Background
The appellant, a 35-year-old adult male, was convicted after a three-day trial in the District Court at Southport on 14 October 2022 of 18 child sexual offences and one count of common assault. The offending occurred over a nine-month period beginning July 2018 and targeted a female child who was aged 12 years and 5 months at the outset. The appellant had known the complainant since she was an infant through a friendship with her father. During the relevant period, the complainant regularly stayed at the appellant’s Gold Coast apartment, where he lived with his partner, AKM.
The offences comprised maintaining a sexual relationship with a child (count 1), seven counts of rape involving digital and penile penetration (counts 5, 9, 10, 12, 16, 18, 19), ten counts of indecent treatment of a child under 16 years under care (counts 2–4, 6–8, 11, 13, 14, 17), and common assault (count 15). The complainant gave evidence by way of recorded police interviews and pre-recorded court testimony. AKM, the appellant’s partner, was called as a Crown witness after pleading guilty to one count; her evidence included that the relationship with the appellant had been physically, verbally, and emotionally abusive, and that she had witnessed and at the appellant’s direction participated in aspects of the offending.
The appellant was sentenced to concurrent terms of imprisonment, with the head sentence of 9 years and 6 months on count 1, and a parole eligibility date fixed at 14 June 2028. He appealed his convictions on six grounds, contending that the trial judge had misdirected (or failed to direct) the jury on: (a) mistake of fact; (b) the use of preliminary complaint evidence as proof of facts stated; (c) consent; (d) post-offence conduct; and (e) propensity reasoning, as well as contending that (f) discreditable conduct evidence from AKM had been wrongly admitted.
The Court’s Holding
The Court of Appeal (Bond JA, Bradley JA, and Williams J) dismissed the appeal on all grounds. On the mistake-of-fact ground, the court held that the defence had not been “fairly raised” on the evidence and therefore no direction was required. The appellant’s case at trial was a wholesale denial that the alleged sexual acts had occurred at all; he did not advance any case that he held an honest and reasonable belief about the complainant’s age or consent. In those circumstances, following MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, the absence of a mistake-of-fact direction could not constitute a miscarriage of justice.
On the preliminary complaint evidence ground, the court found that neither the appellant’s counsel nor the Crown had sought at trial to rely on the complainant’s out-of-court statements to school friends as proof of the truth of their contents, and that counsel had not complied with the conditions prescribed by s 18 of the Evidence Act 1977 (Qld) that would have been necessary to render the statements admissible on that basis. The court held that the absence of a direction permitting the jury to use those statements as proof of their contents did not cause a substantial miscarriage of justice. On the discreditable conduct evidence ground, the court held that AKM’s evidence about the appellant’s controlling and abusive behaviour was properly admitted in the circumstances of the trial and that its reception did not occasion a miscarriage of justice.
The remaining grounds — directed at the adequacy of directions on consent, post-offence conduct, and propensity reasoning — were also rejected. The court found that the trial judge’s directions, read in the context of the summing-up as a whole, were adequate and that no substantial miscarriage of justice had been demonstrated on any ground.
Key Takeaways
- A mistake-of-fact direction is only required where the defence is “fairly raised” on the evidence; a blanket denial that acts occurred does not enliven the obligation, following the High Court’s guidance in MDP v The King [2025] HCA 24.
- For prior out-of-court statements to be admitted as proof of their contents under s 18 of the Evidence Act 1977 (Qld), counsel must comply with the statutory preconditions at trial; failure to do so forecloses a ground of appeal based on the absence of a corresponding jury direction.
- Evidence of a co-accused’s or Crown witness’s account of the accused’s controlling and abusive conduct towards that witness may be admissible as discreditable conduct evidence in child sexual offence proceedings where it is relevant to the circumstances of the offending and the complainant’s situation.
- A substantial miscarriage of justice will not be found merely because a direction was omitted if the omission was consistent with how the trial was run and with the positions adopted by both parties at trial.
Why It Matters
This decision reinforces the Queensland Court of Appeal’s application of the High Court’s 2025 ruling in MDP v The King on the threshold for triggering a mistake-of-fact direction in child sexual offence trials. By confirming that the defence must be genuinely raised on the evidence — and that a bare denial of conduct does not suffice — the court provides clear guidance to trial practitioners about when such directions are warranted and the appellate consequences of failing to seek them at trial.
The case also illustrates the practical limits of raising new evidentiary arguments on appeal when those arguments were not pursued at trial. The court’s analysis of the s 18 Evidence Act preconditions signals that appellate courts will scrutinise whether counsel in fact took the steps necessary at trial to engage the evidentiary regime they later seek to invoke as a ground of appeal, and will be slow to find a substantial miscarriage of justice where the omission was a product of trial strategy rather than judicial error.