Background
NAJ was convicted after a District Court trial of maintaining an unlawful sexual relationship with his biological daughter, wilfully exposing her to an indecent videotape, and two counts of rape. The complainant was four or five years old when the offences occurred. He was acquitted of a second maintaining charge. The prosecution depended principally on the complainant’s accounts, recorded at different ages, while some evidence indicated that a man named Bevan may also have offended against her during the same period.
NAJ received concurrent sentences, including a head sentence of 12 years and six months’ imprisonment. He appealed his convictions and sought leave to appeal the sentence, arguing that the complainant’s recall after closing addresses and related jury directions caused a miscarriage of justice; juror conduct in a coffee shop required discharge of the jury; the guilty verdicts were unreasonable; the judge should have directed the jury about forensic disadvantage caused by delay; and the head sentence was manifestly excessive.
The Court’s Holding
The Court of Appeal unanimously dismissed the conviction appeal. Recalling the complainant allowed the defence to put its suggestion that she had confused her father with Bevan, a proposition trial counsel had not previously put to her. The recall resulted from counsel’s forensic choice, and the judge fairly explained the evidence and properly required the jury to consider the complainant’s evidence as a whole. The coffee-shop incident and the judge’s response did not establish a miscarriage of justice warranting discharge of the jury.
After independently reviewing the evidence, the Court found no significant possibility that an innocent person had been convicted. The complainant’s inconsistencies, considered in light of her young age and the years between her statements and trial testimony, did not make her central account incapable of acceptance. No significant forensic disadvantage from delay was identified: whether evidence from the unavailable Bevan would have helped the defence was speculative. The Court also refused leave to appeal sentence, holding that 12 years and six months was severe but not manifestly excessive given the complainant’s age, the father-daughter relationship, the seriousness and impact of the offending, and the limited mitigation.
Key Takeaways
- A defence allegation that a witness confused the accused with another offender ordinarily must be put to the witness; recalling the witness to answer it did not make the trial unfair.
- Delay alone does not justify a direction under s 132BA of the Evidence Act 1977 (Qld); the accused must identify a real, significant forensic disadvantage rather than a speculative lost opportunity.
- Inconsistencies in a child complainant’s accounts do not automatically render guilty verdicts unreasonable, particularly when the jury was equipped to assess them and the central allegations remained consistent.
Why It Matters
The decision illustrates the appellate threshold for overturning a jury verdict based on trial irregularity or evidentiary inconsistency: the alleged error must realistically have been capable of affecting the jury’s path to conviction, while an unreasonable-verdict challenge requires a significant possibility that an innocent person was convicted.
It also confirms that historical child-sex-offence defendants seeking a delay direction must articulate a concrete forensic disadvantage. The mere absence of a potentially relevant witness will not suffice where the witness’s possible evidence—and whether it would assist the defence—remains unknown.