R v Jak

[2024] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAK [2024] QCA 146

PARTIES:

R
v
JAK
(appellant)

FILE NO/S:

CA No 217 of 2023
DC No 562 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 26 October 2023 (Lynch KC DCJ)

DELIVERED ON:

Date of Order: 10 July 2024
Date of Publication of Reasons: 13 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2024

JUDGES:

Dalton and Boddice and Brown JJA

ORDER:

Date of Order: 10 July 2024

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of maintaining a sexual relationship with a child, two counts of rape and one count of indecent treatment of a child under 16, as a guardian – where the indecent treatment count was particularised as the appellant having recorded, by means of a device, a visual image of the complainant which was indecent, that the appellant had no legitimate reason for recording – where it was not disputed that the appellant had recorded a visual image of the complainant masturbating using his mobile phone – where the appellant told his wife he recorded the video to confront the complainant about her “unsafe cyber behaviour” – where the prosecution submitted this was a lie – whether a miscarriage of justice was occasioned by the trial judge failing to direct the jury about the use, if any, to which the jury might put a conclusion that the appellant had given a false explanation to his wife for making the video recording

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited

COUNSEL:

J R Hunter KC for the appellant
C M Cook for the respondent

SOLICITORS:

McConnell & Saldumbide Criminal Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. DALTON JA:  I agree with the reasons of Boddice JA.

2. BODDICE JA:  On 26 October 2023, a jury found the appellant guilty of one count of maintaining a sexual relationship with a child, two counts of rape and one count of indecent treatment of a child under 16, as a guardian.  Each was a domestic violence offence.

3. The appellant appealed those convictions, on the ground that “a miscarriage of justice was occasioned by the failure of the learned trial judge to give a direction concerning the use, if any, that the jury might make of what the prosecution contended was an untruth told by the appellant”.

4. At the conclusion of the hearing of the appeal on 10 July 2024, the Court ordered that the appeal be dismissed.

5. These are my reasons for joining in that order.

   Indictment

6. Each of the counts related to the same female complainant.  She was aged between 11 and 12 years at the time of the commission of the first three counts and aged 14 years at the time of the commission of the last count.

7. Count 1, the maintaining count, was particularised as the appellant, on more than one occasion, attempting to and/or inserting his penis into the complainant’s vagina, including the two occasions of rape contained in the indictment.

8. Counts 2 and 3, the rape counts, were particularised as, on each occasion, penetrating the complainant’s vagina with his penis, without the complainant’s consent.

9. Count 4, the indecent treatment count, was particularised as the appellant having recorded, by means of a device, a visual image of the complainant, which was indecent, that the appellant had no legitimate reason for recording and that at the time of the recording, the complainant was under 16 years and the appellant was her guardian.

   Trial

10. Formal admissions were made at trial as to the complainant’s date of birth and that the appellant and his wife had been appointed guardians of the complainant by court order on 23 December 2016.

11. Accordingly, it was not in issue at trial that at all material times the complainant was a child under 16 years and that the appellant was her guardian.

12. The issue at trial, on counts 1, 2 and 3, was whether the complainant’s account, of the appellant engaging in sexual intercourse, was credible and reliable.  The defence case was that no such activity had taken place.

13. In respect of count 4, it was not disputed at trial that the appellant had recorded a visual image of the complainant masturbating in her bedroom, using his mobile phone.  The defence case was that the appellant had done so because of troubling behaviour by the complainant and in order to confront her with proof and to exercise a level of parental discipline.  The defence case at trial was that in those circumstances, the jury could not be satisfied, beyond reasonable doubt, that the image was indecent and/or could not be satisfied, beyond reasonable doubt, that the appellant had no legitimate reason for recording any indecent image.

    Evidence

14. The complainant met the appellant and his wife whilst living in New Zealand.  They had become foster carers for the complainant’s younger siblings.  The complainant and another sibling joined the family approximately six months later.

15. In early 2017, the appellant, his wife, the complainant and her siblings, emigrated to Australia.  They initially resided together at a residence in a regional centre, west of Brisbane.  In May 2018, they moved to a different residence in the regional centre.

16. On 18 May 2020, the complainant attended a police station, complaining of sexual misconduct by the appellant.  The complainant’s initial interview was recorded and played to the jury.  Her evidence was pre-recorded and also played to the jury.

    Complainant

17. The complainant said that whilst living in New Zealand, the appellant would touch her vagina and regularly try to put his penis into her vagina, bottom or mouth.  On occasions, they would engage in sexual intercourse more than once in a day.  These activities had taken place for approximately three years before moving to Australia.

18. The complainant said the first occasion of sexual intercourse in Australia occurred at their initial residence.  On that occasion, the appellant came into the bedroom and hopped onto the lower bunk bed occupied by the complainant.  The complainant said her bed broke and collapsed under their combined weight during intercourse (count 2).  The noise of the bed breaking caused her siblings to come into the room.

19. The complainant said the next occasion of sexual intercourse with the appellant, in Australia, also happened in her bedroom.  On this occasion, the appellant put the complainant up against a wall.  The complainant wriggled and the appellant was able to achieve only partial penetration (count 3).

20. The complainant said there were other occasions when the appellant would get into her bed.  On none of these occasions did the appellant achieve penetration.  These events occurred, on average, about three times per week.

21. The complainant said that at some point her brother told her he thought the appellant had put a camera in her bedroom.  A search by the complainant revealed a small USB camera, stuck to her bed.  Within hours of removing it, the appellant asked for it back.  The complainant returned it to him.

22. The complainant said that on the day she attended the police station, she had been told by her sister that the appellant had images of the complainant on his mobile phone.  The complainant viewed the appellant’s phone and found four videos, one of which captured the complainant masturbating in her bedroom (count 4).  The complainant deleted them from the phone before leaving the house.

23. In cross-examination, the complainant accepted; that she had been spoken to by the appellant about using her mobile phone late at night;  that in respect of count 2, her brother and sisters came into the room immediately after the bed broke; and that in respect of count 3, she had forcefully sought to extract herself from the appellant, making noises and hitting the adjacent wall.  She denied she had ever been spoken to by the appellant about posting intimate images of herself on social media; and that she had fabricated her allegations in order to return to New Zealand.

    Preliminary complaint

24. KT gave evidence that he first met the complainant at the beginning of 2020.  In May 2020, the complainant telephoned him.  She was crying and told him that she had caught her foster father taking a picture of her getting dressed.  KT told the complainant to come to where he was staying that day.  Police were contacted and they took the complainant to the police station.

25. KT said that prior to this day, the complainant had told him that her foster father used to touch her when she was little, when they lived in New Zealand.

26. In cross-examination, KT accepted that the complainant had told him she hated the appellant; she also hated her foster mother; and that it was her intention to run away.

27. DE gave evidence that he first met the complainant in May 2020, when she came to his house at the request of KT.  The complainant told DE that on multiple occasions her foster father had had sex with her and that he had taken nude photographs of her.  DE advised the complainant to call police.

    Other evidence

28. The appellant’s brother gave evidence that on an occasion about a week before the complainant was told of photographs being on the appellant’s mobile phone, he was in the complainant’s bedroom when his leg brushed what he thought was a camera directed towards a mirror that was affixed to a closet, which faced the bed.  He thought he had seen the appellant put the camera there.

29. The appellant’s wife gave evidence that on 18 May 2020, as she walked from her workplace to her car, the appellant drove up.  He told her, “I’ve really fucked up”; and that the children had discovered some content on his phone and left.  The appellant said the complainant had found a video of the complainant, masturbating, on his mobile phone.  She deleted the video and ran away.  Later, the complainant had told him, during a telephone call, that she had gone to the police.

30. The appellant’s foster mother said the appellant told her he had taken the video from outside the complainant’s bedroom window when he had been in the backyard checking on the security of the property.  He had observed the complainant masturbating, with the curtains wide open.  The appellant said he had taken the video to show her the curtains should be closed and that everyone could see what she was doing in her bedroom.  The appellant said he had intended to confront the complainant about her “unsafe cyber behaviour”.  He tried to confront her on several occasions, but he had “chickened out”.

31. The appellant’s foster mother said she and the appellant would jointly discuss concerns they had with the behaviour of the children.  The appellant had never shown her the video or raised its existence with her before this day.

32. In cross-examination, the complainant’s foster mother accepted that the appellant had told her that at the time he took the video, the complainant was “masturbating … with some guy on the internet”.  She agreed there had been cyber safety concerns about the complainant’s use of the internet in the past.  She also agreed there had been security issues around their residence and that the complainant and her sister had been attempting to leave the house late at night.

    Consideration

33. The appellant accepts that evidence of his conversation with his wife, about his reasons for videoing the complainant in her bedroom, was admissible as an admission to his having recorded a visual image of the complainant, a child under 16 years, whilst he was her guardian.  The appellant also accepted that the evidence was potentially relevant to the jury’s assessment of whether to accept the complainant’s account of the appellant’s sexual misconduct, on the basis that it was open to the jury to conclude that a reason for the appellant recording the video of the complainant masturbating in her room, was because he had a sexual interest in the complainant.

34. However, the appellant submits that it was incumbent upon the trial judge to direct the jury about the use, if any, to which they might put a conclusion that the appellant had given a false explanation to his wife for making the video recording namely, that he wanted to use the video to confront the complainant about her “unsafe cyber behaviour”.

35. The appellant accepts that trial counsel (different to the appellant’s counsel on appeal) did not seek any such direction, but submits a failure to do so was an oversight rather than a deliberate decision to obtain a forensic advantage.

36. Whilst inculpatory post-offence conduct by a defendant may give rise to the need for a direction by a trial judge that the jury not misuse that conduct and mistakenly leap from it to a conclusion of guilt, there was no such risk of misuse in respect of the appellant’s conduct.

37. First, the conduct was an express admission to the commission of an element of the offence, the subject of count 4.

38. Second, unlike certain types of post-offence conduct, if the jury concluded that the appellant’s explanation to his wife for taking the video was untrue, there was no other alternate, innocent explanation for his conduct in making that video recording.

39. Third, whilst the prosecutor, in addressing the jury, submitted that the appellant’s explanation “was just not the truth”, the prosecutor did not submit that that untruth was a deliberate lie by the appellant in a consciousness of guilt of the other offences.  The prosecutor submitted that the “real truth, the reason that [the appellant] took a video of his 14 year old daughter was because he held a sexual interest in her”.

40. Fourth, the trial judge correctly directed the jury as to the potential relevance of the appellant’s explanation to his wife, namely that it was potentially relevant as an admission to the commission of count 4.  Further, the trial judge directed the jury:[1]

    “But there is another potential relevance to this evidence which I must explain.  If you reject the account given by [the appellant] of his reason for recording the images and you conclude the reason [the appellant] secretly recorded the images of [the complainant] in a video of her masturbating in a room, if you conclude the reason for him recording that was because he had a sexual interest in her, that may be of use to you in deciding whether her account of the defendant sexually abusing her should be accepted.”

    [1]AB72/20-26.

41. Finally, the trial judge expressly cautioned the jury against leading to an automatic conclusion of guilt, should they find that the appellant had a sexual interest in the complainant.  The trial judge said:[2]

    “If you concluded the reason [the appellant] recorded the images of [the complainant] masturbating was because of his sexual interest in her, that might make her allegations [the appellant] committed physical sexual acts upon her more likely to be true.  A finding that [the appellant] recorded images of [the complainant] masturbating due to his sexual interest may be relevant to her credibility and reliability.  That [the appellant] filmed her masturbating because he had a sexual interest in her might make her allegations [the appellant] committed the sexual acts upon her more likely to be true.

    Whether you accept or reject [the appellant’s] explanation for filming her and whether you determine the real reason [the appellant] filmed her was because he had a sexual interest in her remain matters for your determination.  But it is open to you to reason in the way I have explained.

    However, you cannot convict [the appellant] of any offence simply because you conclude he had a sexual interest in [the complainant].  You can only convict [the appellant] of an offence if you are satisfied beyond reasonable doubt of all of the elements of that offence.  You cannot jump from a finding [the appellant] had a sexual interest in [the complainant] to an automatic conclusion of guilt.  Such a finding may only be used by you in assessing the credibility and reliability of [the complainant’s] version and may make her claims [the appellant] committed sexual acts upon her more likely to be true.”

    [2]AB72/28-47; 73/1-2.

42. Having regard to the clear relevance of the appellant’s explanation, to both the commission of count 4 and a conclusion that the appellant had a sexual interest in the complainant, and the careful and specific directions given to the jury as to the use that may be made of that evidence, in their deliberations, there was no material risk that the jury may misuse that evidence to mistakenly leap to a conclusion of guilt of counts 1, 2 and 3.

43. As there was no “real chance” that a failure to give a direction in the terms contended by the appellant “affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”,[3] there was no miscarriage of justice.

    [3]HCF v The Queen (2023) 97 ALJR 978 at [2].

44. BROWN JA:  I agree with the reasons of Boddice JA.