R v Jan

Case [2025] QCA 37

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

  1. FLANAGAN JA:  I agree with Boddice JA.

  2. 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.

  3. 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…

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AGLC
R v Jan [2025] QCA 37
Case
[2025] QCA 37
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction for one count of maintaining a sexual relationship with a child and four counts of rape, where the complainant for each count was his niece. The central issue at trial was the credibility and reliability of the complainant’s account. The appellant argued that the trial judge failed to direct the jury about the absence of medical evidence, either by way of a direction under s 132BA of the Evidence Act 1977 (Qld) or by way of a "Robinson" direction. The appellant also argued that the trial judge failed to direct the jury that to convict him of each count, they had to be satisfied of the truth and accuracy of the complainant’s account beyond reasonable doubt.

The court held that the absence of medical evidence did not necessarily mean that the results of such an examination would have been probative of an assessment of the complainant’s credibility and reliability. Therefore, 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. The trial judge’s observation to the jury, that they were not to speculate about anything which might require medical opinion evidence, 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.

The appeal was dismissed. The court ordered that the appeal be dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.EvidenceComplainant 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.[2]AB 402/5. 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.

Decision

Reasons for decision

This ground fails.Conclusion The appellant has not established any of the grounds of appeal. The appeal must be dismissed.Order I would order:1.The appeal be dismissed. WILLIAMS J: I have read the reasons of Boddice JA and I agree with those reasons and the order dismissing the appeal.

Ratio Decidendi

Legal Principle Established

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.ConsiderationGround 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][11](1999) 197 CLR 162. 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.