An Illawarra man found guilty of raping his niece has tried to overturn his convictions on the basis that evidence he sent sexually explicit texts to his teenage stepdaughter should not have been used at trial.
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A jury found the man, who cannot be identified, guilty in November 2022 of two counts of aggravated sexual intercourse with a child between 14 and 16 years of age.
The offences were aggravated because the niece was under the man's authority, living with him.
District Court judge Andrew Haesler sentenced the man to five years' imprisonment, with a minimum term of three years, for his crimes.
But in April 2024 the man took his case to the Court of Criminal Appeal, arguing that evidence given by his stepdaughter and texts he sent to the girl were wrongly admitted into evidence.
The Crown prosecutor had relied on this evidence to show that the man tended to have a sexual interest in teenage girls with whom he had a familial relationship and who lived with him.
His stepdaughter gave evidence at the trial that when she was aged 16, the man sent her sexual messages which made her feel "uneasy".
These included requests for intimate photos and to touch and look at her. The following year he sent more sexual messages and a photo of his erect penis.
He also later admitted to her that he dreamt about her sexually.
The Crown prosecutor contended that the man's interest in his stepdaughter made it more likely that he had a sexual interest in his niece, so the niece's allegations were also more likely to be true.
But the man argued that this evidence was not relevant because it did not establish what the prosecution suggested.
The man's lawyer in the appeal, Taran Ramrakha, said it only showed that the man had a sexual interest in his stepdaughter sometime after she turned 16, not that he had a general interest in teenage girls.
But Justice Christine Adamson from the Court of Criminal Appeal found the evidence could affect the probability that the man committed the offences he was accused of.
The man also said the evidence should not have been allowed because it relied on a single witness, and the differences between the acts involving his stepdaughter and the alleged acts against his niece.
Justice Adamson rejected these claims too, saying the fact the evidence came from a single witness and the differences in acts did not legally prohibit the admission of the evidence.
In appealing his convictions, the man also submitted that value of the evidence did not outweigh the danger of unfair prejudice, with his lawyer Mr Ramrakha saying it would have drawn a "strong emotional response from the jury".
Justice Adamson disagreed, noting the trial judge told jurors to put aside the prosecution's suggestion if they could not infer the man had a general interest in girls under his care, and not to conclude that acts against one person made him guilty of offences against another.
"The tendency evidence was admissible and was correctly admitted," Justice Adamson said with the agreement of Justices Kristina Stern and Robertson Wright.
The appeal was dismissed.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; 1800-RESPECT 1800 737 732; Men's Referral Service 1300 776 491
Natalie Croxon
Reporter at the Illawarra Mercury, mostly covering social affairs. Previously of the Bendigo Advertiser, Northern Daily Leader and Quirindi Advocate. Our Watch award winner.
Reporter at the Illawarra Mercury, mostly covering social affairs. Previously of the Bendigo Advertiser, Northern Daily Leader and Quirindi Advocate. Our Watch award winner.
