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[2025] QCA 240
respondent. Appeal dismissed. Brown JA gave the principal reasons; Doyle JA and Williams J agreed (paras 67-72).
BQN challenged his conviction by arguing that inconsistencies and other weaknesses in the complainant’s evidence meant the jury could not safely find him guilty. The Court of Appeal reviewed the whole evidence independently, while recognising that the jury had seen and heard the witnesses. It considered each alleged weakness and their combined effect. The Court concluded that the inconsistencies did not undermine the essential account enough to make the verdict unreasonable. The appeal was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,600 words · generated 07/10/2026
BQN appealed against his conviction for maintaining an unlawful sexual relationship with a child under 16. The charged period was 30 April 2021 to 30 March 2022, and the prosecution particulars concerned three categories of alleged conduct in BQN’s bedroom: oral contact on multiple occasions, the complainant being made to engage in oral contact on multiple occasions, and one occasion described as BQN rubbing or humping against the complainant (paras 3-5). The complainant was seven or eight years old during the alleged offending and was in BQN’s care while BQN babysat him and his sister (para 6).
No linked legislation citations have been extracted yet.
The complainant described a relationship in which he had formed a strong bond with BQN (para 9). He said that BQN asked him to touch BQN’s penis with his hand or mouth, and that BQN touched the complainant with his mouth (para 10). He also described being asked not to tell anyone (para 15). His accounts differed on how frequently the conduct occurred. At different times he referred to it happening every time, not every time, or “heaps”, and he could not give a reliable total (paras 11, 14, 25).
The evidence included the complainant’s disclosures to his mother and her friend. His mother said that he told her BQN licked his penis and that he sometimes reciprocated (para 28). The mother’s friend described a conversation in which the complainant said BQN had licked him, asked him to lick BQN, and given him “slobbery kisses”; she also recorded the complainant referring to being humped (paras 29-30). The mother estimated that BQN had babysat the children about 20 times over approximately eight months (para 27).
Housemates gave evidence about the children’s visits and access to bedrooms. Their evidence included that they were often away, did not always remain with BQN and the children, or did not enter BQN’s room when its door was closed (paras 31-36). The appellant relied on that evidence, and on inconsistencies in the complainant’s accounts, to argue that the verdict was unreasonable.
The sole appeal ground required the Court of Appeal to determine whether the guilty verdict could be supported having regard to the evidence (para 2). Brown JA gave the principal reasons. Doyle JA and Williams J each undertook an independent assessment and agreed with the conclusion that the verdict was open to the jury (paras 68-72). The Court dismissed the appeal (para 67).
The Court applied the test in M v The Queen. That test required the appellate court to make its own independent assessment of the evidence and decide whether, on the whole of it, the jury could be satisfied beyond reasonable doubt. The Court was also required to respect the jury’s role as the primary decision-maker on guilt and innocence, and to take account of the jury’s advantage in seeing and hearing witnesses (paras 38-39). Brown JA noted that the High Court had recently confirmed in R v ZT that M remained the applicable test (para 39).
The judgment also relied on R v Miller for the proposition that merely pointing to discrepancies or inadequacies is not enough. The relevant question is whether those features, after making full allowance for the jury’s advantages, produce a significant possibility that an innocent person was convicted (para 40). That framed the Court’s task as an assessment of the significance of the identified problems, not a search for a perfectly consistent account.
The first group of alleged problems concerned how often the complainant was babysat and how often the offending occurred. The Court accepted that the complainant’s estimates were inconsistent. It considered, however, that the precise number of babysitting occasions did not prove whether the offences occurred. The more relevant point was that the complainant had been babysat repeatedly, a matter supported by the mother’s estimate and the housemates’ evidence of visits over a period of months (para 44). The Court therefore concluded that differing estimates did not undermine the probative value of the complainant’s evidence on the central allegation (para 45).
The same approach applied to differences in the complainant’s estimates of offending frequency. The judgment acknowledged that he had described different frequencies to police, his mother, and others, and that he agreed at trial that the incidents did not occur every time (paras 47-49). But the Court distinguished the uncertain number of incidents from the consistent essential description of the sexual conduct. It also accepted that the jury could understand his reference to four occasions over two to three months as referring to a period within the alleged offending, rather than necessarily to the entire period (paras 49-50).
The Court considered opportunity in light of the housemates’ evidence. That evidence did not establish that another person was always present or that the complainant could never be alone with BQN. Some witnesses were often away, and others did not go into a closed bedroom. The Court also observed that it had not been put to the witnesses that there was never an occasion when the complainant could be in the bedroom with BQN while they were in the house (para 51). The evidence therefore did not eliminate the opportunity alleged by the prosecution.
Other inconsistencies concerned terminology and answers to questions. The complainant used different descriptions of mouth and tongue contact, and at one point rejected the word “suck” before clarifying his meaning in re-examination. Brown JA considered that the difference in terminology was not significant to the essence of the allegation and that the questioning could have involved a comprehension difficulty (paras 54-58). The Court also regarded inconsistencies about saliva and the last babysitting occasion as not material to whether the alleged offences occurred (paras 55-56).
The appellant raised possible coaching by BDW, the complainant’s uncle, based on the complainant’s answer that BDW had told him to say BQN did bad things. The Court noted that the evidence did not explain what “bad things” meant or show that BDW coached the complainant about the specific alleged sexual conduct. It also took account of the disclosures to the complainant’s mother and her friend, which were not challenged as preliminary complaint evidence (para 61). The Court concluded that the questioning did not establish coaching or suggest fabrication (paras 61-62).
Finally, the Court considered the complainant’s active imagination and behaviour towards other household members. It found no link between his interest in video games and the nature of the offending he described. His conduct towards other household members, including asking one to be his boyfriend and trying to kiss another, did not undermine the allegations; the Court considered it could also be consistent with exposure to sexual offending (paras 63-64).
The conclusion depended on the combined effect of the evidence, not any single feature. The jury had been instructed about the inconsistencies, inadequacies, and confusion in the complainant’s evidence. The Court found that the complainant’s account retained probative force, was supported in its essential elements by what he told his mother and her friend, and could be accepted by the jury (paras 58, 65). On its independent assessment, the Court held that a jury could be satisfied beyond reasonable doubt and that there was no significant possibility that an innocent person had been convicted (para 66).
The judgment did not announce a new test for unreasonable-verdict appeals. It applied the existing approach from M v The Queen, which requires an appellate court to assess the whole evidence independently while taking account of the jury’s role and observational advantage (paras 38-39). R v ZT was treated as confirming that M remained the correct test (para 39).
The judgment’s use of R v Miller adds an important qualification to how that test is applied: an appellant does not establish that a verdict is unreasonable merely by cataloguing inconsistencies, inadequacies, or evidence said to lack probative force. Those matters must be sufficiently significant, in context, to produce a significant possibility of an innocent person’s conviction, even allowing for the jury’s advantages (para 40). R v BQN illustrates the application of that principle to a child complainant’s evidence, but does not displace the governing test.
The judgment also discussed observations in R v Allen, endorsed in R v WCH, about assessing the reliability of young children’s evidence. The observations recognise that a child may not view events with adult understanding, may not recall details an adult would regard as prominent, and may have difficulty explaining events or responding to questions. They also address the possibility that a recorded or early account preserves aspects of a child’s contemporaneous language and experience (para 41). In this appeal, those observations informed the Court’s consideration of the complainant’s age and the inconsistencies, rather than operating as a separate test or presumption that determined the result.
The decision therefore applies established principles to the particular record before the Court. It does not state that inconsistencies in a child’s evidence are unimportant, nor that a child’s evidence should be accepted because of the child’s age. Its stated approach is to examine the nature and significance of each inconsistency in the whole evidentiary context and to maintain the criminal standard of proof (paras 39-42, 65-66).
Paragraph 39: the appellate test. The Court quoted M v The Queen’s question: whether, on the whole evidence, it was open to the jury to be satisfied beyond reasonable doubt. In plain English, the Court of Appeal had to assess the evidence for itself, but could not ignore that the jury had heard and seen the witnesses.
Paragraph 40: inconsistencies are not enough on their own. The judgment said it is not sufficient merely to show discrepancies or inadequacies. In plain English, an appeal requires more than identifying things that were inconsistent or unclear. Their importance must be assessed against the entire case and the possibility of an innocent person having been convicted.
Paragraph 44: the number of babysitting occasions. Brown JA accepted that estimates differed, but regarded the exact number as not probative of whether the offending occurred. In plain English, uncertainty about whether babysitting happened a particular number of times did not itself disprove the allegations; the evidence that it happened repeatedly was the more relevant point for the Court’s analysis.
Paragraph 51: evidence about opportunity. The Court said the housemates’ evidence did not exclude the possibility that BQN and the complainant were alone in the bedroom. In plain English, evidence that other people lived in the house did not establish that they were always present or always able to observe what happened.
Paragraph 57: terminology and comprehension. The Court considered the complainant’s answer about “sucking” alongside his explanation in re-examination. In plain English, the Court considered that a child’s response to a particular word might reflect difficulty understanding the question, rather than a genuine inconsistency about the underlying conduct.
Paragraph 65: cumulative assessment. Brown JA concluded that the complained-of matters did not, individually or cumulatively, raise the possibility that an innocent person had been convicted. In plain English, the Court assessed the weaknesses together, not only one at a time, and found they did not make the verdict unreasonable.
Paragraph 66: final conclusion. Brown JA said a jury could find guilt beyond reasonable doubt on the evidence and that there was no significant possibility of an innocent person’s conviction. In plain English, the appeal failed because the evidence remained capable of supporting the verdict under the applicable appellate test.
The judgment is relevant to appeals against conviction that assert a verdict was unreasonable or unsupported by the evidence, particularly where the appellant relies on inconsistencies or gaps in a complainant’s evidence. Its practical significance is not confined to child complainants, because the central test comes from M v The Queen. However, this case’s application is especially pertinent where the evidence includes a young child’s account, changes in estimates of frequency, differences in terminology, or answers that may reflect difficulty understanding a question.
The factual features that prompted the Court’s analysis included an uncertain number of alleged incidents, differences between the complainant’s accounts, evidence from adults who lived in the same home, a possible suggestion of coaching, and conduct by the child that the appellant said supported fabrication. The judgment shows that each matter was considered in relation to the whole case, including the essential consistency of the alleged conduct, the preliminary complaints, and whether the other witnesses’ evidence actually excluded opportunity (paras 42-65).
The decision does not establish that any particular inconsistency will be immaterial in another case. Brown JA repeatedly assessed the particular evidence before the Court. The result depended on the content of the accounts, how the questions were asked, the explanations available from the record, the supporting evidence, and the jury’s role. A different evidentiary record could require a different assessment under the same legal test.
The supplied judgment was delivered on 28 November 2025. It does not provide information about decisions after that date, so later judicial treatment of R v BQN cannot be determined from this source.
Within its own reasons, the Court identified the authorities it relied on. It followed M v The Queen and R v ZT on the applicable test for an unreasonable-verdict appeal (paras 38-39). It cited R v Miller for the requirement that discrepancies must have a sufficiently serious effect to raise a significant possibility of an innocent person’s conviction (para 40). It also cited R v Allen and R v WCH for observations about factors relevant to assessing evidence from young children (para 41).
The judgment’s treatment of those authorities is therefore evidence of the reasoning applied in R v BQN, not evidence of how later courts have treated R v BQN itself. The source provides no subsequent cases that apply, distinguish, or discuss this decision.
The judgment determines the appeal on the evidentiary record before it, but it does not provide a general threshold for when inconsistencies in a child complainant’s evidence become sufficiently serious to make a verdict unreasonable. The test remains evaluative: the appellate court considers the whole evidence, the nature of the alleged inconsistency, its possible explanation, and the jury’s advantages (paras 38-42, 65-66).
The reasons also do not set out a general rule about the evidentiary weight of preliminary complaints. They describe the complainant’s accounts to his mother and her friend as supporting the essential elements of his evidence in this case (paras 58, 65). The judgment does not decide that preliminary complaints will always provide support, or explain how their weight should be measured where their detail, timing, or circumstances differ.
Nor does the decision establish a general method for resolving apparent comprehension problems in a child witness’s answers. Brown JA considered the particular exchange about the term “suck” and the complainant’s subsequent clarification in re-examination (para 57). The reasons do not prescribe how a court must assess other forms of ambiguity or misunderstanding.
Finally, the judgment does not resolve questions about records of early accounts under s 93A of the Evidence Act. Paragraph 41 reproduces observations concerning the assumed value of early accounts and the statutory setting, but the appeal’s stated reasoning does not turn on a dispute about the operation of that provision. The decision’s express holding is the application of the M v The Queen test to the evidence as a whole.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v BQN [2025] QCA 240
PARTIES: R / v / BQN / (appellant)
FILE NO/S: CA No 130 of 2024 / DC No 19 of 2023
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court of Hervey Bay – Date of Conviction: 3 May 2024 (Burnett DCJ)
DELIVERED ON: 28 November 2025
DELIVERED AT: Brisbane
HEARING DATE: 16 September 2025
JUDGES: Brown and Doyle JJA and Williams J
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of one count of maintaining a sexual relationship with a child – where the appellant contends that there were inconsistencies in the complainant’s evidence and inconsistencies between the complainant’s evidence and the evidence provided by witnesses who lived with the appellant at the time of the offending – whether the verdict was unreasonable or insupportable having regard to the whole of the evidence / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed / R v Allen (a pseudonym) [2020] QCA 233, cited / R v ZT (2025) 281 CLR 137; [2025] HCA 9, followed
COUNSEL: D V Nguyen for the appellant (pro bono) / M A Green for the respondent
SOLICITORS: Bruxner Legal for the appellant (pro bono) / Director of Public Prosecutions (Queensland) for the respondent
BROWN JA: The appellant was convicted on 3 May 2024, of one count of maintaining a sexual relationship with a child. This followed a four day trial. The appellant was sentenced to three years and three months imprisonment with parole eligibility set at 3 December 2025.
The sole ground which this Court must consider in this appeal is whether the verdict of guilty was unreasonable and cannot be supported having regard to the evidence. That requires this Court to carry out an independent assessment of the evidence in order to determine whether it considers a jury could be satisfied beyond reasonable doubt of the charge. A review of the evidence demonstrates that the jury could be so satisfied and that the appeal must fail.
The charge and the evidence
The appellant was convicted of maintaining an unlawful sexual relationship with a child under 16 years between 30 April 2021 and 30 March 2022.
The particulars of the count involved three acts, namely:the appellant putting his mouth and tongue on the complainant’s penis on multiple occasions;the appellant making the complainant put the complainant’s mouth and tongue on the appellant’s penis on multiple occasions; andthe appellant rubbing his body against the complainant on one occasion.
The offending was alleged to have occurred in the appellant’s bedroom.
The complainant was a principal witness. He was seven or eight years old at the time of the offending which occurred while the appellant was babysitting he and his sister. At the time that the complainant spoke to police he was eight years of age and then gave evidence in court when he was 10 years of age.
Complainant’s evidence
An overview of the complainant’s evidence is as follows.
When the complainant was seven or eight years of age his mother was working and needed assistance with babysitting. The appellant babysat the complainant and his sister while his mother worked.
According to the complainant, the complainant built a strong bond with the appellant.
When the complainant was in the bedroom with the appellant, he would lie on the bed and he would put his “doodle” on the complainant’s belly. At the request of the appellant, he touched the appellant’s doodle with his hand or with his mouth. He touched or licked the appellant’s doodle with his mouth. The appellant also touched the complainant’s doodle with his mouth.
The times at which the complainant said it occurred varied, with him sometimes referring to it happening every time he was there, sometimes giving a figure, and other times saying to his mother it didn’t happen all the time.
When the touching or licking occurred, the complainant pulled down his pants because the appellant “kept saying please”. He would have his shirt on while the touching occurred when his pants were pulled down.
The appellant also described on one occasion that the appellant had “humped him”. When asked what he meant by that he stated, “like dogs do”.1 He added, when asked to give an explanation, that the appellant was doing the motion of “humping” which he said was “pushing up and down” to his “doodle”.2
The complainant told the police “… he licks my doodle but that feels nice … but he’s not allowed to do it”.3 The appellant also asked the complainant to lick his doodle saying “[d]o you wanna to lick my doodle? And I say no and then he says sure? And then I just say yes. I say whatever or fine or um okay or yes”.4 His description of the number of times that these things had occurred at the appellant’s house was “heaps” but he could not say the number of times. He described the appellant saying that he was “his best boy” which he considered was because “I do nice stuff with [h]im”.5
The appellant told the complainant “[p]lease don’t tell anyone we did this”.6
Complainant’s mother
The complainant’s mother gave evidence. She confirmed that the complainant and his sister had been babysat for about eight months by the appellant before the complainant disclosed allegations of offending to her on 29 March 2022. She estimated that the babysitting was about 20 times and not as many as 50 times.16 She confirmed that the complainant was particularly fond of Minecraft and something called “Siren Head” and he had an active imagination. She confirmed that he had got into trouble at school. Those matters were the subject of admissions. She confirmed that the appellant and her brother BDW had a falling out while he was living in the house with the appellant.
She described the complainant informing her about what occurred in the following terms:17
“Do you remember what [the complainant] told you?‑‑‑He came to me and he said to me, “I have something to tell you but you have to promise not to tell the police”. And it took about five minutes of convincing him that I wouldn’t tell the police. And then he said that, “[the appellant] licks my doodle”. And I was quite shocked and I said to him, “Does he – do you do it back to him?” And he said, “Sometimes I do, sometimes I don’t”. And then he – I asked him when it happens and what happens before and he says [the appellant] takes him into the room and they play some games and then [the appellant] asks him if he can lick his doodle and sometimes [the complainant] says – “Sometimes I say yes, sometimes I say no”. And then I asked if he gets him to do it back to him and his response was, “Sometimes I do, sometimes I don’t because he does it to me”.
From your relationship with [the complainant], do you know when he uses the word doodle what he’s meaning?‑‑‑Yes.
What’s he meaning?‑‑‑He’s meaning penis.”
Complainant mother’s friend
A friend of the complainant’s mother was driving with the complainant and gave evidence that he told her that he had been touched and was asked to touched his babysitter, the appellant, by licking by his doodle. He said that the appellant had licked his doodle and given him slobbery kisses.18
She said she then started to record the conversation where the complainant said that he had been humped by the appellant stating “like, how Darryl humps – humps your leg”, Darryl being a dog.19
Housemates
Evidence was also given by the housemates of the appellant. One housemate MB described how the complainant and his sister would come over to the house and be babysat nearly every weekend for quite a few months. He observed that children were not allowed in the bedrooms including the appellant’s room.20
MB however stated it was rare that he would go to the house when the kids were there and that he would not go into the appellant’s room if the door was closed.21
ZB gave evidence that he lived with his father MB and brother CK when he was about 16 years old. He stated he did not interact much with the complainant and the appellant when the complainant and his sister were being babysat but he could recall them coming over on a Friday and Saturday. He said he was mostly away when they were at the address.22 He confirmed that on one occasion the complainant had asked him to be his boyfriend.23
His recollection was that the appellant’s door was open when the complainant or his sister were in his room playing their Gameboy on the TV, but at the time the appellant was not there.24
CK gave evidence that he lived with the appellant for nearly seven years and was 17 years old in 2022. He would help on occasion with the babysitting of the complainant and his sister. The complainant would come into CK’s room. On one occasion he tried to kiss CK and asked CK to marry him.25
He said you could not see the rooms from the living room and dining area.26 He did see the complainant on occasion in the appellant’s room looking at stuff.27 He stated that when he was babysitting with the appellant he would not stay with them the whole time but he would go back to his room.28
Investigating officer
Legal principles
In M v The Queen the majority observed that where it is sought to set aside a verdict on the ground that it is unreasonable and cannot be supported having regard to the evidence, the question is one of fact which the Court must decide by making its own independent assessment of the evidence.29 The Court must examine whether, notwithstanding there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”30 (footnotes omitted).
The majority in M stated that even where there is evidence to sustain a verdict, the question which an appellate court must ask itself “is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.31 The Court must not, however, in answering that question “disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”.32 The High Court in R v ZT33 recently confirmed that the test in M remains the correct test to be applied and that it requires any assessment to take into account the advantages that the jury has in assessing the evidence in a trial.
The Court in R v Miller,34 stated that in applying the principles in M:
“It is fundamental that it is not sufficient for an appellant merely to show ‘discrepancies’ or ‘inadequacies’ in the evidence or to show that the evidence is ‘tainted’ or ‘otherwise lacks probative force’. It is necessary to demonstrate that such features appear in the evidence ‘in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted’” (footnotes omitted) (emphasis omitted).
“While the criminal standard of proof applies just as much to the evidence given by a child as it does to the evidence given by an adult, it is well understood and accepted that the factors taken into account to assess the reliability of the evidence of young children are not the same as those affecting the reliability of the evidence of adults. A child may not view events with the understanding of an adult, may be unable to recall important details that would be prominent in an adult’s recollection and may lack the linguistic ability to recount events or to explain them. Immaturity may lead a child into avoidance techniques when being questioned. Most importantly, as everyone who has any experience of young children knows, although in common with adults, the recollection of a child will be more accurate close in time to the relevant events, a very young child’s memory of events tends to fade very quickly.
Section 93A of the Evidence Act is founded upon the sound assumption that the earliest account given by a young child is likely to be the most accurate account. It is this assumption which justifies a prosecutor asking a child, who is giving evidence pursuant to s 21AK at a later trial, whether the account tendered under s 93A is true and it is the assumption which can justify a jury’s acceptance of an affirmative answer. It is why s 2lAA states, as has already been pointed out, that one of the objects of Division 4A of Part 2 of the Act is to preserve, to the extent practicable, the integrity of the evidence of an affected child. The result of the practice that has developed around the use of the provision is that the jury has, potentially, an accurate account of events because it incorporates the contemporaneous choice of language, knowledge, experience, gestures and demeanour of a child witness rather than the account given by a child appearing as a witness, a long time later in the difficult sitting of a criminal trial, when the account may suffer not only from failures of recollection, the stressors inherent in a formal trial, but also from the effects of gained knowledge, experience and maturity.”
Was the verdict unreasonable or not supported by evidence?
The appellant contends that there were a number of inconsistencies, discrepancies or other inadequacies in the evidence that was given, such that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt. The appellant’s counsel identified five matters which he contended demonstrated that even making proper allowances for the advantages of the jury, there was a significant possibility that an innocent person had been convicted. I will address each in turn and the effect cumulatively.
The first matter is that the complainant’s evidence was unreliable and materially inconsistent in relation to the number of times he was babysat by the appellant.
It was undoubtedly true that the complainant gave inconsistent evidence as to the number of times he was babysat. It is unsurprising that a child of the complainant’s age would give inconsistent evidence and not be able to be definitive of the times. There was in fact, and again unsurprisingly, a number of different estimates given by the adult witnesses consisting of his mother and people who lived in the house. The number of times he was babysat was not probative of whether the offences occurred. What was probative and supportive of the charge was that he had been babysat by the appellant on multiple occasions. The fact that he was there on multiple occasions was relatively uncontroversial. That was supported by the evidence of the complainant’s mother who estimated he was babysat more towards 20 times and the appellant’s housemates was that the complainant and his sister were at the appellant’s house on a number of occasions over a period of six to eight months being babysat.
The fact that the complainant gave different estimates of the number of times he was babysat by the appellant did not undermine the probative value of his evidence.
Secondly, the appellant contends that the complainant was unreliable and materially inconsistent in relation to the number of times the appellant had offended against him.
The complainant did give inconsistent evidence as to the number of times offending occurred including telling police that it happened every time he visited the appellant’s house to telling his mother it did not happen every time, to agreeing in cross-examination that it did not happen every time and also agreeing in cross-examination that when he told the complainant’s mother’s friend that it happened four times that was true.
As to the significance of the evidence, the appellant also points to the evidence of CK that he had not observed the complainant to be in the appellant’s bedroom and that there were always other people when the complainant and his sister were being babysat indicating a lack of opportunity. The appellant also refers to the fact that the Crown had particularised one of the acts as “the defendant rubbed his body against the appellant’s body on multiple occasions” but ultimately amended the particulars to only refer to the occasion where he said he had been humped by the appellant.
Order
Appeal dismissed.
DOYLE JA: I have read and agree with the reasons for judgment of Brown JA and with the order proposed by her Honour.
Having made my own assessment of the whole of the evidence adduced at trial, I agree that it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant.
WILLIAMS J: I have read the reasons of Brown JA, including her Honour’s review of the whole of the evidence at the appellant’s trial.
I have also undertaken an independent assessment of the evidence adduced at the appellant’s trial. My assessment of the sufficiency and quality of the evidence, taking into account the jury’s role and the advantages the jury enjoys, accords with Brown JA’s conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt in respect of the single count on the indictment of maintaining a sexual relationship with a child.
Accordingly, I agree with Brown JA’s reasons and conclusion that the verdict of the jury was not unreasonable and that the appeal should be dismissed.
R
BQN [2025] QCA 240
(1994) 181 CLR 487
(2025) 281 CLR 137
Appeal dismissed. Brown JA gave the principal reasons; Doyle JA and Williams J agreed (paras 67-72).
The appellant lived with a number of individuals in a house. The door was shut and locked when the incidents occurred between the appellant and the complainant. There were however other people home at the time, including his sister but she did not go into the room with the complainant and the appellant.
In cross-examination, the complainant said that the appellant also played games with the complainant. He would chase the complainant around the house and pretend to eat the complainant. The complainant said to him when he pretended to eat his arm or leg “[y]ou’re only pretending to eat me. You have to actually eat me.”7
The appellant also played games where he would blow air and make funny noises on the complainant’s tummy and blow raspberries.
The complainant would sleep at the appellant’s house at night and would ask the appellant to stay “…because I like sleeping with him. Because he liked it”.8 He clarified that he also slept with his mum so that she keeps him company and that the appellant did the same.9
In cross-examination, the complainant agreed that on occasions he lied at school and made up stories. He agreed he got in trouble with his mother and sometimes had time-out in his room, the appellant gave him time-out but it was in the corner. He agreed he did various naughty things at home and at school.
The complainant, when asked “[d]id [BDW] tell you to say that [the appellant] did bad things to you?” said “I don’t – no. Yeah, he did”.10
BDW was the complainant’s uncle who had originally lived with the appellant.
The complainant did not like getting into trouble from the appellant and would say to him “I’m your best boy”.11
When direct propositions were put to the complainant in cross-examination that the appellant had never asked him to lick his doodle, that he had never licked the appellant’s doodle, that the appellant had not touched his doodle and he had not touched the appellant’s doodle, that the appellant did not put his mouth on his doodle nor did he put his mouth on the appellant’s doodle and the appellant never asked him to keep a secret about touching his doodle, he rejected those propositions.
He also said that what he had told his mother and a friend of his mother about what occurred was true and that was the case with what he told the police. He agreed he did not know how many times the incidents with the appellant occurred.12
In re-examination the complainant confirmed that the appellant had told him he was his “best boy” when he was in the bedroom.13 He also gave a description of what he did when his mouth touched the appellant’s doodle.14 He confirmed that the appellant gave him “slobbery kisses” on the mouth.15
While the complainant’s evidence as to the number of times the offending occurred was inconsistent, the evidence of the fact that it had occurred on a number of occasions and the nature of the sexual offending that had occurred was consistent. It was also generally consistent with the evidence of preliminary complaint in terms of what he told his mother, the complainant’s mother’s friend (although given what he had told the complainant’s mother’s friend of the humping incident, which was recorded and played to the jury, that was treated as direct evidence by the complainant himself).
As to the fact that he agreed he told a lady it happened four times over two to three months, it was open to the jury to consider that was him referring to a window of the offending, given the reference to two to three months when he was questioned, rather than referring to the offending in total. It did not exclude that there were other occasions when offending occurred.
As to the other individuals who were in the house and did not observe the complainant to be in the appellant’s bedroom, the jury could, on the basis of the evidence given, have been satisfied that they were not there at all times on every occasion when the complainant and his sister were being babysat such that the opportunity for the appellant to offend against the complainant in his bedroom with the door shut was not excluded, notwithstanding the evidence of the other members of the household. Nor was it put to any of the witnesses that there was never an occasion when he could have been in the bedroom with the appellant while they were in the house.
As to the particulars having been amended during trial from the appellant rubbing his body against the complainant’s body on multiple occasion to one occasion of humping, his evidence did not support the former. However the evidence of the humping was clear in its description and supported by his reference to the fact that the humping was like a dog who he knew. It was open for the jury to accept that evidence. The fact that the particulars had changed was a matter which was evident to the jury and is quintessentially a matter where the jury has the advantage when assessing the complainant’s evidence.
None of these matters significantly undermine the probative value of the complainant’s evidence.
Thirdly, the appellant contends that the complainant’s evidence was confusing including the evidence:of the complainant in cross-examination when he accepted that the appellant would blow air and make a funny noise on his tummy and that he would sometimes get saliva on his body from that, but then disagreed that saliva came out of the appellant’s mouth;in his section 93A interview, he could not give the police a consistent answer as to when the appellant last babysat him; that the complainant told his mother that the appellant used his tongue to lick the complainant’s doodle and did not refer to using his mouth, nor had he said that to the complainant’s mother’s friend or police, but he told the prosecutor he used his mouth and accepted that what he told the Crown prosecutor was different to what he had disclosed to his mother; andwhen asked “if you told someone that [the appellant] asked you to suck his doodle would that be true or false?” he said false, but later rejected the proposition that the appellant had not asked him to lick his doodle.
There were inconsistencies in the way that the complainant gave his evidence about the saliva and as to when the appellant stopped babysitting him. Neither matter was material or probative as to whether the offences had occurred and were consistent with a child giving evidence and to his responding on occasion to questions where the jury could consider that he did not clearly know the meaning of the question.
As to the inconsistency between the fact that he had said that the appellant has used his tongue as opposed to using his mouth when licking the complainant’s doodle, it was not a matter significance that he used different terminology. The essence of the allegation was consistent and it was plain on his evidence that it could be accepted that the use of the mouth was an elaboration of the appellant licking his doodle.
As to the reference to rejecting that the appellant had sucked his doodle, the complainant had never used that terminology in describing what had occurred. On the basis of his re-examination it was open to find that the complainant had not understood that terminology. When the prosecutor asked whether the complainant understood what was meant by “suck his doodle” his response was “Yeah- no”. When the prosecutor stepped through what he meant be saying his mouth touched his doodle, he clarified it was his tongue and it was the whole doodle and that he had “sucked his doodle”. He clarified that is what he meant when he said that he had licked the appellant’s doodle. The re-examination demonstrated that the complainant’s evidence wasn’t inconsistent and there was a comprehension difficulty in the way the question was asked in cross-examination.
His evidence was generally consistent with what he had told his mother and the complainant’s mother’s friend.
Supportive of what had occurred was the fact that when describing it to the police, the complainant described the sensation of the appellant licking his doodle as “feeling nice” but that he should not do it. That unsolicited comment is both consistent with the nature of the act and the child’s focus on the sensation at the time.
Fourthly, the appellant contends that there was a possibility that he had been coached into making his complaint by BDW.
The complainant had initially said that BDW did not tell him to say that the appellant did bad things to him but then said he did. There was no elaboration as to what the bad things were and in particular whether there was any coaching as to the incidents which were said to be sexual offending. It could however have just referred to BDW telling him that he should tell the Court the bad things that had occurred in fact. Preliminary complainant evidence was given to both his mother and his mother’s friend which was not challenged. While the complainant’s mother had given evidence of a fallout between the appellant and BDW, the questioning of the complainant did not establish that coaching had occurred or suggest that the evidence was fabricated.
None of the matters identified undermined the complainant’s evidence of the offending such that it could not have been accepted by the jury.
Fifthly, the appellant refers to the complainant’s active imagination which suggests that there was a possibility that the allegations might be fabricated given his obsession with video games and that he had approached other members of the household about them being his boyfriend and trying to kiss one of them and asking him to marry him.
An active imagination in a child is hardly something that is surprising. An obsession with video games is again hardly surprising and common in modern society. There is no link between the video games and the nature of the offending which he described. As to his actions with the other housemates, they could be equally consistent with a child who was being exposed to sexual offending and would not undermine the evidence of offending that was given. The jury could readily exclude either possibility as being an explanation for the complainant’s evidence of the offending.
I do not consider that the matters complained of individually or cumulatively in the context of the evidence raise the possibility that an innocent man has been convicted. Those matters identified by the appellant do not undermine the credibility of the evidence given by the complainant which was supported in its essential elements by what he told his mother and his mother’s friend. A number of the matters raised by the appellant are matters where the jury held the advantage of being able to assess the evidence given by the witnesses and in that regard I observe that the jury were thoroughly instructed as to the inconsistencies, inadequacies and confusion in relation to the complainant’s evidence by the primary judge.
In any event, having carried out an independent assessment of the evidence as a whole, I am satisfied that a jury could find that the appellant was guilty beyond reasonable doubt on the evidence that was before the Court and that there was not a significant possibility that an innocent person was convicted.
AB Vol 2 203-204. ↩
AB Vol 2 200/5-19. ↩
AB Vol 2 213-214. ↩
AB Vol 2 213/5-6; As to the appellant’s evidence see AB vol 2 159/10-11. ↩
AB Vol 2 226. ↩
AB Vol 2 224. ↩
AB Vol 2 229. ↩
AB Vol 2 231-232. ↩
AB Vol 2 232. ↩
AB Vol 2 236. ↩
AB Vol 2 237. ↩
AB Vol 2 237. ↩
AB Vol 2 234. ↩
(1994) 181 CLR 487, per Mason CJ and Deane, Dawson and Toohey JJ. ↩
M at 492-3. ↩
M at 493. ↩
M at 493. ↩
(2025) 281 CLR 137. ↩
[2021] QCA 126 at [16], per Sofronoff P, Morrison JA and Ryan J; see also R v ZT. ↩
[2020] QCA 233 at [21]-[22] (with whom Morrison JA and Jackson J agreed). ↩
[2025] QCA 124 at [10] (with whom Flanagan JA and myself agreed). ↩