances of the alleged offences, including where they occurred, being in an alley off a street in Kirwan, and how the complainant and the defendant may have found themselves in that alley.

6. The circumstances which preceded the offences, as alleged, were detailed in evidence-in-chief, taken from the complainant.  It was clear that there were issues on the afternoon and evening of the 9th of September 2016, which, at least in part, had some significance to the events, as alleged in the early morning of the 10th of September 2016.  I say that particularly in the sense that the complainant’s evidence was that alcohol had been taken by her on the evening of the 9th of September 2016, and that it was then taken in conjunction with a number of antidepressants and/or pain killers that had been prescribed for her.

7. It was also clear that there had been an argument between the complainant and her husband, JO, as well as between the complainant and her son.  The dispute between the complainant and her son had culminated in an argument, though it was indicated that it was only of a verbal nature, which led to the complainant self-harming.  That was clear from her own admissions, as well as from medical evidence that was provided.

8. As a result of the argument and the level of distress that the complainant says she was suffering from at an indeterminate time, though it would seem to be suggested by her, at around midnight, she left her residence in Kirwan and went for a walk.  She said that it was not an uncommon practice for her to walk in the evenings in Townsville, as it was too hot during the day.  She said that she took with her cigarettes and a can of Smirnoff Vodka premixed drink, and gave evidence that she was consuming that drink as she walked.

9. The complainant says that she would, from time to time, go for a walk in Kirwan, particularly on Bamford Lane.  But on the early morning in question, she took a different route and, at least to some extent, it would appear that she became a little disoriented as to exactly where she might have been.  I say that particularly in the sense that she indicated that she finished up after the offences were alleged to have occurred, having passed through the laneway, and came to her home by a roundabout route.

10. The complainant says that she was raped by the defendant.  She describes, in her evidence an exchange between she and the defendant where she was approached by him whilst walking down Kittyhawk Avenue; that he approached her, asked for a cigarette and she provided him one, and he then asked her for a drink of her drink.  She said that she’d provided him with two sips of her drink and that that was, if you like, a natural response from her because of her nature and personality.

11. She says that she became concerned that her interactions with the defendant placed her at risk.  She described her interaction after a little while with the defendant as “suss”.  She says that she does not recall how she might have found herself 20 or so steps into a darkened alleyway running between streets in Kirwan, and suggests, though does not specifically recall, that she was pushed into the alleyway.

12. She says that she was raped by the defendant, and that there was also an attempt by him, though unsuccessful, to force her to engage in oral sex.  It is that offence which gives rise to the count of attempted rape.  The complainant’s evidence was disjointed.  In part, that arose from the passing of time and the fading of the memories, but it would also certainly appear that there were inconsistencies; for example, between what statement she may have made to the police and to the nurse practitioner for the Townsville Sexual Health Services later in the day on the 10th of September 2016, and what she recounted in evidence on the 23rd of April 2018.

13. Of course, to a significant degree that may be a reflection of the passing of time and the use of different terms to describe events.  But, unfortunately, I gained the impression that there was a lack of clarity and specifically, certainty in relation to what was being described by the complainant as the events of that day.

14. There appeared to be certain aspects of her evidence which, though I have no doubt were a reflection of her attempt to be accurate in what she told the court, was also unfortunately, to some extent, a reconstruction of what she supposed must have happened when she did not have clear recollection of the events of the 10th of September 2016.  Her estimates of time, for example, suggesting that the rape took more than an hour seems hard to accept when the events occurred in the early hours of a Saturday morning, and the evidence was clear that there was activity in and around the alleyway.

15. Similarly, there appears to be a lack of any certainty as to time that passed from when the complainant left her residence to when she returned to her residence, and that lack of specificity appears to flow, not only from the complainant’s evidence, but also from the evidence of her husband, when asked when certain incidents might or might not have occurred.  I struggled to some extent with the accuracy of the evidence of the complainant in relation to the events that led to her being raped, though I certainly acknowledge that she detailed a version of events when speaking with Ms Penny Kenchington, the nurse practitioner for Townsville Sexual Health Services.

16. Unfortunately, however, the impression I gained was that whilst there may have been some certainty in what she may have described to Ms Kenchington, it was not necessarily an accurate or precise reflection of what had occurred on the evening preceding the examination by the nurse practitioner, but rather, a reconstruction.  I note in that regard particularly, that the complainant was heavily medicated, was using alcohol, was agitated as she described in her own evidence, was angry, and was self-harming.

17. Those factors play on my mind in relation to the determination of this matter, particularly when the complainant’s own husband described her demeanour, mood and behaviours on the days and weeks leading up to the alleged offences as good days and bad days.  And that she had been, as he put it:

    Depressed for a long time.

    The complainant, and it was corroborated by her husband, also acknowledged that only in the days or weeks prior to the offending, she had been diagnosed as suffering from bipolar disorder, and that there had been experimentation or trials with various types of medication to:

    Try to get the balance right.

    Additionally, and it is again significant in attempting to assess the accuracy of the complainant’s evidence, the indications with regard to her self-harming were that she was adamant that it had occurred in the toilet area of their residence, but that her husband’s recollection was that her sons were seen by him cleaning up blood that had come from her injuries in the kitchen.  When asked whether it was the fact self-harm had occurred in the toilet, he indicated that there appeared to be blood all through the place.

18. It was the self-harming behaviour that led to the altercation between the complainant and her son.  It would appear that the self-harming occurred after she had returned from an evening at the local bowls club, following the argument between she and her husband on the afternoon/early evening of the 9th of September 2016.  The complainant’s son had found her self-harming, or at least, had seen the results of her actions, and that their argument had included suggestions by him that she was “crazy” or “mental”.  It is clear that there was a level of disturbance being shown by the complainant on the 9th and 10th of September 2016, and that that is a factor that must be considered, in relation to the ultimate determination of this matter.

19. The defendant gave evidence in relation to this matter.  He was not required to do so, but chose to do so, and provided his evidence in what I thought was a generally believable manner.  I say that particularly in the sense that at the time of the trial, he was 18 years of age, but in September of 2016, was only 16 years of age.

20. He also acknowledged that at that time of the alleged offending, he was consuming liquor and described the drinks that he had taken on that evening.  He was a witness, I thought, who was honest, in respect of what he said; making admissions contrary to his interests on a number of occasions.  He was also a witness, perhaps as a result of his age and immaturity, who was a little uncomfortable in some of the evidence given.

21. In respect of those two matters, I note, for example, that he acknowledged that he had asked the complainant for sex, and certainly did not suggest at all that there was any instigation of the act by her.  He says, however, that she was agreeable to the acts of intercourse or the act of intercourse that he says occurred between them, and that it was a consensual act as between the two.  He said, and it was telling, that it was the case that she had responded to his inquiry with words to the effect:

    Yes, I’ll have sex with you.  I don’t give a fuck where we have sex.

    The impression he gave, was that she was a willing, though perhaps unresponsive participant in the sexual activity.  And the impression I gained, that that was, perhaps, more a reflection of her state of mind and/or intoxication than as a result of any lack of apparent consent to the activity.

22. The defendant was examined in chief, and cross-examined at length in relation to what might have occurred on the morning of the 10th of September 2016.  He was adamant that at no time, did he believe that there was not consent to the intercourse, and with some prompting, and perhaps difficulty on his part, acknowledged that there appeared to be at least some degree of pleasure experienced by the complainant during the activity.

23. He says that there was no screams or indications of any nature that there was not a willingness to participate in the act of intercourse.  He denies any force being applied or that there was any suggestion on the part of the complainant of any pain or discomfort.

24. Obviously the positions of the complainant and the defendant are very different.  The evidence of the complainant, however, must be seen in light of concerns with regard to a lack of certainty in respect of her evidence, as well as issues with regard to intoxication and/or the effects of multiple medications, as well as concerns with regard to her own mental health, particularly in light of the obvious evidence of self-harming behaviours, at the time of the alleged offences.

25. Obviously, there are also what might be considered to be inherent implausibilities in relation to the version of events given by the defendant.  That was emphasised particularly in submissions on the part of the Crown, where the Crown submitted that it was inherently implausible for a 43 year old woman to engage in unprotected sex with a stranger in an alleyway, particularly when she was suffering from the effects of pre-existing injuries.

26. One would, of course, be mindful of that in any determination but balanced against that consideration is the fact that there is considerable evidence to suggest that at least at that time, the complainant was not of a state of mind which would suggest that she was a settled, stable and clear-thinking 43 year old woman.

27. Many of the matters to which I have already referred, give rise to concerns that on that day, and at that time, she was neither settled, stable or clear thinking.  She had self-harmed, and as was submitted on the part of the defendant, her lack of any care as to what might or might not have occurred between she and the defendant, was just another attempt to harm herself.

28. There might be an argument that that was implausible but what must be considered is the circumstances as they existed, on the morning in question and the behaviours of both the complainant and the defendant.

29. Ultimately, in reviewing all of the evidence, I have concerns with the evidence of the complainant and its certainty.  Whilst there is, of course, a concern as to what might or might not have occurred on the 10th of September 2016, there is not a basis upon which it could properly be concluded, beyond reasonable doubt, that the complainant’s version of events with respect to each of the counts could be accepted.  It may be that it is correct, but there is certainly a real possibility that the actions of the complainant on that day were influenced by alcohol and/or prescription drug use, as well as by issues with regard to her mental health and mood generally, as a result of other factors that had played upon her.

30. I am not, therefore, satisfied beyond a reasonable doubt that the two counts of rape and one count of attempted rape on the 10th of September 2016 are made out.  Accordingly, my verdicts in respect of each of the counts 2, 3 and 5 are not guilty.  The defendant is discharged.