Cairns rape trial judge retires to consider verdict
A judge has retired to consider whether a teenager who held a man at knifepoint during a Cairns home invasion is also guilty of raping the man's partner.
The judge-only, three-day trial in the Childrens Court of Queensland, sitting in Cairns, hinged on one question: whether the boy heard a co-offender tell the woman he intended to sexually assault her.
The defendants and victims cannot be identified for legal reasons.
Evidence heard in closed court by Judge Joshua Treviño KC included pre-recorded evidence from the couple and the boy, as well as evidence from police.
The teenager was one of three boys who broke into a home in the Cairns suburb of Manunda about 3am on February 21 last year.
The couple were woken by burglars in their bedroom.
The court heard while the defendant held the man at knifepoint, his two co-accused took the woman to other parts of the house and raped her multiple times.
The two co-accused have pleaded guilty to rape, and their cases remain before the courts.
The defendant has pleaded guilty to six charges, including stealing, going armed in company and detaining the couple in their home, but has pleaded not guilty to five counts of rape.
Manunda is an inner suburb of Cairns, Queensland. (ABC News: Conor Byrne)
Police interview played in court
Yesterday, the court was shown the boy's police interview after his arrest, in which he appeared shocked when Detective Senior Constable Damon Smalley told him the details of the rape.
"I did not know anything about that. I was in the room with the other person and holding him in the room," the boy said.
When Senior Constable Smalley, from the Police Child Protection and Investigation Unit, asked whether he had at any point tried to stop anything happening to the woman, the boy replied: "No."
Damon Smalley leaves Cairns Courthouse after a video of his interview with the defendant was shown in the Queensland Childrens Court trial. (ABC News: Conor Byrne)
Defence barrister Timothy Grau argued his client never intended to be involved in a sexual assault and instead believed his co-offenders were only robbing the woman.
He told the court the boy either did not hear or did not understand what one of his co-accused said about the woman before she was led from the bedroom.
"At that point, that she's being removed from the bedroom to leave the room, at that point the conversation, it's about [stealing] wallets and money," Mr Grau said.
"So, the purpose of his detention … is a robbery."
The court also heard the boy believed he would be stabbed by his co-accused if he did not detain the man.
Timothy Grau (left) argued his client failed to hear and understand his co-offenders would rape the victim. (ABC Far North: Conor Byrne)
Crown case
Crown prosecutor Nicole Friedewald told the court her case relied on the evidence of the woman's partner.
She said the man heard one of the co-accused say he intended to sexually assault the woman as she was led from the bedroom at knifepoint to get her wallet.
The court heard the boy was told to get a knife from the kitchen and hold the man in the room.
"The suggestion he did not hear that statement … and did not respond to it, as [the man] has given evidence, defies logic and belief," Ms Friedewald said.
The trial included lengthy exchanges between the judge, prosecution and defence over how the rape charge would or would not apply to someone who had no physical contact with the victim.
Ms Friedewald argued the boy was criminally responsible under Section 7 of the Queensland Criminal Code, because he aided and enabled the rapes by keeping the woman's partner from stopping them.
"He was, in those circumstances, the only person who could have intervened, who could have protected that complainant, and he was prevented by this defendant from doing so," she said.
Joshua Treviño is presiding over the judge-only trial in the Cairns Courthouse. (ABC Far North: Brendan Mounter)
Her alternative argument relied on Section 8 of the code, which says those who share a common intention to carry out an unlawful purpose can be held responsible for offences committed along the way.
She also pointed to provisions of the Evidence Act 1977, recognising that people involved in non-consensual sexual activity may give differing accounts and respond in different ways, and that victims do not need to have been physically injured or threatened.
Judge Treviño told the court he intended to reach a decision as soon as possible.
The Queensland government added rape to its adult crime, adult time reforms three months after the offending alleged in this case took place.
KioskNews shows a cleaned-up reading view extracted from the publisher’s page — the original always lives on their site, not ours.