R v Jak

Case [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…

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AGLC
R v Jak [2024] QCA 146
Case
[2024] QCA 146
Decision Date

CaseChat Overview and Summary

The case of R v Jak involved the appellant who was convicted on 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. The conviction for indecent treatment was based on the appellant recording, by means of a device, a visual image of the complainant which was indecent, and having no legitimate reason for recording. The appellant claimed he recorded the video to confront the complainant about her "unsafe cyber behaviour". The prosecution argued this explanation was false. The issue before the court was whether the trial judge's failure 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, amounted to a misdirection or non-direction that occasioned a miscarriage of justice.

The court found that the appellant's explanation to his wife was an admission to the commission of an element of the offence in question. The court reasoned that if the jury concluded the appellant's explanation was untrue, there was no other innocent explanation for his conduct in making the video recording. Additionally, the trial judge had correctly directed the jury on the potential relevance of the appellant's explanation to his wife, including its relevance as an admission to the commission of count 4. The court concluded that the trial judge's direction was sufficient and there was no misdirection or non-direction that occasioned a miscarriage of justice.

The appeal against the conviction was dismissed. The court found no error in the trial judge's handling of the evidence and directions to the jury, and thus upheld the conviction.

Orders

Orders of the court

Date of Order: 10 July 2024

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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 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. 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. 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). 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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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