The King v TD - [2023] QChC 5

CHILDRENS COURT OF QUEENSLAND

LOURY KC DCJ

DC No 73/23

THE KING Crown

TD Defendant

BRISBANE

3 May 2023

JUDGMENT

LOURY KC DCJ:

TD is charged with entering the dwelling of CA with intent to commit an indictable offence in the dwelling with circumstances of aggravation that he was armed with an offensive instrument; that he was in company with other persons and threatened to damage property.
TD has pleaded not guilty to the offence. I heard evidence from the complainant and two police officers. Some photographs were tendered and some admissions made.
The complainant’s evidence was that she knew the defendant through friends. She did not know him well and had only seen him five or six times. She had never been introduced to him but others had told her who he was.
On the evening of 14 October 2021, she was at home when she heard people talking nearby her house. She was concerned it was a group of boys who had been asking her for money at the nearby park earlier in the day. She turned off the lights in the house and closed all the curtains. She heard people jumping over the back fence and saw a flashlight or torch (from a mobile phone) in her yard. A group of boys entered her house through a laundry door which she saw her brother open.
She sought shelter from them in her bedroom, closing the door. Five boys, which she said included the defendant, forced their way into her bedroom. The light was turned on. The complainant stood on her bed with a knife she picked up from under her bed. She was able to identify five of the boys as the defendant, TD; Josh; Najack; Awan and Steve. Steve was armed with a baseball bat. TD was armed with an object she described as being used to change tyres (which her counsel described as a steering wheel lock). The boys demanded money from her and said that they would break the television in the living room if she did not give them money. After 15 minutes or so, the police arrived and all the boys bar one fled the house. The complainant said that her friend, Sally was in the room with her.
After the police had attended her home, the complainant located a steering wheel lock under the sheets in her bed. She assumed the defendant hid it in her room when police arrived and he fled. Photos were taken of the item some days later. It was not seized, nor subject to a forensic examination. There is no explanation in the evidence for that not having occurred.
Two police officers gave evidence. The first, Senior Constable Eliza Wheeler attended at a neighbouring property to the complainant. This property was directly behind the complainant’s house. Ms Wheeler said that two men came from the vicinity of the side gate of this house. She took up with one of them, [EM]. Her partner took…

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 The King v TD

Details

AGLC: The King v TD [2023] QChC 5
Case: [2023] QChC 5
Decision Date: 3 May 2023

CaseChat Overview and Summary

In the Children's Court of Queensland, the case of The King v TD involves a charge against TD for entering the dwelling of CA with intent to commit an indictable offence, aggravated by the presence of an offensive weapon, being in company with others, and threatening to damage property. TD has pleaded not guilty to the charge. The court heard evidence from the complainant, two police officers, and admitted photographs and certain admissions. The complainant testified that she recognised TD as one of the intruders who entered her house with others, armed with a steering wheel lock. The police officers provided evidence regarding their investigation, but some key steps in the investigation were not pursued, and certain witnesses were not called to testify. The primary legal issue the court needed to decide was whether the complainant's identification of TD as one of the intruders was reliable, given the circumstances of the case.

The court found that there were several factors that undermined the reliability of the complainant's identification. The complainant did not know TD well and had only seen him a few times. She had seen him earlier in the day in the park with other males, all of whom were dressed similarly and had distinctive hairstyles. The complainant was scared and focused on the male with the baseball bat, which might have affected her ability to correctly identify TD. Additionally, the complainant did not mention that TD was armed during her initial statement to police, which changed only during a conference with the prosecutor before the trial. The court also noted the absence of several material witnesses, including the complainant’s brother, her friend Sally, and the residents of the house from which TD claimed to have come, which the police did not attempt to call to testify. Given the unsatisfactory explanations for not calling these witnesses, the court concluded that it should entertain a reasonable doubt about the guilt of TD.

The court found that the complainant’s identification of TD was not reliable enough to convict him beyond reasonable doubt. The failure to call material witnesses who could have clarified the complainant’s identification further undermined the reliability of her evidence. The court concluded that there was a reasonable doubt about the defendant’s guilt, and thus found TD not guilty.

Orders