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  • Unreported Judgment

R v KAW

 

[2020] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAW [2020] QCA 57

PARTIES:

R

v

KAW

(appellant)

FILE NO/S:

CA No 229 of 2019

DC No 602 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 31 July 2019 (Williamson QC DCJ)

DELIVERED ON:

Date of Orders: 25 March 2020

Date of Publication of Reasons: 31 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2020

JUDGES:

Morrison JA and Bond and Callaghan JJ

ORDERS:

Date of Orders: 25 March 2020

  1. Appeal allowed.
  2. Verdicts set aside.
  3. Convictions quashed.
  4. Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted after a trial of two counts of rape and one count of indecent treatment – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the complainant’s mother and aunt gave evidence about things purportedly said to them by the complainant – where the evidence did not resemble descriptions of the offences the subject of the trial – where the trial judge identified evidence as preliminary complaint evidence – where the evidence was not preliminary complaint evidence pursuant to s 4A of the Criminal Law Sexual Offences Act 1978 – where the appellant’s trial counsel did not object to characterisation of evidence and attempted to use it to the appellant’s advantage – where the trial judge gave a standard preliminary complaint direction to the jury that the evidence could be used to bolster the complainant’s credibility – whether a miscarriage of justice has occurred – whether the appeal should be allowed and a retrial ordered

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

Evidence Act 1977 (Qld), s 21AK, s 93A

R v Dalton [2020] QCA 13, applied

R v NM [2013] 1 Qd R 374; [2012] QCA 173, cited

COUNSEL:

J A Fraser for the appellant

N W Needham for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Callaghan J and agree with those reasons and the orders his Honour proposes.
  2. [2]
    BOND J:  I agree with the reasons for judgment of Callaghan J and with the orders proposed by his Honour.
  3. [3]
    CALLAGHAN J:  After a trial which concluded on 31 July 2019 the appellant was convicted of two counts of rape and one count of indecent treatment.  He has appealed against those convictions and, for the reasons that follow his appeal should be allowed and a retrial ordered.
  4. [4]
    The appellant and “M” were in a de facto relationship for over 10 years, during which they had four children.[1]  One of those was a girl, “H”, born in May 2006.  The relationship deteriorated and the couple separated in 2010.[2]  For a brief period all the children lived with the appellant.  They returned to M in 2011, although the appellant continued to have contact with them.[3]
  5. [5]
    There followed a series of different movements, living arrangements and communications which, given the basis on which the appeal is to be allowed, need not be rehearsed in detail.[4]  In the result, H was interviewed by police in June 2014.
  6. [6]
    In the course of that interview, H alleged that on two occasions during the period between September and December of 2013, when she had been staying at the appellant’s house, he had inserted his finger in her vagina.  She also alleged that on another occasion within that period he masturbated himself in her presence.  It was on the basis of those allegations that the appellant was convicted of the two counts of rape (digital penetration) and the one count of indecent treatment (exposure).
  7. [7]
    In his notice of appeal he complained that the verdicts were unreasonable or could not be supported having regard to the evidence (Ground 1).  Pursuant to leave granted during the hearing, he added a ground which reads:

“The learned trial judge erred and misdirected the jury in relation to what was termed preliminary complaint evidence and how that evidence could be used.”

  1. [8]
    This shall be referred to as “Ground 2”.

The complainant’s evidence

  1. [9]
    The complainant was the only source of evidence capable of sustaining convictions.  Her evidence came in four parts.

April 2011

  1. [10]
    The complainant was just four years of age when she made certain claims to M’s sister, “B”.  As a result she was interviewed by police.  In the course of this interview, she made allegations about another individual, “R”, who had, she said – in language of a kind to be expected from a child of her age – touched her vagina.  But she also said, of the appellant, that he had “sexed” her[5] and that he, too, had touched her on her vagina.
  2. [11]
    As might be anticipated in the case of a child so young, and in circumstances where it was said that she had been subject to mistreatment by more than one person, this account was attended by considerable vagueness and confusion.  It did not form the basis of any charge.
  3. [12]
    It was, none the less, admitted - pursuant to s 93A of the Evidence Act 1977 (Qld) - as evidence which was available to be used by the jury to establish that the appellant had a sexual interest in his daughter.  No objection was taken to its admissibility on that basis, and it was ultimately the subject of directions to that effect – these were delivered in terms supplied by the Benchbook and which reflect the judgment of the High Court in HML v The Queen.[6]
  4. [13]
    No exception was taken to those directions, either at trial or on appeal.

12 June 2014

  1. [14]
    As noted above,[7] a further interview with the complainant was conducted on this date.  It, too, was admitted into evidence pursuant to s 93A of the Evidence Act 1977 (Qld)In it, the complainant alleged that the appellant had done “rude stuff” to her.[8]
  2. [15]
    Upon further questioning, it was explained – again in age appropriate language - that “rude stuff” consisted of the appellant’s insertion of his finger into her vagina.  It was possible to discern, from the answers given to the police officers’ questions that this had occurred on two separate occasions, which were reflected in the two charges of rape to which I have earlier referred.[9]
  3. [16]
    It was apparent that, prior to the interview, the police officer had been told by M of certain things that H had said her.  The following exchange occurred:

“POLICE: Okay. I heard um that you told um mummy –

H: Yeah.

P: Something about um about some white stuff coming out of his rude parts?

H: I don’t know.

P: Did that happen?

H: It did happen but I don’t want to talk.

P: Tell me about that?

H: [INDISTINCT]

P: Do you want to tell me about that time?

H: That was the first time.

P: Okay so tell me about that?

H: [INDISTINCT]

P: Tell me about what happened?

H: All he did was rub it.[10]

  1. [17]
    Attempts to elicit further information yielded only the detail that this incident was said to have occurred in her father’s bedroom.  Notwithstanding the fact that the topic was introduced by way of a leading question, no objection was taken to this piece of evidence and the appellant was indicted on the charge of indecent treatment (exposure).
  2. [18]
    This interview concluded with the following exchange:

“P: No okay. We spoke earlier about telling the truth and telling lies? Is what we’ve spoken about today what really happened?

H: I think so.

P: You think so?

H: I just can’t remember some.

P: But what you’ve told me?

H: I think it’s, it’s the truth.

P: Okay. And what would happen to a person who told a lie to police?

H: I don’t know.

P: What do you think might happen?

H: I don’t know.

P: Well what do you think um about lying?

H: I don’t know.

P: What happens when people lie?

H: They get in trouble.[11]

Section 21AK recording 23 February 2018

  1. [19]
    The complainant attended court on 23 February 2018 by which time she was 11 years of age.  She gave sworn evidence that was admitted pursuant to the provisions of Part 2, Division 4A of the Evidence Act 1977 (Qld).[12]
  2. [20]
    In the course of her testimony she said that recordings of her conversations with police in 2011 and 2014 had been played to her, and affirmed that the contents of both were true.
  3. [21]
    She also confirmed that she knew that her parents were arguing about where she should live, and that she had been touched on her “rude parts” by the other man “R”.  She said that she had bad dreams about what R had done to her, and had just such a nightmare immediately prior to her conversation with police in 2014.[13]
  4. [22]
    Defence counsel was understandably interested in the fact that the complainant had been having dreams of this nature.  He pursued a line of questioning on this topic:

“Yes. But you – between April 2011 and September 2013 you hadn’t stayed overnight with your dad, but you were having dreams about him? --- Yes.

And you were having lots of bad dreams about your father? --- Yes.

And you told people, did you, that you were having those bad dreams about your father? --- I think so.

Can you remember what was bad about those dreams you were having about your father? --- No, I can’t remember.

Were any of the dreams about your father, him doing naughty things to you? --- I’m pretty sure there was some.

Okay. You’re pretty that it was some. When you say you’re pretty sure there was some things, that’s your pretty there was some naughty things that you dreamt your dad was doing to you? --- Yes.[14]

  1. [23]
    Shortly after that exchange the recording process was truncated by technical difficulties, and the proceedings had to be adjourned.

Section 21AK recording 1 March 2018

  1. [24]
    When the hearing resumed there was further cross-examination which revealed that, by this stage, the complainant had barely any recollection of the circumstances surrounding the allegations that she made in 2014.  Indeed, at no stage during the s 21AK process could the complainant recall anything about the act of “exposure” which was the subject of the indecent treatment charge.[15]
  2. [25]
    Of potential relevance, when considering the integrity of the verdicts, is the following exchange that occurred during cross examination:

“So, [H], when he was – when you say he was doing that, do you say – what did he do with his finger? --- He put it on my rude parts.

He put it on your rude parts? --- Yeah.

Do you know if the finger went inside the hole that’s down there? --- I’m pretty sure it got pretty close.

Okay. You can’t remember if it went inside the hole down there or not? --- No, I can’t remember properly.

And is that on both times that something happened in the lounge time. You can’t be – can’t really ---? --- Yeah.

--- be sure that it went in the hole or not? --- The second time it went in the hole.

Are you sure about that? --- I’m pretty sure.

Pretty sure? Why are you pretty sure but you’re --- ? --- Because I’m not sure if it was the first time or the second time that it went in the hole.

Okay? --- Or a different time it happened.[16]

  1. [26]
    The issue of penetration was revisited in re-examination:

“All right. And then you said on the other occasion, he put it near the hole? --- Yeah.

All right. Now, do you know in your rude part, you’ve got lips? --- Yeah.

Can you tell me when he put it on your rude part, where his finger went in relation to the lips? Is it inside or outside of the lips? --- Inside the lips.

All right. Thank you, your Honour. I’ve got nothing further.[17]

  1. [27]
    Of this latter exchange it can be allowed that the complainant did say, under cross-examination, that on the “second time” the appellant’s finger “went in the hole of (her) rude part”.  But that was not a fair summary of where the evidence on this point had landed.  If all of the complainant’s answers on the topic are collected, her evidence can properly be understood to mean that whilst she was “pretty sure” that when her father had touched her on the “second time” it went “inside the hole”, she was actually not sure if it was that time, or the first time, or a different time.

Other evidence

  1. [28]
    The complainant’s mother, M, gave evidence about formal matters and as to the opportunity that the appellant would have had to commit these offences in the date range alleged.
  2. [29]
    More importantly, there was also a considerable body of evidence about things that the complainant had said – both to M, and to M’s sister B.  The most convenient way in which to deal with this evidence is to reproduce a portion of the learned trial judge’s summing up to the jury:

“There is evidence before you which you heard both [the Crown prosecutor and defence counsel] refer to as preliminary complaint evidence. M, H’s mother, gave evidence about a conversation she had with H in December 2013. Only H and her mother were present. And M, in her evidence, said that she was told by H that her father had put his rude parts on her rude parts and moved up and down. She said that white stuff had come out of his rude parts. And she said that he tried to put his penis in her mouth, and she didn’t want it, so she just kissed it. This conversation was explored in cross-examination by [defence counsel] with M. And he, in the transcript at page T140 to T141, asked her about the conversation and put a number of questions to her – the question:

But in this conversation, you said her father had put rude parts - had put his rude parts on her rude part, is the note that I have.

Response:

I think so, yes.

Question:

So that was certainly what was discussed with you, that it was his rude parts which I assume you took to be his penis? --- Yes.

On her rude parts which I assume ---? ---Yes.

- - - you took to be her vagina?---Yes.

And that he moved up and down?---Yes.

And that white stuff came out of his rude parts?---Yes.

And he tried to put his penis in her mouth but he she didnt want it. She just kissed it?---Yes, thats correct.

So I take it, that is contact between the mouth and the penis? ---Yes.

M gave evidence about a second conversation that she had with H in April 2014, and only H and her mother were present. M, in her evidence, said at T1-26 of the transcript, in response to a question from [the Crown prosecutor], was:

There any more conversation on that occasion?

Response:

Yeah, she was saying that – that her father was – put his – used his fingers to rub her rude parts and that he used a cold sausage to put inside her, I think she said.

This was explored by Mr – explored in cross-examination by [defence counsel], and at T1 – 47 of the transcript, he asked:

This conversation that you had with H in June of 2014, when you then later took H to the police station in Victoria, you said to my learned friend that she said something about her father using a finger to rub her rude parts?---Yes.

And you said something about a cold sausage?---Yes.

You said that a cold sausage put inside her, or words to that effect?---Yes.

Can you recall that clearly? --- Not clearly. All I can remember is cold sausage that she said that he put in her, so.

Question:

Is it the case, that certainly that is something that you’ve outlined in your statement? --- Yes.

And your statement was provided to police --- ? --- Yes.

--- some time ago? --- Yes.

Much closer to the time of that conversation? --- Yes.

And question:

And you were quite clear, at that point in time, that she said that she had said he put a cold sausage in her rude parts.

Response:

Well, that’s what she said.

Question:

And you took that to be a reference to it actually being inserted into her vagina?--- I --- that’s what I thought she said, that it had been inside her. So, yes.

And it is quite an odd thing, a cold sausage? --- Yes.

But it’s the case, isn’t it, that H was quite adamant --- ? --- Yeah.

--- about it being a cold sausage? --- Yes.

You’ve tried to clear it up? --- Yes.

And ask some questions, I presume? --- Yes.

And she was adamant, still, that it was a cold sausage; that’s correct? --- Yes.

The questioning continued:

Can you recall if she said anything else in this conversation?

Response:

No, it was just those. The cold sausage, and that he was using his finger to rub her.

[Defence counsel] then said:

I might suggest a few things to you, [M], to see if that assists. Did she also say that he licked her rude parts?

Response:

Yes, correct.

I’ve reference to a tongue being placed on the vagina? --- I – I – took it – yeah.

I take it that’s what you took that as.

Response:

That’s what I thought, yes.

Did she also say that he stuck his rude part in her, and white stuff came out? --- Yes, that’s correct.

His rude part there, on the previous occasion she said on her, but now she’s saying in her; is that correct? --- I believe so.

And I take it that you took that as a reference to a penis going inside a vagina? ---Yes.

The evidence of preliminary complaint also includes the evidence of [the complainant’s aunty]. In December 2013, after H had travelled to Melbourne to stay with her, it was her evidence that she had a particular conversation with H less than a week after she arrived in Melbourne. H told her that [the appellant] touched her on the private parts at Eagleby, and this was explored, again in cross-examination, and that exploration in the evidence, led to [the complainant’s aunty] saying that H had also said that [the appellant] had touched her private parts while in the bath, and he put his penis in her vagina.[18]

  1. [30]
    As will be apparent from the length of this extract, this evidence was a prominent feature of the trial.  For current purposes, the effect of it can be summarised as follows:
    1. (a)
      M gave evidence that H had told her that the appellant had:
      1. in effect, performed (at the very least a simulated act of) penile/vaginal intercourse which concluded with ejaculation,
      2. attempted to compel an act of oral intercourse,
      3. inserted a cold sausage into her vagina; and
      4. performed cunnilingus upon her.
    2. (b)
      B gave evidence that H had told her about:
      1. an act of indecent dealing that occurred in the bath; and
      2. an incident of penile/vaginal intercourse.

Consideration

  1. [31]
    It is convenient to deal first with the ground which directly relates to the evidence discussed in the preceding paragraphs.

Ground 2

  1. [32]
    The learned trial judge, in the course of his summing up, identified this evidence as “preliminary complaint” evidence.[19]  It was not.
  2. [33]
    Section 4A of the Criminal Law (Sexual Offences) Act 1978 provides:[20]

4A Evidence of complaint generally admissible

  1. (1)
    This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.
  1. (2)
    Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.

  1. (6)
    In this section—

complaint includes a disclosure.

preliminary complaint means any complaint other than—

  1. (a)
    the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence;” (emphasis added)
  1. [34]
    As will be obvious, very little of the “complaint” attributed to H, as summarised in [29] and [30] above, bore any resemblance to the descriptions of the offences which were the subject of the trial.
  2. [35]
    It could not, therefore, meet the statutory requirement that the complaint be “about the alleged commission of the offence”.  The attributed assertion by H that a finger had been used to “rub her rude parts” may at least have been a complaint about something comparable to some of the offending charged, but it was not linked, sufficiently for the purpose, for it to have become admissible under this heading.  It was at best – like the balance of such evidence given by M and B – a hearsay account of a complaint about “uncharged acts”.  Such evidence does not qualify for admission as preliminary complaint.  As Fryberg J wrote in R v NM [2012] QCA 173 at [25]:

“In a trial for a sexual offence, evidence of uncharged acts of sexual abuse by the accused against the complainant may be admissible for the purpose of explaining and rendering intelligible the complainant’s account of the charged acts, or to show that he or she was not purporting to describe an isolated event if otherwise his or her account might appear implausible.  It does not follow that references to uncharged acts in a complaint are ‘about the alleged commission of the offence’.  On the contrary, such references will normally not answer the statutory description.  Exceptional cases may exist where the uncharged acts form an integral part of the charged act (eg indecent dealing by touching immediately before an act of rape).  The courts do not encourage prosecutors to split up what is essentially one integrated course of conduct into multiple offences.  No bright line test can be stated save by reiterating the terms of the section.”

  1. [36]
    Nothing permitted the admission of this evidence under the heading of preliminary complaint.  At the hearing of the appeal counsel for the respondent conceded that in the circumstances that term was a “misnomer”.  For the purposes of the Crown case, at least, it was, simply, inadmissible hearsay.
  2. [37]
    It was, however, open for defence counsel to attempt to use such evidence to his advantage as, for example, by arguing that the complainant’s account of an incident involving a “cold sausage” was so bizarre as to raise genuine issues about H’s overall credibility.  He attempted to do that and indeed, as noted by his Honour, some of the evidence which was placed before the jury as “preliminary complaint” was elicited in cross-examination.[21]
  3. [38]
    The difficulty remains, however, that whilst there may have been an advantage to the appellant in having this evidence before the jury for use as a talking point, it was all admitted as and treated by everyone at the trial as having the characteristics of “preliminary complaint”.  As a result, the trial judge explained to the jury that it was something which could “bolster H’s credibility because of consistency”.  The jury were not told what might be meant, in this context, by “consistency”.  On one view, H’s account in evidence and the words attributed to her were “consistent”, in that they involved allegations of sexual misconduct.  However, as explained above, the evidence of M and B was never admissible on that basis.  It could not be used, as his Honour told the jury it could be, as something that the jury could “take into account as possibly enhancing the likelihood that H’s testimony is true.”[22]  And even though the jury were told otherwise, it was not something that could, on any view of it, “bolster H’s credibility.”[23]
  4. [39]
    It is true that, as part of the formulaic direction, the jury were told that “any inconsistencies between the account of M, B and H’s evidence may cause … doubts about H’s credibility or reliability”.  It is difficult to imagine what the jury might have made of that.  Any comparison to be made was not between different accounts of the same event, such that the concept of “inconsistency” might obviously have been relevant.  On the other hand, the evidence was a prominent feature of the trial.  Its graphic nature must have distracted the jury from its true function.  The errors which attended its reception and the misdirections concerning its use were of a kind that caused the trial to miscarry.  It follows that Ground 2 is made out, and it further follows that a miscarriage of justice has occurred.  The appeal should be allowed and, given the manner in which Ground 1 will be dealt with, a retrial should be ordered.

Ground 1

  1. [40]
    The applicable principles were recently summarised by this court in R v Dalton [2020] QCA 13 at paragraphs [173] – [181]:

[173] It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[24] Zaburoni v The Queen;[25] GAX v The Queen.[26]

[174] An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492-493); SKA v The Queen.[27]

[175] The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].

[176] The appellate court’s task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[28]

[177] The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, “must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations”: M (493); R v Nguyen;[29] SKA [13].

[178] The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494-495). See also R v Hillier;[30] Fitzgerald v The Queen;[31] R v Baden-Clay.[32]

[179] The setting aside of a tribunal of fact’s verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden-Clay [65]-[66].

[180] The appellate court’s reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22]-[24]; BCM v The Queen;[33] GAX [25].

[181] The nature and extent of the appellate court’s task, in a particular case, will be informed by:

  1. (a)
    the elements of the offence;
  1. (b)
    the accused’s defence;
  1. (c)
    the issues in contest at the trial;
  1. (d)
    the manner in which the trial was conducted;
  1. (e)
    the way in which the case was ultimately left to the tribunal of fact;
  1. (f)
    whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
  1. (g)
    the particulars of and the submissions made in support of the ground of appeal.”
  1. [41]
    The requisite review has been undertaken, but the fact that there is going to be a retrial means that it is not appropriate for much in the way of further comment to be made about the evidence.  The appellant is, however, entitled to know why this ground was unsuccessful because if it had been made out, acquittals would have been entered and he would not be facing the prospect of a retrial.
  2. [42]
    There is the possibility of conflation between dreams and reality.  The considerable uncertainty expressed in the concluding part of the April interview is concerning.  So too is the fact that her evidence during the s 21AK sessions – which was given after a refreshment of memory from the s 93A interviews – omitted even to mention the incident which was the  subject of count 3, and left open doubt about the element of penetration in respect of counts 1 and 2.[34]
  3. [43]
    However, that evidence was recorded so long after the earlier interviews that, for a child of H’s age, some considerable loss of memory might be expected.  The extent to which allowance could be made for this was very much a question for the jury.
  4. [44]
    There might have been more concern about the reliability of the complainant’s evidence if it had included details of the things assertedly said to her mother and aunt, as summarised above at [29] and [30].
  5. [45]
    That is, the situation would be different if the complainant herself had, at any point in her evidence made claims – or even agreed that she had in the past made claims – about sexual intercourse involving penetration and ejaculation, oral sex and an incident involving a “cold sausage”.  If she persisted in such claims, all of her evidence might be viewed in a different light.  It might be thought that such incidents would have warranted at least a mention in the recorded evidence on which the convictions were based.
  6. [46]
    However, the complainant herself did not give evidence of those events.  Nor even was she asked to adopt the proposition that she had spoken the words that were attributed to her.  And although there is nothing, on the face of the record, to suggest a reason why M and B should be disbelieved, the significance to be attributed to their evidence necessarily involves an assessment of them as witnesses.  The jury had the benefit of seeing and hearing their testimony.  It may have been open for them to disregard their evidence, or at least take a view of it which is different from the one that emerges in print.  If that happened, then those aspects of their evidence which suggested that the complainant might be capable of constructing apparently bizarre and imaginative narratives were not something which necessarily had to inform their verdicts.
  7. [47]
    The appellant did not give evidence, and of course no conclusion can be drawn from that, but the fact remains that a sworn denial was not something that could be added to any other combination of circumstances that might have raised a doubt about his guilt.  The case was one which had to be decided by reference to the account given to police by the complainant, and the cross-examination which took place some years later.  In all of the circumstances, and notwithstanding certain concerning features of the evidence, it remained one in which it was reasonably open for the jury to reach the conclusions that they did.
  8. [48]
    Ground 1 should be dismissed.
  9. [49]
    I propose the following orders:
  1. Appeal allowed.
  2. Verdicts set aside.
  3. Convictions quashed.
  4. Retrial ordered.

Footnotes

[1]Appeal Book (AB) 151 lines l-45.

[2]AB 153 lines 1-8.

[3]AB 153 lines 1-35.

[4]AB 14 lines 33-47; AB 152 155; AB 155; AB 155 lines 1-120.

[5]AB 266.

[6](2008) 235 CLR 334.

[7]At [5].

[8]AB 278.

[9]At [6].

[10]AB 294 – 295.

[11]AB 296 – 297.

[12]AB 99 lines 1-15.

[13]AB 109 lines l-40.

[14]AB 111 lines 10-35.

[15]In fact, neither counsel asked the complainant about any of that alleged behaviour.

[16]AB 125 lines 17-38.

[17]AB 127 18-25.

[18]AB 58 – 61.

[19]AB 58 lines 1-30; It was noted that both counsel had referred to it in the same way.

[20]Underlining added.

[21]AB 61 lines 1-21.

[22]Underlining added.

[23]AB 61 line 31, underlining added – During argument on the appeal counsel for the respondent fairly allowed that “no jury could have considered there was a bolster of credibility by that evidence.”

[24]M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).

[25][2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

[26][2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

[27][2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

[28]Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ).  See also M (492-493); SKA [20].

[29][2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[30][2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).

[31][2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

[32][2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

[33][2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

[34]Neither party suggested, either at trial or on appeal, that the concept of alternative verdicts, as contemplated in s 578 of the Criminal Code 1899 (Qld), should be explored.  It has not, therefore, been given further consideration.

Close

Editorial Notes

  • Published Case Name:

    R v KAW

  • Shortened Case Name:

    R v KAW

  • MNC:

    [2020] QCA 57

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Bond J, Callaghan J

  • Date:

    31 Mar 2020

Litigation History

No Litigation History

Appeal Status

No Status