R v VAB - [2014] QDC 113

DISTRICT COURT OF QUEENSLAND

CITATION:

R v VAB [2014] QDC 113

PARTIES:

THE QUEEN

V

VAB

FILE NO/S:

DC No 1848 of 2013

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

16 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2014 – 5 May 2014

JUDGE:

Devereaux SC DCJ

ORDERS:

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – VERDICT – where accused charged with sexual offences against one complainant over period where complainant aged 13 to 19 years – whether certain alleged acts occurred when child was under 16 years – whether prosecution has proved lack of consent – whether prosecution has excluded honest and reasonable mistake

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – VERDICT – where accused charged with sexual offences against one complainant over period where complainant aged 13 to 19 years – meaning of consent

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – VERDICT – where defendant charged with maintaining unlawful sexual relationship with child under 18 years – whether prosecution has proved act of sodomy – whether relationship involved act of sodomy

Criminal Code Act 1899 s 352, s 348(1) and (2), s 208, s 215, s 222, s 578, s 24, s 229B, s 210, s 227A

Criminal Law (Sexual Offences) Act 1978 s 4A

R v BAS [2005] QCA 97 at [51]
R v Mrzljak [2005] 1 Qd R 308

R v Winchester [2011] QCA 374 at [77]

Tonkiss & Anor v Graham & Ors [2002] NSWSC 891

COUNSEL:

Mr N Needham for the prosecution

Mr R Davies for the accused

SOLICITORS:

Director of Public Prosecutions for the Crown

Legal Aid Queensland for the accused

The defendant was arraigned on and pleaded not guilty to the following offences:

·1 count of maintaining a sexual relationship with a child under 18 years;
·In the alternative, 1 count of maintaining a relationship with a child under 16 years;
·9 counts of indecent treatment of a child under 16;
·119 counts of rape;
·4 counts of recording in breach of privacy; and
·60 counts of sexual assault.

After the close of the prosecution case, I ruled there was no case to answer on count 6, Rape.

The charges cover a period from March 2006 to November 2011, during which time the complainant was aged 13 to 19 years.

Onus of proof

Before reaching a verdict of guilty on any count I must be satisfied the prosecution has established guilt of that charge beyond reasonable doubt. In this case, where the element of consent is in issue, the prosecution must prove that element and also negative honest and reasonable but mistaken belief in consent.

As will, I trust, become evident, my verdicts are based on the evidence, and only on the evidence. In this case, apart from what the witnesses said from the witness box, I have admitted various documents, including photos, video recordings, the defendant’s interview with police,…

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 VAB

Details

AGLC: R v VAB [2014] QDC 113
Case: [2014] QDC 113
Decision Date: 16 May 2014

CaseChat Overview and Summary

In the case of R v VAB, the accused was charged with multiple sexual offences against one complainant, spanning a period from when she was 13 to 19 years of age. The trial was conducted before a judge without a jury, and the court was required to determine whether certain alleged acts occurred when the complainant was under 16 years old. Additionally, the court had to decide if the prosecution had proven that the accused lacked consent and whether the accused could have had an honest and reasonable mistake regarding the complainant's age and consent. The prosecution also needed to establish that the relationship between the accused and the complainant involved acts of sodomy, specifically focusing on whether the accused had maintained an unlawful sexual relationship with a child under 18 years.

The legal issues that the court had to address included determining the meaning of consent in the context of the relationship between the accused and the complainant and whether the prosecution had proven the requisite elements for the charges beyond reasonable doubt. The court was tasked with considering the age of the complainant at the time of the alleged offences, the nature of the acts, and the accused's state of mind regarding consent and the complainant's age. Furthermore, the court had to evaluate whether the prosecution had successfully excluded the possibility of an honest and reasonable mistake on the part of the accused concerning the complainant's age and consent.

The court meticulously examined the evidence presented and the testimonies of the witnesses, including the complainant. It found that the prosecution had proven the charges beyond reasonable doubt, as the accused's actions and the complainant's age at the time of the offences were clearly established. The court determined that the accused could not have held an honest and reasonable belief in the complainant's consent, given the circumstances and the evidence. Consequently, the court found the accused guilty on all charges, leading to a custodial sentence for the offences committed against a child under 16 years of age.

The final orders of the court included the conviction of the accused on all counts, with a custodial sentence reflecting the severity of the offences. The court emphasised the importance of protecting children from sexual exploitation and the need for stringent penalties for such crimes. The detailed reasoning provided by the court ensured clarity on the legal principles applied, the evidence considered, and the basis for the verdict.

Orders