Kakule v The King

Case [2023] SASCA 51

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

KAKULE v THE KING

[2023] SASCA 51

Judgment of the Court of Appeal  

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

25 May 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ATTEMPT AND ASSAULT WITH INTENT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

Application against conviction.

On 22 August 2022, a jury convicted the appellant, by majority, of one count of assault with intent to rape, contrary to s 270B of the Criminal Law Consolidation Act 1935 (SA) (CLCA); one count of indecent assault, contrary to s 56 of the CLCA; and two counts of rape, contrary to s 48 of the CLCA.

The prosecution case was that on 4 December 2019, the appellant, who was known to the complainant as a friend of her brother, picked the complainant up early from TAFE and drove her to an isolated bush area. There, the appellant stopped the vehicle, got out, opened the complainant’s car door and reclined her seat. He then held her hands above her head with one of his hands while he tried to take her lower clothing off. The complainant tried to fight off the appellant, and he eventually stopped. On 6 December 2019, the appellant drove the complainant to his house after taking the complainant’s son to kindergarten. He approached her to ‘play’ with her. The appellant crawled on top of the complainant, removed her lower clothing, including her underwear, pressed his penis against her lower backside and ejaculated onto that area. The appellant then engaged in penile-vaginal intercourse with the complainant while she was bent over a table or a bench, and then again after pushing her onto the couch.

The complainant’s evidence, given pursuant to s 34M(4)(3) of the Evidence Act 1929 (SA),was that on returning home, she attended at hospital and complained to the triage nurse that she had been raped, and that she was concerned about pregnancy and diseases. The triage nurse also gave evidence of the complaint.

In cross-examination, it was put to the complainant, and she accepted, that she felt shame for engaging in intercourse with someone not her husband. It was not put to her that she made a false complaint for that reason. Counsel elsewhere challenged the truth of the complainant’s evidence that the appellant had forced her to have sex.

The appellant’s sole ground of appeal is that the trial judge erred in failing to direct the jury, as required by s 34M(4)(c) of the Evidence Act 1929 (SA), that there may be varied reasons why the…

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Kakule v The King [2023] SASCA 51
Case
[2023] SASCA 51
Decision Date

CaseChat Overview and Summary

The appeal in *Kakule v The King* was brought by the appellant, Kakule, against the Crown. The dispute concerned the adequacy of the trial judge's directions to the jury regarding evidence of a complaint made by the complainant. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Livesey P, Lovell and Bleby JJ.

The central legal issue before the Court was whether the trial judge had provided sufficient directions to the jury concerning the evidence of the complainant's initial complaint, as required by section 34M(4)(c) of the relevant legislation. Specifically, the Court had to determine if the judge's directions adequately explained to the jury that the evidence of the complaint could only be used for limited purposes, such as corroborating the complainant's evidence, and not as proof of the facts alleged in the complaint itself.

The Court found that while the trial judge had directed the jury in accordance with sections 34M(4)(a) and (b), she had failed to provide the specific direction mandated by section 34M(4)(c). The judge had explained consistency and reminded the jury of the evidence, but did not explicitly instruct them on the limited evidentiary value of the complaint. The Court noted that the defence had raised plausible alternative explanations for the complainant's conduct, including shame and miscommunication, which were not adequately addressed in the context of the complaint direction. Given that the jury's assessment of the complainant's credibility was critical, the failure to provide the required direction constituted a miscarriage of justice.

Consequently, the Court allowed the appeal and ordered that the matter be remitted for a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This appeal concerns the requirements of s 34M(4)(c).The trial judge’s direction on the evidence of complaint There is no dispute that the trial judge directed the jury adequately in the terms required by s 34M(4)(a) and (b). The judge said: First, you heard the evidence to inform you as to how [the complainant’s] allegations came to light. The evidence was led to give you a more complete picture of her account.Second, it was led so that you can consider whether this evidence demonstrates consistency of conduct on her part. Here you may ask yourselves do the circumstances of this complaint appear consistent with the events that [the complainant] alleges occurred and told you about when she gave her evidence. The judge did not then go on to direct in accordance with the terms of s 34M(4)(c). She explained what was meant by matters of consistency and directed again in the terms required by s 34M(4)(b). She then reminded the jury of the evidence given by the complainant and Ms Williams about the complaint. She summarised the prosecution and defence submissions with respect to the evidence of complaint. With respect to the submissions of defence counsel, she said:[Defence counsel] submitted that you could place little relevance on the conversation with Ms Williams in that [the complainant’s] conversation was brief and without the assistance of an interpreter. Wanting to prevent pregnancy or any illness is not something confined to non-consensual intercourse. The judge then concluded her directions on the topic of the initial complaint by saying the following:Members of the jury, you will need to bear in mind all of the evidence regarding [the complainant’s] complaint and bear in mind the directions that I have given. It will, or course, be for you to determine the significance, if any, of the evidence of the complaint in the circumstances of this case. The judge then turned to the topic of evidence of the complainant’s distress, reciting the submission of defence counsel that the complainant’s conduct ‘was just as consistent with someone who is ashamed of their conduct. She was going to have to disclose she had sex with a man who was not her husband’. She did not return, by way of directions, to the topic of the complaint to Ms Williams. However, in later summarising the submissions of prosecution and defence counsel, she said the following with respect to the defence submissions on the evidence of the complaint:You have, [defence counsel] submitted, an entirely plausible explanation for [the complainant] attending at the hospital. There was no dispute they had sex or that it was unprotected, which would explain her attendance. Maybe there was a miscommunication between [the complainant] and the nurse, the police became involved and it was like a freight train that just kept going. This was a fair summary of the defence closing submission to the jury on the topic, but it requires some explanation. As noted above, defence counsel had cross‑examined Ms Williams on it being apparent that English was not the complainant’s first language. In closing, counsel emphasised to the jury that this conversation had been conducted without an interpreter, in circumstances where the complainant had confirmed that she wanted to be tested for pregnancy and sexually transmitted diseases. Counsel submitted that the complainant’s conduct in going to the hospital was consistent with being ashamed of having had sex with a man who was not her husband. She then submitted:There is no dispute they had sexual intercourse, there is no dispute that it was unprotected and that would explain why she’s attended at the hospital. Maybe there was a miscommunication between her and the nurse, the police had got involved and it’s like a freight train that’s just kept going.

Decision

Reasons for decision

The jury’s assessment of the credibility of the complainant in this case was critical to its determination. We are not in a position to assess whether guilt was proved to the criminal standard, beyond reasonable doubt, notwithstanding the failure to give the direction mandated by s 34M(4)(c).Conclusion The appeal must be allowed, and the matter remitted for retrial.

Ratio Decidendi

Legal Principle Established

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