Far North Queensland dad accused of sexually assaulting daughter’s friend, 16, cleared by Court of Appeal on legal issue

A father found guilty by a jury of sexually assaulting his daughter’s 16-year-old friend while ‘wrestling’ at a sleepover in Far North Queensland has had his conviction overturned with the Queensland Court of Appeal finding the trial judged in Cairns made a mistake of law.

A man convicted by a jury in Cairns District Court of sexual assault over ‘wrestling’ with his daughter’s friend at a sleepover has had the conviction overturned by the Court of Appeal.

A Far North Queensland father has had his conviction quashed on a charge of sexually assaulting his daughter’s friend during a sleepover.

The Court of Appeal has found the judge had made a mistake of law when instructing the jury at his trial.

Cairns District Court court was told during the original trial in November last year that the girl, 16, was at a sleepover when her friend’s dad ‘wrestled’ her and bit her breast.

Afterwards, the girl and the father were interviewed by the police and both said there had been a struggle, the court was told.

They gave different accounts, however, about what happened during wrestle and why it happened in the first place, the court was told during trial.

The father told the police he was helping his younger son to retrieve his mobile phone from the girls and he fell on top of her, the court was told.

The complainant said the man wrestled her and bit her on the nipple during the struggle, after other children in the house found out the girls had lollies they did not want to share; she had hidden the Skittles lollies in her shirt, the court was told.

A sexual assault conviction against a Far North father has been quashed by the Court of Appeal because of an error of law at his trial.

At the trial, the prosecutor said the particulars of the charge were that the man “touched the girl’s breast, on the outside of her clothing, with his lips or mouth, without her consent”.

The defence case at trial was that the man “did not do any deliberate act and that there was no contact with the breast, other than through an accidental fall”.

During the trial, the judge instructed the jury that they might also convict “if it (the alleged assault) was an attempt to do so with the opening and closing of the mouth,” which “advanced the case beyond its particulars,” according to the Court of Appeal Judgement, handed down by Justices David Boddice, Thomas Bradley and Lincoln Crowley on March 28, 2025.

The man was not named in the judgement.

Justice Crowley delivered reasons, ordering that man’s conviction be set aside and saying that he should not be retried.

“It seems to me that the question of law involved is whether the Crown was permitted to advance a case beyond its particulars, without first being given leave to amend its particulars … In my opinion, the trial judge erred in law as the appellant contends.” Justice Crowley said.

He said any change to the particulars should have been amended in advance.

The Court of Appeal has ruled the man’s conviction should be overturned and he will not be re-tried.

“The obvious actual prejudice to the appellant was that he stood trial on a case that was commenced and conducted by the Crown on a discrete basis, but by the end of the

trial he faced an expanded case, initiated by the trial judge, yet not embraced by the Crown.”

During the trial in Cairns, the judge asked the jury to consider a special verdict if they did find the man guilty, which was to answer the question: “Do you find that the accused did bite [the complainant]’s breast?”

The jury returned a guilty verdict but found that the man did not bite the girl’s breast.

It was on this basis that the Court of Appeal ruled that it would not be appropriate to order a retrial.

“As the jury’s answer to the special verdict question makes plain, the end result of the trial judge’s erroneous ruling was that the appellant was convicted of the sexual assault of the complainant on a different basis to the case particularised and run by the Crown … He should not again face trial and the prospect of conviction on the same charge, whether differently particularised or otherwise,” Justice Crowley ruled.

Originally published as Far North Queensland dad accused of sexually assaulting daughter’s friend, 16, cleared by Court of Appeal on legal issue