R v Kalisa - [2024] QCA 198

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kalisa [2024] QCA 198

PARTIES:

R
v
KALISA, Tuombe
(appellant/applicant)

FILE NO/S:

CA No 254 of 2023
DC No 1370 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court of Queensland at Brisbane – Date of Conviction: 12 December 2023 (Farr SC DCJ)

DELIVERED ON:

Date of Orders: 29 August 2024
Date of Publication of Reasons: 25 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2024

JUDGES:

Dalton and Flanagan JJA and Ryan J

ORDERS:

Date of Orders: 29 August 2024

1.   The appeal is allowed.

2.   The conviction is set aside.

3.   A new trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of rape – where the Crown case was that the complainant was highly intoxicated, in and out of consciousness, pinned down and forcibly raped – where the appellant’s version was that the complainant consented to sexual intercourse and did nothing to “show” that she did not want sexual intercourse – whether, despite defence counsel disclaiming reliance on s 24 of the Criminal Code, it was fairly raised on the evidence – whether the learned trial judge ought to have directed the jury to consider s 24

Criminal Code (Qld), s 24, s 348
Evidence Act 1977 (Qld), s 21AK, s 93A

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited
Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, cited
R v Cutts[2005] QCA 306, considered
R v Makary [2019] 2 Qd R 528; [2018] QCA 258, considered
R v Millar [2000] 1 Qd R 437; [1998] QCA 276, considered
R v SAX[2006] QCA 397, considered
R v Soloman[2006] QCA 244, considered

COUNSEL:

D J Barker for the appellant/applicant
M J Wilson for the respondent

SOLICITORS:

Garde Wilson Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: I agree with the outline of the relevant evidence by Ryan J.
Appeal Point
There was only one ground of appeal, that a miscarriage of justice was occasioned by the failure of the trial judge to direct the jury in terms of s 24 of the Criminal Code (Qld).
It may be accepted, as the appellant’s counsel submitted on appeal, that even though defence counsel disclaimed reliance on s 24, that did not relieve the trial judge from his duty to put to the jury any defence fairly raised on the evidence.[1]
[1]Pemble v The Queen (1971) 124 CLR 107, 117–118.
It is for the Crown to exclude a defence under s 24. When the jury should be instructed to consider whether or not the Crown has done so, depends upon the evidence in…

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 Kalisa

Details

AGLC: R v Kalisa [2024] QCA 198
Case: [2024] QCA 198
Decision Date: 29 August 2024

CaseChat Overview and Summary

The case of R v Kalisa involved the appellant, who was convicted of one count of rape. The complainant alleged that she was highly intoxicated, in and out of consciousness, pinned down, and forcibly raped. The appellant's defence was that the complainant consented to sexual intercourse and did not show that she did not want it. The appeal centred on whether the trial judge should have directed the jury to consider section 24 of the Criminal Code, which pertains to the honest and reasonable but mistaken belief in consent.

The primary legal issue before the court was whether, despite defence counsel not relying on section 24, it was nonetheless fairly raised on the evidence. The court needed to determine whether the trial judge should have directed the jury to consider this defence. This required an examination of the evidence presented and whether it provided a reasonable foundation for the appellant's defence under section 24.

The court found that the evidence, when considered together, provided a reasonable basis for the appellant to honestly and reasonably but mistakenly believe that the complainant was consenting. The trial judge did not direct the jury to consider this defence, and the appellant's counsel agreed that it was not raised. However, the court concluded that the defence was open on the evidence and should have been left to the jury. This failure constituted a miscarriage of justice, necessitating the setting aside of the conviction and ordering a new trial.

The final orders included allowing the appeal, setting aside the conviction, and ordering a new trial. The court's decision underscored the importance of ensuring that all legally viable defences are properly considered by the jury, even if not explicitly raised by counsel.

Orders

Orders of the court

Date of Orders: 29 August 2024

1. The appeal is allowed.

2. The conviction is set aside.

3. A new trial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In my view, notwithstanding the approach taken by counsel, the case was not as simple as one involving competing, incompatible versions of events, where the only question for the jury was whether they were satisfied, beyond reasonable doubt, that the complainant did not consent to sexual intercourse. In my view, the evidence of the complainant, taken with the evidence of the appellant, provided a reasonable foundation for a defence under section 24 of the Criminal Code that the appellant honestly and reasonably but mistakenly believed that the complainant was consenting to sexual intercourse. The trial judge did not direct the jury about that defence. Indeed, counsel for the appellant agreed with the trial judge that it was not raised. But in my view, the defence was open on the evidence and ought to have been left for the jury’s consideration. There was therefore a miscarriage of justice, requiring the orders made at the hearing of the appeal.Evidence at trial At the time of the commission of the alleged offence the appellant was about 18 years old (there was some uncertainty about his exact date of birth). The complainant was 16. The alleged rape occurred in a bedroom of a unit in Brisbane during a birthday party for a young woman, BG. The appellant said he met the complainant before the party through a youth group. The complainant was not sure if she saw the appellant at the youth group and could not remember interacting with him before the night of the party. The young people at the party were drinking alcohol, including spirits. The complainant became intoxicated and “passed out”. One of her friends, RU, thought it best to take her to a bedroom in the unit. RU tucked the complainant in bed, stayed with her for a little while, then left the bedroom and the unit for a while. RU returned to the unit after the alleged rape had occurred. DU, another of the complainant’s friends at the party, did not want the complainant in the bedroom by herself, so she went into the bedroom with her. DU sat with the complainant, then the complainant started vomiting. DU cleaned it up. At about 11 pm, BG suffered seizures. At about midnight, she was taken to hospital, accompanied by DU and another party guest, TM. The alleged rape occurred while BG, DU and TM were at the hospital. According to DU, when she got back from the hospital, the complainant was in a bedroom with the appellant and one other person, a tall woman. The appellant was on his phone on one side of the room. The tall woman was on her phone also. The complainant was “kinda sleeping” on a single bed and the sheets were messy. The tall woman left the bedroom (and perhaps another male entered and then left). The complainant, the appellant and DU were in the bedroom. The complainant snapped DU on Snapchat and told DU that she wanted the appellant to leave and that she wanted to tell DU something. DU told the appellant to leave, and he did so. Then the complainant told DU that the appellant “raped her and stuff” and showed DU blood on the bedsheet. (The complainant had been a virgin before the alleged rape.) She told DU that it hurt “down here”. She said she had passed out. When she gained consciousness, a guy in a white shirt (not the appellant) was “kissing on her and stuff”. She did not want to be in the room. She went into another room and the appellant raped her. She said she was passed out when “it happened” with the appellant. She said he had her pinned down. DU told TM.

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 Kalisa [2024] QCA 198
PARTIES:	R v KALISA, Tuombe (appellant/applicant)
FILE NO/S:	CA No 254 of 2023 DC No 1370 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court of Queensland at Brisbane – Date of Conviction: 12 December 2023 (Farr SC DCJ)
DELIVERED ON:	Date of Orders: 29 August 2024 Date of Publication of Reasons: 25 October 2024
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2024
JUDGES:	Dalton and Flanagan JJA and Ryan J
ORDERS:	Date of Orders: 29 August 2024 1. The appeal is allowed. 2. The conviction is set aside. 3. A new trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of rape – where the Crown case was that the complainant was highly intoxicated, in and out of consciousness, pinned down and forcibly raped – where the appellant’s version was that the complainant consented to sexual intercourse and did nothing to “show” that she did not want sexual intercourse – whether, despite defence counsel disclaiming reliance on s 24 of the Criminal Code, it was fairly raised on the evidence – whether the learned trial judge ought to have directed the jury to consider s 24 Criminal Code (Qld), s 24, s 348 Evidence Act 1977 (Qld), s 21AK, s 93A Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, cited R v Cutts[2005] QCA 306, considered R v Makary [2019] 2 Qd R 528; [2018] QCA 258, considered R v Millar [2000] 1 Qd R 437; [1998] QCA 276, considered R v SAX[2006] QCA 397, considered R v Soloman[2006] QCA 244, considered
COUNSEL:	D J Barker for the appellant/applicant M J Wilson for the respondent
SOLICITORS:	Garde Wilson Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent