DISTRICT COURT OF QUEENSLAND
CITATION:
R v Green [2022] QDC 36
PARTIES:
THE QUEEN
v
GREEN
(Defendant)
FILE NO/S:
1295/21
DIVISION:
Crime
PROCEEDING:
Judge Alone Trial
DELIVERED ORALLY ON:
9 February 2022 (ex tempore reasons given)
DELIVERED AT:
Brisbane
HEARING DATES:
8 February 2022, 9 February 2022
JUDGE:
Farr SC DCJ
VERDICTS:
Count 1: Not Guilty
Count 2: Not Guilty
Count 3: Not Guilty
Count 4: Not Guilty
Count 5: Not Guilty
Count 6: Not Guilty
CATCHWORDS:
CRIMINAL LAW – SEXUAL OFFENCE – ATTEMPTED INDECENT TREATMENT OF A CHILD – JUDGE ALONE TRIAL – where the defendant is charged with 3 counts of attempted indecent treatment of a child under 16, under 12 and under care – where the defendant pleaded not guilty – where a judge alone trial was conducted – where defendant did not attempt to unlawfully procure the child to commit a sexual act – whether charges proved beyond reasonable doubt – findings of not guilty
CRIMINAL LAW – SEXUAL OFFENCE – INDECENT TREATMENT OF A CHILD – JUDGE ALONE TRIAL –where the defendant is charged with 2 counts of indecent treatment of a child under 16, under 12 and under care – where the defendant pleaded not guilty – where a judge alone trial was conducted – where complainant is inconsistent in her evidence –whether charges proved beyond reasonable doubt – findings of not guilty
CRIMINAL LAW – SEXUAL OFFENCE – SUPPLY DRUG WITH THE INTENT TO STUPIFY – JUDGE ALONE TRIAL – where the defendant is charged with 1 count of administering to a person, or causes a person to take, a drug or other thing with intent to stupefy or overpower the person to enable a sexual act to be engaged in with the person – where the defendant pleaded not guilty – where a judge alone trial was conducted – where complainant is inconsistent in her evidence –whether charges proved beyond reasonable doubt – finding of not guilty
Criminal Code 1899 (Qld), s 210, s 218
R v DAH (2004) 150 A Crim R 14
Woolmington v The Director of Public Prosecutions [1935] UKHL 1
COUNSEL:
J Shaw for the prosecution
D Caruana for the defendant
SOLICITORS:
Office of the Director of Public Prosecutions for the prosecution
Rostron Carlyle Rojas for the defendant
This is a judge alone trial following an order made pursuant to section 615 of the Criminal Code of Queensland. Section 615B states that in such a trial, the judge must apply the same principles of law and procedure as would be applied in a trial before a jury.
The defendant is charged with the following offences: two counts of attempted indecent treatment of a child under 16 under care, one count of procuring a sexual act by administering a drug and two counts of indecent treatment of a child under 16 under care. The particulars for each of those charges have been provided by way of a particulars document which has been marked A for identification, and I therefore do not need to go through the particulars again in the course of these reasons.
The defendant says that he is not guilty to each of these charges. My role is to determine on the evidence whether he is guilty or not guilty of each offence. The evidence is what the witnesses said from the witness box or via audiovisual link or by telephone, plus the pre-recorded police interview with the complainant and the pre-recorded evidence of the complainant as well as the exhibits which have been tendered during the course of the trial and the admissions that have been made. I have not learnt anything of this matter from outside the courtroom.
The burden rests on the prosecution to prove the defendant’s guilt in respect of each charge. There is no burden on the defendant to establish his innocence. He is presumed to be innocent. He may be convicted only if the prosecution establishes he is guilty of an offence the subject of a charge. To do that, the prosecution must prove beyond reasonable doubt that he is guilty. Therefore, before I could convict of any count, I would need to be satisfied that each and every element of the offence under consideration has been proved beyond reasonable doubt.
I do not have any feelings of sympathy for or prejudice against the complainant or the defendant or any other person involved in this matter. The credibility of the complainant and the reliability of her evidence is a matter of critical importance in deciding this matter, and I note that I can accept or reject all of a witness’s testimony or part of it.
In relation to the prosecution case, the Crown have acknowledged that it rests heavily on the evidence of the complainant. She was 12 years old at the relevant time and 15 years old by the time of her pre-recorded evidence. The defendant was in a relationship with her mother at the time these offences are said to have taken place. The offences are alleged to have occurred on just the one weekend. The complainant did not live with her mother but on the weekend in question was visiting her mother at her mother’s residence. Her mother at that time lived with the defendant and their infant child.
On the Saturday morning after breakfast at a fast food chain, the defendant and the complainant and the infant child returned to the defendant’s home whilst the complainant’s mother went elsewhere. Soon after arriving home at around 9.30 am, the defendant allegedly offered the complainant $70 to show him her body parts or for a lap dance or to twerk, which is a kind of sexualised dance. She declined that alleged offer. He then offered her a tablet of an unknown type of drug and then forced her to take it by holding his hand over her mouth with the tablet in her mouth until she swallowed it. In her section 93A statement to the police, the complainant said that he then gave her $70 and said that if she told her mum, he would make her mum hate her. She said that the tablet made her sleepy, and she went to lie down on her mother’s bed at about 6 pm.
At 11 pm to 12 midnight, she awoke on her back with her pyjama shorts and underpants pulled down below her knees, with her legs over the defendant’s shoulders and with him licking her vagina. She said that he asked her if it felt good, and she said no and said to him, “Can you get off me now?” She testified – or she said that he then pulled the waistband of his shorts down just to the top of – just so that the top of his pubic hair was visible, and he said to her “to suck it”. She did not see his penis. She said he also lifted his shirt up, exposing his chest and told her to lick one of his nipples, and she said no. He then asked if she wanted him to sleep with her, and she said no, and he left the room soon thereafter.
The complainant said that she then almost immediately rang a friend, not realising at that time what time it was, believing it was morning. It was only a brief phone call to that friend. She did not complain to that friend during that phone call about what had just happened. She said that she then went to the kitchen and made herself a bowl of breakfast cereal and at that time saw the defendant lying in a makeshift bed on the floor in a downstairs room with her mother and the infant child. She then returned to her mother’s room where she stayed for the remainder of the night. She said that the next morning the defendant told her not to tell her mother about what he did to her the previous night. She also said somewhat differently to her earlier statement to the police that it was at this time that he gave her the $70.
In her section 21AK pre-recorded evidence, the complainant added to her account of that night’s events and said that she at that time remembered that when she woke up on the night in question and when the defendant was licking her vagina, he asked if she liked it or if it felt nice, and she said that it did or that – or she did but that she then fell back asleep. She said that she then awoke a second time and that he was at that time licking and biting her vagina. Some months later, the complainant told a number of people about that weekend’s events, and the remaining witnesses have given their accounts of those conversations. The defendant did not give evidence.
The Crown has submitted that the complainant was an honest, reliable and trustworthy witness, that any inconsistencies were reasonably minor, that she did not embellish her evidence, that she made appropriate concessions and that she gave detailed evidence. It was submitted that any inconsistency between her evidence and that of the preliminary complaint witnesses was relatively minor or potentially due to the failings of memory or of understanding on the part of the preliminary complaint witnesses. The Crown submits that I would be satisfied that each of the elements of each of the offences have been proved beyond reasonable doubt and that I would convict in respect of each offence.
The defendant submitted that the complainant was an unreliable, inconsistent witness whose story developed as time passed, who delayed in making a timely complaint, who initially thought she had dreamt everything and who was inconsistent in important respects in the complaints that she made to others. And it is submitted that for this combination of reasons, I would be left with a reasonable doubt as to whether any of the alleged events occurred.
So I turn now to some issues of law. I have referred to the charges that the defendant is facing. There was a sixth charge which is count 1 on the indictment. I have already acquitted in respect of that charge. That charge itself is no longer before me and therefore has no relevance to my consideration of the case. The alleged factual behaviour the subject of that charge, though, is still potentially of relevance as it would now fall within the category of what is commonly referred to as discreditable conduct, and I will turn to that in just a few minutes.
As I have indicated, the defendant did not give evidence in this trial, nor did he call evidence, and that is his right, and he is not bound to give or to call evidence. He is entitled to insist that the prosecution prove the case against him if it can. The prosecution bears the burden of proving his guilt beyond a reasonable doubt in respect of each of these charges, and the fact that he did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct, and I may not use it to fill any gaps in the evidence led by the prosecution. In fact, it proves nothing at all, and it does not add in any way to the case against him. I will not consider it at all in deciding whether the prosecution has proved its case in respect of each of these charges beyond a reasonable doubt, and of course, it does not change the fact that the prosecution retains the responsibility to prove the defendant’s guilt in respect of each charge beyond reasonable doubt.
As I have already indicated, separate charges have been preferred, and I must consider each charge separately, evaluating the evidence relating to each particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements, and of course, the verdicts need not be the same for each of these charges. I note, though, that if I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more of these counts whether by reference to her demeanour or for any other reason, then I must take that into account in assessing her truthfulness and reliability generally.
My general assessment of the complainant as a witness will be relevant to all counts, but I will need to consider her evidence in respect of each count when considering that particular count. It may occur, of course, that I have a reasonable doubt in respect of one of these counts, and if that occurs, then, of course, it would result in an acquittal. That does not necessarily mean, though, that I cannot convict of any other count, but I would have to consider why I had some reasonable doubt about that part of her evidence and then consider whether it affects the way that I assess the rest of her evidence.
The Crown relies on the evidence of each of these charges acts, though, as evidence that the defendant had a sexual interest in the complainant and was willing to give effect to that interest, and if I am satisfied beyond reasonable doubt of a particular offence, then that finding may make it more likely that the defendant committed other offences charged in the indictment. If I am satisfied beyond reasonable doubt that the defendant committed a particular offence, then I must consider whether I can conclude that the defendant had a sexual interest in the complainant, and if so satisfied, I may use that finding in considering whether the defendant committed the other offences charged.
I acknowledge that the evidence of each charged act must not be used in any other way, and it would be wrong to reason that because the defendant committed one offence that he is, therefore, generally a person of bad character and for that reason must have committed the other offences. The law is that if based upon a conclusion that the defendant is guilty of a particular offence I am satisfied that the defendant had a sexual interest in the complainant, it does not inevitably follow that I would find him guilty of the other counts on the indictment. I must always decide whether having regard to the evidence relevant to any particular count whether the offence charged has been established beyond reasonable doubt.
I have mentioned that there were a number of witnesses who gave what is commonly referred to as preliminary complaint evidence. I will not go through the details of their evidence. It was reasonably brief in compass, and the witnesses are known to the participants in this trial. The evidence from those witnesses may only be used as it relates to the complainant’s credibility. Consistency between each of the accounts of those witnesses and the complainant’s evidence before the court is something that may be taken into account as possibly enhancing the likelihood that her testimony is true, but I cannot regard the things said in those out of court statements by the complainant as proof of what actually happened, and I acknowledge that what was said in those out of court statements does not independently prove anything.
Likewise, any inconsistencies between any one or more accounts of those other – of those preliminary complaint witnesses as to the conversations with the complainant and the complainant’s evidence may cause me to have doubts about the complainant’s credibility or reliability, and whether consistencies or inconsistencies impact on her credibility or reliability is a matter for me. Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for me to consider in the course of my deliberations. But I acknowledge that the mere existence of inconsistency does not mean of necessity I must reject the complainant’s evidence, and I accept that some inconsistency is to be expected whenever someone is asked to repeat on different occasions what has occurred.
As I have already indicated and as both counsel have acknowledged, the Crown case rests very heavily on the evidence of the complainant. There is no case without her evidence. In my view, the complainant presented as an unreliable witness. Her section 93A statement did not include any allegations of (a) her telling the defendant that she liked what he was doing when he was licking her vagina or that it felt nice, nor (b) that she fell back to sleep after saying that, nor (c) that he was biting her vagina some time after she awoke a second time causing her some degree of pain. This is inconsistent with evidence she gave in her pre-recorded evidence – well, in her section 93A statement.
She also did not allege in the section 93A statement or in the section 21AK pre-recorded evidence that she kicked the defendant in an act of resistance, yet I note that she told a number of the preliminary complaint witnesses that she did just that. Furthermore, in her section 93A statement and in her pre-recorded evidence, she said that the defendant left her room after the event ended and went to bed downstairs alongside his fiancé, her mother, yet she told many preliminary complaint witnesses that she, in fact, went to where her mother was sleeping after this event had finished and that she laid down next to her. In fact, in both the section 93A statement and the pre-recorded evidence, she said that she rang a friend immediately after the defendant left her room, believing it was morning when, in fact, it was 11 – somewhere between 11 to 12 o’clock at night, and that she then went to the kitchen and, as I have said, made herself a bowl of breakfast cereal.
A further inconsistency is apparent when one considers the complaint evidence given by her father where he testified that the complainant told him that the defendant used his hands only or put a hand down her pants or was handsy, to use various terms that were referred to by the witness, who indicated that he could not remember the exact words that were used. I accept that he was correctly recalling the effect of what she told him, and that is spectacularly inconsistent with her evidence on a central issue. Additionally Senior Constable Mair gave evidence that the complainant told her that she had told the defendant that she had a headache at the time in question and it was only then that the defendant gave her a tablet. Now, that is not evidence that she has given in her pre-recorded evidence or something she mentioned in her police statement.
On the issue of tablets, there is the further inconsistency that she told one of her grandmothers that the defendant gave her tablets, that is, plural. Again, that witness was in no state of uncertainty as to what she was told, and I accept that she was giving evidence accurately to the best of her ability. Adding further to the unsatisfactory nature of the complainant’s evidence is her testimony that the request for the lap dance and the provision of the tablet occurred in the morning just after 9.30 am, soon after returning from having breakfast at McDonald’s, yet on her own account, her sleepiness that she inferred was as a consequence of taking that tablet did not kick in till about 6 o’clock that evening. Finally, in relation to the evidence regarding that tablet, even on her own account, the defendant did not behave sexually towards her after she took it for some five to six hours after she fell asleep, which in turn on her own evidence would be some thirteen and a-half to fourteen and a-half hours after taking it. All of this is inherently improbable.
Adding to the difficulties that this prosecution case faces is the fact that there is no supportive forensic evidence, no admissions or statements against interest by the defendant and no eyewitnesses. Whilst the absence of such evidentiary features is quite common in cases like this, the unsatisfactory quality of the evidence given by the complainant is, therefore, not independently supported in any way.
Overlaying all of this inconsistency is the complainant’s evidence that, at first, she thought she had dreamt all of this and only realised that it actually happened when – at first, she said, when the defendant offered her money the next morning and threatened to keep her quiet – or threatened her to keep quiet, effectively indicating that the money was a bribe. As I have already stated, there was some inconsistency as to when she was given the $70. But in addition to that, in her pre-recorded evidence and, in fact, evidence-in-chief, she testified that she thought it was all a dream until that next morning her mother, it seems, rather remarkably coincidentally told her that she could always tell her mother if the defendant ever touched her. So there were two different stories given in that regard, all of which is demonstrably inconsistent with her being a reliable witness.
There was even inconsistency between her evidence as to whether she was allegedly given $70 or $50 as was attested to by a number of preliminary complaint witnesses as to what they were told by her. The complainant has also testified that further memories of these events have come to her since as a consequence of experiencing flashbacks and that her memory is improving. In fact, she said:
Yeah. I just put my thought in it a lot, and I just – I don’t know. I just think about it a lot, and then I just get flashbacks.
She has also been inconsistent by not telling any of the preliminary complaint witnesses that he bit her vagina, yet I note that she told a number of them that she kicked him in an act of resistance, something that she has not said in either her section 93A statement or her pre-recorded evidence. I note also in relation to count 2, in addition to the inherent improbability of what she has said, there is no expert testimony before the court that would in any way attempt to explain a potential type of drug that might act in such a way.
The consequence of these evidentiary features leaves me with a reasonable doubt as to the truthfulness and the reliability of the complainant and in a state of reasonable doubt as to whether the events the subject of these charges, in fact, occurred. In fact, in relation to count 2, not only am I not satisfied beyond reasonable doubt that the defendant gave her a tablet, but even if I was so satisfied, I am not satisfied that he did so with intent to stupefy to enable a sexual act to be engaged in, given the passage of time between the consumption – the alleged consumption of the tablet and the alleged effect of it and the alleged sexual offending.
I should also say that in relation to counts 5 and 6, even if I was satisfied beyond reasonable doubt that he told the complainant to suck his penis in relation to count 5 or lick his nipple in relation to count 6 and pulled the waistband of his shorts down to reveal the top of his pubic hair relating to count 5 or lifted his shirt to reveal his nipple in relation to count 6 – that that would amount to an attempt within the meaning of that term. An attempt to commit an offence has a meaning at law, as one would expect. It seems to me that it is simply an act or acts preparatory to the commission of a crime but could not be considered to have extended beyond that.
Now, I have indicated my view in relation to the nature of the evidence. It becomes of less significance given my view of the reliability of the complainant, but nevertheless, I am still required to identify in relation to each of these charges the elements of the offences with which this matter is concerned. So I will briefly do that now. Dealing with counts 3 and 4, the elements are (1) that the defendant dealt with the complainant, which, of course, means it includes a touching of the child; that the dealing was indecent, and I acknowledge the word “indecent” bears its ordinary, everyday meaning and is what the community regards as indecent and it is what offends against currently accepted standards of decency and indecency must always be judged in the light of time, place and circumstance; (3) that the dealing was unlawful, meaning it was not justified, authorised or excused by law; and that the complainant was under 16 years.
As I have indicated, the real issue in this trial is whether I am satisfied beyond reasonable doubt the event the subject of each of these two charges took place. The charges also contain a circumstance of aggravation that the complainant was under the care of the defendant, and there is no dispute that at the relevant time she was, and I do not need to take that further.
In relation to count 2, the elements are that (1) the defendant caused the complainant to take a drug and (2) did so intending to stupefy her so as to enable a sexual act to be engaged in with the complainant. Therefore, proof of intention to stupefy the complainant so as to enable a sexual act to be engaged in with her is an element of the offence. Accordingly, the prosecution must prove beyond reasonable doubt that the defendant meant to produce such a result by his conduct.
The remaining two charges 5 and – or counts 5 and 6 are counts that involve the element of attempt. Under our law, a person – if a person attempts to unlawfully procure a child to commit a sexual offence, for instance, or a sexual act, he commits an offence. For someone to be attempting to commit such an offence, that person must intend to commit that offence. Someone who is attempting to bring about a certain result must be meaning to do so at the time of engaging in the conduct when the prosecution says there was an attempt to commit the offence. This intention on the part of the defendant must be proved by the prosecution and must be proved beyond reasonable doubt. A mere intention to commit an offence does not matter if the defendant had not started to put his intention into effect by conduct, that is, some act or acts by him which were directed to achieving the defendant’s purpose. Further, the defendant’s conduct must have been something which if anyone had been watching would have made the defendant’s purpose clear.
The prosecution must prove beyond reasonable doubt that there was something done by the defendant which was conduct of the kind which I have just described. I must be satisfied beyond reasonable doubt that what he was doing was what the prosecution alleges he was doing. I then would have to consider whether by that conduct he had begun to put his intention into effect or whether the conduct would make it clear to someone watching that the defendant had the purpose which the prosecution alleges. It is unnecessary, of course, for the prosecution to prove that the defendant did everything which he could have done to bring about the intended result.
And the argument for the defendant is that, firstly, I would not be satisfied that the event occurred as alleged, but alternatively, even if I was, that what was done or alleged to have been done was at the most merely preparation ahead of any attempt to commit the offence, so that when the defendant was doing the things, he was not then in the process of attempting to bring about the outcome desired. Our law recognises that merely doing something to prepare for the commission of an offence is not of itself an attempt to commit the offence, and it is up to me to assess whether I am satisfied beyond reasonable doubt that the defendant’s acts went beyond mere preparation.
Of course, the attempts relate to the charge of attempting to procure the child to commit a sexual act, and in that regard, it must be proved that the defendant attempted to unlawfully procure a child. “Procured” means to bring about. Procuring can be regarded as bringing about a course of conduct which the complainant would not have embarked upon of her own volition. “Unlawful” has the same meaning that I have already referred to. “To commit an indecent act” is the second element. “Indecent”, again, bears the same meaning that I have already referred to. Again, it must be proved that the complainant was under 16 years of age. There is no dispute that she was under 16 years of age when these things allegedly occurred. So those are the elements relating to those offences.
So having said all of that, it is quite apparent, no doubt, that I am not satisfied beyond reasonable doubt that each of the elements of each of these offences have been proved and that I accordingly find the defendant not guilty in respect of each of counts 2 to 6 inclusive, and the defendant is discharged in respect of the counts contained on this indictment.