R v Kahu - [2006] QCA 413

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kahu [2006] QCA 413

PARTIES:

R
v
KAHU, Hoane Joseph
(appellant)

FILE NO/S:

CA No 90 of 2006
DC No 62 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

20 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2006

JUDGES:

Williams and Keane JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction dismissed1.

Application for leave to appeal against sentence dismissed2.

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - appellant convicted by jury of two counts of rape - two counts of rape involved vaginal intercourse and anal intercourse respectively - at previous trial appellant convicted of rape based on oral intercourse occurring on the same night - at previous trials juries were unable to come to a verdict on counts relating to vaginal intercourse and anal intercourse - appellant argues convictions unsafe because previous juries were unable to come to a verdict - appellant argues there were inconsistencies in Crown case such that jury could not reasonably have been satisfied as to his guilt - whether conviction unsafe and unsatisfactory

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - SEXUAL OFFENCES - appellant sentenced to eight and a half years imprisonment on each of the three rape counts - appellant also sentenced to serve four month balance of a previous suspended sentence - appellant 20 years of age at time of offences - offences committed during operational period of partially suspended sentence imposed for offences of stealing, entering a dwelling without consent, obstructing police and breach of community service order - no remorse - complainant 15 years old - whether sentence imposed was manifestly excessive

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, cited
R v Basic [2000] QCA 155; (2000) 115 A Crim R 456, considered

COUNSEL:

The appellant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA wherein the relevant facts are set out. Having perused the record I am satisfied that the verdicts impugned in this appeal were not "unsafe and unsatisfactory". Notwithstanding the fact that at an earlier trial the jury had been unable to agree on verdicts with respect to these two counts, there was ample evidence supporting the verdicts of guilty reached on the retrial. Undoubtedly there was sexual activity between the appellant and the complainant and the circumstances…

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 Kahu

Details

AGLC: R v Kahu [2006] QCA 413
Case: [2006] QCA 413
Decision Date: 20 October 2006

CaseChat Overview and Summary

The appellant was convicted by a jury of two counts of rape, one involving vaginal intercourse and the other anal intercourse. These convictions were appealed on the grounds that the verdict was unreasonable and unsatisfactory due to the jury's inability to reach a verdict in previous trials on similar charges. Additionally, the appellant contested the severity of the sentence imposed, arguing it was manifestly excessive. The court had to determine whether the verdict was unreasonable and whether the sentence was excessive.

The court considered the arguments regarding the safety and satisfaction of the verdict. It examined the inconsistencies in the Crown's case and the jury's previous inability to reach a verdict on similar charges. The court also assessed whether these inconsistencies were significant enough to render the jury's verdict unreasonable. Regarding the sentence, the court examined the appellant's age, the nature of the offences, and the severity of the punishment relative to the crimes committed.

The appeal against the conviction was dismissed by the court. The court found that despite the jury's previous difficulties in reaching a verdict on similar charges, there was sufficient evidence to support the current convictions. The court concluded that the verdict was not unreasonable or unsatisfactory. As for the sentence, the court determined that it was not manifestly excessive, taking into account the appellant's criminal history and the nature of the offences committed. The application for leave to appeal against the sentence was also dismissed.

No orders were made regarding the appeal against the conviction. The application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

Appeal against conviction dismissed1.

Application for leave to appeal against sentence dismissed2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kahu [2006] QCA 413
PARTIES:	R v KAHU, Hoane Joseph (appellant)
FILE NO/S:	CA No 90 of 2006 DC No 62 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	20 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 2006
JUDGES:	Williams and Keane JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed1. Application for leave to appeal against sentence dismissed2.
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - appellant convicted by jury of two counts of rape - two counts of rape involved vaginal intercourse and anal intercourse respectively - at previous trial appellant convicted of rape based on oral intercourse occurring on the same night - at previous trials juries were unable to come to a verdict on counts relating to vaginal intercourse and anal intercourse - appellant argues convictions unsafe because previous juries were unable to come to a verdict - appellant argues there were inconsistencies in Crown case such that jury could not reasonably have been satisfied as to his guilt - whether conviction unsafe and unsatisfactory CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - SEXUAL OFFENCES - appellant sentenced to eight and a half years imprisonment on each of the three rape counts - appellant also sentenced to serve four month balance of a previous suspended sentence - appellant 20 years of age at time of offences - offences committed during operational period of partially suspended sentence imposed for offences of stealing, entering a dwelling without consent, obstructing police and breach of community service order - no remorse - complainant 15 years old - whether sentence imposed was manifestly excessive MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, cited R v Basic [2000] QCA 155; (2000) 115 A Crim R 456, considered
COUNSEL:	The appellant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent