SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 6 December 2007 the appellant was convicted upon the verdict of a jury of two counts of rape.  He was sentenced on the following day to concurrent sentences of six years imprisonment in respect of each offence with a parole eligibility date of 7 December 2010.

[2] The appellant sought to appeal against both conviction and sentence.  It was said in his notice of appeal that the "verdict was unsafe and unsatisfactory."  It was also said that the "sentence imposed was manifestly excessive in all the circumstances." 

[3] On the hearing of the appeal, however, the appellant did not pursue the contention that the verdict "was unsafe and unsatisfactory", and the application for leave to appeal against sentence was not pursued at all. 

[4] So far as the challenge to the appellant's conviction is concerned, the appellant sought to have the conviction set aside and a new trial ordered on the basis of what was said to be fresh evidence. 

[5] The Court heard the appeal on 26 November 2008.  At the conclusion of the argument, the Court announced that it had decided to allow the appeal, to quash the convictions and to order a retrial on both counts.  These orders were made on the basis that the reasons for these orders would be published later.  What follows are my reasons. 

[6] In order to put the fresh evidence in context, it is necessary to summarise briefly the evidence adduced at trial for the Crown and the appellant.

The Crown case at trial

[7] The Crown case was that on 18 September 2004 the appellant raped the complainant, once by penetrating her vagina digitally and once by having sexual intercourse with her. 

[8] The complainant is a Korean national.  She was a 20 year old student at the relevant time.  The appellant is of Korean descent.  At the relevant time, he was the manager of a nightclub in Fortitude Valley.  He was a married man of 32 years of age.  The complainant was working for the appellant in the nightclub on a voluntary basis.

[9] According to the complainant, she had been working at the nightclub on the night of 17 September 2004.  At 2.00 am on the following morning, the appellant drove her and a number of other employees to their homes.  By an arrangement made privately between the complainant and the appellant, he dropped the complainant off at her residence first, on the basis that he would drop off the other employees and then return to pick her up and take her back to the club.

[10]  It was not disputed at trial that, after the complainant and appellant returned to the nightclub, two acts of sexual penetration occurred.  The issue at trial was whether these acts were consensual.

[11]  The complainant gave evidence that the appellant attempted to seduce her, and in the course of his fondling her before any act of penetration occurred, she had resisted his advance and protested saying:  "Don't you know this is rape?"  Notwithstanding her protest, he persisted.

[12]  The complainant made prompt complaints to friends that she had been sexually assaulted by the appellant, but she did not complain to police until February 2005.  The terms of the complainant's first complaint to a friend were unclear as to whether she was asserting that she had been sexually assaulted against her will.

[13]  The complainant told her parents that she had been raped after she returned to Korea in October 2004.  The complainant's mother and father confronted the appellant at the nightclub in February 2005 with the allegation that he had raped the complainant.  The appellant made no reply.

[14]  The complainant's evidence as to what had occurred was supported by the terms of a telephone conversation which the complainant recorded between the appellant and her.  In the course of that conversation, the following exchange occurred:

"Woman:Do you remember that you told me that you were not just taking pleasure out of me one time?

Man:Yes, I do.

Man:What do you want me to do now?

Woman:I don’t know. (long pause) You don’t really seem to worry about it at all. Do you?

Man:You mean me?

Woman:Yeah. (pause)

Woman:So, you are behaving like it is okay to rape me if you liked me and had feelings about me.

Man:I have already told you that I didn’t mean to rape you. Don’t you know?

Woman:So?

Man:I thought you also liked me to some degree. (alternative translation: I thought you also had some feelings about me) Do you understand it?

Woman:I told you...

Man:Yes, in such circumstances...

Woman:So, do you remember what you said to me? Didn’t you say that you would rape me if that’s what was necessary? I was just crying in tears when you said 'If I had wanted to rape you, I would have raped you a hundred times already.' Then, you seemed to change your mind not to do it. But, you said 'I would rape you if that’s what is necessary', and then you did it.

Man:At that moment, I did not say I would rape you.

Woman:You definitely said to me, 'I would rape you (if that’s what’s necessary)'. When I heard it, I said to you 'You know this is a rape'. Then you said to me 'I would rape you (if that’s what’s necessary)'.

Man:I only remember you said to me, 'Do you know this is a rape?' I remember that. But I don’t remember me saying like 'I would rape you (if that’s what is necessary)'. I did not respond to you such way. And... (pause)

Woman:So, what you are saying is that what you did was not a rape and that you did it just because you liked (me) and that it was just me who did not accept it?

Man:If that’s what you want to say, what do you want me to say to you? Do you want me to say to you that I raped you? What do you want from me now?

Woman:I want you to admit it.

Man:What? What happens if I admit it? What do you want to do if I admit it? What are you suggesting I should do? Why on earth you just want to make such self-centred assertions?"

[15]  It should be noted that it was common ground at trial that the translation was accurate and that the words in brackets in the above excerpt were not actually said.  It may also be noted here that the learned trial judge suggested to the jury that they might adopt a cautious approach regarding the weight which they would be prepared to place on what appeared to be an admission on the part of the appellant that he knew that he was engaged in the rape of the complainant.

The appellant's case at trial

[16]  The appellant gave evidence to the effect that the complainant consented to what he described as acts of lovemaking after she and he had been drinking and singing karaoke.  He said that when he subsequently telephoned the complainant she said that she did not want to see him again.

[17]  The appellant called witnesses, including his former wife, to say that the complainant had manifested a romantic interest in the appellant prior to 18 September 2004. 

[18]  A friend of the appellant's gave evidence that, on one occasion in 2004, he saw the complainant hugging the appellant as she stood behind him.

The verdict of the jury

[19]  The conflict between the evidence of the complainant and the evidence of the appellant was crucial.  The jury resolved this conflict against the appellant. 

[20]  It was not disputed at the hearing of the appeal that it was reasonably open to the jury to prefer the evidence of the complainant to that of the appellant, and so to be convinced of the appellant's guilt beyond reasonable doubt. 

Fresh evidence?

[21]  The appellant sought a new trial on the basis of the evidence of a number of people who did not give evidence at trial.  In relation to such evidence, in Gallagher v The Queen,[1] Gibbs CJ said:

"The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ. in Craig v. The King   ((1933) 49 CLR 429, at p 439), as follows:

'A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.'

Perhaps no more elaborate statement of the position can usefully be made."

[22]  In Lawless v The Queen,[2] Mason J explained that fresh evidence, properly so called because it was not available to the accused at trial, may warrant an order for a new trial if it is likely that a verdict of not guilty would have been returned had the evidence been available at trial.  This is because of the perceived injustice or unfairness in allowing the conviction to stand where evidence was not available to the accused.  Where the new evidence is not "fresh" in this sense, it will warrant setting aside the verdict only if the jury could not reasonably have convicted had the new evidence been adduced at trial.[3]

[23]  The appellant seeks to rely on the evidence of three witnesses who were not called at the trial.  The most important new witness is Hee Jae Cho, a young man who was a friend of the complainant and the appellant in 2004.  He swears that the complainant told him that she told the young man who became her boyfriend after 18 September 2004 that the appellant had raped her because she could not tell him that she had slept with the appellant for fear of being shamed.  Mr Cho swears that, at the time of the appellant's trial, he was based in Gatton and was unaware that the appellant had been charged or convicted until May or June of 2008.  On this basis, it is said on the appellant's behalf that Mr Cho's evidence could not have been made available to the appellant at trial by reasonable diligence on the part of the appellant or his legal advisers.

[24]  Mr Cho was cross-examined in this Court by Counsel for the respondent with a view to demonstrating that his evidence was incapable of being believed.  The most important passage in Mr Cho's affidavit is as follows:

"The complainant told me words to the effect that this is really secret and not to tell anyone, but that she had slept with the applicant and didn't want to tell Sukwon.  The complainant sais [sic] to me words to the effect of 'I have told Sukwon that [the] applicant raped me because I could not tell Sukwon that I had slept with [the] applicant for fear of being shamed.'

[25]  In a supplementary affidavit, Mr Cho explained that the expression "slept with" is a translation from a Korean expression which means that sexual acts occurred between consenting parties.

[26]  Mr Cho's evidence of what he was told by the complainant goes so far as to assert that the complainant admitted to him that the appellant had not raped her.  The complainant filed an affidavit in response in which, inter alia, she denied that this conversation occurred.

[27]  It was put to Mr Cho that, if the complainant had indeed told him that the appellant had not raped her, he would have promptly informed the appellant.  But the evidence does not permit this Court to come to a firm view that Mr Cho was aware that the appellant had been charged with the offences of which he was convicted at any time before the middle of 2008 when he acknowledged that he became aware that the appellant had been convicted of the rape of the complainant and imprisoned as a result.  In these circumstances, I am unable to say that Mr Cho's evidence could not be believed by a jury.  In this regard, I note that, in Lawless v The Queen,[4] Stephen J said:

"Where the fresh evidence of a new witness is in factual conflict with original evidence, which was not the case in Ratten ((1974) 131 CLR 510), the hearing of that witness, without the equal opportunity of hearing the witnesses with whose evidence it is in conflict, may not much assist the Court in deciding whether a reasonable jury would, on the whole of the evidence, believe the fresh evidence. In such circumstances, a Court can no doubt determine whether fresh evidence is such as is capable, in the abstract, of being believed: it may not be able to progress very far with an inquiry whether it is likely to be believed by a reasonable jury which has also heard all the witnesses who gave evidence given at the trial, witnesses whom the Court will never hear. In any event it is, in my view, the ultimate conclusion of the Court that is of importance, not the various steps leading to it, steps which, as I have endeavoured to show, may be both numerous and complex although they are the accepted commonplace of the judicial task. That ultimate conclusion must be whether or not it is likely, had the fresh evidence been before the jury, that a verdict of guilty would not have been returned."

[28]  As to the "ultimate conclusion" to which Stephen J referred, this Court is not in a position to say that the evidence of Hee Jae Cho might not have tipped the balance of the jury's consideration of all the evidence in favour of acquittal.  The evidence of the recorded telephone conversation might well be regarded by a jury as providing substantial support for the complainant's account, especially the appellant's admission in the course of that conversation that the complainant had said to him:  "Do you know this is a rape?" before his acts of sexual penetration.  It must be said, however, that this evidence was not so compelling that its claim on the attention of the jury might not be displaced by the evidence of Mr Cho. 

[29]  This Court cannot, and should not, seek to resolve the conflict between the evidence of the complainant and the evidence of Mr Cho.  The ultimate issue as to whether the appellant is guilty of the offences charged against him on the whole of the available evidence is, as was recently said by the Privy Council in Bain v R:[5]

"one for a properly informed and directed jury, not for an appellate court … [A] fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading."

Conclusion

[30]  In this case the jury did not hear the evidence of Hee Jae Cho.  So far as this Court can tell, that evidence, which was not called at the trial of the appellant through no fault on the part of the appellant or those acting on his behalf, may be decisive in tipping the balance of reasonable doubt in the appellant's favour. 

[31]  In these circumstances, I considered that the convictions should be set aside in order to ensure that the appellant is accorded a fair trial on all the available evidence.

[32]  This conclusion was sufficient to dispose of the appeal.  It is not necessary to refer to the evidence of the other witnesses which was adduced in support of the appeal.  It is, I think, undesirable to comment upon the relevance of that evidence in advance of the new trial. 

[33]  FRASER JA:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the orders proposed by his Honour, and with his reasons for those orders.

[34]  McMURDO J:  I agree with Keane JA.