R v Brown

[2020] ACTSC 156

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Brown

Citation:

[2020] ACTSC 156

Hearing Date:

15 June 2020

DecisionDate:

15 June 2020

Before:

Burns J

Decision:

See [8]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – disputed facts hearing – sexual intercourse without consent – act of cunnilingus admitted – whether two acts of digital penetration occurred

Parties:

The Queen (Crown)

Lee Brown (Offender)

Representation:

Counsel

S Janackovic (Crown)

C Watson (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aulich Law (Offender)

File Number:

SCC 325 of 2019

BURNS J:

1. The offender, Lee Brown, was arraigned before me this morning on one count of engaging in sexual intercourse without consent in 2007 (CAN 1642/2019). She entered a plea of guilty to that charge. That charge was on an indictment dated

   
   

   18 December 2019. The indictment, as filed by the Crown, contained four counts. However, the offender pleaded guilty to the second count on the indictment and the Crown indicated that it accepted the plea of guilty to that count in full satisfaction

   
   

   of the indictment.

1. It was noted in the Statement of Facts, which was tendered as Exhibit 1, that there was a dispute as to the facts. In essence, the offender admits that there was an incident which occurred on or about 10 January 2007 in which she engaged in sexual activity constituted by kissing and ultimately by cunnilingus with the complainant. She disputes the Crown’s assertion that there were, in addition to the act of cunnilingus, two incidents of digital penetration during the same incident.

1. Evidence was called by the Crown in support of the facts as it asserted them. Evidence was called from the complainant. She presented, in my opinion, as an honest witness. There was nothing about her evidence or presentation which would lead me to doubt her word. Evidence was then called from the offender. Again, there was nothing about the evidence that she gave or the way in which she gave it that would lead me to conclude that she was lying.

1. The Crown criticised the evidence of the offender on the basis that there had been an improvement in her memory of events over time and, in particular, between the

   
   

   Record of Interview conducted with the offender and New South Wales police on

   
   

   10 August 2017 and the Record of Interview conducted between the offender and

   
   

   ACT police on 20 September 2018. I note in that regard that it is important to analyse the structure of the New South Wales interview.

1. My observation of that interview was that the offender was not asked for detail in relation to the alleged instances of sexual activity between her and the complainant.  By and large, allegations were put to her and she was asked to comment upon them.  Some she commented upon at greater length than others, but she was never, in my view, asked about the details of those allegations.

1. There were aspects of the offender's version of events that gave me some concern. The offender's version in the Records of Interview that were conducted with police, and to a certain extent in her evidence before the Court today, tended to present the complainant as the instigator or the mover with regard to the sexual conduct between them. I am not satisfied that that is necessarily indicative that the offender is lying about what physical acts occurred. I note that she has consistently denied the allegations of digital penetration on this particular occasion.

1. The other matter that concerned me is that there is reason to believe that the offender attempted to minimise her conduct regarding her sexual activity with the complainant in her interview with New South Wales police. This is perhaps demonstrated by the fact that she entered pleas of guilty in the NSW District Court to offences based upon an Agreed Statement of Facts containing matters that she denied in her New South Wales police interview. Some explanation has been given for that by the offender in her evidence today. 

1. It has been conceded by the prosecution, and properly so, that in order for me to make any finding of fact adverse to the offender, I must be satisfied of that fact to the standard of beyond reasonable doubt. If I were sitting in a civil court where I was required to make a finding based upon what probably happened, I would say that it probably happened as described by the complainant. However, I find that I am unable to be satisfied beyond a reasonable doubt that the two instances of digital penetration occurred as described by the complainant.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate: Sophie Hewitt

Date: 29 June 2020