R v Jao

Case [2025] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAO [2025] QCA 44

PARTIES:

R
v
JAO
(appellant/applicant)

FILE NO/S:

CA No 249 of 2023
DC No 42 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Warwick – Date of Conviction & Sentence: 22 November 2023 (Allen KC DCJ)

DELIVERED ON:

1 April 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2025

JUDGES:

Bond and Boddice JJA and Bradley J

ORDERS:

1.   The appeal be dismissed.

2.   The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was convicted after trial before a jury of one count of maintaining a sexual relationship with a child – where the Crown called eight witnesses – where the appellant elected neither to give nor call evidence – whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENCE – GENERALLY – where the appellant was sentenced to three years’ imprisonment – where the period of offending occurred when the complainant child was aged 10 to 13 years – where the complainant child was the daughter of the appellant’s partner – whether the sentence imposed was manifestly excessive

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
D Kovac for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. BOND JA:  I agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.

  2. BODDICE JA:  On 22 November 2023, a jury found the appellant guilty of one count of maintaining a sexual relationship with a child.  It was ordered that he be imprisoned for a period of three years.

  3. The appellant appeals his conviction and seeks leave to appeal sentence.  His stated grounds in the notice of appeal are:

    “(a)The judge in his closing statement to the jurors reminded them not to convict on emotional passion but to convict on the facts of the witness statement.

    (b)The fact Senior Constable Ben Cox had made a police report entry stating that victim had admitted to making false allegations.

    (c)I was found guilty of not showing any remorse in my not guilty plea.”

  4. The first two grounds relate to the conviction appeal.  The last ground relates to the application for leave to appeal sentence.

  5. The appellant’s contentions on the appeal against conviction, both in writing and orally, were to the effect that the verdict was unreasonable and not supported by the evidence.  He relies on inconsistencies within the complainant’s account and inconsistencies between that account and other evidence called at trial.

    Indictment

  6. The indictment alleged the appellant maintained a sexual relationship with a child, between…

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AGLC
R v Jao [2025] QCA 44
Case
[2025] QCA 44
Decision Date

CaseChat Overview and Summary

The appeal in R v Jao involved the appellant who was convicted of maintaining a sexual relationship with a child. The case was heard in the Queensland Court of Appeal, where the appellant sought to challenge both the conviction and the sentence imposed. The primary legal issue was whether the jury’s verdict was unreasonable or insupportable in light of the evidence presented, particularly given the inconsistencies in the complainant's account and her recantation. Additionally, the appeal contested whether the sentence of three years’ imprisonment was manifestly excessive.

The court examined the evidence and noted that while there were inconsistencies in the complainant’s testimony and between her account and those of the preliminary complaint witnesses, these were not of a nature that should have led to a reasonable doubt regarding the appellant's guilt. The court found that the complainant's testimony about the appellant touching her in the vaginal area and on her breasts was consistent and corroborated by the preliminary complaint witnesses. Therefore, the jury was entitled to accept the complainant's account, which supported a finding of guilt beyond reasonable doubt. Regarding the sentence, the court determined that the sentencing judge had appropriately considered the aggravating factors of the offence and found that the sentence was not manifestly excessive.

The court dismissed the appeal and refused the application for leave to appeal, affirming the conviction and sentence. The judges concluded that the jury's verdict was not unreasonable and that the sentence imposed was within the sound exercise of the sentencing discretion.

Orders

Orders of the court

1. The appeal be dismissed.

2. The application for leave to appeal be refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant elected neither to give nor call evidence.EvidenceComplainant The complainant first spoke to police on 8 August 2020. She said she had come to speak about her step-dad, the appellant, who liked to touch and talk to her about things he should not be speaking about to her. It started around age nine or 10. At that stage, she did not know it was not okay, as she had not been through sex education. She was “letting him do it”.[1] Last year or the year before, he started touching her breasts. It clicked in her brain that it was not okay. The complainant described the appellant as a father figure and said he was quite nice. She did not know her biological father very well. When the appellant came into their lives, she was raised by him.[1]AB 155/10. The complainant said the last time the appellant touched her “down there” was when she was aged about 11 and a-half. The appellant asked if he could come and tuck her in and when he did so, he touched her down there before leaving the room. He always asked if she liked him to tuck her in. She always said yes, until she went through sex education and realised it was not okay for him to tuck her in, in that way. She started saying no every time he asked. At the start of 2020, he stopped touching her because she would always try to be with somebody when he was around her. The complainant said that on her 13th birthday (early 2020), the appellant was supposed to come to lunch. They found out he had gone back to Brisbane to be with his daughter, instead of the complainant. Even though he had done what he had done to her, she cried because he had ruined her birthday. She said she had not told anybody, apart from her best friend. She then told her second best friend and together all three went to see a pastor. The pastor spoke to her mother. Her mother then contacted police. The complainant said her best friend was in grade 7. They started prep together. Her other friend she had known for three years. Apart from those two friends, the pastor and her mother, the complainant had told one of her mother’s best friends and a therapist. She had told the therapist days before the police interview. The complainant said, when asked by police to describe what she meant by touched her down there, “he would tickle me”.[2] Another name for “down there” was her vagina. He would put his hand under the blanket. He never put his hand inside her vagina. The appellant started touching her breasts when she would give him a hug. He would put his hand up and squeeze them. It made her really uncomfortable. She could not remember the first time the appellant had touched her breasts, or any other times that he had touched her breasts, apart from the last time which was in late 2019, or early 2020, at the Kangaroo Point Motel. She gave him a hug hello and he reached up and tickled her breasts. After that, she would not give him hugs. She went to the Kangaroo Point Motel because she and her sister were going on an access visit to their biological father in Melbourne. They had access visits every second holiday.[2]AB 157/42.

Decision

Reasons for decision

Other inconsistencies in respect of the account said to have been given by the complainant to the preliminary complaint witnesses, were also not of a nature to give rise to entertaining a reasonable doubt as to the appellant’s guilt of the offence. Those inconsistencies were no more than what could be expected of different witnesses, honestly seeking to recount events from some years ago.Conclusion A consideration of the record of a whole, supports a conclusion that whilst there were discrepancies and inconsistencies, none of those discrepancies or inconsistencies were of a nature whereby the jury ought to have entertained a reasonable doubt as to the reliability and credibility of the complainant’s account of the appellant having touched her on the vaginal area and on her breasts, on multiple occasions. It was open to the jury to accept the complainant’s account of that sexual contact. Once it did so, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt. The verdict of the jury is not unreasonable.Sentence application The ground relied upon for leave to appeal sentence asserts that the sentencing judge found a lack of remorse on the basis of a plea of not guilty having been entered by the appellant. A consideration of the sentencing remarks reveals no such error. Whilst the Crown did submit that an aggravating feature of the appellant’s conduct was the absence of remorse, the sentencing judge did not refer to that feature when having regard to the aggravating features of the appellant’s offending. The sentencing judge, properly, concentrated on the aggravating features of the complainant’s young age, the length of period of maintaining and the gross breach of trust occasioned by reason of the parental relationship. Further, a consideration of the comparable authorities[11] supports a conclusion that the sentence imposed fell within a sound exercise of the sentencing discretion. As the sentencing judge observed, sentencing is not a mathematical exercise.[11]R v BCG [2012] QCA 167; R v WAA [2008] QCA 87; R v CCY [2023] QCA 49; R v Cunningham [2008] QCA 289. A consideration of the sentencing remarks and of the comparable authorities, supports a conclusion that the sentencing judge undertook an appropriate balancing exercise in respect of the relevant factors, having regard to the principles of sentencing. The sentence imposed does not bespeak of a misapplication of principle and it is neither plainly unreasonable nor unjust.Orders I would order:1.The appeal be dismissed.2.The application for leave to appeal be refused. BRADLEY J: I agree with the proposed orders and reasons given by Boddice JA.

Ratio Decidendi

Legal Principle Established

In cross-examination, the police officer agreed that he had spoken to the complainant’s mother on 5 August 2020, prior to interviewing the complainant. That conversation was not recorded by him, but he did make a note in the police record system. That note recorded that the complainant had told her mother in 2019, that she was being touched down there, but that the complainant had later told her mother that she had “made all this up, because I’m angry at him”.ConsiderationConviction The determination of a ground of appeal that the verdict of the jury was unreasonable and not supported by the evidence, requires the appeal court to undertake its own independent assessment of the record, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt. In undertaking that independent assessment, due regard is to be had for the jury’s role in a criminal trial and for the advantages afforded to the jury by having seen and heard the witnesses.[8] However, if there are discrepancies, inconsistencies, or other evidence which, even allowing for those factors, are of such a nature that a reasonable doubt ought to have been entertained as to the appellant’s guilt of the offence, the verdict of the jury is to be set aside as unreasonable.[9][8]Dansie v The Queen (2022) 274 CLR 651 at [9], citing M v the Queen (1994) 181 CLR 487 at 493.[9]Pell v The Queen (2020) 268 CLR 123 at [39]. In the present case, the appellant submits that there were substantial inconsistencies in both the complainant’s evidence, as well as between her evidence and those to whom the preliminary complainant had been made, as well as other evidence adduced in the prosecution case. Further, the complainant had recanted to her mother in 2019, admitting she had lied because she was angry with the appellant and, recently, the complainant had provided a letter to that effect. The appellant sought leave to rely on that letter.[10][10]MFI “A”. Although there were inconsistencies in aspects of the complainant’s evidence, none of those inconsistencies were of a nature which ought to have caused a jury to entertain a reasonable doubt as to the reliability and credibility of the complainant’s account of the appellant having touched her in the vaginal area and on her breasts, on multiple occasions. In respect of those matters, the complainant’s evidence remained consistent throughout. Importantly, the complainant’s evidence on those issues was consistent with the accounts given by way of preliminary complaint. Each of the complainant’s friends gave evidence of being told of the appellant touching the complainant’s vagina at night, when he tucked her in, and on the breasts, when being hugged by the complainant. It was open to the jury to discount the other friend’s evidence as to penetration of the complainant’s vagina by the appellant’s finger as inaccurate; on the other friend’s own account, it was “apparently” something that had happened, rather than a definitive statement by the complainant.