R v W

[2010] QChC 2

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v W [2010] QChC 2

PARTIES:

THE QUEEN
v
W (applicant)

FILE NO/S:

CCJ-362/10(7); ROCK-CCJ-16/10

PROCEEDING:

Application

DELIVERED ON:

10 September 2010

DELIVERED AT:

Southport

HEARING DATE:

27 August 2010 at Rockhampton

JUDGE:

Newton DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – PLEAS – Application to change – whether miscarriage of justice

Criminal Code s29
Youth Justice Act 1992, Schedule 1

Meissner v R (1994) 184 CLR 132, applied
Maxwell v R (1996) 184 CLR 501, applied
R v Mundraby [2004] QCA 493, applied
R v Gaudry [2005] QCA 395, cited
R v Murphy [1965] VR 187, considered
Liberti (1991) 55 A Crim R 120, considered
R v Peterson [2008] QCA 405, considered
R v Moxham [2000] QSC 152, considered
R v O (2003) 139 A Crim R 432, cited

COUNSEL:

Mr J Clarke for the applicant

Mr D Jones for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

The application

1. This is an application by a defendant child who was charged in the Childrens Court at Rockhampton with two counts of indecent treatment of a child under 16. Having pleaded guilty to these charges and with sentence pending, he now makes an application to have both pleas of guilty, or failing that, the second plea of guilty, set aside and, instead, have the counts or count tried by the Court.

Short history

1. The child was born on 30 October 1994, which made him 14 years of age at the time of the alleged offences relevant to this application and 15 years of age when he entered pleas of guilty.

1. A short account of the charges is necessary in order to appreciate certain features of this application. The complainant's version of events, recorded in her witness statement is that on the 1 September 2009 she was staying at the same house as the defendant child. They were lying on a trampoline together in the early evening. The defendant rolled on top of her and, despite being told to stop, started to kiss her. He pinned her arms down and fondled her breasts. This relates to the first charge of indecent treatment. Then, despite further protests, he tried to unbutton her shorts, and fondled her vagina on the outside of her clothes, only desisting when she threatened to scream. This relates to the second charge.

1. The defendant child was interviewed the following day, 2 September 2009. His version of events was that although he acknowledges laying on the trampoline with the complainant, she began kissing him, and he resisted. He pulled away from her and left.[1] He denied flatly that he had “fondled with her breasts” and “play[ed] with her downstairs area near her vagina”[2].

   [1] Transcript of police record of interview with defendant child, 2^nd September 2010, pp10-13.

   [2] Ibid, p16.

1. The defendant child has sworn an affidavit, on 16 August 2010, describing how he…