R v JAO[2025] QCA 44

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.
2. [2]
   BODDICE JA:  On 22 November 2023, a jury found the appellant guilty of one count of maintaining a sexual relationship with a child.  It was ordered that he be imprisoned for a period of three years.
3. [3]
   The appellant appeals his conviction and seeks leave to appeal sentence.  His stated grounds in the notice of appeal are:

1. “(a)
   The judge in his closing statement to the jurors reminded them not to convict on emotional passion but to convict on the facts of the witness statement.

2. The fact Senior Constable Ben Cox had made a police report entry stating that victim had admitted to making false allegations.

3. I was found guilty of not showing any remorse in my not guilty plea.”

4. [4]
   The first two grounds relate to the conviction appeal.  The last ground relates to the application for leave to appeal sentence.
5. [5]
   The appellant’s contentions on the appeal against conviction, both in writing and orally, were to the effect that the verdict was unreasonable and not supported by the evidence.  He relies on inconsistencies within the complainant’s account and inconsistencies between that account and other evidence called at trial.

Indictment

6. [6]
   The indictment alleged the appellant maintained a sexual relationship with a child, between 7 March 2016 and 9 March 2020.  The complainant child was the daughter of the appellant’s partner.  She was aged 10 to 13 years at the time.
7. [7]
   The count was particularised as maintaining an unlawful sexual relationship with the complainant, which included sexual acts, or conduct where the appellant would do one or more of the following:

   1. touching her on the vagina;
   2. tickling her on the vagina;
   3. showing her adult sex toys;
   4. explaining to her sexual concepts;
   5. giving her lubrication;
   6. touching and/or squeezing her breast/s; and
   7. making sexualised comments to her.
8. [8]
   At trial, the Crown accepted that showing the complainant adult sex toys, explaining sexual concepts, providing lubrication and making sexualised comments could not be sexual acts for the purposes of establishing the maintenance of a sexual relationship.  However, the Crown contended that those allegations constituted sexual conduct and behaviour towards or with the complainant, that was admissible as demonstrating sexual interest in the complainant, on the appellant’s part.

Trial

9. [9]
   The Crown called eight witnesses, being the complainant, her younger sister, two friends of the complainant, the complainant’s mother, two pastors from the complainant’s church and a police officer.
10. [10]
    The complainant’s police interview and that of her sister and two friends was recorded and tendered pursuant to s 93A of the Evidence Act 1977.  In addition, the complainant gave pre-recorded evidence pursuant to s 21AK of that Act.
11. [11]
    At the conclusion of the Crown case, a number of formal admissions were made as to dates of birth, motel bookings, vehicle registrations and the location of an adult shop in Warwick.
12. [12]
    The appellant elected neither to give nor call evidence.

Evidence

Complainant

13. [13]
    The complainant first spoke to police on 8 August 2020.  She said she had come to speak about her step-dad, the appellant, who liked to touch and talk to her about things he should not be speaking about to her.  It started around age nine or 10.  At that stage, she did not know it was not okay, as she had not been through sex education.  She was “letting him do it”.^[1]  Last year or the year before, he started touching her breasts.  It clicked in her brain that it was not okay.  The complainant described the appellant as a father figure and said he was quite nice.  She did not know her biological father very well.  When the appellant came into their lives, she was raised by him.
14. [14]
    The complainant said the last time the appellant touched her “down there” was when she was aged about 11 and a-half.  The appellant asked if he could come and tuck her in and when he did so, he touched her down there before leaving the room.  He always asked if she liked him to tuck her in.  She always said yes, until she went through sex education and realised it was not okay for him to tuck her in, in that way.  She started saying no every time he asked.  At the start of 2020, he stopped touching her because she would always try to be with somebody when he was around her.
15. [15]
    The complainant said that on her 13^th birthday (early 2020), the appellant was supposed to come to lunch.  They found out he had gone back to Brisbane to be with his daughter, instead of the complainant.  Even though he had done what he had done to her, she cried because he had ruined her birthday.  She said she had not told anybody, apart from her best friend.  She then told her second best friend and together all three went to see a pastor.  The pastor spoke to her mother.  Her mother then contacted police.  The complainant said her best friend was in grade 7.  They started prep together.  Her other friend she had known for three years.  Apart from those two friends, the pastor and her mother, the complainant had told one of her mother’s best friends and a therapist.  She had told the therapist days before the police interview.
16. [16]
    The complainant said, when asked by police to describe what she meant by touched her down there, “he would tickle me”.^[2]  Another name for “down there” was her vagina.  He would put his hand under the blanket.  He never put his hand inside her vagina.  The appellant started touching her breasts when she would give him a hug.  He would put his hand up and squeeze them.  It made her really uncomfortable.  She could not remember the first time the appellant had touched her breasts, or any other times that he had touched her breasts, apart from the last time which was in late 2019, or early 2020, at the Kangaroo Point Motel.  She gave him a hug hello and he reached up and tickled her breasts.  After that, she would not give him hugs.  She went to the Kangaroo Point Motel because she and her sister were going on an access visit to their biological father in Melbourne.  They had access visits every second holiday.
17. [17]
    The complainant said the appellant would talk to her about “stuff he shouldn’t talk” to her about.^[3]  He told her he had a dream that she had asked him to tuck her in and when he came into the room, the complainant was lying on the bed naked.  He had also told her that when she turned 18, if he and her mother were still together, the complainant would have sex with him.  She said the appellant smiled and tried to pretend he had never said it.  Those conversations occurred on the same day.
18. [18]
    On another occasion, when they were staying at the Kangaroo Point Motel, the appellant had a bag of sex toys.  He explained to her what each sex toy did and it made her really uncomfortable.  There was a dildo, vibrators and some lube.  The complainant said that the appellant showed her sister one of the vibrators.  He was letting her sister hold the vibrator.  It made the complainant really sick because her sister was only eight.
19. [19]
    The appellant told her the dildo was for a woman’s pleasure.  There were two vibrators; a small black one which he had shown to her younger sister and a larger vibrator.  The appellant explained to her that you could plug that vibrator into the wall and make it warm.  The lube was scented.  She thought there were two or three lubes in a bag.  The appellant did not tell her anything about the lubes.  The bag containing the sex toys was a plastic shopping bag.  The appellant showed it to her when they were in his father’s ute.  He had it between the two seats.  Only she and the appellant were in the ute at the time.  It was the second time they had been to the motel.  The complainant said they had been to the motel two or three times.
20. [20]
    The complainant next spoke to police on 20 August 2020.  Police asked whether she had told her mother something in 2017.  The complainant said she could not remember it exactly, but did know that she talked to her mother about the appellant having bought her some lube, when they had gone to Warwick to do some errands.  Whilst there, the appellant went into an adult shop and came back with a bottle of lube.  The appellant said it was for when the complainant wanted to pleasure herself.  The complainant said she spoke to her sister about it, but did not tell anyone else apart from her mother.
21. [21]
    The complainant also told police that in September or October 2019, her best friend came over for a sleepover.  During the sleepover, she told her best friend that the appellant had been touching her inappropriately.  The friend told her to tell her mother.  The complainant wrote a letter to her mother explaining what the appellant had been doing to her.  She put the bottle of lube with the note and gave it to her mother.  She later spoke to her mother about what was said in the letter.  The complainant could not remember what she discussed with her mother or what she had put in the note.  She did not know where the note was now.
22. [22]
    The complainant gave evidence on 1 June 2023.  The complainant said she was now 16 years of age.  She was home schooled and at the equivalent of grade 11 schooling.  She identified photographs of her home, the motel and of the sex toys she said had been shown to her by the appellant.  She said that when the appellant was showing her the sex toys, he put the black vibrator in her hand and turned it on.
23. [23]
    In cross-examination, the complainant accepted that her mother would put her younger sister to bed at night and the appellant would tuck the complainant into bed.  She did not agree that he would tickle her tummy.  The complainant said he tickled her lower than her tummy.  The complainant accepted that the appellant never put his hands down her pants.  The tickling was on the outside of her clothes.  The appellant would tickle her breasts over her clothes.  The complainant accepted that during the period in which she said the appellant was touching her, the appellant’s daughter and grandchildren would occasionally stay with them.  She agreed that she had told the appellant’s daughter and his granddaughter that she loved the appellant and wished that her own father was as good as him.  She did not tell the granddaughter about the appellant touching her inappropriately.  The complainant said she was very young.  She did not tell the appellant’s daughter as she was not close to her.
24. [24]
    The complainant agreed she would give the appellant hugs when she saw him.  She would initiate that hug.  Just before they stopped talking to the appellant, she stopped hugging him.  That was around her 13^th birthday.  She agreed she was upset that the appellant did not come to her birthday party.  Her mother was quite concerned about how upset the complainant was about the appellant not coming to her party.
25. [25]
    The complainant accepted that one of her really close friends had a problem with a boy.  She was not aware the friend had complained that the boy was touching her breasts inappropriately.  The boy was verbally harassing her, not physically harassing her.  She agreed she went with this friend to speak to the pastor about that boy.  She denied that her friend had told her that the boy was touching her breasts and that she had replied, “Well, [the appellant] has also been doing that to me”.^[4]  She agreed she had told her mother about the boy touching girls inappropriately.
26. [26]
    The complainant accepted that she never told police that the appellant put his fingers inside her vagina or touched her bottom.  That had never happened.  She denied telling her other friend that the appellant had put his fingers inside her vagina and inappropriately touched her bottom.  She agreed that on no occasion did she tell the appellant not to touch her.  She did not accept that she had told her other friend that she kept telling the appellant to stop, but he would not.
27. [27]
    The complainant agreed that there was only one conversation with her mother about the lube.  She agreed she had taken the label off the lube.  The appellant told her to take the label off the tube so it looked like sunscreen.  She agreed she did not tell police about that conversation.  She did not think of it at the time.  The complainant said she gets very bad anxiety and has trouble expressing herself, especially in words.  She denied that she had a bottle of lube that she was trying to keep from her mother.  She denied that she had simply seen the sex toys lying around the house.
28. [28]
    The complainant agreed that she could not remember talking to her mother about inappropriate touching earlier than the police interview.  The only conversation with her mother that she could remember, was about the lube in early 2020.  She denied telling her mother that she had lied about inappropriate touching because she was angry with the appellant for breaking his promise about moving home.  She agreed that around the time she spoke to the pastor, there was a conversation about the family moving to Brisbane.  She denied she was angry with the appellant for not moving back to live with them and for not going to her birthday party.  She denied making up the allegations against the appellant.

Preliminary complaint

29. [29]
    The complainant’s best friend was interviewed by police on 9 August 2020.  She told police that one night when she was having a sleepover at the complainant’s house, the complainant told her that she had been touched by the appellant.  She said he would always touch her at night.  She also said he bought her sexual stuff like lube.  The complainant said she was too scared to tell her mother.
30. [30]
    The complainant told her that the appellant would touch her private parts when her mother was settling the complainant’s younger sister in bed.  The best friend was referring to the vagina when she said, “private parts”.  The complainant told her she did not want it to happen, but could not say anything because she was really scared.  The complainant also told her that her mother had walked in one day and found the tube of lube.  The complainant told her mother it was sunscreen from a friend.  The complainant’s mother was suspicious and took it off the complainant.
31. [31]
    Her best friend told the complainant she should tell her mother or the best friend would do so.  One night, the complainant had the courage to write a letter to her mother.  The letter said what the appellant was doing to the complainant.  She gave it to her mother in a little bag with everything in it.  That was only a few days after the complainant had told the best friend, about five or six months ago.
32. [32]
    The best friend said that on another day, something came up at church and they went to speak to the pastor.  The complainant asked her best friend and another friend, to come with her.  When they went to speak to the pastor, the complainant did not want to say anything, so the best friend started first.  The complainant added bits, as did their other friend.  The complainant told the pastor that it was about the appellant; that he touched her inappropriately; and that he bought her lube.
33. [33]
    The complainant’s other friend also spoke to police on 9 August 2020.  She told police that she was speaking to them about being told by the complainant that the appellant was touching her inappropriately on her breasts, vagina and bottom.  The complainant said it started with the appellant touching her bottom.  The complainant kept telling him to stop, but he would not and said it was normal.  He then started touching her breasts and her vagina.  The appellant “apparently he fingered her or something”.^[5]  The other friend told the complainant she should report it.  The complainant said she was scared.  They then went and spoke to the youth leaders.
34. [34]
    The other friend said that at the time she was having some issues with some males at school.  A boy at school she had dated on and off started touching the other friend and kept doing it after they broke up.  She told the complainant what had happened, the complainant told her what had happened to her.  The complainant said the appellant would try and take her clothes off and that he had showed her some adult toys.  He told her what they were.  The appellant also taught the complainant how to “finger” herself and what a dildo was and what lubricant was used for and some other things that the other friend could not now remember.
35. [35]
    The complainant’s mother gave evidence that she was in a relationship with the appellant for about seven years from May 2013.  They lived together from 2015.  He moved out of their home in 2017, after his daughter moved to Brisbane.  He would still come and stay once or twice a month, for three or four days at a time.  At night she would put her younger daughter to bed and the appellant would take the complainant to bed and tuck her in.  They would each take five minutes to say goodnight.  They would have the same routine after the appellant moved out when he came to stay.  At one point, they discussed having the appellant move back to live with them.  She told the complainant and her younger sister about those plans.
36. [36]
    The complainant’s mother said she would stay at the Kangaroo Point Motel when she was in Brisbane for Family Court proceedings.  Her daughter stayed there twice.  The appellant was there on each of those occasions.  The complainant’s mother said sex toys were kept in the house, in a toiletry bag in her room.  In 2017, the complainant gave her a tube of lubricant with the sticker peeled off.  She did not know it was in the house prior to it being given to her.  She gave it to her after the complainant’s mother had ended her relationship with the appellant and before she resumed contact with him in November 2017.
37. [37]
    The complainant’s mother said in 2020, she had a conversation with the pastors of her local church.  It was a pre-arranged meeting as she was seeking their advice and counsel about her plans to move to Brisbane to be closer to the appellant.  That was an immediate plan, with a longer-term plan that they would move back in as a family.  During the conversation with the pastors, they said there was something they needed to talk to her about and after that conversation, she presented at the police station, initially with two friends for support and later with the complainant.
38. [38]
    The complainant’s mother said the complainant had disclosed to her in 2019, that the appellant’s hugs were making her uncomfortable and that he had been touching her.  That was the only conversation she had with the complainant before going to the police station.
39. [39]
    In cross-examination, the complainant’s mother agreed that between 2017 and 2019, she was in an on-and-off relationship with the appellant.  They would see each other on weekends, but there were also lengthy periods where they might not see each other, including a period when the appellant went overseas for about three months.  When there was talk about the appellant getting back into a relationship again, in January 2019, the complainant was over the moon.  The appellant started moving things back into the house, but he ultimately did not move in as he had to take over a lease for his daughter who had left her husband.  He also was struggling to find a job.
40. [40]
    The complainant’s mother agreed that the complainant became quite upset about the fact that the appellant did not move back home.  This was around the time that the complainant made disclosures about the appellant touching her, but the mother did not accept that the complainant had later recanted them and said she had made them up.  She did not recall telling police, towards the end of 2019, that the complainant had recanted these allegations, saying she had made them up because she was angry at him, but said that conversation with the complainant was not one where the complainant was saying the appellant never did it; the complainant said that she was coming forward because she was angry and the appellant not being around had given her the courage to say it.^[6]  When the complainant gets angry, she gets very bold and it gives her the courage to say things she would not otherwise say.  When the complainant’s mother spoke to police, she was referring to the complainant saying she had the courage to say what had been happening to her.
41. [41]
    The complainant’s mother agreed that she had stayed at the Kangaroo Point Motel in November 2019 and January 2020.  There was an occasion at the motel where the appellant showed her a bag of sex toys in the bathroom.  Neither child was present at that time.  The complainant’s mother also agreed that when the complainant turned 13, she had a birthday party.  The appellant did not turn up.  The complainant became quite upset.  The complainant’s mother agreed that in her conversations with the complainant, there had been mentions of conversations between the complainant and her friends about a boy at school touching them inappropriately on the breasts.
42. [42]
    The pastor gave evidence that on 24 July 2020, she ran a seminar through the youth group, in relationship to forgiveness and family feuds.  After that session, she was approached by the complainant and two of her friends.  The complainant disclosed that the appellant was touching her inappropriately.  The pastor did not ask further questions as the two friends were present.  There were other things that came up that were concerning, so the pastor arranged to speak to the complainant’s mother.
43. [43]
    On 27 July 2020, the pastor and her husband spoke with the complainant and her mother.  The complainant was happy to speak to the pastor and the pastor’s husband, but not in the presence of her mother.  When the mother left, the complainant was asked about what she meant about being touched inappropriately by the appellant.  The complainant replied, “Well, he touches me down there” pointing to her vaginal area.  It happened when he was tucking her in at night and her mother was tucking in her sister.  The complainant also said when the appellant gave her a hug, he would often touch her breast.  The complainant told them that she had not yet told her mother.  She was worried it might break up her relationship and that her mother would be sad.  The complainant gave them permission to speak to her mother.  The pastor recommended to the complainant’s mother that she go to the police.
44. [44]
    In cross-examination, the pastor agreed that when the complainant spoke about being touched whilst being tucked into bed at night, she told them he had stopped in 2019.  She also agreed that in the initial conversation with the complainant and her friends, they spoke about a boy at school who was being inappropriate towards the girls.
45. [45]
    The pastor’s husband gave evidence that after the pastor had the conversation with the complainant and her friends on 24 July 2020, a meeting was organised with the complainant and her mother on 27 July 2020.  After the complainant indicated she wanted to speak to them alone and her mother left the room, the complainant told them that she had been touched inappropriately in her private area, pointing to her vaginal area, and on her chest and that it was causing her some grief and concern.  The touching down below was happening upon bedtime.  Her mother would be putting her younger sister to bed in another room and the appellant would come in and tuck her into bed.  She also disclosed that when the appellant hugged her, he would touch her chest area when her mother was not around.
46. [46]
    In cross-examination, the pastor’s husband agreed that he had made a note of his conversation with the complainant, which stated, “The private area touching has ceased since about September or October 2019, as [the complainant] refused to be alone with [the appellant] any more”.^[7]  That was based upon what he had been told by the complainant on that night.

Other

47. [47]
    The complainant’s younger sister spoke to police on 20 August 2020.  The police officer asked her whether she remembered telling the complainant something when they were staying at a motel at Kangaroo Point.  The sister replied that she did not know.  She said she did not remember anything that happened at the motel.
48. [48]
    A police officer gave evidence that he took photographs of the family home.  He subsequently attended the appellant’s residence.  A search of his house located sex toys.  One sex toy was also found in the complainant’s mother’s home.  He also obtained records from the Kangaroo Point Motel.
49. [49]
    In cross-examination, the police officer agreed that he had spoken to the complainant’s mother on 5 August 2020, prior to interviewing the complainant.  That conversation was not recorded by him, but he did make a note in the police record system.  That note recorded that the complainant had told her mother in 2019, that she was being touched down there, but that the complainant had later told her mother that she had “made all this up, because I’m angry at him”.

Consideration

Conviction

50. [50]
    The determination of a ground of appeal that the verdict of the jury was unreasonable and not supported by the evidence, requires the appeal court to undertake its own independent assessment of the record, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.
51. [51]
    In undertaking that independent assessment, due regard is to be had for the jury’s role in a criminal trial and for the advantages afforded to the jury by having seen and heard the witnesses.^[8]  However, if there are discrepancies, inconsistencies, or other evidence which, even allowing for those factors, are of such a nature that a reasonable doubt ought to have been entertained as to the appellant’s guilt of the offence, the verdict of the jury is to be set aside as unreasonable.^[9]
52. [52]
    In the present case, the appellant submits that there were substantial inconsistencies in both the complainant’s evidence, as well as between her evidence and those to whom the preliminary complainant had been made, as well as other evidence adduced in the prosecution case.  Further, the complainant had recanted to her mother in 2019, admitting she had lied because she was angry with the appellant and, recently, the complainant had provided a letter to that effect.  The appellant sought leave to rely on that letter.^[10]
53. [53]
    Although there were inconsistencies in aspects of the complainant’s evidence, none of those inconsistencies were of a nature which ought to have caused a jury to entertain a reasonable doubt as to the reliability and credibility of the complainant’s account of the appellant having touched her in the vaginal area and on her breasts, on multiple occasions.  In respect of those matters, the complainant’s evidence remained consistent throughout.
54. [54]
    Importantly, the complainant’s evidence on those issues was consistent with the accounts given by way of preliminary complaint.  Each of the complainant’s friends gave evidence of being told of the appellant touching the complainant’s vagina at night, when he tucked her in, and on the breasts, when being hugged by the complainant.  It was open to the jury to discount the other friend’s evidence as to penetration of the complainant’s vagina by the appellant’s finger as inaccurate; on the other friend’s own account, it was “apparently” something that had happened, rather than a definitive statement by the complainant.
55. [55]
    The letter the appellant sought leave to tender, also does not give rise to a basis for entertaining a reasonable doubt as to the appellant’s guilt of the offence.  It was submitted that that letter was supportive of an account given to police by the complainant’s mother, to the effect that the complainant had recanted the allegations, admitting that she had made them up because she was angry with the appellant.  However, the letter does not recant the allegations.
56. [56]
    Whilst the letter contains an assertion that the complainant does not believe the appellant received a fair trial and that his conviction was not appropriately backed by evidence, it continues, “I would also like to add that I have forgiven [the appellant] for how he treated me and I am ready to move into the next period of my life.  That will include him soon should this appeal be successful.”  Those words are inconsistent with a withdrawal of the allegations.
57. [57]
    That letter is entirely consistent with the complainant’s mother’s evidence, as to what was the conversation said to have been recanted by her to police.  According to that evidence, the complainant never withdrew the allegations.  The complainant had stated that anger gave her the courage to speak about what the appellant had done to her.  Whether the jury accepted that explanation, was a matter for the jury.  Nothing in that explanation or in the other evidence, supports a conclusion that the jury must have had a reasonable doubt as to the veracity of the complainant’s account of repeated sexual contact of her vaginal area and breasts, by the appellant.
58. [58]
    Other inconsistencies in respect of the account said to have been given by the complainant to the preliminary complaint witnesses, were also not of a nature to give rise to entertaining a reasonable doubt as to the appellant’s guilt of the offence.  Those inconsistencies were no more than what could be expected of different witnesses, honestly seeking to recount events from some years ago.

Conclusion

59. [59]
    A consideration of the record of a whole, supports a conclusion that whilst there were discrepancies and inconsistencies, none of those discrepancies or inconsistencies were of a nature whereby the jury ought to have entertained a reasonable doubt as to the reliability and credibility of the complainant’s account of the appellant having touched her on the vaginal area and on her breasts, on multiple occasions.  It was open to the jury to accept the complainant’s account of that sexual contact.  Once it did so, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.
60. [60]
    The verdict of the jury is not unreasonable.

Sentence application

61. [61]
    The ground relied upon for leave to appeal sentence asserts that the sentencing judge found a lack of remorse on the basis of a plea of not guilty having been entered by the appellant.  A consideration of the sentencing remarks reveals no such error.
62. [62]
    Whilst the Crown did submit that an aggravating feature of the appellant’s conduct was the absence of remorse, the sentencing judge did not refer to that feature when having regard to the aggravating features of the appellant’s offending.  The sentencing judge, properly, concentrated on the aggravating features of the complainant’s young age, the length of period of maintaining and the gross breach of trust occasioned by reason of the parental relationship.
63. [63]
    Further, a consideration of the comparable authorities^[11] supports a conclusion that the sentence imposed fell within a sound exercise of the sentencing discretion.  As the sentencing judge observed, sentencing is not a mathematical exercise.
64. [64]
    A consideration of the sentencing remarks and of the comparable authorities, supports a conclusion that the sentencing judge undertook an appropriate balancing exercise in respect of the relevant factors, having regard to the principles of sentencing.  The sentence imposed does not bespeak of a misapplication of principle and it is neither plainly unreasonable nor unjust.

Orders

65. [65]
    I would order:

1. The appeal be dismissed.
2. The application for leave to appeal be refused.

66. [66]
    BRADLEY J:  I agree with the proposed orders and reasons given by Boddice JA.