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[2025] QCA 37
General information, not legal advice.
Court of Appeal (Qld)
2025-03-25
Flanagan and Boddice JJA and Williams J
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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 JAN [2025] QCA 37
PARTIES: R / v / JAN / (appellant)
FILE NO/S: CA No 81 of 2024 / DC No 299 of 2022
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Toowoomba – Date of Conviction: 14 March 2024 (Power KC DCJ)
DELIVERED ON: 25 March 2025
DELIVERED AT: Brisbane
HEARING DATE: 13 February 2025
JUDGES: Flanagan and Boddice JJA and Williams J
ORDER: The appeal be dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial of one count of maintaining a sexual relationship with a child and four counts of rape – where the complainant for each count was the appellant’s niece – where the offending commenced when the complainant was five years old and continued over a period of seven years – whether the trial judge failed to direct the jury about the absence of evidence of a medical examination of the complainant, either by way of a direction under s 132BA of the Evidence Act 1977 (Qld) or by way of a “Robinson” direction – whether the trial judge failed to direct the jury that to convict the appellant of each count, they had to be satisfied of the truth and accuracy of the complainant’s account beyond reasonable doubt – whether there was a miscarriage of justice / Evidence Act 1977 (Qld), s 132BA / R v MEC [2024] QCA 203, applied / Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
COUNSEL: T A Ryan KC, with S Kissick, for the appellant / C M Cook for the respondent
SOLICITORS: Stuart Percy & Associates for the appellant / Director of Public Prosecutions (Queensland) for the respondent
FLANAGAN JA: I agree with Boddice JA.
BODDICE JA: On 14 March 2024, a jury found the appellant guilty of one count of maintaining a sexual relationship with a child and four counts of rape. Each was a domestic violence offence.
The appellant appeals those convictions.1 He relies on three grounds of appeal, each said to give rise to a miscarriage of justice. First, the trial judge failed to direct the jury about the absence of evidence of a medical examination of the complainant, either by way of a direction under s 132BA of the Evidence Act 1977, about the significant forensic disadvantage suffered by the appellant because of the effect of delaying the prosecution; or by way of a “Robinson” direction; or both. Second, the trial judge did not direct the jury about the way in which they might use a doubt about the complainant’s uncharged allegations of sexual offending in their assessment of her charged allegations of sexual offending. Third, the trial judge failed to direct the jury that to convict the appellant of each count, they had to be satisfied of the truth and accuracy of the complainant’s account, beyond reasonable doubt.
Indictment
Each count on the indictment concerned the same female complainant. She was the appellant’s niece.
Count 1 alleged that the appellant maintained an unlawful sexual relationship with the complainant between 9 March 2012 and 1 January 2019. The complainant was aged between five years and 11 years during the period.
Count 1 was particularised as the appellant:masturbating himself in the complainant’s presence; and/ortouching the complainant’s chest and/or breasts; and/orrubbing the complainant’s pubic mound and/or genitalia; and/ordigitally penetrating the complainant’s vagina; and/orlicking and kissing the complainant’s vagina; and/orpenetrating the complainant’s vagina with his penis; and/orinserting his penis in the complainant’s mouth.
Count 2 alleged that on a date unknown between 9 March 2012 and 31 May 2014, the appellant raped the complainant by inserting his penis into her vagina. This count was identified as the “shower time”.
Count 3 alleged that on a date unknown between 9 March 2015 and 10 March 2017, the appellant raped the complainant by inserting his penis into the complainant’s vagina. This count was identified as the “night time”.
Count 4 alleged that on a date unknown between 9 March 2015 and 10 March 2017, the appellant raped the complainant by inserting his penis into the complainant’s vagina. This count was identified as the “lounge time”.
Count 5 alleged that on a date unknown between 6 September 2017 and 11 September 2017, the appellant raped the complainant by inserting his penis into the complainant’s vagina. This count was identified as the “Gold Coast time”.
Trial
The trial commenced on 8 March 2024. The Crown called seven witnesses, in addition to the complainant and her friend, each of whose evidence had been pre-recorded and was played to the jury.
The appellant did not give or call evidence at trial.
The issue for the jury was whether the sexual acts alleged by the complainant had, in fact, taken place. As such, the central issue at trial was the complainant’s credibility and reliability.
Evidence
Complainant
The complainant first spoke to police on 1 January 2021. That interview was recorded and played to the jury.
The complainant told police that her uncle had “like raped me” from the age of five to about the age of 10 and a-half. The first incident she could remember was in the shower. As she left the shower to dry herself, the appellant grabbed the towel. He put some cream he had brought with him on a bench. He gently dried the complainant before grabbing her around the waist. He put one or two fingers inside her for two or three minutes. He then had her lay on the towel. He undressed himself. The appellant pumped some of the cream he had brought into his hand and started masturbating himself. He put the remaining cream on her. He put his hand over her eyes and mouth and put his penis inside of her (count 2). He moved in and out. He kept telling her to keep quiet. He then got her to get up, turn around and he put her hand in his pants making her play with him. At that point her cousin called. The appellant quickly dressed, put the towel around her and made her walk out of the bathroom to the cousin’s room. He left the bathroom about seven or 10 minutes later.
The complainant recounted another occasion, when she was maybe eight or nine years old. They were at the Gold Coast for her cousin’s 21st birthday. Everyone had gone out except the appellant, the complainant, her younger sister and the complainant’s youngest cousin. The complainant fell asleep on the couch. The appellant played with her breasts, before moving his hand down to her vagina. He did not undress her. The appellant then unzipped his pants. The appellant lay on top of her, put his hand over her mouth and started moving himself around. He pulled down her pants, “wanked himself off”, and put his penis inside of her (count 5). The appellant was in the same position as in the shower. He moved in and out for what “felt like forever”.2 He moved her clothes out of the way before putting his penis into her vagina. All of a sudden he took his penis out and walked away. The complainant fell back to sleep. On that occasion he did not put his fingers inside her vagina; he only touched it on the outside. He rubbed her vagina underneath her underwear. She remembered seeing her cousin in bed, as was her sister. The door to the bedroom was open.
The complainant said that on another occasion, when everybody was outside for a party, the appellant grabbed her as she went inside and pulled her into his room. He closed the door and started taking off his clothes. At that point, her cousin knocked on the door and said, “dinner’s ready”. The appellant pushed her into a walk-in wardrobe to hide her. He left the room and came back three minutes later and said, “come on, let’s go”. They then left the room.
The complainant said that on another occasion, when she was about seven years of age, she was asleep in her cousin’s bedroom. The cousin was beside her, also asleep. The appellant grabbed the complainant, put her on the floor beside the bed, took off all her clothes and made her “give him a blow job and a hand job”. When the cousin started to move around, the appellant picked her up, put his penis inside of her and carried her out into the lounge room onto the couch. The appellant was telling her not to say anything to anyone. He told her to “give him like a blow job”. He told her to close her eyes and said, “don’t swallow it”. The complainant said she did not know what to do, so she swallowed it. The appellant used tissues to wipe himself. He then went onto a one-person recliner and put his penis inside her again.
Preliminary complaint
The complainant’s friend spoke to police on 13 July 2021. That interview was recorded and played to the jury. The friend told police that she was there to speak to them about how the complainant had told her about her uncle sexually assaulting her and raping her. The first time the complainant mentioned it to her was when they were on the bus, talking like teenage girls, around August 2020. She had asked the complainant if she had ever done anything with a guy. The complainant said “sorta”, with a sad face. The friend asked did she actually want to do it. The complainant went quiet and said “No, I didn’t”. At that point the friend left the bus.
The friend said a few weeks later, when they were having a sleepover, the complainant said that her uncle “multiple times he had raped her … made um, her give him oral sex”.7 It was over a long period of time. The friend did not think the uncle had done it recently. The complainant said she had not seen him for a while. Her mother would ask if she wanted to go over to see them and the complainant would say no. The complainant said she wanted to tell her mother, but did not want to break up the family. The complainant ended up telling her mother about four or five months prior to the friend talking to police.
The friend gave evidence on 9 May 2023. It was pre-recorded and played to the jury. She agreed that she went to police months after she had been told these things by the complainant. She could not remember if she was meant to be with the complainant on 23 December 2020. She agreed that there had been SnapChat messages between herself and the complainant at the end of 2020, including a SnapChat sent by the complainant “I’ve been through the same thing. You can talk to me.”
The complainant’s mother gave evidence that the appellant was married to her sister. The complainant would stay at the appellant’s house, in the same bedroom as her youngest cousin. When the complainant was at school, the appellant and her sister would sometimes collect her from school. The complainant would also go and stay with them on a Saturday night. There were periods of time when her family stopped spending as much time with the appellant’s family.
The complainant’s mother recalled they had all travelled to the Gold Coast to attend a 21st birthday. The adults had pre-booked tickets to a cabaret restaurant. The appellant stayed at the motel with the complainant and her cousins. When the adults arrived back, at maybe 10.30 pm or 11.00 pm, the complainant was in one of the rooms with her cousin and sister.
The complainant’s mother said late on 23 December 2020, she was driving with the complainant. She was talking to the complainant about her phone having been taken from her. The complainant went quiet. Her whole demeanour changed. She asked the complainant what was wrong. The complainant said, “You know how I don’t like going over to Aunty Dee’s anymore” and then started to say something about her uncle before she commenced sobbing. The complainant’s mother asked if he had hurt her and complainant nodded. The complainant’s mother then asked if the complainant was a virgin anymore and the complainant said, “No, I’m not … – because of [the appellant].” Later, the complainant was taken to the police station.
Other evidence
The principal police investigator gave evidence that she had arranged for a number of photographs to be taken in the appellant’s house, including of a towel with the complainant’s name written on it, and a Vitamin E cream brand bottle. She also obtained confirmation that the complainant’s aunt had booked a room at the Gold Coast in September 2017.
The complainant’s aunt gave evidence that in 2012, she would occasionally pick the complainant up from school. When she did so, she would pick up her own children from another school. The complainant would stay at her house until she was collected by her mother, or her mother’s partner. In 2012, the appellant was working shifts for a garbage removal company. Sometimes he started at midnight. Other shifts would start before the sun came up. The appellant never picked the complainant up from school. On two occasions he picked her up from the PCYC. On those occasions the complainant’s aunt arrived home before him. The complainant very rarely came to their home on a weekend.
The complainant’s aunt said the complainant had a close relationship with her youngest daughter, who “couldn’t move” without the complainant being right next to her.9 At their house, the complainant used a particular towel. She had bought it for the complainant for Christmas when she was two or three years of age. It remained at their place. The towel was embroidered with her name.
The complainant’s aunt said in 2017, the family had travelled to the Gold Coast, for her daughter’s 21st birthday. Some members of the family attended a dinner show. The appellant stayed back to look after the children. They were back at the hotel by quarter to 11. When she walked in, the appellant was dozing on the couch watching television. The children were awake, sitting on the floor. They had snacks sitting beside them.
In cross-examination, the complainant’s aunt said the complainant would stay in bunk beds at their home. She had half a dozen sleepovers a year. There were no sleepovers after the bunk beds were removed from that room in 2018. When the complainant washed in their house, she had a bath, always with her youngest cousin. She was never there on her own. When the complainant was in primary school, she would pick her up maybe three or four times a term, maximum. They had contact with the complainant at best once a month, on weekends. She picked the complainant up about five times from the PCYC. The appellant picked her up twice. She recalled one weekend where the complainant stayed over and she had to work. The complainant stayed with her youngest cousin and the appellant.
The complainant’s aunt said in 2016, the appellant suffered a back injury at work. He was still suffering that injury in 2017 when they travelled to the Gold Coast. He was in pain when they left to go to the dinner show. When they returned, the children were still awake. The complainant begged to stay the night. The complainant ended up sleeping with her youngest cousin in a single bed. A girlfriend of the complainant’s aunt was in a single bed on the opposite side of the room. When they woke the next morning, they all went to breakfast. The complainant again begged to stay with them, but she said no.
Consideration
Ground 1
The appellant submits that in circumstances where the complainant had alleged repeated penile/vaginal intercourse and digital penetration of her vagina, from the age of five until she was 10 and a-half, an absence of medical evidence was properly to be the subject of directions. Although no such direction was sought by trial counsel, it was incumbent upon the trial judge to have dealt with delay and the absence of medical evidence, by way of a direction under s 132BA of the Evidence Act and/or consistent with Robinson v The Queen.11
The difficulty with this submission is that there was no evidence upon which it could be concluded that the results of such a medical examination would have been probative of an assessment of the complainant’s credibility and reliability. Accordingly, it would be speculative, at best, for the jury to be invited to infer that the delay in complaining meant there was a lost opportunity to test, by way of medical examination, the complainant’s claims of multiple penile and digital penetration when she was a pre-pubescent child.
Against that background, there is no basis to conclude that the failure of the trial judge to give such directions, either individually or collectively, occasioned a miscarriage of justice. Any such direction, to be balanced, would have had to warn the jury about the risk of not speculating as to the evidence that may have arisen, should there have been a timely medical examination.
It was also submitted that the trial judge’s observation to the jury, that they were not to speculate about anything which might require medical opinion evidence, undermined a proper reliance on the disadvantage caused to the appellant by reason of delay and no opportunity for medical examination. However, such an observation was warranted in circumstances where a submission had been made about the implausibility of the allegation that the penis of the adult male appellant, had penetrated the vagina of the “prep” aged complainant. The trial judge’s observation reminded the jury that it was not the jury’s function to go into areas which would require medical opinion evidence about what is not implausible.
This ground fails.
Ground 2
The appellant submits that the trial judge should have directed the jury not only that a reasonable doubt about the separately charged offences (counts 2–5) might affect the complainant’s credibility generally, but also that a reasonable doubt about the “uncharged acts”, being the multiple occasions of sexual contact, including penetrative contact, over the maintaining period, might have the same effect.
Inherent in this submission is a contention that such acts constituted uncharged acts. However, there were no uncharged acts. The multiple other occasions of sexual interaction related by the complainant in her evidence were a particular of the maintaining count, as were the acts the subject of counts 2–5. Against that background, there is no basis upon which the trial judge could properly have directed the jury about a reasonable doubt about uncharged acts.
The trial judge, properly, directed the jury that they had to consider the evidence in relation to each charge separately, although there was an exception in respect of the maintaining count because it required consideration of all counts. The trial judge also properly directed the jury that it was a matter for them as to how they approached their deliberations.
Even if the jury had approached those deliberations by considering count 1 first, consistent with the trial judge’s directions, the jury would have carefully scrutinised the evidence of the complainant in respect of the acts the subject of counts 2–5 inclusive, as well as the multiple other occasions of sexual contact, including penetration by his penis and fingers, as they collectively formed the acts the subject of this count.
In that context, there is no basis upon which it could be concluded that the trial judge’s reference to the jury exercising “special caution”, if they were not satisfied beyond reasonable doubt of counts 2–5, would have led to the jury to treat differently any reasonable doubt about the other acts, the subject of the maintaining count.
To the contrary, the trial judge gave a careful direction to the jury, that if they had a doubt about the specific offences in counts 2–5, they should only convict the appellant of count 1, on the basis of the evidence of the other acts particularised in this count, if “after carefully scrutinising the evidence” of the complainant, the jury were satisfied “beyond reasonable doubt that [the appellant] did those other acts during the period alleged in the indictment”. Further, the jury were specifically directed that a reasonable doubt in respect of the complainant’s evidence on any specific count, “should be taken into account and considered” by the jury in the assessment of the complainant’s credibility generally, although it remained a matter for the jury as to what evidence was accepted or rejected.
This ground fails.
Ground 3
The appellant submits that having regard to the sole evidence on which the appellant’s conviction rests, being a single complainant’s account, the jury ought to have been directed that in order to convict the appellant of each count, the jury had to be satisfied of the truth and accuracy of the complainant’s account, beyond reasonable doubt.
In support of that contention, the appellant relies on observations in R v HCM.12 However, nothing in those observations supports a conclusion that it is necessary for a trial judge to give such a direction, in every case where an appellant’s conviction rests on a single complainant’s account. As was observed by this Court in R v MEC,13 the requirement for such a direction in R v HCM arose out of the particular circumstances of the trial and summing up.
A consideration of this case supports a conclusion that there were no such particular circumstances requiring the trial judge to give such a direction. In any event, the trial judge specifically directed the jury “this case turns upon you accepting, beyond reasonable doubt, the complainant’s evidence about the charged offences” and “it is for the prosecution to satisfy you that [the complainant] is telling the truth. It is for the prosecution to satisfy, beyond reasonable doubt, the guilt of [the appellant]”.
Those references, in the context of the summing up as a whole, support a conclusion that the jury were properly directed as to the standard of proof, with conviction only being open if the jury were satisfied, beyond reasonable doubt, of the complainant’s truthfulness and accuracy as to the commission of the sexual acts which were the subject of each count against the appellant.
Against that background there is no basis to conclude that any failure to direct the jury as to satisfaction as to the truth and reliability of the complainant’s evidence, beyond reasonable doubt, occasioned a miscarriage of justice.
This ground fails.
Conclusion
Order
I would order:
The appeal be dismissed.
R
JAN [2025] QCA 37
(1999) 197 CLR 162
The complainant told police they were the only times she could remember, but she used to go there every weekend and “it would happen on like a weekly basis”.3 Sometimes her cousins would knock on the door. It would never be her auntie. All the other times happened in his bedroom. The appellant would pull her into his room, get a box of tissues and some cream, take his pants off, put the cream on his hand and masturbate, before undressing her and touching her. He would put his fingers inside her, kiss her vagina and put his penis into her vagina. On occasions he would put her on her knees and have her give “a blow job”.4 This happened between the ages of five and a-half to nine and a-half or 10. Sometimes he would put his tongue into her vagina. He would quickly pull his penis out and use tissues to clean up his sperm. That did not happen every time, maybe every four to five weeks. When he made her go onto her knees, he would make her close her eyes and he would make her suck his penis. Sperm came out of his penis, maybe three times.
The complainant said the last time would have been Christmas 2018. That occasion was like a regular time again. It stopped because the complainant’s mother and her aunt (the appellant’s wife) had a fight. The complainant said she did not tell anybody at the time it was happening to her. The complainant told her mother on Christmas Eve 2020. The complainant was in trouble. The complainant’s mother asked what was wrong. The complainant was shaking really badly. The complainant told her mother why she never wanted to go to her auntie’s house; the appellant had raped her.
The complainant was further interviewed by police on 29 January 2022. That interview was also recorded and played to the jury. The complainant told police she had remembered two other incidents. She could not remember if she had already told the police about them.
The complainant said one of them was at night time, when she was about eight or nine years of age. She remembered that because she had received the pyjamas she was wearing for her eighth birthday. She was sleeping in her cousin’s bed. They were asleep in a Queen size bed. The appellant came into the room and put his penis inside her vagina (count 3). He had sex with her for about 15 or 20 minutes. The complainant said she was woken up to the appellant kneeling beside the bed. The appellant moved her legs to the side and up towards her shoulders. His body was beside her legs. He started to kiss her cheek and down her neck. He whispered, “be quiet”, before taking off her pants and putting his penis in her vagina. He moved in and out. When the cousin moved and rolled over, he quickly put his pants back on. The complainant said the cousin always slept right on the edge of the bed and was facing away from them. The complainant said she did not mention this in the first interview as it had “kinda just popped up”.
The complainant said there was another occasion when she was sleeping in her cousin’s room. The appellant picked her up and took her into the lounge room. He lay her down and touched her, before taking off his pants. He masturbated, placed his fingers in her vagina and then put his penis inside her vagina (count 4). When he stopped, he put his pants back on and went into the hall before telling her to go to bed. As she walked back to the bedroom, he slapped her on the bottom. He told her not to tell anybody in the morning; it was “our secret”.5 Again, the complainant said she did not speak about it the first time as she did not really remember it. There were no other times she could now remember.
The complainant gave evidence on 9 May 2023. It was pre-recorded and played to the jury. In her cross-examination, the complainant agreed that she would go over to the appellant’s house. Sometimes she would go after school. Sometimes she would stay overnight. When she did so, she was, as often as possible, in the company of her youngest cousin who was four years older. She denied that she always bathed with her cousin and was constantly in her cousin’s company. She agreed she stopped going there after September holidays 2019. She did not accept that she had been questioned by her auntie about lies she had told to get her cousin into trouble.
The complainant accepted that she first spoke to her parents about what she said had happened with the appellant, on 23 December 2020. That afternoon she had been spoken to by her parents about unsatisfactory messages and photographs on the phone. She agreed she was accused of sexual behaviours. The complainant also accepted that later that night, her auntie (the appellant’s wife) had come to the house. The complainant’s mother told her that the complainant was not a virgin and that the complainant said it had happened on the night they had gone to the Gold Coast to celebrate her cousin’s 21st birthday. She agreed that the allegation about losing her virginity involved the appellant.
The complainant denied that on that night at the Gold Coast, when all the adults returned home, she and her cousin were awake. She denied that she was not sexually interfered with by the appellant on that night. She accepted that the next day she had asked her mother if she could go home with the appellant and her auntie. The complainant said she wanted to see her cousin. She denied that the appellant had not had intercourse with her as a five year old. She accepted that she alleged there had been full adult male penile penetration of her vagina at that age.
The complainant said her mother made arrangements for her to go to police. She accepted that she later told police that she had recalled two more times because she had been talking to her father. She had these memories a few weeks before she went to speak to the police again, about 13 months after the first interview. She accepted that on the account she gave to police, the appellant had sexual intercourse with her for a reasonable period of time, on the cousin’s bed, next to her cousin. The complainant said there was not any bed movement because the appellant was holding her whilst having sexual intercourse. She agreed that when her father returned her phone to her in about August 2021, she deleted “pretty much everything off my phone, and I pretty much started new”.6 She agreed that on 23 December 2020, she was meant to be in the company of a friend. She accepted she had not seen her friend all of that day, but said she had spoken with her.
In cross-examination, the complainant’s mother agreed that in the complainant’s grade 1 to 6 years, there were multiple times a week that the complainant was being picked up by her aunt. The complainant’s cousin would be picked up at the same time. She accepted that as the complainant was getting older, it was a very rare event that she would ask her sister to pick up the complainant.
The complainant’s mother accepted that on the morning after they had attended the show on the Gold Coast, the whole family went for breakfast together. She accepted that over the years she had frequent fallings out with her sister and that by 2020, there was only incidental contact with the appellant and his family. The complainant’s mother agreed that on 23 December 2020, the complainant had her phone taken from her, because of unsatisfactory messages and photographs on the phone.
The complainant’s aunt said from about July 2018, she barely saw her sister and her family. The complainant came to her house twice in 2019. One occasion was in the September school holidays. That visit stood out because she recalled hearing the complainant tell her youngest cousin, “Do you remember all those times I lied to get you in trouble? That was fun, huh?” She said to the complainant, “Excuse me?” and the complainant looked at her with fear. She told the complainant that she needed to speak to her parents and the complainant replied, “Please don’t. Daddy will hurt me.”
The complainant’s aunt next saw the complainant on Christmas Eve 2019. She turned up uninvited, with her father. She also ran into the complainant at a shopping centre on 10 March 2020. The complainant did not speak to her, or the appellant. She never observed the appellant in the presence of the complainant in 2019 or 2020. The complainant’s aunt said on the evening of 23 December 2020, the complainant’s mother and father told her that something had happened when they went to the dinner show at the Gold Coast. The complainant’s aunt never observed the complainant and the appellant exiting the same bedroom in proximity to each other. She rarely saw them in the same room.
An older cousin of the complainant gave evidence that she travelled with her family to the Gold Coast for her sister’s 21st birthday, in September 2017. She went to the dinner show. She left her infant daughter in the hotel room to be looked after by the appellant. When she returned to the hotel, between 9.30 pm and 10.30-ish, the appellant was sitting on the couch, half asleep. The children were on the floor watching a movie. She picked up her daughter and went back to her friend’s house.
In cross-examination, she said prior to travelling to the dinner show, she heard the complainant repeatedly ask if she could stay at the hotel. She recalled inheriting some bunk beds from her mother. She thought it was the end of 2014 or 2015. They had previously been in her sister’s room. The cousin also remembered that in the school holidays in September 2019, she heard the complainant and the cousin’s youngest sister talking about lying. The complainant was reprimanded. She last saw the complainant on Christmas Eve 2019. On no occasion had she observed the appellant leave any bedroom at around the time the complainant left the bedroom. The complainant followed her youngest cousin around “like a haemorrhoid”.10
Another cousin gave evidence that in September 2017, she attended the dinner show, arriving home some time after 9.00 pm. In cross-examination, she agreed the appellant was on a lounge with the children, also awake, in the lounge area. The appellant appeared to be drowsy. She heard the complainant ask her parents if she could stay the night at the apartment. At breakfast, the complainant also asked if she could stay with their family, rather than go home with her parents.
The cousin also gave evidence that when the complainant would stay at their house, she would have a bath with her youngest cousin. The complainant spent the bulk of her time with that cousin. She did not see the appellant have much, if any, interaction with the complainant. On no occasion did she knock to get the complainant and the appellant to leave the bedroom. On no occasion did she see the pair of them leave a bedroom, either together, or in a time period close to each other.
A friend of the appellant’s family gave evidence that in September 2017, she attended the Gold Coast for a 21st birthday party. She stayed with the appellant and his family. She went to the dinner show, returned back to the hotel and slept in the same room as the complainant and her cousin. There were two single beds in that room.
In cross-examination, that friend said that before she left for the dinner show, she observed that the appellant was showing signs of back pain. When she returned, the children, including the complainant, were awake in the lounge room. The appellant seemed very drained and fatigued and still in pain. She heard the complainant beg her mother to stay the night. The complainant slept in a single bed in the same bedroom. That friend said she was a very light sleeper and was not awoken by anything unusual that night. The next morning, at breakfast, the complainant asked if she could stay with the family that day. The complainant’s demeanour was very bouncy, running around, playful.
The complainant’s youngest cousin gave evidence that when she was growing up she was best friends with the complainant. They did everything together. There were occasions when her mother would pick up both her and the complainant after school. On very rare occasions the complainant would stay overnight. When they travelled to the Gold Coast for her sister’s 21st birthday, they watched movies and played, whilst the others were at the show. The appellant was on the couch. The complainant begged to stay the night. The complainant ended up sleeping in her bed, a single bed, next to another occupied single bed. The youngest cousin said she did not sleep at all that night. She recalls that the appellant was disabled and needed to lie down.
In cross-examination, the youngest cousin agreed that when the complainant stayed at her house, she would follow her around the house. They would bath together. The complainant would not go to the toilet without her. When the complainant was in primary school, they would see each other once or twice a month. In other years it would be as little as once or twice a year. On no occasion did she observe the appellant and the complainant in a room alone together. As they got older, the complainant very rarely stayed at their house. When the complainant stayed over, she stayed in a bunk bed, in her room. The complainant always slept with the light on; she was terrified of the darkness. On one occasion, the complainant slept out in the lounge room. The youngest cousin also slept on the lounge floor, on a mattress. There was a time when the complainant came to her house and joked about getting her into trouble. The youngest cousin’s mother got a bit angry with the complainant. After that occasion, the complainant attended their house one more time, at the end of 2019. She stayed only a short time.