Mackay man loses rape case appeal bid

*DISTRESSING CONTENT* A father convicted of twice raping his sleeping daughter has tried to argue why his case should be overturned.

A father jailed for twice raping his own daughter has lost his appeal bid.

A convicted Mackay rapist jailed for sexually abusing his own daughter has tried to argue there was a miscarriage of justice in his trial.

However an experienced Queensland Court of Appeals judge rejected the “formidable” challenge.

His daughter had been about nine or 10 when the offending began in 2014 within the Mackay region.

A recent court judgment stated one time she woke up to her father, who had come home drunk, digitally raping her after she had fallen asleep on the lounge.

Another instance of sexual abuse occurred years later in late 2018 when she was 13 – he had unlocked the door to her bedroom while she was asleep and again digitally raped her.

“She was scared and did not know what to do after waking up,” Justice James Henry said in the judgment.

The man, who cannot be named for legal reasons, was tried and convicted in Mackay District Court on two counts of rape. In July 2021 he was jailed for three years to serve 18 months.

A Mackay father convicted of twice raping his own daughter has lost his appeal bid.

Justice Henry said the man appealed the convictions “on grounds that the learned trial judge failed to direct the jury about lies and uncharged acts”.

“No such directions were sought below. The (man) therefore assumes the challenge of establishing … the alleged failure to give the directions means there was a miscarriage of justice,” Justice Henry said.

“It is a formidable challenge because (he) necessarily argues the directions were needed to avoid misuse of evidence in circumstances where that risk was remote.”

He argued there was a risk the jury would regard lies he told in his police interview “as stemming from a consciousness of guilt”.

However Justice Henry rejected this move stating the “answers were unlikely to be regarded as lies but, even if they were, they carried no risk of being misinterpreted as evidencing guilt”.

Justice Henry further rejected arguments the trial judge “failed to direct the jury as to uncharged acts”, which refers to conduct “additional to the conduct attracting the charges”.

The man argued there was “such a risk in this case” in relation to comments made during his daughter’s police interview of “alleged additional sex offending and other conduct exhibiting sexual interest”.

However Justice Henry said the trial judge had “specifically directed the jury they could not act on the (victim’s) disclosures as evidence of their truth”.

The appeal was rejected.