//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] QCA 186
respondent. The appeal against conviction was dismissed. The appellant’s sentences, described at [3], were not the subject of an argued appeal because the sentence appeal application had been abandoned.
The Queensland Court of Appeal dismissed a father’s appeal against convictions for sexual offences against his daughter. The appeal concerned whether the jury needed more direction about the delay before the daughter first complained. The Court held that the relevant Evidence Act provision did not require a direction that delay was relevant to credibility. It instead conditionally prohibits that kind of direction unless sufficient evidence justifies it. The trial judge gave the required directions that delay does not by itself show an allegation is false and that there may be good reasons for delay. The jury also heard the complainant’s explanation and the parties’ arguments about it. In the circumstances, the judge did not need to say more.
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.
2,156 words · generated 07/10/2026
In [2025] QCA 186, the Queensland Court of Appeal dismissed an appeal against conviction. Bond JA gave the principal reasons; Bowskill CJ and Doyle JA agreed ([1], [41]). The appellant had been convicted by a jury of four counts of rape and one count of indecent treatment of a child under 16 and under 12 who was his lineal descendant ([2]). The complainant was his daughter.
3 cited instruments linked from this judgment.
The alleged offending occurred between about November 2017 and May 2020. The complainant’s first complaint was to a woman she regarded as her mother’s friend on 23 April 2021. That woman told the complainant’s mother the next day. Police became involved from about February 2023 ([15]). The complainant said she did not disclose earlier because her father told her not to tell anyone and threatened to hurt her if she did, and she did not want herself or her mother to be hurt ([24]).
The appellant’s sole conviction appeal ground was that the trial judge had misdirected the jury, or failed to give a necessary direction, about the use to be made of delay in making a complaint ([5]). His argument focused on s 103ZZ(2)(c) of the Evidence Act 1977 (Qld), which concerns a direction that delay is relevant to the complainant’s credibility.
The trial judge directed the jury that absence or delay in complaint does not of itself indicate that an allegation is false, and that there may be good reasons why a person hesitates or refrains from complaining. The judge also referred to the relationship between the child and her father and to the threats described in her evidence ([22], [32]). The appeal failed because the Court considered that s 103ZZ(2)(c) did not impose the direction-giving duty asserted by the appellant, and the circumstances did not call for further comment under the judge’s general duty ([34]–[39]).
The Court read the relevant provisions of Part 6B together. Section 103ZZ(2)(a) requires the jury to be told that absence or delay does not, of itself, indicate that the allegation is false. Section 103ZZ(2)(b) requires the jury to be told that there may be good reasons for hesitation or failure to complain. Section 103ZZB prohibits directions or suggestions that delayed complainants are, as a class, less credible, or that their evidence should be treated as dangerous or scrutinised with great care ([8], [11]–[12]).
Section 103ZZ(2)(c) has a different function. It provides that a judge must not direct the jury that delay is relevant to the complainant’s credibility unless there is sufficient evidence to justify that direction. Bond JA characterised it as a “conditional prohibition”, not a statutory command to give a direction whenever sufficient evidence exists ([13], [34]). This distinction was central: permission to give a particular direction if the evidentiary threshold is met is not the same as an obligation to give it.
The Court also explained that the provisions do not require a jury to treat delay as necessarily irrelevant. Rather, they require jurors to avoid the reasoning prohibited by the statute. A complainant’s explanation for delay may itself be important to the jury’s assessment, as Bond JA noted by reference to Jarrett v R ([12]). The statutory directions therefore constrain improper reasoning without taking the assessment of the evidence away from the jury.
A separate question remained: whether the trial judge’s general duty required further comment in this particular trial. Drawing on Alford v Magee and RPS v The Queen, the Court said the judge must identify the real issues, explain the relevant law, and relate it to the facts. But the judge is not generally required to comment on every factual matter; the obligation depends on what is needed for a fair trial and to explain the issues ([14]).
On these facts, the delay was obvious and its explanation was also before the jury. The complainant described threats by her father. The mother and other witnesses gave evidence about the timing and content of preliminary complaints, and defence counsel highlighted differences between the accounts and the absence of evidence from the mother that the complainant had mentioned threats to her ([18]–[20], [24], [28]). Both Crown and defence counsel addressed credibility, including the significance of the delay and the complainant’s explanation ([28]–[30]).
The trial judge identified the central question as whether the jury accepted the complainant’s evidence about the matters necessary to prove the offences beyond reasonable doubt. The judge summarised the competing points and repeated the statutory directions ([32], [38]). The Court found no additional factor, not apparent to the jury, that needed to be drawn to its attention. Accordingly, there was no perceptible risk of miscarriage in the absence of another direction ([38]–[39]).
The judgment describes Part 6B, Division 3 as having commenced on 23 September 2024, following the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Qld) ([7]). The provisions were therefore in force for the appellant’s trial, which began on 18 November 2024 ([31]).
The judgment places the reform in the context of recommendations in the Royal Commission into Institutional Responses to Child Sexual Abuse’s Criminal Justice Report Parts VII to X and the Hear her voice report ([9]). As summarised by the Court, the reform aimed to permit relevant directions when needed for a fair trial while avoiding broad and incorrect assumptions about how complainants, including children, behave ([9]).
The Court’s account of the statutory position is not that delay is always irrelevant, nor that it must always be treated as adverse to credibility. Sections 103ZZ(2)(a) and (b) require specified corrective directions. Section 103ZZ(2)(c) restricts an adverse credibility direction unless sufficient evidence supports it. Section 103ZZB bars specified class-based and cautionary directions ([11]–[13]). Section 103ZR confirms that the division does not limit all other matters on which a court may direct a jury ([8], [14]).
The judgment does not set out a comprehensive account of the law before the 2024 amendments. It does, however, refer to earlier Queensland provisions and authorities in explaining why a comment must not suggest that delay alone is a reason to regard a complainant’s evidence as unreliable ([13]). The Court said the general duty identified in Alford and RPS continues to inform directions about delayed complaint, but is now subject to the statutory limits in Part 6B ([14]).
The practical clarification supplied by this decision is narrow but important: meeting the threshold in s 103ZZ(2)(c) does not automatically compel a judge to tell the jury that delay is relevant to credibility. Any separate need for further comment arises from the judge’s general duty, assessed against the real issues and circumstances of the trial ([34]–[38]).
At [34], Bond JA said: “The section is not the source of a legal obligation on the trial judge to give directions that delayed complaint is relevant to a complainant’s credibility.” In plain English, s 103ZZ(2)(c) sets a limit on when a judge may give a particular kind of direction. It does not, by itself, require the judge to give one.
At [13], the Court explained that the provision is a “conditional prohibition” and that a judge may give the direction only after making an evaluative judgment that there is “sufficient” evidence. The Court distinguished an adverse statement that delay is relevant of itself from an appropriate direction about how delay may matter in combination with the circumstances of a particular case. That distinction reflects the statute’s concern with avoiding assumptions while allowing the jury to assess the actual evidence.
At [14], the Court restated the judge’s general task, drawing on Alford and RPS: the judge identifies the real issues and explains the law as it applies to the facts. In ordinary terms, the judge must make the jury’s task intelligible, but need not add factual commentary merely because an issue exists. The statutory restrictions remain controlling.
At [36], Bond JA said there was “nothing in the circumstances of this case which called for any particular comment concerning the significance of delayed complaint to the real issues in the case.” This was not a conclusion that delay or the explanation was immaterial. It was a conclusion that the jury already had the relevant evidence and arguments, and the judge had adequately explained the governing directions.
At [39], the Court concluded that no further direction was needed because the circumstances did not create a “perceptible risk of a miscarriage” without one. In plain English, the omission alleged by the appellant did not make the trial unfair on the facts before the Court.
The decision is most directly relevant where a Queensland sexual-offence trial includes evidence of absent or delayed complaint and a party argues that the judge must direct the jury that the delay bears on the complainant’s credibility. It requires separating two questions: first, what directions the statute permits or prohibits; second, whether the judge’s general duty requires some additional explanation on the particular facts.
The statutory directions are engaged when evidence is given, likely to be given, or a question is asked or likely to be asked, tending to suggest absence or delay in complaint ([8]). The Court’s analysis then calls for attention to the content of the directions actually given, whether any proposed comment would imply that delay is adverse of itself, and whether sufficient evidence supports a direction of that kind ([13]).
The general-duty issue is fact-specific. Relevant features in MEQ included that the complainant gave an explanation for delay; the jury heard that explanation; the parties addressed its credibility and the differing accounts of early complaints; and the judge identified credibility as the central issue ([24], [28]–[30], [37]–[38]). The Court emphasised that there was no factor not apparent to the jury that needed to be brought to its attention ([38]).
The decision does not establish that further directions are never needed. It expressly preserves the general duty to identify the real issues and relate the law to them ([14], [35]). Nor does it determine how a materially different case should be resolved, such as one where a key explanation was not before the jury or where the way the case was argued created a particular risk of prohibited reasoning. Those possibilities would need assessment against the statutory text and the actual trial record.
The judgment was delivered on 8 October 2025. The supplied judgment contains no discussion of later judicial treatment of R v MEQ, and no later decisions are included in the materials provided. It is therefore not possible, on this source alone, to say whether another court has followed, distinguished, or otherwise treated this decision.
Within MEQ itself, the Court relied on earlier authorities for the principles governing jury directions. It followed Alford v Magee and RPS v The Queen on the trial judge’s responsibility to identify the issues and explain the law as it applies to the facts ([14]). It cited Director of Public Prosecutions (Cth) v JM in connection with the Alford duty ([14]). It applied the observations in R v TN about avoiding a suggestion that delay alone supports scepticism about a complainant’s evidence ([13]). It cited Jarrett v R for the possible significance of the jury assessing a complainant’s explanation for delay ([12]).
The Court also mentioned Longman, Robinson and Tully, but observed that the appellant had not developed an argument by reference to those cases ([36]). The judgment does not decide their application to a distinct factual question in this appeal. Readers seeking treatment after October 2025 would need sources beyond the judgment supplied here.
The decision leaves the operation of s 103ZZ(2)(c) dependent on the circumstances and on the judge’s evaluative assessment of whether sufficient evidence justifies the relevant direction ([13]). It does not define a universal threshold for “sufficient evidence”; the supplied reasons explain the function of the threshold but do not formulate a test for all cases.
The judgment also does not provide a checklist for when the general duty requires additional comment about delay. Its approach is contextual: identify the real issues, consider what the jury has heard and what counsel have addressed, and ask whether any matter needing explanation would otherwise be left unclear ([14], [37]–[39]). Cases with different evidence, submissions, or risks of improper reasoning may require a different assessment.
Finally, the Court’s reasons distinguish a direction that delay is relevant adversely to credibility from a direction about how delay may be considered alongside other circumstances ([13]). The precise wording and context of any proposed direction will therefore matter. The Court’s central caution is that any direction must remain consistent with ss 103ZZ(2)(a) and (b) and must not contravene s 103ZZB ([14]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
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 MEQ [2025] QCA 186
PARTIES: R / v / MEQ / (appellant)
FILE NO/S: CA No 263 of 2024 / DC No 55 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Dalby – Date of Conviction: 20 November 2024 (Power KC DCJ)
DELIVERED ON: 8 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 25 September 2025
JUDGES: Bowskill CJ and Bond and Doyle JJA
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 of four counts of rape and one count of indecent treatment of his daughter, aged between 5 and 8 at the time of the offending – where there was delay between the time of the offending and the first complaint of the offending which the complainant explained was because her father threatened to hurt her if she told anyone – where the appellant alleged miscarriage of justice because the trial judge should have directed the jury that delayed complaint was relevant to the complainant’s credibility – where the appellant alleged s 103ZZ(2)(c) of the Evidence Act 1977 (Qld) gave rise to an obligation to give such a direction where the evidentiary threshold of “sufficient evidence” was met – where the Court held that submission was misconceived – where there was nothing in the circumstances of the case which called for any particular comment concerning the significance of delayed complaint to the real issues in the case / CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – EVIDENCE – where the appellant was convicted of four counts of rape and one count of indecent treatment of his daughter, aged between 5 and 8 at the time of the offending – where there was delay between the time of the offending and the first complaint of the offending which the complainant explained was because her father threatened to hurt her if she told anyone – where the trial judge gave directions consistently with his obligations pursuant to ss 103ZZ(2)(a) and (b) and s 103ZZB of the Evidence Act 1977 (Qld) – where the Court held s 103ZZ(2)(c) is not the source of a legal obligation on the trial judge to give directions that delayed complaint is relevant to a complainant’s credibility – whether the trial judge was right not to provide any further direction on delayed complaint or the complainant’s reasons therefor / Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Qld) / Evidence Act 1977 (Qld), s 103ZR, s 103ZZ, s 103ZZB / Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, followed / Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30, cited / Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140, cited / R v TN (2005) 153 A Crim R 129; [2005] QCA 160, applied / RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, followed
COUNSEL: D P Jones KC for the appellant / M B Lehane for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: I agree with Bond JA.
BOND JA: On 20 November 2024, after a 3-day jury trial in the District Court, the appellant was convicted of four counts of rape and one count of indecent treatment of a child under 16, under 12, who was his lineal descendant.
The following day the appellant was sentenced to a period of 5 years’ imprisonment on each of the counts of rape. On the count of indecent treatment, he was sentenced to a period of 18 months’ imprisonment. All sentences were to be served concurrently. The operation of a domestic violence protection order was extended until 26 September 2029.
The appellant had sought leave to appeal against his sentence on the grounds that the sentence was manifestly excessive but abandoned that application before this Court.
The appellant appeals his conviction on the sole ground that there was a miscarriage of justice because the learned trial judge misdirected the jury concerning the use to be made of delay in making a complaint.
For reasons which follow, his appeal against conviction must be dismissed.
The relevant statutory background
Part 6B, Division 3 of the Evidence Act 1977 (Qld) came into force on 23 September 2024 via an amending Act titled Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024.
For present purposes, the relevant provisions of the new Part 6B are ss 103ZR, 103ZZ and 103ZZB, which provide as follows:
“Subdivision 2 General matters
…
103ZR No limit of court’s duty to direct jury
This division does not limit the matters the court may direct the jury about, including in relation to evidence given by an expert witness.
…
Subdivision 4 Directions to jury—other
…
103ZZ Direction on lack of complaint or delay in making complaint
This section applies if evidence is given, or likely to be given, or a question is asked, or is likely to be asked, of a witness that tends to suggest—
an absence of complaint in relation to the commission of the sexual offence the subject of the criminal proceeding by the complainant; or
delay by the complainant in making a complaint in relation to the commission of the sexual offence.
The judge—
must direct the jury that absence of complaint or delay in complaining does not, of itself, indicate that the allegation that the sexual offence was committed is false; and
must direct the jury that there may be good reasons why a person who does not consent to a sexual activity may hesitate in making, or may refrain from making, a complaint about a sexual offence; and
Examples of good reasons—
1 The person was overborne by the abuse of a relationship of authority, trust or dependence.
2 The person has employed strategies to cope with the sexual offence such as suppression or disassociation from the offence.
3 The person has a fear of ostracism from their community.
must not direct the jury that absence of complaint or delay in complaining is relevant to the complainant’s credibility unless there is sufficient evidence to justify the direction.
If the criminal proceeding also relates to a domestic violence offence alleged to have been committed by the defendant against the same complainant, the judge may—
also give a warning under section 103ZD; or
give a single warning to address both types of offences.
In this section—
domestic violence offence see section 103B.”
…
Subdivision 5 Prohibited directions
103ZZB Prohibited directions etc. in relation to credibility of complainant’s evidence
The judge in the criminal proceeding—
must not direct, warn or suggest to the jury that complainants who do not make a complaint or who delay in making a complaint are, as a class, less credible than other complainants; and
must not direct, warn or suggest to the jury in relation to the evidence of complainants who do not make a complaint or who delay in making a complaint—
that it would be dangerous or unsafe to convict the defendant on the evidence; or
that the evidence should be scrutinised with great care.”
The explanatory memorandum to the Bill for the amending Act identified that the introduction of the Part 6B was a response to legislative reform recommended in the Royal Commission into Institutional Responses to Child Sexual Abuse - Criminal Justice Report Parts VII to X, and in the Hear her voice – Report Two – Women and girls’ experiences across the criminal justice system - Volume 1.1 The former report charted the course of legislative reform in New South Wales and Victoria2 and recommended that other Australian jurisdictions follow the course there taken, where the Commission observed that the reforms had operated “… to ensure that the accused can receive a fair trial by allowing for relevant directions to be given where necessary to assist the jury in a particular case, without relying on broad and incorrect assumptions based on stereotypes and misconceptions about women and children and how ‘real’ victims of sexual offences, including child sexual abuse, will behave.”3
Four observations may be made about the impact of the new sections on the way in which directions must be given to juries in sexual offence cases where the evidence suggests absent or delayed complaint about the relevant offending.
First, s 103ZZB expresses a general prohibition against a trial judge giving to a jury directions, warnings or suggestions of a particular type. The section seeks to ensure that trial judges do not formulate directions, warnings or suggestions based on what the legislature has identified as unfounded assumptions and generalities concerning the behaviour of complainants in sexual offence cases.
Second, ss 103ZZ(2)(a) and 103ZZ(2)(b) require the trial judge to give positive directions to the jury which are aimed at requiring the jury not to reason by the making of similar unfounded assumptions. Notably, however, ss 103ZZ(2)(a) and 103ZZ(2)(b) do not require the jury to be told they must regard absent or delayed complaint as necessarily irrelevant to their task. They just require the jury to be told to conduct any assessment of the significance of absent or delayed complaint in conformity with ss 103ZZ(2)(a) and 103ZZ(2)(b). As Basten JA has observed in relation to the similarly worded s 294 of the Criminal Procedure Act 1986 (NSW), “[w]here the complainant has provided an explanation for delay or absence of complaint, the credibility of the explanation may itself be a significant matter to be considered by the jury.”4
“Properly construed, s 4A(4) [of the Criminal Law (Sexual Offences) Act 1978 (Qld)] proscribes any suggestion by a trial judge that delay in making a complaint is a reason for regarding a complainant’s evidence as unreliable. Any warning given by a trial judge must avoid any such suggestion. As Robinson shows, delay in making a complaint may, in combination with other circumstances of the case, give rise to an appreciation on the part of the trial judge that the complainant’s evidence of sexual abuse is sufficiently implausible to require a strong warning to the jury; but delay of itself must not be suggested as a reason for the scepticism which calls for close scrutiny.”5 (emphasis in original)
Pursuant to s 103ZZ(2)(c), the judge may make the conditionally proscribed direction only if the judge makes the evaluative judgment that there is “sufficient” evidence to warrant doing so.
“… The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.”
The foregoing passages identify the source of and the constraints applicable to the trial judge’s duty to formulate directions to the jury and to make comments regarding factual issues which arise in a particular case. They continue to inform the trial judge’s duty where an issue arises concerning absent or delayed complaint in a sexual offence case. In that regard, the introductory phrase to the second highlighted portion is significant. In the present context, it means that no direction could permissibly be made which invited the jury to reason in a way which did not conform with ss 103ZZ(2)(a) and 103ZZ(2)(b) or which was formulated in a way which contravened the prohibitions expressed in s 103ZZB. And a trial judge could not direct a jury in the terms prohibited by s 103ZZ(2)(c) unless there was sufficient evidence to justify that course.
The relevant course of the trial
The complainant was the appellant’s daughter. The offending conduct took place between about November 2017 and May 2020. She first made a complaint concerning her father’s sexual conduct towards her on 23 April 2021 in a conversation with a woman who worked for her mother’s partner and who she regarded to be her mother’s friend. She was then nine years old. That woman, in turn, told the complainant’s mother the following day. The police were involved from around 10 February 2023 and the complainant made a preliminary complaint to them at that time.
The Crown case against the appellant depended entirely upon on the jury being satisfied beyond reasonable doubt that the complainant’s account of the offending against her was both reliable and credible.
The trial commenced on 18 November 2024. On that day, the jury heard evidence from the complainant’s mother, from the woman to whom complaint was first made and then from the police officer who had interviewed the complainant.
In her evidence the complainant’s mother addressed the living arrangements at the places where the offending was alleged to have taken place; the circumstances of her relationship with the appellant; the timing and circumstances of the preliminary complaint made to her by the complainant; the timing and circumstances of her leaving the relationship with the appellant and the timing and circumstances of the first police involvement concerning the appellant’s alleged offending. The complainant’s mother recalled the complainant’s preliminary complaint to her as being to the effect that the appellant “had put a finger inside of her” but had said nothing else because she was upset.
The woman to whom complaint was first made gave evidence of the timing and circumstances of the conversation with the complainant. Notably on the woman’s recollection the complainant did not tell her that the appellant touched her. Rather the complainant told her that her father “kissed her with his tongue”.
The police officer gave evidence of the complainant’s preliminary complaint to him on 10 February 2023. His recollection was that the complainant told him that her father had “done really gross things to her” and that she said to him that “he had put his fingers inside her vagina on several occasions”. He also confirmed that he and a female police officer had conducted the record of interview with the complainant on 24 May 2023.
On 19 November 2024, the jury heard the recordings of the complainant’s 24 May 2023 record of interview with police and her 8 July 2024 pre-recorded testimony. The complainant was aged 11 and 12 respectively when the two recordings were made.
Before the two recordings of the child complainant were played to the jury the trial judge directed the jury in these terms:
“Now, this case relates to an allegation that a child was sexually offended against by an adult, and that adult was her father. The reactions of people, whether adults or children, who allege they have been offended against will inevitably vary. Different people may behave differently in response to the same circumstances, and the same person may be affected differently at different times by different circumstances. You will understand that there is no rulebook dictating how a person – particularly a child – will be affected if offended against.
Now, despite this, all of us carry within us inevitably some degree of preconceived expectations about how a complainant in a sex matter should react, should behave, should be affected. Now, we have juries. You are to apply your own wisdom and knowledge to the human – of the human condition in considering the facts of this case. However, it is important that you do not judge the case based on any preconceived expectations about how an alleged victim of a sexual offence should or should not react, should or should not behave, should or should not be affected.
Now, to guard against that risk, I am going to give you the following directions of law. The first is that non-consensual sexual activity – and as you’re aware, this – the charges here contain rape – can occur in many different circumstances and between different kinds of people, including those who are in a relationship with each other, whether biological or otherwise. I direct you that there is no typical, normal or proper response to non-consensual sexual activity.
People may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything. You must avoid making assessments based on preconceived ideas about how people should respond to non-consensual sexual activity. The experience of the court is that trauma may affect different people differently. Some people may show obvious signs of distress when they’re giving evidence, whether that’s speaking to a police officer or giving evidence in court. Some people may show obvious signs of emotional distress, but others may not. The presence or absence of emotional distress does not of itself mean that a person is not telling the truth about a sexual offence.
Now, in this case, you will hear evidence – and you’ve heard evidence already – that the child, …, did not immediately tell her mother that her father had sexually offended against her. And it – even after she told her mother’s friend and then her mother, there wasn’t an immediate complaint to police. The absence of a complaint in relation to the commission of a sexual offence, or a delay in making such a complaint, does not of itself indicate that an allegation that a sexual offence was committed is false.
There may be good reasons why a person does not immediately make a complaint about a sexual offence, and you will be aware of issues of relationship and the age of the child and, of course, the fact that even when the complaint was made to the mother, the mother didn’t immediately complain. So those are the directions that I give you in relation to your consideration, but stressing that you are the jury appointed according to law to consider the evidence. …”
Although the complainant gave generalized evidence of other instances of sexual abuse, these five instances particularised on the indictment were supported by her evidence:The “first time” related to an occasion when she was five or six years old. The appellant asked her to come into his bedroom where he digitally penetrated her vagina. This was count 1 on the indictment and was particularised as having taken place between 7 November 2017 and 10 January 2018.The appellant entered the complainant’s bedroom, carried her out to the lounge room and digitally penetrated her vagina. This was count 2 on the indictment and was particularised as having taken place between 7 November 2017 and 10 January 2019.When the complainant was a little older, she described watching a movie with the appellant when he digitally penetrated her vagina while she was on the mattress (count 3) and then on the couch (count 4). Both counts were particularised as having taken place between 30 April 2018 and 10 January 2021.When the complainant was seven or eight years old, the appellant placed his exposed penis in proximity to her genitals (count 5). He did not touch her with it. This count was particularised as having taken place between 31 December 2019 and 1 January 2021.
Although the periods particularised on the indictment covered between 7 November 2017 and 10 January 2021, the evidence suggested that count 1 must have occurred prior to the complainant’s 6th birthday and count 5 must have occurred a short time before the appellant and the complainant’s mother separated on 15 May 2020, which was after the complainant’s 8th birthday. Accordingly, on the complainant’s evidence the offending occurred when she was aged between 5 and 8 and she made the first complaint about the offending almost a year after the last alleged offending. She was asked about this and explained that when her father offended against her, he would tell her not to tell anyone and threatened to hurt her if she did. She suggested that she did not tell anyone because she didn’t want either her or her mother to get hurt.
During cross-examination:Counsel for the appellant suggested to the complainant (and she rejected) that the offending never happened and the complainant was lying about the offending and about her father ever making threats to hurt her.Counsel cross-examined her about certain details of her account, to elicit answers he would subsequently use to suggest inconsistencies as between the accounts and the details suggested in the preliminary complaint evidence.Counsel cross-examined her to confirm details of and her recollection of her very poor behaviour and disciplinary record at school in the period 15 June 2017 and August 2020. (Subsequently formal admissions were made and tendered concerning entries in records obtained from the Department of Education confirming aspects of the poor behaviour and disciplinary record.)
The appellant gave evidence before the jury on the afternoon of the second day of the trial. He too gave evidence of the living arrangements at the places where the offending was alleged to have taken place and of the circumstances of his relationship with the complainant’s mother. He gave evidence that he did not ever have a sexual interest in the complainant; had not ever interfered with her; had not ever put his fingers in her vagina and had never exposed his penis to her or put his penis near her. He identified considerations which suggested that he had limited opportunity to do so, in particular that he was never alone at the places where the offending was alleged to have taken place, the complainant never came out to his place by herself, and that he was never alone with her. In cross-examination, the complainant’s allegations were put to him and he denied them.
“You will recall that as part of defence submissions, as is entirely legitimate, it was suggested to you that there were differences in the complainant child’s account and that this might be relevant to your consideration of the complainant’s truthfulness or reliability.
The experience of the courts in Queensland shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way every time and trauma may affect people differently, including how they recall events, and it is common, in the experience of the courts, for there to be differences in accounts of a sexual offences and both truthful and untruthful accounts of a sexual offence may contain differences. It is up to you, the jury, to decide whether or not any differences in the complainant’s account are important in assessing her truthfulness and reliability.
Now, in this case, the evidence is that the child, …, first told anyone about what she said had happened to her when she told [her mother’s friend] on the 23rd of April 2021. Now, that is obviously some time considerable time after when she says she was first offended against as a five year old and somewhere around a year longer than when the last offending was said to have occurred – or sorry, slightly less than a year. Now, in those circumstances, you are aware that there was a period of time before which the complainant child told anyone of what she said had happened to her.
I direct you that the absence of a complaint or a delay in making a complaint does not, of itself, indicate that the allegation that a sexual offence was committed is false and there may be good reasons why a person who does not consent to a sexual activity or is a child against whom a sexual offence is committed may hesitate in making or may refrain from making a complaint about a sexual offence.
Now, where – what good reasons are shown in the evidence in this case or more generally is a matter for you, but what was referred to in the prosecutor’s submissions was the nature of the relationship between the child and her father. You will remember, of course, that from her evidence, she appeared to have an affectionate relationship with her grandfather, that is, the defendant’s father, and there was also what she said was some threats made not to disclose. There may be other reasons that you find as to good reasons why there was not an immediate complaint. Those are the directions I give you in relation to that.”
gave related warnings about the application of preconceived notions to the question of why it was that the complainant might have voluntarily continued to see the appellant if he had offended against her in the way she had said; and
proceeded to summarise the evidence and the submissions which had been made in relation to it in an unremarkable way.
Consideration of the ground of appeal
The thrust of the appellant’s argument was that the trial judge erred by not giving the jury the direction which the appellant argued was “required” by s 103ZZ(2)(c) of the Evidence Act, the relevant evidentiary threshold set out in that section having been met, so the appellant contended, in the circumstances of this case. However, that argument misconceived the purpose of that section. The section is not the source of a legal obligation on the trial judge to give directions that delayed complaint is relevant to a complainant’s credibility. Rather it is the source of a conditional prohibition against giving a particular type of direction concerning absent or delayed complaint.
As has already been demonstrated, the trial judge gave directions consistently with his obligations pursuant to ss 103ZZ(2)(a) and (b) and s 103ZZB of the Evidence Act. If, as the appellant contended, the trial judge should have given further directions or made further comment concerning the significance of the complainant’s delayed complaint to the jury’s function of making an assessment of the complainant’s credibility, the source of duty and the constraints applicable to it would have to be found in the trial judge’s fundamental duty as explained in Alford v Magee and RPS v The Queen.
Once that is appreciated, it becomes clear that the appellant’s case must fail. There was nothing in the circumstances of this case which called for any particular comment concerning the significance of delayed complaint to the real issues in the case. Nor, it must be observed, did the appellant seek to develop any argument that there was, having regard to considerations addressed in such cases as Longman,10 Robinson,11 or Tully.12
This was a short trial. While it was true that the Crown case turned entirely upon on the jury’s acceptance of the complainant’s account of the offending, the issues affecting whether the jury should regard the complainant as credible and reliable were obvious. The fact of the delayed complaint was obvious, but so was the explanation which the complainant gave. Indeed, if the jury accepted the truth of that explanation, then for the reasons suggested by counsel for the Crown, it would defuse any significance of delay. Both counsel engaged with whether the complainant should be believed on that question and on other matters sounding on the complainant’s reliability and credibility.
The trial judge fulfilled his duty as explained in and by identifying for the jury that the real issue was whether they were prepared to accept the complainant’s evidence about the critical matters going to prove the offences beyond reasonable doubt and then by briefly recapitulating the central competing points made by counsel on that issue. No further explanation or comment was required to be given by the judge, it being obvious that amongst other things the jury was being asked to consider the credibility of the explanation which the complainant gave for the delayed complaint in the context of the other features of the case discussed by counsel, including the age of the complainant and her voluntarily having continued to see the appellant. There was no factor which might not have been apparent to the jury which needed to be drawn to their attention, referable to the assessment they had to make.
Conclusion
The appeal must be dismissed.
DOYLE JA: I have read the reasons of Bond JA and I agree with those reasons for the order his Honour proposes in dismissing the appeal.
Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023, Explanatory Notes, p 22. ↩
Royal Commission into Institutional Responses to Child Sexual Abuse - Criminal Justice Report Parts VII to X at pp 117 to 131. ↩
Royal Commission into Institutional Responses to Child Sexual Abuse - Criminal Justice Report Parts VII to X at p 140. ↩
Jarrett v R (2014) 86 NSWLR 623 at [41]. ↩
R v TN [2005] QCA 160 at [64]. ↩
Alford v Magee (1952) 85 CLR 437 at 466; Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135 at [28]. ↩
Alford v Magee (1952) 85 CLR 437 at 466; Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135 at [28]. ↩
RPS v The Queen (2000) 199 CLR 620 at [41] and [42]. ↩
Chapter 26 of the Supreme and District Court Benchbook. ↩
Longman v The Queen (1989) 168 CLR 79. ↩
Robinson v The Queen (1999) 197 CLR 162. ↩
R
MEQ [2025] QCA 186
(1952) 85 CLR 437
(2013) 250 CLR 135
(2014) 86 NSWLR 623
(1999) 197 CLR 162
(2000) 199 CLR 620
(1989) 168 CLR 79
(2006) 230 CLR 234
The appeal against conviction was dismissed. The appellant’s sentences, described at [3], were not the subject of an argued appeal because the sentence appeal application had been abandoned.
Third, s 103ZZ(2)(c) expresses a conditional prohibition on a trial judge directing the jury that absent or delayed complaint is relevant to the complainant’s credibility. Unless the specified evidentiary threshold is met, such a direction is impermissible. As to this:The subsection seeks to conditionally proscribe the making of a judicial comment that the fact of absent or delayed complaint is relevant to the complainant’s credibility. The course of law reform referred to in the explanatory memorandum suggests that “relevant” in this context means that it is a consideration which adversely affects the credibility of the complainant.The subsection does not proscribe the giving of appropriate directions as to how absent or delayed complaint may, in combination with other circumstances of the case, be relevant in the circumstances of the case, so long as the direction avoids the suggestion that absent or delayed complaint is relevant of itself.Although made when the law provided that “the judge must not warn or suggest in any way to the jury that the law regards the complainant’s evidence to be more reliable or less reliable only because of [delayed complaint]”, these observations by Keane JA remain apposite:
The appellant’s stepmother was called to give evidence on the morning of the third day of trial. She addressed the living arrangements where offending was alleged to have taken place. She corroborated some aspects of the appellant’s evidence concerning his limited opportunity to do the alleged offending.
In the course of his closing address to the jury, defence counsel submitted that the complainant should not be believed, or at least that the jury should entertain a reasonable doubt as to the truth of her account. On the question of delayed complaint, counsel said that he was not saying anything about it, save that complaint was delayed because the offending never happened. On the significance of whether threats operated as a reason for delay, he pointed out the inconsistency between the evidence of the appellant concerning her preliminary complaint to her mother and the mother’s version of the same conversation, namely that the mother did not give evidence that the complainant had told her about the appellant’s threats to her.
Other considerations which were suggested to sound adversely to the jury’s assessment of the complainant’s credibility and reliability included:the complainant’s character as evidenced by her behaviour at school;inconsistencies in the complainant’s version of the preliminary complaint to her mother’s friend and the version given by the mother’s friend;inconsistencies in the complainant’s evidence concerning whether the appellant had used one or more fingers to penetrate the complainant and whether the count 3 offending had occurred on the mattress (as mentioned in evidence in chief, but not supported in cross-examination);an inconsistency between her evidence that her mother did not tell her the results of a court matter that related to a domestic violence incident between the appellant and her mother and her mother’s evidence which was that the complainant had found out that nothing had happened;the implausibility of the complainant being able to remember incidental matters from when she was as young as five years old;the conflict between the evidence from the complainant and her mother as to the appellant’s opportunity to offend and the evidence from the appellant and his stepmother;the complainant voluntarily returning and spending time with the appellant, when, as counsel suggested to the jury, “you’d think he might be the last person she’d want to be with”;the possibility that she may have had a motive to lie; andher lack of emotion when giving her account.
Counsel for the Crown acknowledged to the jury that their determination primarily depended on their assessment of the complainant and whether they accepted her as an honest and reliable witness. Amongst other things, counsel for the Crown:invited the jury to assess positively the complainant’s evidence and the level of detail she was able to remember;suggested that the level of her understanding of sexual matters and the function of the body parts to which she referred was consistent with her age and her naïve descriptions of what happened to her were believable and operated as hallmarks of truth;suggested that the complainant’s account was fundamentally consistent both internally and with the evidence from preliminary complaint witnesses, and any inconsistencies were of little moment and would not cause the jury any difficulty;addressed delay specifically, suggesting that it was completely explained by the complainant’s evidence of threats of violence by her father and by her father’s authoritative position in her life;addressed the evidence of the complainant’s poor behaviour at school, suggesting, first, that it was not evidence that her complaints were untrue, and, second, pointing out that the period of poor behaviour had a nearly identical overlap with the period in which she said the offending had occurred; andinvited the jury to regard the complainant as a witness of truth.
Closing addresses were concluded before lunch on the third day. The summing up commenced before lunch and concluded at about 2.30 pm after lunch.
The trial judge summed up in an orthodox way. It is necessary only to focus on those aspects which are relevant to the error suggested by the appellant in this case. Amongst other things, the trial judge:reminded the jury that the Crown carried the obligation to prove the elements of the offence beyond reasonable doubt;told the jury that the proper approach was to understand that the prosecution case depends upon them accepting the complainant’s evidence about the critical matters going to the offences beyond reasonable doubt;gave an orthodox Liberato direction9 concerning the significance of the appellant having chosen to give evidence in the case;noted that in their closing addresses counsel had made competing submissions on the question of whether the jury would accept or reject the complainant’s evidence or the appellant’s evidence;directed the jury as to the law concerning the elements of the five counts on the indictment;repeated the substance of the directions he had made to the jury prior to the complainant’s recorded evidence being played to them, including in particular by saying:
No further direction touching upon delayed complaint or the complainant’s reasons therefor was necessary to avoid a risk of miscarriage of justice, because the circumstances did not give rise to any perceptible risk of a miscarriage in the absence of any further direction.
Tully v The Queen (2006) 230 CLR 234. ↩