R v Kahu - [2006] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kahu [2006] QCA 33

PARTIES:

R
v
KAHU, Hoane Joseph
(appellant)

FILE NO/S:

CA No 290 of 2005
DC No 226 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

17 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2006

JUDGES:

McPherson and Keane JJA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - where appellant convicted by jury of one count of rape for fellatio but jury unable to reach verdict on two other counts of rape - where appellant initially denied ever meeting complainant - where appellant later claimed that fellatio was consensual - whether conviction unsafe and unsatisfactory having regard to all of the evidence

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IRREGULARITIES IN RELATION TO JURY - PARTIALITY - where appellant convicted by jury of one count of rape but jury unable to reach verdict on two other counts of rape - where juror disobeyed instructions of learned trial judge by sending a text message to a person not on jury - where text message alleged to indicate racial bias - where juror said he had not conveyed any racist views to other jurors - whether learned trial judge erred in dismissing an application to discharge the jury for reasons of bias

Criminal Code 1899 (Qld), s 668E(1)

MFA v The Queen (2002) 213 CLR 606, applied
Osland v The Queen (1998) 197 CLR 316, cited
R v Czajkowski [2002] NSWCCA 530; (2002) 137 A Crim R 111, considered
R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited

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

McPHERSON JA: I have read and agree with the reasons of Keane JA that the appeal against conviction in this matter should be dismissed.

KEANE JA: On 24 October 2005, the appellant was convicted upon the verdict of a jury of one count of rape. The jury was unable to reach a verdict on two other counts of rape. The appellant seeks to appeal against the conviction on the following grounds:

"(a) That the conviction is unsafe and unsatisfactory having regard to all of the evidence;
(b) That the learned trial judge erred in dismissing the application to have the jury discharged because of concerns of juror bias."

I shall discuss these grounds of appeal in turn, but before doing so I should summarise the evidence.
The case at trial

The complainant was born in 1989.…

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 33
Case: [2006] QCA 33
Decision Date: 17 February 2006

CaseChat Overview and Summary

The appellant was convicted by a jury of one count of rape for fellatio, but the jury could not reach a verdict on two other counts of rape. The appellant had initially denied ever meeting the complainant, but later claimed that the act of fellatio was consensual. The appellant appealed against the conviction, arguing that it was unsafe and unsatisfactory given the evidence. Additionally, the appellant argued that the trial judge erred in dismissing an application to discharge the jury for reasons of bias, as one of the jurors had allegedly sent a text message to a person not on the jury which indicated racial bias.

The court considered whether the conviction was unreasonable or insupportable, and whether there were irregularities in relation to the jury, such as partiality. The court noted that the jury's verdict on the count of rape for fellatio was unanimous, and that the evidence supported the conviction. The court also found that the juror's text message did not indicate racial bias, and that the trial judge did not err in dismissing the application to discharge the jury.

The court held that the conviction was not unreasonable or insupportable, and that there were no irregularities in relation to the jury. The court noted that the jury's verdict on the count of rape for fellatio was unanimous, and that the evidence supported the conviction. The court also found that the juror's text message did not indicate racial bias, and that the trial judge did not err in dismissing the application to discharge the jury. Accordingly, the appeal against conviction was dismissed.

Orders

Orders of the court

Appeal against conviction dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kahu [2006] QCA 33
PARTIES:	R v KAHU, Hoane Joseph (appellant)
FILE NO/S:	CA No 290 of 2005 DC No 226 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	17 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2006
JUDGES:	McPherson and Keane JJA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - where appellant convicted by jury of one count of rape for fellatio but jury unable to reach verdict on two other counts of rape - where appellant initially denied ever meeting complainant - where appellant later claimed that fellatio was consensual - whether conviction unsafe and unsatisfactory having regard to all of the evidence CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IRREGULARITIES IN RELATION TO JURY - PARTIALITY - where appellant convicted by jury of one count of rape but jury unable to reach verdict on two other counts of rape - where juror disobeyed instructions of learned trial judge by sending a text message to a person not on jury - where text message alleged to indicate racial bias - where juror said he had not conveyed any racist views to other jurors - whether learned trial judge erred in dismissing an application to discharge the jury for reasons of bias Criminal Code 1899 (Qld), s 668E(1) MFA v The Queen (2002) 213 CLR 606, applied Osland v The Queen (1998) 197 CLR 316, cited R v Czajkowski [2002] NSWCCA 530; (2002) 137 A Crim R 111, considered R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited
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