Calendar may have led to appeal loss for convicted molester
A CONCERNED mother's asterisk on a calendar could have lent enough credibility in a sexual abuse case for a jury to convict.
The mother made the mark after she found her husband in bed with her daughter, whose underwear was rolled down, in July 2003.
A Mackay jury heard in February how the calendar mark represented "the time when (the father) was caught and became "the last time something happened".
After a trial, the father was acquitted of two counts of earlier indecent treatment but the jury found him guilty of the third count which involved supporting evidence from the girl's mother and sister.
The man, known as GAX to protect the identity of his daughter in a Queensland Court of Appeal judgment published on Friday, maintains none of the events occurred.
He unsuccessfully argued in the appeal court that no rational jury could regard the evidence from his wife and two daughters as supporting each other because their versions were "so starkly different" and full of inconsistencies.
Justices Roslyn Atkinson and Philip Morrison ultimately found the jury's verdicts were reasonable and jurors had carefully considered the trial judge's instructions to consider each count separately.
Justice Atkinson said the quality of the evidence differed for the third alleged offence because of evidence from the girl's mother and sister.
"The evidence given by the mother that she had made an asterisk on the calendar on the following day to mark the date when she had caught (her husband) sexually abusing their daughter was capable of acceptance by the jury and added credibility and reliability to the (girl's) evidence in relation to count three," she wrote.
"There was a rational distinction between the strength of the evidence on each of the three counts on the indictment."
Appeal court president Margaret McMurdo dissented.
She said while the jury was entitled to reject the father's evidence there was never an incident in the bed, the girl's evidence was insufficient to satisfy a jury of the man's guilt beyond reasonable doubt.
"The real possibility that this was a reconstruction rather than her actual memory cannot be excluded beyond reasonable doubt," she said.
Justice Atkinson said while the abuse victim enjoyed a cordial, even close, relationship with her father in later years, that in no way that suggested the abuse did not occur.
"… it was rather, as she and her mother testified, the last occasion on which he molested her," she said. - ARM NEWSDESK