R v LJL - Appeal Against Conviction Dismissed

R v LJL [2026] QCA 71 (24 April 2026)

Last Updated: 24 April 2026

SUPREME COURT OF QUEENSLAND

| CITATION: | R v LJL [2026] QCA 71 |
| PARTIES: | R v

LJL

(appellant) |
| FILE NO/S: | CA No 102 of 2025 CA No 126 of 2025

DC No 69 of 2024 |
| DIVISION: | Court of Appeal |
| PROCEEDING: | Appeal against Conviction |
| ORIGINATING COURT: | District Court at Kingaroy – Date of Conviction: 9 April 2025 (Loury
KC DCJ) |
| DELIVERED ON: | 24 April 2026 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 20 February 2026 |
| JUDGES: | Bond JA, Boddice JA, Bradley JA |
| ORDER: | Appeal dismissed. |
| CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
– PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
– OTHER
IRREGULARITIES – where the appellant was convicted by jury of one count of
repeated sexual conduct with a child
and two counts of indecent treatment
of a child under 16, under 12 years – where the trial judge
observed, in the absence of
the jury, that the appellant’s crying creates
feedback through the microphones and the jury will need to be able to hear his
evidence – where the trial judge later directed the jury pursuant to s
103ZT and s 103ZV of the Evidence Act 1977 (Qld) in relation to the
complainant’s emotional state – whether a miscarriage of justice was
occasioned by a combined
effect of the trial judge’s observation and
the subsequent direction CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF
APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT
OF MISDIRECTION OR
NON-DIRECTION – where the complainant made a preliminary complaint to
her teacher – where that complaint
was broad and did not specifically
allege the appellant kissing the complainant – where trial counsel did not
rely on any inconsistency
between the preliminary complaint and later accounts
– where the trial judge did not direct the jury as to any inconsistencies
in the preliminary complaint – where the appellant submits that the
failure to direct the jury of the inconsistency between
the preliminary
complaint pursuant to s 103ZY of the Evidence Act 1977 (Qld) was a
material error of law that could have realistically affected the reasoning of
the jury to their verdicts – whether
the trial judge should have directed
the jury pursuant to s 103ZY Evidence Act 1977 (Qld), s 103ZT, s 103ZV, s 103ZY R v PBT [2025] QCA
152, followed |
| COUNSEL: | C W Wallis for the appellant M B Lehane for the respondent |
| SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions
(Queensland) for the respondent |
[1] BOND JA: I agree with the reasons for judgment of Boddice
JA and with the order proposed by his Honour.

[2] BODDICE JA: On 9 April 2025, a jury found the appellant
guilty of one count of repeated sexual conduct with a child and two counts of
indecent
treatment of children under 16, under 12 years. Each count
was a domestic violence offence.

[3] The appellant was sentenced to concurrent sentences of 4.5 years
imprisonment for the first count and for 2 years’ imprisonment
for
each of the other counts. A parole eligibility date was set after serving
2 years and 3 months.

[4] The appellant appeals his conviction on two grounds. First, that a
miscarriage of justice was occasioned ‘by the way the
jury were left to go
about assessing the credibility and reliability of the appellant’s
evidence’. Second, that the
trial judge erred in directions relating to
preliminary complaint evidence. [1]

Indictment

[5] On 9 December 2024, an indictment was presented in the District Court,
charging the appellant with one count of repeated sexual
conduct with a child
(count 1) and two counts of rape (counts 2 and 3). Each was alleged to be
a domestic violence offence.

[6] The child in each of the offences was the appellant’s stepdaughter.
He had been in her life since she was a baby.

[7] Count 1 alleged that between 1 December 2018 and 29 May 2024,
the appellant maintained an unlawful sexual relationship with the
child. At
that time, the child was aged between six and 11 years of age. The sexual
acts were particularised as kissing the child
on the lips, touching her
genitals, licking her genitals and penetrating her vulva or vagina with his
fingers.

[8] Each of counts 2 and 3 alleged that on a date unknown between 9 May 2024
and 25 May 2024, the appellant raped the child. At that
time the child was
11 years of age. Count 2 was particularised as penetrating the
child’s vagina with his finger. Count 3
was particularised as
penetrating the child’s vagina with his tongue.

[9] In respect of counts 2 and 3, the jury were directed that as the child
was aged 11 years at the time, the child was unable to
consent to those
acts as a matter of law. The jury were further directed that if they were not
satisfied beyond reasonable doubt
that the appellant had penetrated the
child’s vulva to some extent, but were satisfied that the appellant
touched her vagina
inappropriately, it was open to the jury to find the
appellant not guilty of rape, but guilty of the offence of indecent dealing
with
a child under 16, under 12. The jury returned verdicts of not guilty of each
count of rape, but guilty on each alternate count
of indecent dealing with a
child under 16, under 12.

Trial

[10] At trial, pre-recorded evidence was played to the jury from both the
child and her brother. The Crown called three other witnesses,
being the
child’s mother, a primary school teacher who gave preliminary complaint
evidence and a man (the housemate) who was living at the
appellant’s residence at the relevant time.

[11] Formal admissions were also made by the parties as to the
appellant’s date of birth and the dates between which he and
the
child’s mother rented various premises between 2019 and 2024.

[12] At the conclusion of the prosecution case, the appellant elected to give
evidence in his defence.

[13] The issue for the jury to consider was whether any of the alleged sexual
acts had taken place. The jury were directed that central
to the determination
of that issue was whether they were satisfied beyond reasonable doubt that the
child’s evidence about
the appellant’s sexual conduct was truthful
and accurate.

Evidence

Child

[14] The child first spoke to police on 29 May 2024. That interview was
recorded and played to the jury.

[15] In the interview, the child, who was crying and speaking softly, told
police that the appellant had been touching her inappropriately
for a couple of
years, since she was “really young”. The appellant would touch her
in inappropriate areas when no one
else was around, with his fingers and
sometimes he would use his tongue. The appellant would put his fingers in her
vagina for a
couple of minutes, before going away. He usually did so in the
nighttime, in her room when everyone was asleep. At the time of
the offending,
the appellant, the child, her mother, the housemate, her brother and her sister
lived in the one home. The appellant
and her mother slept in the loungeroom.
The housemate and her brother slept in other rooms. The child slept in the same
room as
her sister. The child said she usually went to bed at around
9.00 pm or 10.00 pm. Her sister went to bed at about 8.00 pm.
The
door to her bedroom was usually open.

[16] The child said the last time it happened was the previous Friday night.
The appellant came into her room and put his fingers
in her vagina. He did the
same thing with his tongue. The child would wake up when he started doing it to
her. Another time it
happened was a couple of weeks before the interview. He
did the same thing with his fingers and tongue. When asked when before
a couple
of weeks ago it had happened, the child said, “I don’t
remember”. When asked whether it happened often,
the child said, “a
couple times a week.”

[17] The child said it first happened when she was aged four or five years.
The child remembered the appellant coming into her room,
but did not remember
anything else. It usually happened at the house she was now living in but had
happened a couple of times when
living at the earlier house. The door to her
bedroom in that house was also usually open as she was afraid of the dark. The
appellant
came into her room and would use his fingers. He would ask for one
kiss, even when she said no. The appellant would try to hold
her face still so
that he could kiss her on the lips. She could not recall the appellant using
his tongue when she was living at
that residence. Prior to living in that
earlier house, she had lived with the appellant, her mother, her brother and her
sister
in a unit. Whilst living there, the appellant would try to kiss her. He
would take hold of her face and kiss her, before leaving
the room.

[18] The child said on the day of the police interview she had been at
school. As she was going to lunch, she remembered that she
wanted to tell her
teacher about it. She told the teacher that her father had been touching her
inappropriately for a couple of
years, in her private areas. The teacher said
she would make a call to get some help.

[19] In her evidence, which was pre-recorded and played to the jury, the
child said that she remembered that on the last time it had
happened, the door
to her bedroom was partly open. There was no light on in the hallway.

[20] In cross-examination, the child agreed that the appellant would
sometimes be the first person to go to bed. He slept with her
mother on a
mattress in the loungeroom. Her mother and the appellant were not strict about
when she had to go to sleep. There were
times she would stay awake playing a
game until 2.00 am or 3.00 am. A light was left on so the children
could see their way around
the house. The child accepted that her brother would
stay up late at night, playing games in his bedroom. She knew he would be
awake
around a similar time to her. There were times when the child would ask the
appellant to heat up some pizza for her while
she was playing the game. He
would bring it to her on those occasions.

[21] The child said the appellant had a routine of going to the service
station early in the morning to buy coffee. Sometimes she
would go with him.
The child agreed that she had a good relationship with the appellant. She was
comfortable talking with him about
most things. They would make fun of each
other. She also had a good relationship with her mother. They would talk about
personal
matters. The child accepted that the appellant would kiss all of the
children goodnight.

[22] The child agreed that her mother was now in a relationship with the
housemate. That relationship started about a week after
the appellant left the
house, soon after she had spoken to police. The child accepted the appellant
had been getting quite angry
at home. He was fighting a lot with her mother.
She would see and hear those fights. The appellant would take his anger out
towards
the children. It was making her quite sad and that she did not feel the
same way towards the appellant. She did not want him arguing
with her mother.
She wanted things to go back to normal.

[23] The child said that touching at the earlier residence had happened more
than two times. The appellant also came into her room
one time at about
8.00 pm at night, sat on the bed and started rubbing her thigh. She did
not tell the police officer about this
time. She only remembered it when she
was asked in cross-examination. When she told the police officer that there
were times at
this earlier residence that the appellant would use his fingers,
she meant that he would put his fingers inside her vagina. She
was wearing
clothing at these times, usually pyjamas. She did not feel any pain. He would
touch her for “like four minutes”.
The appellant did not say
anything to her and she did not say anything to him. She did not know whether
anyone was awake at these
times. The child accepted that at no point did she
tell her mother about what was happening, nor did she tell her brother or
sisters.
She did not call out to anyone. She never mentioned it to anyone
until she spoke with her teacher.

[24] On the last occasion, the child remembered coming home from school on
the Friday, after doing PE. She went to bed at about 9.00
pm. She woke up
to the appellant using his fingers and tongue. She was wearing clothes, but the
appellant pushed her underwear
to the side. She did not experience pain. She
did not tell a teacher on the Monday or Tuesday because her mind was focussed on
assessments. The child rejected a suggestion that she had made these things up
because she wanted the appellant to leave the house.
The child said she would
never make any of it up “even if I was angry at anyone”. She chose
not to tell anyone until
she told her teacher, because she was scared that she
would get into a lot of trouble.

Preliminary complaint evidence

[25] The child’s teacher said that on 29 May 2024, the child came
to her during the school lunch break with a friend. When
the friend went to the
other side of the room, the child told the teacher that her dad “had been
coming in to touch her at
night, uh, in her private place”. The teacher
asked the child if it had been on more than one occasion and the child said
it
had been happening for years. The teacher said “Dad” was the man
living with the child’s mother, who was the
appellant.

Brother

[26] The child’s brother spoke with police on 3 June 2024. That
interview was recorded and played to the jury. At that stage
he was eight years
of age. He told police that he felt safe at home and there had not been any
issues with anyone in the household.
He had probably heard or seen his mother
or little sister go into the child’s room. He had not noticed anyone
going in when
everyone was asleep. He said he was usually asleep at that time,
although he agreed he would often play games up until midnight.

[27] In pre-recorded evidence, the brother said he would play the games in
his room, well past his bedtime. He did not accept that
when he was playing
games, he would see someone going into the child’s room. His door was
shut most of the time. He agreed
that when his door was open, he did not see
anyone going into that room.

Mother

[28] The child’s mother said that the appellant was the biological
father of her son and other daughter. The child had a different
biological
father. The mother had known the appellant for about 15 years. She
commenced a relationship with him in late 2013.
His relationship with the child
was that of a parent. In May 2024, she was living in a house with the
appellant, the three children
and the housemate. Another person was living in a
caravan in the backyard. The child’s mother never witnessed the appellant
going into the child’s bedroom at nighttime. The appellant did get up
during the night, frequently. He said he was in pain.

[29] The child’s mother said that when they lived at an earlier house,
the child rarely used her room. She would sleep mostly
in bed with them. The
housemate also lived with them at that house. Prior to that house, they lived
in a unit. When they were
living at the earlier house, the appellant would also
sometimes get up during the night. It happened often at that house. Her son
would also often be up late playing games, sometimes until 2.00 am. He
would be sitting in his room with the door half shut.

[30] The child’s mother said that prior to 29 May 2024, she had
never had a conversation with the child about anything happening
with the
appellant. In the weeks leading up to 29 May 2024, she did not observe
anything in the relationship between the appellant
and the child that was
different to normal. She also had a normal relationship with the appellant up
to that date.

[31] In cross-examination, the child’s mother accepted that when they
were living in the earlier house, the child spent a lot
of time in the
loungeroom. She did not see the appellant go into the child’s room
overnight or see anything inappropriate
between the child and the appellant. It
was common for the appellant to kiss all of the children goodnight. He would
kiss them
on the forehead or cheek. Nothing stood out when she saw him kiss the
children. The relationship between the child and the appellant
was a close one.
The child would often go with the appellant in the early morning to the service
station.

[32] The child’s mother accepted that around the time she learnt of the
child’s complaint, she and the appellant were
fighting a lot. The
children would see and hear them fight. There were times when she would see the
appellant getting angry at
the children, including the child. The child’s
mother said that they would have big arguments, yelling at each other. That
had
been going on for three or four years. It increased over the years. In the
weeks before 29 May 2024, there had not been too
much yelling. It was
“a calm sort of spot at that point”.

Housemate

[33] The housemate said that he first lived with the appellant and the
child’s mother and their family in 2021. He commenced
a relationship with
the child’s mother in July 2024. In the weeks leading up to the end of
May 2024, the child’s mother
and the appellant were arguing a lot. It
would happen on a day-to-day basis. He did not ever see the appellant go into
the child’s
bedroom at nighttime.

Appellant

[34] The appellant said that he commenced a relationship with the
child’s mother in 2013, about two years after first meeting
the
child’s mother. The child was one and a-half years of age when he moved
in with the child’s mother. He had parenting
responsibilities in relation
to the child and his two children. The appellant said that he had a number of
medical conditions and
had always experienced difficulties with his back and
legs. He would take Panadol at night if he woke up with pain. He did not
get
much sleep due to his conditions. He would wake up on average once every second
or third night. He would go to the toilet and
then walk to the kitchen and take
some pain medication before lying back down in bed.

[35] The appellant said the child would go to bed with her door open. The
door handle did not work properly. If the door was closed,
the child would get
trapped in the room. The bedtime routine was that he would give all of the
children a hug and a kiss goodnight.
Generally, the younger children went to
bed around 8.30 pm or 9.00 pm. The child’s mother would go to
bed around 9.30 pm
or 10.00 pm. The child would go to bed anytime
between 10.00 pm and 3.00 am. There was no set bedtime. Generally,
the appellant
would wake up around 5.00 am to 5.30 am. He would go
and get a coffee from the local service station. On occasions, the child would
go with him. He estimated this occurred about four days out of each week.

[36] During the nighttime, a light was left on, either in the hallway or the
bathroom. He had a similar bedtime routine with the
children when they lived at
the earlier residence. He would give all the children a kiss goodnight. At no
point has he kissed the
child on the lips. The appellant stated that at no
point did he go into the child’s bedroom. He could not because the cat
was stored in there and he could not stand the smell from the litter box. At no
point did he touch the child on the vagina, insert
his fingers into her vagina
or lick her vagina whilst living in either house.

[37] The appellant said that at times he was curious about the child’s
mother’s relationship with the housemate. They
had fights about it. He
found out that they were in a relationship before his relationship with the
child’s mother ended.
He first became aware that they were officially in
a relationship at the end of July 2024.

[38] In cross-examination, the appellant accepted that he had the position of
being the child’s father in the household. He
described their
relationship was “like best little mates”. He denied that he would
go into the child’s room at
night and kiss her on the lips. He denied
that when he was in her room, he would put his finger in her vagina or put his
tongue
in her vagina. He denied that he would hold her face and kiss her on the
lips. He did not accept that he would be up and about
in the house in the
middle of the night for long periods.

Consideration

Ground 1

[39] The appellant submits that a miscarriage of justice was occasioned by
the combined effect of two matters. First, the trial judge’s
“instruction” to the appellant, in the absence of the jury, as to
his behaviour when giving evidence. Second, a direction
given by the trial
judge as to the complainant’s change in behaviour. It is submitted that
the combined effect of these two
matters created a real risk of prejudice,
bringing a capacity for a practical injustice.

[40] The “instruction” is said to have been given in the
following interchange:

“TRIAL JUDGE: You might take the time, [defence counsel], to have a
word with your client about not sitting in the witness
box and crying through
his evidence. The jury needs to be able to hear what he has to say.

DEFENCE COUNSEL: Yes.

TRIAL JUDGE: It’s very distracting as it is, because it’s feeding
back quite loudly through the microphones.

DEFENCE COUNSEL: Yes.

TRIAL JUDGE: He needs to pull himself together - - -

DEFENCE COUNSEL: Yes.

TRIAL JUDGE: - - - if he’s giving evidence.”

[41] The direction, which was given to the jury at the request of the Crown
prosecutor, dealt with what was said to be a notable change
in the
complainant’s demeanour between when she spoke to police and when giving
evidence in court. The trial judge directed
the jury:

“... Trauma may affect people differently, which means that some people
may show obvious signs of emotion or distress when giving
evidence in court
about a sexual offence, but others may not. The presence of emotion when [the
child] was interviewed by police,
and the absence of emotion or distress when
she gave evidence, does not itself mean that she is not telling the truth about
a sexual
offence.”

[42] A consideration of the terms of both those matters supports a conclusion
that there was no miscarriage of justice occasioned
by either or the combined
effect of both.

[43] The trial judge’s interaction, in the absence of the jury, was not
an instruction. It was nothing more than an observation
that if the appellant
was to give evidence and wished the jury to be able to hear what he said, it
would be in his interests that
he not cry through his evidence, because of the
distracting nature of the feedback that came through the microphones as a
consequence
of that crying. Nothing in that observation gave rise to a proper
basis to conclude that the jury might impermissibly use the appellant’s
behaviour in the course of the trial, prior to giving evidence and any change in
that behaviour whilst giving evidence, to draw a
conclusion that he was not
telling the truth.

[44] Further, the direction given in relation to the child’s emotional
states was largely in accordance with the direction required
to be appropriately
given by a trial judge, pursuant to s 103ZT and s 103ZV of the Evidence
Act 1977 (Qld) (Evidence Act). That direction is specifically
directed to drawing the jury’s attention to not impermissibly using how a
person who has
been the victim of a sexual offence may behave in response to
that conduct. The direction is not applicable to other circumstances,
including
as to the response of a person accused of the sexual offence.

Ground 2

[45] The appellant submits that the trial judge erred in the directions given
as to the use to be made of the preliminary complaint
evidence, by failing to
direct the jury on inconsistencies in the preliminary complaint.

[46] The trial judge directed the jury, in respect of the preliminary
complaint evidence:

“Now, the prosecution relies upon the consistency in what [the child]
said to her teacher, [the teacher], and her evidence before
you in support of
her credibility. [The teacher’s] evidence was that, on the
29 th of May 2024, [the child] said that dad had been coming in
to touch her at night in her private place, and that it had happened for
years.
That evidence of what [the child] said to [the teacher] may only be used as it
relates to [the child’s] credibility.

Consistency between what she said to [the teacher], and her evidence before
you, is something you may take into account as possibly
enhancing the likelihood
that her testimony is true. However, you cannot regard what she said to [the
teacher] as proof of what
actually happened. In other words, evidence of what
was said to [the teacher] may, depending on the view you take of it, bolster
[the child’s] credit because of consistency, but it does not independently
prove anything.”

Whilst it is correct that the trial judge, in that direction, did not refer
to inconsistencies in the preliminary complaint, it is
unsurprising in the
circumstances. The trial was not conducted on the basis that there was any
inconsistency. Not only did trial
counsel not cross-examine the preliminary
complaint witness, trial counsel specifically told the trial judge that he did
not propose
to say anything about “inconsistencies in that
complaint”, instead focussing on the fact that “so little”
was
said by the child in the preliminary complaint. Consistent with that approach,
trial counsel submitted to the jury, “...
if a person who has been
consistent in what they have been telling other persons, well, that might
suggest that their complaints
are more credible. The timing of when someone
makes a complaint is also significant”. Trial counsel also placed
considerable
emphasis on the lack of detail contained in the preliminary
complaint.

[47] The trial judge, when summing up the rival contentions, said to the
jury:

“[Defence counsel] asked you to critically examine the evidence. The
first person [the child] told was her teacher. She remembered
she wanted to
tell her after being at school for two days, after the last occasion of
offending on the 24 th of May 2024. She gave very little detail to
her teacher, but what is important is the timing of that complaint.
...”

[48] The appellant submits that the trial judge was required, in
circumstances where the preliminary complaint was inconsistent in
that it made
no reference to kissing, to direct the jury not only about consistencies, but
also about any inconsistencies between
the preliminary complaint and the
complainant’s evidence. It is submitted that although trial counsel did
not rely upon any
inconsistency, the case turned upon the complainant’s
contested credibility and there was a need for the jury to properly understand
the importance of both consistency and inconsistency when assessing the
credibility and reliability of the complainant’s evidence.

[49] There is no merit in these contentions.

[50] First, there was no reason for the trial judge to give a direction in
accordance with s 103ZY of the Evidence Act in the circumstances of
this case.

[51] Section 103ZY of the Evidence Act provides:

“ 103ZY Direction on differences in complainant’s
account

(1) This section applies if evidence is given, or likely to be given, or a
question is asked, or likely to be asked, of a witness
that tends to suggest a
difference in the complainant’s account that may be relevant to the
complainant’s truthfulness
or reliability.

(2) The judge must direct the jury—

(a) that experience shows—

(i) people may not remember all the details of a sexual offence or may not
describe a sexual offence in the same way each time; and (ii) trauma may affect people differently, including affecting how they recall
events; and

(iii) it is common for there to be differences in accounts of a sexual offence;
and

(iv) both truthful and untruthful accounts of a sexual offence may contain
differences; and
(b) that it is up to the jury to decide whether or not any differences in the
complainant’s account are important in assessing
the complainant’s
truthfulness and reliability.
(3) In this section—

difference, in an account, includes—

(a) a gap in the account; and (b) an inconsistency in the account; and

(c) a difference between the account and another account.”
[52] There was no such tendency in the circumstances of this case. No
difference in account that was relevant to the complainant’s
“truthfulness or reliability” was being suggested in the present
case. As the Chief Justice observed in R v
PBT, [2] s 103ZY does not
apply when there is no suggestion that the differences in the
complainant’s account may be relevant to her truthfulness
or
reliability.

[53] Second, there was a good forensic reason for defence counsel to not seek
to assert inconsistency in the preliminary complaint
evidence. To have done so
would have highlighted the significant consistency in the account given by the
child to that contained
in the preliminary complaint evidence.

Conclusion

[54] The appellant has not established that there was any miscarriage of
justice, either by reason of the trial judge’s observations
and directions
to the jury, or in relation to the failure to give a direction as to
inconsistency in the preliminary complaint evidence.

Orders

[55] I would order:

1. The appeal be dismissed.

[56] BRADLEY JA: I agree with Boddice JA.

[1] The appellant abandoned an
application for leave to appeal against sentence.

[2] [2025] QCA 152 at [22]; Bond
JA agreeing with those reasons.