R v Bell [2025] QDC 216

I should go back to page 8 where the Complainant clearly described having been at school on the day when this incident happened. At page 12 of the transcript he describes, at the end of all of these interactions, hugging the defendant and saying "sorry" for reasons which he himself did not seem to understand.

At page 15 of the transcript of the police interview he clearly described his version that on the occasion when he was home from school, apparently unwell from COVID, he received no visit and thus there was no opportunity on that occasion for the offence to have occurred. His mother's evidence, and to some extent his father's, confirms, however, that on the day when the offence allegedly happened Cooper had been at home, and not only was she clearly aware of that as his mother, but also when conversations, including the complaint of the offence happened that evening, Cooper was wearing boxers and a singlet.

In his evidence in the pre-recording, including his cross-examination, Cooper gave some more details of the alleged offending. He referred to it occurring on a day when he went to school. As I have explained, he, having complained of the offence within hours of its occurrence, and that complaint being received by the parents on the evening of the 4th of May, it simply cannot have been a day when he went to school. He underlined this by saying that he was wearing school shorts consistent with going to school. Again, contradicted by his mother who says he was wearing boxers and a singlet. Importantly, he describes in his evidence that Mr Bell came to the house five times that day, and it was on the fifth of those occasions that the offence happened. The evidence external to the Complainant in the Crown case, and accepted by both parties in the trial, is clear evidence from the recording obtained from the ring doorbell camera that, in fact, Mr Bell only went to the house once that day and was inside the house for nine minutes. Indeed, the same device recorded an event on the previous afternoon, the 3rd of May, when Mr Bell had indeed driven the children home, presumably from school. So the clear evidence is that on the 4th of May, the particularised day of the offence, there was no fifth occasion and, therefore, again, no opportunity for the offence to occur.

There are various other problems with the evidence of Cooper. Without going into detail, because they are slightly peripheral to the application I am presently determining, those problems include inconsistency as to whether the defendant's mouth ever came into contact with his penis or, indeed, his penis was bitten on some occasion, and that has been a glaring inconsistency.

Perhaps more concerningly, Cooper has admitted on several occasions lying during his evidence, including lying about matters that he had only briefly prior to that stated during his evidence. It is also clear that he admits that when he was in trouble at school in 2022 for a violent incident where he kicked out a tooth from a school mate's mouth, that when taken to task about that violence, he lied and falsely accused that child of committing a sexual offence against him, a particularly concerning lie in the context of the present examination of the facts in this case. Thus the creditworthiness of the Complainant is, in my view, somewhat irredeemably damaged, but as I have been at some pains to analyse, that is not central to the determination of this application.

Returning again to the quote from Doney, the matters relating solely to credit fall into the first category, namely, they form part of evidence which might be tenuous or inherently weak or vague but can, nevertheless, be taken into account by a jury in its deliberations and if the evidence is capable even in the small nuggets where the Complainant does say that the defendant touched him, if such evidence is capable of supporting a verdict of guilty, then the matter must be left to the jury for its decision.

The substantial problems with the Complainant's creditworthiness aside, the problem is, in my conclusion, more basic here. In my view, the evidence in the Crown case does result in the conclusion that there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty, and in those circumstances a verdict of not guilty should be directed.

The reasons for that are, as I have hopefully been cataloguing, that Cooper really gives evidence of a narrative that may be capable of describing two very separate occasions on which this alleged offending could have occurred. The Crown have sensibly and necessarily adopted the second of those, the 4th of May, as being the particularised date of the offence. Without repeating them, I have been through the reasons why it is simply not possible on Cooper's evidence for there to have been an opportunity for the offending to occur on that day.

Likewise - and no doubt for these reasons, the Crown did not seek to rely on the 3rd of May as the particularised offence date - there are irrefutable reasons why the offence could not have occurred on the 3rd of May. Thus problem is deeper and more basic than there simply being evidence which might be tenuous or inherently weak or vague but nevertheless results in the conclusion that the matter should still go to the jury.

Where the evidence of Cooper as a whole, although he gives evidence of an offence, excludes the opportunity to commit the offence, then it does fall into the category of cases where there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

I have also had the benefit of my memory being refreshed about Purcell v Venardos, which I think is actually in the Queensland Reports, but I have an unreported version. It's appeal number 190 of 1995, and the judgment was delivered on the 14th of February 1996. Amongst other observations from that decision, there was reference to R v Schwarten; ex parte Wildschut [1965] Qd R 276 and, importantly, I think, in Schwarten there is reference, as recorded at page 8 of Purcell v Venardos, to the impossibility, in assessing whether or not a prima facie case exists, to ignore, at least to a degree, assessment of credibility and reliability of central witnesses.

Purcell v Venardos was a case where the judge at first instance, and on appeal, concluded that there was no evidence that any one of the applicants in that case was detained or deprived of his liberty against his will, and in that circumstance it was right for the magistrate to have discharged the proposed defendants at the committal.

This really, for the reasons that I have been at some pains to analyse, falls into a similar category. It is not the case that there is no evidence in this trial that an offence was committed. On more than one occasion Cooper says that it was. What is, however, missing completely is any proof of an occasion where that accusation could possibly be true, and that is why I reach the conclusion that the evidence, taken at its highest, will not sustain a verdict of guilty. My conclusion is thus that the trial ought not to proceed, and the two possibilities are that the prosecution could enter a nolle prosequi or it could be a directed verdict. Do you have any instructions about that, Mr Hall?

MR LONGHURST: We seek a directed verdict, in any event.

HIS HONOUR: Well, if Mr Hall doesn't have any instructions, that's the appropriate course.

MR LONGHURST: There's a bench book direction on it, your Honour.

HIS HONOUR: Yes, there is, I think. Okay, yes. It's direction 14 in the bench book, and unless someone wants me to do something else, I'll do that now.

HIS HONOUR: Okay. Madam Bailiff, could you ask the jury to come in, please.

BAILIFF: Jury present and correct, your Honour.

HIS HONOUR: Thanks, Madam Bailiff. Ladies and gentlemen, I've just got a few things to say to you, but you might be relieved to find out that you're going to have an earlier day than you thought.

What's happened is this, as occasionally happens, at the close of the prosecution case I was called upon to decide as a matter of law whether there is evidence on which you could return a verdict of guilty of the indecent treatment of a child under 16 in this case. The way in which I was called upon to decide that I emphasise is as a matter of law. It's in no way intruding upon your province of determining the facts of the case, and that's why this kind of thing doesn't come up every day, but it comes up occasionally.

I have concluded that there is no evidence on which you could find beyond reasonable doubt that the defendant is guilty of that offence, and I'll just explain briefly the scenario which has resulted in that conclusion. The essential problem for the prosecution is that, on the evidence in the case, although Cooper says it happened at some stage, there is no identified opportunity when it could have happened.

So, in brief, to canvass some of the evidence, in his police statement he said at page 4 that, "Jeremy broke my heart." On page 5 he said that he put his hands in his pants. That's a complaint of the offence. But he also said that he walked home from school that day with his sister. For reasons that I'll come to in a minute, that's just completely wrong. It could not have happened. On page 7 of that transcript he said that on the same day, that is the day of the offence, he went to the shop. That's quite wrong. The day of the shop visit was the 3rd of May. The Crown have particularised, and are stuck with it, this offence allegedly happening on the 4th of May, the following day.

At page 8 of that police transcript he confirmed that he was at school that day. He was not at school on the 4th of May. He again complained of the offence at page 10 of that transcript and on page 12, for reasons which are quite obscure, and don't really matter, he describes himself, for unknown reasons, hugging Mr Bell and saying that he, Cooper, was sorry.

Importantly, at page 15 of that transcript, he did recall an occasion when he had been home sick from school, which his mother described and, as I'll come to in a minute, was the 4th of May, and he clearly said that on that day when he was home from school, he got no visits from anyone, including the defendant.

So that brings to the evidence which was pre-recorded. He said in his evidence that it happened on a day that he went to school, and that's not the 4th of May. He said, importantly, and Mr Longhurst pressed him on this, that part of that picture was that he was wearing his school shorts. Importantly, he said that that afternoon, after he'd been at home, and Mr Bell started to come over and visit, curiously Mr Bell came five times, and it was the fifth occasion that this allegedly happened. In fact we know a few other things. Firstly, Cooper's mother confirms that he was at home on the 4th, not at school. Secondly, she has him wearing boxers and a singlet that day, not the school shorts. Perhaps most importantly we know, and both parties accept that this is true, from the recording from the ring camera that on the 4th of May Mr Bell only went to the house once, not five times, so there was no fifth time. So on that occasion there was no opportunity for the offence to have occurred. Okay.

So just so you understand, and I hope you don't think, and I'm certainly at pains not to usurp your fact finding obligations and duties in this case, the way in which the High Court has analysed this problem in the leading case, which was back in 1990, requires a trial judge to leave a weak case to the jury if it's tenuous or inherently weak or vague but there might be evidence that's capable of supporting a verdict of guilty. However, in the case where, as a matter of law, there's a defect such that, taken at its highest, it will not sustain a verdict of guilty, then the obligation of the trial judge, in conducting the trial according to law, is to direct a verdict of not guilty.

Here the incurable flaw is that in the evidence, even though at times Cooper has said that the offence happened, his evidence just does not describe an occasion when it could have happened. This is apart from the many other problems which, if the trial had proceeded, that you would have received submissions about which are serious problems with his credibility. I'm not personally attacking him, but he admitted lying about a lot of things on a lot of occasions, including making a false sexual complaint about the boy that he kicked the tooth from previously. So all of those would have been major problems for the Crown anyway, but that's not the reason this conclusion is reached. Right. This is a legal conclusion that the Crown case, at its highest, lacks evidence of opportunity and that's a fatal flaw.

So I hope that's made that moderately clear. I've probably convinced you that lawyers can be long winded. All of this means - my conclusion means that you will not be retiring to consider your verdict in this case. Instead, I am directing you, which is one of my powers, that as a matter of law you must return a verdict of not guilty in this case. The verdict must come from you, but you have no choice in the matter, because it's a direction of law that I'm empowered to give you.

So we've come to that point. My Associate will ask you whether you find the defendant guilty or not guilty of the offence of indecent treatment of a child under 16, and through your speaker you must answer "not guilty". Would you take the verdict, please.

ASSOCIATE: Members of the jury, do you have a speaker? Members of the jury, are you agreed upon your verdict?

SPEAKER: Do you find the defendant, Jeremy William Bell, guilty or not guilty of one count of indecent treatment of a child under 16?

ASSOCIATE: Not guilty, your Honour. So says your speaker, so say you all?

HIS HONOUR: Thank you. Ladies and gentlemen, before you leave, can I thank you for your attention to the matter. As you've probably heard before, service on a jury such as this is an important community obligation and, indeed, a lot of people don't realise how important it is. Our democratic system of government in Australia and in Queensland depends on the central notion of the independence of the three arms of government, Parliament, the Executive and the Courts. One of the aspects of the independence of the courts is that no one can tell a court, including a jury, what outcome they desire in a matter. So in performing your sworn duties, as required pursuant to your obligations, you have performed a significant service for the people of Queensland, and on their behalf I thank you for it. So you're discharged now from any further service on this trial.

I imagine that your jury service probably continues at least till the end of the week, so it's at least theoretically possible that you could be called in again, although it's probably pretty unlikely, but I'll ask you to keep your eye on your normal means of communication with the Court to see if you're further required. Thanks again, and you can go with Madam Bailiff now. Thank you. So, Mr Longhurst, your client's discharged.

HIS HONOUR: Is there anything else? Does anybody want the exhibits back or ‑ ‑ ‑

HIS HONOUR: Okay. If there's nothing else, then we'll just adjourn.