Kane (a pseudonym) v The King

Case [2024] SASCA 70

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

KANE (A PSEUDONYM) v THE KING

[2024] SASCA 70

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice David)

30 May 2024

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE

The appellant was tried by jury and convicted of three counts of rape (Counts 2-4) and one count of aggravated assault (Count 6), contrary to ss 48(1) and 20(3) of the Criminal Law Consolidation Act 1935 (SA) respectively. The complainant in respect of each count was the appellant’s wife. The three counts of rape related to a single episode during which it was alleged that the appellant, without the complainant’s consent, inserted a sex toy into her vagina (Count 2), his penis into her anus (Count 3) and his penis into her vagina (Count 4).

During cross-examination, the complainant alleged that the appellant had distributed, or threatened to distribute, videos or photographs of her naked, having sex with him or otherwise in states of undress (‘the invasive images allegation’). When the complainant volunteered this evidence, defence counsel continued with the line of questioning and did not object to the evidence or ask that the trial judge direct the jury to ignore the evidence. The evidence was not subsequently addressed in the trial and was not the subject of a specific direction by the trial judge.

On Ground 1, the appellant contends that the evidence of the invasive images allegation was not admissible under s 34P(2)(a) of the Evidence Act 1929 (SA) (because its probative value did not outweigh its prejudicial effect), and the trial judge’s failure to direct the jury to disregard it occasioned a miscarriage of justice. On Ground 2, the appellant contends that the trial judge erred in law by failing to give directions as to the permissible and impermissible use of this evidence of discreditable conduct required by s 34R(1) of the Evidence Act 1929 (SA).

The appellant also contends that the conviction on Count 4 (the allegation of penile-vaginal rape) is unreasonable or cannot be supported having regard to the evidence (Ground 3).

Held (per Doyle JA, Kourakis CJ and David JA agreeing), granting permission to appeal on Ground 3, allowing the appeal on Ground 3, but otherwise dismissing the appeal:

1.The evidence of the invasive images allegation was evidence of discreditable conduct under s 34P of the Evidence Act 1929 (SA), however, in circumstances where defence counsel’s failure to object to the evidence (or to ask for a direction that the jury ignore the evidence) reflected a forensic decision, it cannot be said that…

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Kane (a pseudonym) v The King [2024] SASCA 70
Case
[2024] SASCA 70
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CaseChat Overview and Summary

The appeal concerned a conviction for sexual assault. The appellant, Kane (a pseudonym), was found guilty by a jury. The complainant, during cross-examination, volunteered evidence alleging that the appellant had spread invasive images of her. This evidence was introduced in response to defence suggestions that the complainant's departure from the appellant was motivated by a desire to be with another man, Mr H, and not by the appellant's alleged violence.

The central legal issue before the court was whether the verdict of guilt in relation to Count 4 was unreasonable or insupportable, having regard to the evidence. This involved considering the admissibility and impact of the complainant's unsolicited evidence regarding the invasive images and the adequacy of the directions given to the jury concerning this evidence.

The court found that Ground 3 of the appeal had been made out. The reasoning focused on the fact that the complainant's evidence about the invasive images was volunteered late in cross-examination and was not directly related to the charges of sexual assault. The court determined that the verdict of guilt on Count 4 was unreasonable in light of this evidence and the circumstances in which it was introduced.

Consequently, the appeal was allowed on Ground 3. The conviction on Count 4 was set aside and replaced with a verdict of acquittal. The appeal was otherwise dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Grounds 1 and 2 both relate to the evidence volunteered by the complainant during cross-examination, referred to earlier in these reasons as the ‘invasive images allegation’. It is appropriate to explain the context and content of this evidence, before addressing the complaints made on appeal in relation to its admissibility and the directions it required.The evidence The evidence in question was given late in the lengthy cross-examination of the complainant. Defence counsel put to the complainant that the “real reason” she left the appellant and moved to Melbourne was not any physical or sexual violence by the appellant, but because she wanted “to be with” Mr H. When the complainant denied this, defence counsel asked her whether she had later married Mr H. In the exchange that followed, she denied any earlier relationship with Mr H and made the invasive images allegation:QDid you later marry [Mr H].AYeah, before, before I moved to Melbourne I have been told before that and then after that I have been told by my kids volka that he has been dragged to the court and that he is still saying the same thing. So, before I move out from Adelaide when I was under his marriage or wedding law konekta I never have any relationship with anyone Iqubal or figbal or anyone I don’t have but after that he cannot say any, after I separate with him he cannot say if I have anything with someone else. I have my own life.QDid you later marry [Mr H].AI did get married after one year because this is to show I’m angry with him. What he has done, he has spread – he has spread the photos of me being naked, the photos of me just with towels, the photos of me just wearing my sarung. The photos of me having sex with him, my private part, his private part. He has spread these photos to so many different people I was so embarrassed. So, as anger for that what he has done after one year I married him. Upon further questioning by defence counsel, the complainant said that she had told the police about the appellant spreading these images; that she told the police they should check his emails as he had sent them to his friend, Mr A. When pressed as to whether she had in fact given the police this information, she responded:AI – I don’t know if I have told them at the time I was providing the statement, but before I leave Adelaide I told them he has blackmailed me that he will spread the video, our most dirty videos he has taken while we were sleeping together and he blackmailed that if I leave him he will spread that. I told him – I told them that one. Defence counsel put to the complainant that none of this appeared in the affidavits she provided to the police, but she maintained that she had told them about what he had threatened to do. Defence counsel then returned to his cross-examination suggesting that the reason for making the allegations of physical and sexual abuse by the appellant was to create an explanation for leaving her husband that would be acceptable in her community:Q… I want to be very clear about this to you: the reason you went to the two police stations on March 25 was because you were laying the groundwork to leave [the appellant] for [Mr H], what do you say to that.ANo, if I was making a path away, I would have told that time already.QOkay. And the reason I suggest you only told the police about marital breakup is this: so that you could say to your community that you left or you had a good proper reason to leave your husband.ANo.…QAnd to be very clear, it wasn’t until 4 February this year, 2023, that you even chose to mention to the police that you had a new husband, is that correct. Is that right.AAre you talking about [Mr H] also with his arrangement – QYes. Yes, I was.A– with his arrangement, he arranged people from the country people and then he also broken my relationship with [Mr H].QAs I said to you earlier, and I’m suggesting to you this again, the truth is you were having sexual relations with [Mr H] in Adelaide while your kids were at school and your husband was at work.AEven if I die I will not accept that, I didn’t do that.

Decision

Reasons for decision

For the reasons given, Ground 3 has been made out. The verdict of guilt in relation to Count 4 is unreasonable, and should be set aside and replaced with a verdict of acquittal.Conclusion and orders Permission to appeal having already been granted on Ground 1 and being unnecessary on Ground 2, I would grant permission to appeal on Ground 3. I would allow the appeal on Ground 3, set aside the conviction on Count 4 and substitute an acquittal on that count. I would otherwise dismiss the appeal. DAVID JA: I would grant permission to appeal on Ground 3. I would allow the appeal on Ground 3, set aside the conviction on Count 4 and substitute an acquittal on that count. I would otherwise dismiss the appeal. I agree with the reasons of Doyle JA.

Ratio Decidendi

Legal Principle Established

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