R v TF

[2018] QChC 26

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v TF [2018] QChC 26

PARTIES:

R

v

TF
(defendant)

FILE NO/S:

01/18

DIVISION:

Criminal

PROCEEDING:

Trial – Judge Alone

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

29 October 2018

DELIVERED AT:

Cairns

HEARING DATE:

24 to 27 September 2018 inclusive (Mount Isa)

JUDGE:

Fantin DCJ

ORDER:

Guilty

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – trial by judge sitting alone without jury – where defendant child charged with one count of indecent dealing of a child under 16, under 12 – where defendant was a 13 year old girl and complainant was an eight year old girl – whether prosecution has rebutted presumption of incapacity doli incapax – whether prosecution has proved elements of offence beyond reasonable doubt.

Legislation
Criminal Code 1899 (Qld), ss 29, 210
Evidence Act 1977 (Qld) ss 21AK, 21AW, 93A, 102
Youth Justice Act 1992, ss 98, 102, 103

Cases

C (A Minor) v DPP [1995] 2 Cr App R 166

R (A Child) v Whitty (1993) 66 A Crim R 462

R v B (An Infant) [1979] Qd R 417

R v B [1997] QCA 486

R v F; Ex parte Attorney-General [1999] 2 Qd R 157

RP v The Queen [2016] HCA 53; 259 CLR 641

COUNSEL:

A Payne for the Crown
A Loode for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown
Legal Aid Queensland for the defendant.

Background

1. The defendant was charged with two counts of indecent dealing with a child under 16, under 12 under s 210(1)(a)(3) Criminal Code 1899 (Qld) between 1 December 2016 and 1 February 2017.

1. On the first day of trial the Crown entered a nolle prosequi with respect to count 2 on the indictment. The defendant was arraigned on count 1 and entered a plea of not guilty.

1. Both the defendant and the complainant are female children. They are step cousins[1].

   [1] The complainant’s father and the defendant’s step father are brothers.

1. The defendant was born on 14 January 2003 and the complainant was born on 21 April 2008[2]. During most of the period alleged, the defendant was 13 years old. She turned 14 on 14 January 2017. The complainant was eight years old.

   [2] This was the subject of admissions.

1. The Crown case is that during a sleepover at the complainant’s house during the Christmas school holidays, the defendant touched the complainant on the outside of her underwear on the vagina.

1. Because the conduct is at the less serious end of the range for this offence, had the defendant admitted the act, it is likely that the police may have considered a less formal resolution appropriate, and elected to caution the child or refer her to a restorative justice process.

1. That did not occur. The defendant denied the allegations. The Crown exercised its discretion to prosecute.

1. The defendant child elected under section 98(2)(a) Youth Justice Act 1992 to be committed for trial before…