Kale (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0045

ADEM KALE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because a retrial has been ordered, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	BEACH, NIALL and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2024
DATE OF JUDGMENT:	31 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 118
JUDGMENT APPEALED FROM:	DPP v Kale (a pseudonym) (County Court of Victoria, Judge Trapnell)

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CRIMINAL LAW – Conviction – Appeal – Rape (2 charges) – Jury directions – Evidence of complainants’ distress – Judge wrongly directed jury that prosecution relied on complainants’ distress – Crown concession of error or irregularity in trial resulting in substantial miscarriage of justice – Crown concessions rightly made – Appeal allowed – Retrial ordered.

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Counsel
Applicant:		Ms J McColl
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA
ORR JA:

On 21 July 2021, following a nine day trial in the County Court, the applicant was found guilty of two charges of rape.[2] The charges related to two complainants who the applicant was alleged to have raped at a nightclub in the early hours of 2 February 2019.
[2]Contrary to s 38 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
On 24 May 2022, following a plea hearing conducted on 25 October 2021 and 21 January 2022, the applicant was sentenced to a total effective sentence of 16 years’ imprisonment, with a non-parole period of 12 years. Pursuant to s 18(1) of the Sentencing Act 1991, the judge declared that the applicant had already served 1,187 days of pre-sentence detention under the sentence he imposed.
On 14 March 2024, the applicant filed an application for an extension of time within which to seek leave to appeal against conviction. In a notice of application for leave to appeal against conviction filed at the same time, the applicant identified two proposed grounds of appeal as follows:
1.A substantial miscarriage of justice occurred as a result of the trial judge directing the jury that the prosecution invited them to use distress exhibited by the complainants as indirect evidence supporting their accounts, where such a direction was not warranted.
2.A substantial miscarriage of justice occurred as a result of the trial judge giving directions on the use of distress evidence that were deficient and erroneous … .[3]
[3]Proposed ground 2 contains five paragraphs of particulars of the alleged deficiencies and errors in the judge’s directions. As will become apparent, it is not necessary for us to set out those particulars in these reasons.
In brief compass, the Crown case was that the applicant, who had met the two complainants in the nightclub some hours before, raped them in the cubicle of a toilet at the premises. The central issue at trial, in respect of each charge, was whether or not the Crown had proved beyond reasonable doubt that the applicant had sexually penetrated the complainant to whom the particular charge related.
Evidence was given at trial about the apparent distress of the complainants after the time at which the rapes were alleged to have occurred. It appears that in giving their evidence, the complainants may have shown signs of distress.
Given these matters, an issue arose at trial as to whether the prosecutor proposed to rely on any distress exhibited by the complainants (either before trial, or during the course of their evidence) as being supportive of the Crown case. While there was some discussion between the judge and counsel about this issue, ultimately the prosecutor made a final address to the jury which did not invite the jury to rely on any evidence of distress before trial, or the existence of any apparent distress on the part of the complainants during the course of giving their evidence.
Notwithstanding that the prosecutor did not invite the jury to rely on any evidence of distress, or any apparent distress on the part of the complainants in giving their evidence, in his charge, the judge told the jury that the prosecution had in fact invited them to use each complainant’s distress as supporting conclusions of rape. For example, in his charge, the judge said:
I give you now this direction. If you find that [either or both of the complainants] were distressed soon after the alleged offences, the prosecution invites you to use this as indirect evidence that supports its case that the alleged rapes occurred. I will read that again. If you find that [either or both of the complainants] were distressed soon after the alleged offences, the prosecution invites you to use this as indirect evidence that supports its case that the alleged rapes occurred.
And later:
If you find that [either or both of the complainants] were distressed when recounting the circumstances of the alleged rapes when giving their evidence respectively before you, the prosecution invites you to use this as indirect evidence that supports their individual and separate accounts that they were both raped. In other words, the prosecution says that the distress supports a conclusion that [the complainants] were each remembering and recounting a traumatic event, given the circumstances the prosecution say that the traumatic event was the alleged rapes.
In its written case, in response to the applicant’s written case in this Court, and in oral submissions made this afternoon, the respondent rightly and fairly conceded that the trial prosecutor made no such submissions to the jury; and that the unfortunate consequence of his Honour’s misdirections was that there was an error or irregularity in the trial within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009 (the ‘Act’).
Specifically, the respondent conceded that, in misdirecting the jury, the judge expanded the prosecution case in way that had not been contended for by the prosecutor in her argument to the jury. The respondent also conceded that the timing of the judge’s decision to give the impugned directions deprived the applicant’s trial counsel of any opportunity to make an alternate argument to the jury on the apparent distress evidence, and how the jury should deal with it.
Having considered the matter for ourselves, we have concluded that the respondent’s concessions must be accepted. Regrettably, in giving the impugned directions, the judge impermissibly expanded the prosecution case. Moreover, in ascribing to the prosecutor arguments about the use the jury could make about the alleged distress of the complainants, the judge wrongly added force to the prosecution case.[4]
[4]See generally, McKell v The Queen (2019) 264 CLR 307, 312–3 [3] (Bell, Keane, Gordon and Edelman JJ); [2019] HCA 5.
Further, as was also rightly and fairly conceded by the respondent, the impugned directions resulted in a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Act.[5] As the respondent put it, this Court could not be satisfied that the irregularity caused by the impugned directions did not make a difference to the outcome of the trial, or that the applicant’s conviction on either charge was inevitable.[6] It follows from this that the precondition for a successful appeal set out in s 276(1)(b) is made out.
[5]See Seccull v The King (2022) 69 VR 454, 470–1 [49]–[51] (Priest AP), 479 [85], 482 [101] (Niall JA and Kidd AJA); Paull v The Queen [2021] VSCA 339, [37]–[50] (Priest, Kaye and Niall JJA).
[6]Baini v The Queen (2012) 246 CLR 469, 481–2 [33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
The respondent accepted that if we formed the above views, then this Court would uphold ground 1, and make orders quashing the applicant’s convictions and ordering a retrial. Given its concessions on ground 1, however, the respondent submitted that it would be unnecessary for this Court to determine ground 2. As the respondent put it:
The requirement for, and content of, any directions regarding the use of apparent distress evidence will properly be matters for the determination of the trial judge according to law, having regard to the totality of the evidence given at any future re-trial of this matter.
We agree with that submission.
There will be orders granting the applicant an extension of time within which to seek leave to appeal against conviction;[7] granting the applicant leave to appeal against conviction; allowing the appeal; quashing the applicant’s convictions and setting aside the sentences imposed in the County Court; and ordering that the applicant be retried on the two rape charges.
[7]The application for an extension of time was not opposed.
Finally, we would observe that, while it might be thought to be less than satisfactory that a trial judge might direct a jury that a prosecutor had made submissions which had not in fact been made, having examined the transcript of the discussions between the trial judge and trial counsel,[8] it is clear that the judge was not given the assistance he might reasonably have expected to receive from those who appeared before him.
[8]None of whom were counsel who appeared in this Court.
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[2024] VSCA 118

31 May 2024