R v KAH - [2012] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAH [2012] QCA 154

PARTIES:

R
v
KAH
(appellant/applicant)

FILE NO/S:

CA No 44 of 2011
DC No 116 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

14 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2012

JUDGES:

Chief Justice, Holmes and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal against conviction allowed.

2.    Convictions are set aside.

3.    New trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted by a jury of one count of maintaining an unlawful sexual relationship with a child and one count of rape – where the appellant gave evidence in the course of the trial that he was “always in gaol” – where the trial judge acknowledged the need to issue a direction to the jury to overcome the prejudice attached to this evidence – where the trial judge failed to give this direction – where the Crown conceded there had been a miscarriage of justice – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted by a jury of one count of maintaining an unlawful sexual relationship with a child and one count of rape – where five interviews with the complainant were admitted into evidence and played in the course of the trial – where the jury asked for the “tape exhibits” prior to the summing-up – where the trial judge directed, in the absence of any objection from counsel, that the relevant exhibits be made available in the jury room – where the trial judge failed to give a direction to the jury to guard against the risk of giving the evidence of the five interviews disproportionate weight – where the Crown conceded there had been a miscarriage of justice – whether there was a miscarriage of justice

Evidence Act 1977 (Qld), s 99

R v DAJ[2005] QCA 40, cited
R v GAO[2012] QCA 54, cited
R v H [1999] 2 Qd R 283; [1998] QCA 348, cited

COUNSEL:

K Prskalo for the appellant
V A Loury for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The appellant appeals against his conviction by a jury of one count of maintaining an unlawful sexual relationship with a child and one count of rape. He was granted leave to amend the notice of appeal to add a number of grounds, of which only two are now of significance, for reasons which will become apparent. They are, in substance, that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v KAH

Details

AGLC: R v KAH [2012] QCA 154
Case: [2012] QCA 154
Decision Date: 14 June 2012

CaseChat Overview and Summary

In the matter of R v KAH, the appellant was convicted by a jury of maintaining an unlawful sexual relationship with a child and of rape. The appellant appealed against his conviction, arguing that the trial judge's failure to give certain directions to the jury resulted in a miscarriage of justice. The Crown conceded that a miscarriage of justice had occurred. The court was required to determine whether the trial judge's omissions constituted a miscarriage of justice warranting the setting aside of the convictions and ordering a new trial.

The legal issues before the court included whether the trial judge's failure to direct the jury to guard against the risk of giving disproportionate weight to the evidence of five interviews with the complainant amounted to a miscarriage of justice, and whether the trial judge's failure to direct the jury to overcome the prejudice attached to the appellant's evidence that he was "always in gaol" constituted a miscarriage of justice. The court considered the particular circumstances of the case and whether they amounted to a miscarriage of justice.

The court found that the trial judge's failure to give the necessary directions to the jury resulted in a miscarriage of justice. The court held that the trial judge's failure to direct the jury to guard against the risk of giving disproportionate weight to the evidence of the five interviews was a significant error, as it increased the risk of an unfair verdict. The court also found that the trial judge's failure to direct the jury to overcome the prejudice attached to the appellant's evidence that he was "always in gaol" further contributed to the miscarriage of justice. The court concluded that the convictions should be set aside and a new trial ordered.

Accordingly, the court allowed the appeal against conviction, set aside the convictions, and ordered a new trial.

Orders

Orders of the court

1. Appeal against conviction allowed.

2. Convictions are set aside.

3. New trial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v KAH [2012] QCA 154
PARTIES:	R v KAH (appellant/applicant)
FILE NO/S:	CA No 44 of 2011 DC No 116 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	14 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2012
JUDGES:	Chief Justice, Holmes and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction allowed. 2. Convictions are set aside. 3. New trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted by a jury of one count of maintaining an unlawful sexual relationship with a child and one count of rape – where the appellant gave evidence in the course of the trial that he was “always in gaol” – where the trial judge acknowledged the need to issue a direction to the jury to overcome the prejudice attached to this evidence – where the trial judge failed to give this direction – where the Crown conceded there had been a miscarriage of justice – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted by a jury of one count of maintaining an unlawful sexual relationship with a child and one count of rape – where five interviews with the complainant were admitted into evidence and played in the course of the trial – where the jury asked for the “tape exhibits” prior to the summing-up – where the trial judge directed, in the absence of any objection from counsel, that the relevant exhibits be made available in the jury room – where the trial judge failed to give a direction to the jury to guard against the risk of giving the evidence of the five interviews disproportionate weight – where the Crown conceded there had been a miscarriage of justice – whether there was a miscarriage of justice Evidence Act 1977 (Qld), s 99 R v DAJ[2005] QCA 40, cited R v GAO[2012] QCA 54, cited R v H [1999] 2 Qd R 283; [1998] QCA 348, cited
COUNSEL:	K Prskalo for the appellant V A Loury for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent