Kakule v The King

Case [2025] SASCA 20

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

KAKULE v THE KING

[2025] SASCA 20

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

13 March 2025

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - IMPROPER ADMISSION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED

Appeal against conviction.

The appellant was convicted of one count of assault with intent to rape (Count 1), one count of indecent assault (Count 2) and two further counts of rape (Counts 3 and 4), contrary to ss 270B, 56 and 48 of the Criminal Law Consolidation Act 1935 (SA). The appellant and complainant were both members of the Congolese community in Mount Gambier. On Count 1, the prosecution case was that the appellant drove the complainant to somewhere in the bush and, once stopped, attempted to rape the complainant. Counts 2-4 concerned penile-vaginal intercourse alleged to have occurred on 6 December 2019 at the appellant’s house.

The issues arising on appeal were, broadly:

1.whether a miscarriage of justice occurred by reason of the admission into evidence of handwritten notes by the appellant;

2.whether the judge erred in directing the jury that they could reason from a lie or lies told by the appellant to a consciousness of guilt;

3.      whether the judge’s directions in respect of the alleged lies were adequate;

4.whether a miscarriage of justice occurred by reason of the prosecutor’s submission about the appellant’s attendance at the complainant’s unit;

5.whether the judge erred by failing to give directions required by s 34R of the Evidence Act 1929 (SA); and

6.whether the admission of evidence of initial complaint in respect of count 1 occasioned a miscarriage of justice.

Held (by the Court) allowing the appeal, setting aside the conviction and remitting the matter for retrial:

1.It was open for the judge to find it was not reasonably practical to caution the appellant prior to the arrival of an interpreter. It was open to the Judge to admit the notes (Ground 1).

2.It was not open to the prosecution to rely on the appellant’s provision of the notes to police as lies evidencing a consciousness of guilt (Ground 2).

3.The failure to direct the jury in accordance with s 34R of the Evidence Act 1929 (SA) on the impermissible use of evidence of the events of 7 December constituted an error of law (Ground 5 in part).

4.The admission of initial complaint evidence in respect of Count 1 did not occasion a miscarriage of justice (Ground 6).

Criminal Law Consolidation Act 1935 (SA) ss 48, 56. 270B; Evidence Act 1929 (SA) ss 34M, 34P, 34R; Criminal Procedure Act 1921 (SA) s 158(2), referred to.
Van Der Meer v The Queen (1988) 62 ALJR 656

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Kakule v The King [2025] SASCA 20
Case
[2025] SASCA 20
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction of the appellant, Mr Kakule, for sexual offences against the complainant. The prosecution alleged that the appellant had attempted to rape the complainant and committed further sexual acts without her consent. The appellant's defence was that the alleged events did not occur or were consensual. The appeal was heard by Livesey P, Bleby and David JJ.

The central legal issues before the Court were whether the trial judge erred in admitting certain notes made by police officers into evidence, and whether a failure to give a necessary direction under section 34R of the Evidence Act constituted a miscarriage of justice. The appellant argued that the notes, which he made when he believed he was required to answer police questions without a proper caution, were unfairly admitted as evidence of consciousness of guilt.

The Court found that the admission of the police notes was erroneous. While the trial judge had a discretion to admit such evidence, the Court determined that the circumstances surrounding the appellant's statements, particularly his request for an interpreter and the police's failure to adequately caution him, raised significant concerns about forensic unfairness. Furthermore, the Court identified a failure to provide a necessary direction to the jury regarding the evidence, as mandated by section 34R of the Evidence Act. Given that the credibility of the complainant was central to the prosecution's case, the Court concluded that these errors prevented it from being satisfied that guilt had been proved beyond reasonable doubt.

Consequently, the appeal was allowed, the conviction was set aside, and the matter was remitted for a retrial.

Orders

Orders of the court

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Background

Background to the litigation

It is not necessary to address every ground in every particular. For the following reasons, the appeal must be allowed, the conviction set aside, and the matter remitted for retrial.Background The appellant and the complainant were members of the Congolese community in Mount Gambier. The complainant met the appellant through her brother. The complainant did not have a driver’s licence. On the prosecution case, the appellant would often drive the complainant to TAFE and her son to kindergarten. Prior to the events the subject of the charges, the appellant sent pornographic videos to the complainant and expressed interest in having a sexual relationship with her. The prosecution case was, broadly, as follows. On 4 December 2019, the appellant drove the complainant to somewhere in the bush. Once they had stopped, there was an altercation in the front passenger seat during which the appellant attempted to remove the complainant’s clothing and tried to rape her. That allegation was the subject of count 1. Counts 2 to 4 were alleged to have occurred on 6 December 2019 at the appellant’s house. Count 2 alleged that the appellant attempted to insert his penis into the complainant’s vagina. The complainant locked her legs and prevented him from doing so. The appellant pressed his penis against the complainant’s lower back. He ejaculated. This occurred underneath the dining table. The complainant got up from under the table. As she leaned against the kitchen counter, the appellant inserted his penis in her vagina from behind. This allegation was the subject of count 3. The appellant then moved the complainant to the couch where he had vaginal sex with her. This allegation was the subject of count 4. The appellant’s case at trial was that the events the subject of count 1 did not occur and the events the subject of counts 2 to 4 were consensual. On the afternoon of 6 December 2019, the complainant attended at the Mount Gambier Hospital and made a disclosure to a triage nurse, Ms Williams. That disclosure is the subject of Ground 6. Police were notified but did not take a statement from the complainant that day. On 7 December 2019, the appellant attended at the complainant’s house. She refused to let him in. The appellant laughed at the complainant and tried to open the door with a piece of metal he had in his hand. The complainant went inside and called the police. Police attended and found the appellant sitting in his car. They told him he was not welcome and not to come back. They did not inform him on that occasion of the complainant’s allegations. At some time after 6 December 2019 but prior to Christmas that year, the appellant called the complainant’s neighbour and asked to speak to the complainant. During the call, he asked the complainant to forgive him, ‘so the police will not know what he have done’. The complainant told the appellant that she had already told the police. The appellant pleaded with her to discontinue the matter, and to tell the police that she was his girlfriend. The complaint said she could not do that. The appellant offered to buy her a car and teach her to drive. He said he did not want to be gaoled.

Evidence

Evidence Before The Court

The judge declined to order the interview and notebook be excluded from evidence, including in the exercise of the unfairness discretion.Whether the evidence of the notebook should have been excluded (Ground 1) The appellant emphasised that the obligation to caution arose at the outset, police having at all times intended to arrest and interview him. So much may be accepted. He submitted further, however, that when he indicated, through Mr Chizungu, that he had something to say, the need to caution him became acute. He submitted that there was an impropriety in the police officers making no attempt to caution him in any way, despite their impression that he could understand them and the appellant’s indication, via Mr Chizungu, that he had something to say. The appellant submitted that in those circumstances, it was not reasonably open to find, as the trial judge did, that it was not reasonably practicable for the police officers to advise him of his right to silence. He submitted that the result was that given the prosecution relied on those notes as demonstrative of a consciousness of guilt, a significant forensic unfairness arose from his speaking up to request his notes at a time he believed he had to answer police questions, despite no genuine attempt to caution him. The question for this Court on appeal is that identified by Mason CJ in Van Der Meer v The Queen:[12]In this Court the applicants must show at least that there was an erroneous exercise of the discretion and, in the circumstances of this case, that means that the trial judge erred in principle or failed to take account of relevant considerations or that the reception of the evidence was so unreasonable that it could not amount to an exercise of the discretion in accordance with principle. [12] (1988) 62 ALJR 656 at 660-661. The appellant had requested an interpreter. He gave evidence that he could not understand the directions that Detective Wales gave to Mr Chizungu as to answering questions. He confirmed in cross-examination that he only understood that he did not need to answer questions after a caution was given through the interpreter. The state of affairs with which the police were faced was that an attempt to caution the appellant and press on with questioning would have been quite fraught. In our view, the request for the interpreter constituted a reasonable basis for thinking that it was not appropriate to continue. It was in those circumstances that the appellant made the request to fetch the notebook, which the judge found was unprompted. That finding was clearly open. The request was not made in response to any question that the appellant thought he was required to answer. Finally, once the appellant had the assistance of a solicitor and an interpreter, he expressly relied on the notebook as containing the evidence of what happened, as set out by the judge and identified above. In all of these circumstances, it was open to the judge to find that it was not reasonably practical to caution the appellant prior to the arrival of the interpreter. Further, and subject to the question of the relevance of the notes, discussed below, it cannot be said that the decision to admit the evidence of the notes, over an objection based on the forensic unfairness to the appellant, was unreasonable or otherwise not open to the judge.

Decision

Reasons for decision

We reject that contention. As the respondent submitted, the risk of an improper testimonial use was no greater than in any case of evidence admitted pursuant to s 34M. Admission of such evidence is subject to the directions mandated in s 34M(4)(b). The jury were directed in terms that complied with this section. There was no miscarriage of justice.Conclusion We have upheld the complaints under Ground 2 and Ground 5, in part. The consequence is that the appeal must be allowed unless the Court is satisfied that no substantial miscarriage of justice has actually occurred.[38] In this regard, this Court said in Boyle (a Pseudonym) v The Queen:[39]The significance of the advantages of a trial court in finding facts in cases turning on an assessment of the credibility and reliability of witness evidence are well understood in applying the proviso. Decisions relating to the proviso recognise that, in cases which turn on issues of contested credibility and where the error or irregularity precludes the appellate court from giving any significant weight to the jury’s verdict, the appellate court cannot be satisfied that guilt has been proved regardless of the apparent strength of the prosecution case. That is, the natural limitations of proceeding on the record may preclude a conclusion that guilt was proved beyond reasonable doubt.[40] In Kalbasi v Western Australia,[41] Kiefel CJ, Bell, Keane and Gordon JJ noted that in “cases which turn on issues of contested credibility”, an appellate court may be prevented “from being able to assess whether guilt was proved to the criminal standard”.[42](Footnotes in original)[38] Criminal Procedure Act 1921 (SA) s 158(2).[39] Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92 at [145].[40] Castle v The Queen (2016) 259 CLR 449 at [68]; Collins v The Queen (2018) 265 CLR 178 at [36]‑[37]; GBF v The Queen (2020) 271 CLR 537.[41] (2018) 264 CLR 62.[42] Kalbasi v Western Australia (2018) 264 CLR 62 at [15]. The credibility of the complainant was central to the prosecution case. It is not possible for this Court to assess whether guilt was proved notwithstanding the erroneous admission of the evidence of the notes and the failure to give the necessary direction under s 34R of the Evidence Act. We allow the appeal, set aside the conviction and order that the matter be remitted for retrial.

Ratio Decidendi

Legal Principle Established

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