R v Kam - [2016] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAM [2016] QCA 35

PARTIES:

R
v
KAM
(appellant)

FILE NO/S:

CA No 24 of 2014
DC No 28 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 6 December 2013

DELIVERED ON:

26 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2015

JUDGES:

Fraser JA and Applegarth and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of rape, and one count of indecent dealing of a child under 16, under care – where the complainant was the daughter of the appellant – where the complainant’s evidence was uncorroborated – where the appellant highlighted that the complainant’s disclosure to police coincided with an era of domestic disharmony between he and his daughter – where the appellant appealed against conviction on the basis the verdict was unreasonable or insupportable having regard to the evidence – whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUND FOR APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was self-represented – where the prosecution complained the appellant had misstated the effect of certain evidence in his address – where the judge accepted the request for redirection and clarified to the jury three matters of fact – where the judge exercised his discretion to remind the jury of the three facts rather than remain silent – whether the judge erred in giving the redirection

Criminal Code (Qld), s 210(a), s 348, s 349, s 619, s 620(1), s 668E(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Henry J and the order proposed by his Honour.
APPLEGARTH J: I have had the advantage of reading the comprehensive reasons for judgment of Henry J, with which I agree. I also agree with the order proposed by his Honour.
HENRY J: The appellant was convicted following a five day trial in the District Court of three counts of rape and one count of indecent treatment of a child under 16 under care. The complainant was his 12 year old daughter.
The sole ground of appeal is:
“The verdict is unreasonable or cannot be supported having regards to the evidence in the circumstances.”[1]

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 Kam

Details

AGLC: R v Kam [2016] QCA 35
Case: [2016] QCA 35
Decision Date: 26 February 2016

CaseChat Overview and Summary

In the matter of R v Kam, the appellant, a Congolese refugee who had arrived in Australia in 2008 with his two daughters, was convicted of three counts of rape and one count of indecently dealing with a child under 16 years of age under his care. The complainant in this case was the appellant's daughter, and her evidence was uncorroborated. The appellant appealed against his conviction, contending that the verdict was unreasonable or insupportable in light of the evidence. The appeal raised issues concerning the sufficiency of the evidence and whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. Additionally, the appellant argued that the trial judge erred in giving a redirection to the jury regarding the effect of certain evidence.

The court examined the evidence presented during the trial to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court found that the complainant's evidence, although uncorroborated, was clear and compelling, and that it was open to the jury to accept her account of the events. The court also considered the appellant's argument that the verdict was unreasonable or insupportable, but found that the jury had properly considered all of the evidence before them and had reached a verdict that was supported by the evidence. With regard to the redirection given by the trial judge, the court found that the judge had exercised his discretion appropriately in reminding the jury of certain facts, and that there was no error in the redirection.

The appeal was dismissed, and the appellant's convictions were upheld. The court found that the evidence was sufficient to support the jury's verdict, and that the trial judge had properly exercised his discretion in giving the redirection. The appellant's appeal was therefore dismissed, and his convictions were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

That ground requires this court to independently assess the sufficiency and quality of the evidence to decide whether on the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt the appellant was guilty.[2]Review of the Evidence[2]M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400.Overview The appellant, a Congolese refugee, arrived in Australia in 2008 with his two daughters, the complainant IO, born on 8 July 1998, and her younger sister JO, born on 17 October 2001. At the time of the alleged offences the appellant and his daughters were living in Woodridge. PL notified the police of the defendant’s misconduct.[3] PL, an African Refugee Support Worker, originates from Benin in West Africa. She first met the appellant and his daughters in 2009.[4] She thereafter had contact with the children regularly after school and at church. The children also visited PL at her home, arranging such visits by contacting PL by mobile phone with the consent of the appellant.[5] On one occasion in 2011, after PL noticed the complainant had outgrown her bras, the appellant consented to PL taking the children shopping for underwear. The complainant was to later tell police PL was like a mother to her and a sister to her father.[6][3]AR p 162.[4]AR p 96.[5]AR p 97.[6]AR p 258 L8. PL gave evidence that on 6 February 2011 she telephoned the appellant to apologise for not picking up the complainant and her sister as she had planned to do their hair.[7] The phone was then passed to the complainant. Once in a different room from the appellant the complainant asked PL to come and “rescue her”[8] and went on to disclose her father had sex with her.[7]AR p 98.[8]AR p 98 L28. After her conversation with the complainant PL went to the police station and she spoke to Detective Baxter.[9] Detective Baxter testified that upon receiving information from PL, he attended the appellant’s house with fellow officers.[10][9]AR p 99 L7.[10]AR p 162 L30. Upon arrival at the appellant’s house, Detective Baxter first spoke to the appellant and explained he had received information concerning an allegation of sexual assault against his child IO.[11] Detective Baxter invited the appellant to attend at the police station to discuss the matter and enquired as to the whereabouts of the children. The appellant told the officers the children were downstairs in the garage and exited the back door arriving downstairs ahead of the officers. The appellant went quickly up to the complainant and whispered something to her which the police did not hear.[12][11]AR p 162 L45.[12]AR p 140 L36, AR p 163 L10. The appellant and his daughters were taken to the police station. The complainant participated in two police interviews at the station. The first commenced at 10.10 pm[13] and the second at 11.50 pm,[14] around 30 minutes after the first interview had concluded.[13]AR p 221.[14]AR p 255. In the first interview[15] the complainant was obviously reticent to talk about what had happened. She acknowledged something was concerning her but said she did not feel like talking about it. She was asked about the content of a letter she had written the previous day to her father. She explained the letter said she had decided to move away. She said there was a reason why she wanted to move but would not disclose the reason. She mentioned she wanted her father to treat her as a child but did not want to tell the police the way in which he did not treat her as a child. She would not discuss whether someone had told her not to talk to the police.[15]AR pp 221-254.

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 KAM [2016] QCA 35
PARTIES:	R v KAM (appellant)
FILE NO/S:	CA No 24 of 2014 DC No 28 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh – Date of Conviction: 6 December 2013
DELIVERED ON:	26 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2015
JUDGES:	Fraser JA and Applegarth and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of rape, and one count of indecent dealing of a child under 16, under care – where the complainant was the daughter of the appellant – where the complainant’s evidence was uncorroborated – where the appellant highlighted that the complainant’s disclosure to police coincided with an era of domestic disharmony between he and his daughter – where the appellant appealed against conviction on the basis the verdict was unreasonable or insupportable having regard to the evidence – whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUND FOR APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was self-represented – where the prosecution complained the appellant had misstated the effect of certain evidence in his address – where the judge accepted the request for redirection and clarified to the jury three matters of fact – where the judge exercised his discretion to remind the jury of the three facts rather than remain silent – whether the judge erred in giving the redirection Criminal Code (Qld), s 210(a), s 348, s 349, s 619, s 620(1), s 668E(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	The appellant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent