R v Kan

Case [2016] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAN [2016] QCA 108

PARTIES:

R
v
KAN
(appellant)

FILE NO/S:

CA No 106 of 2015
DC No 6 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Brisbane – Date of Conviction: 28 May 2015

DELIVERED ON:

26 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2016

JUDGES:

Margaret McMurdo P and Philippides JA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction allowed.

2.   The verdicts of guilty are set aside.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – POINTS AND OBJECTIONS NOT TAKEN BELOW – MISDIRECTION AND NON-DIRECTION – NON-DIRECTION – where the appellant was found guilty of one count of maintaining a sexual relationship with a child under 16 and two counts of rape – where the complainant led evidence of uncharged, unlawful sexual acts which she agreed to a suggestion put by police began when she was about five years old – where she said the acts occurred nearly every night – where, based her on evidence, other evidence and admissions at trial, the alleged uncharged acts would have occurred when the complainant was two years old – where the primary judge directed the jury that these acts were only relevant to “background” – where the judge failed to direct the jury that they must be persuaded beyond reasonable doubt that some or all of those uncharged acts occurred before they could be used as proof of the appellant’s sexual interest in the complainant – where defence counsel failed to request such a direction at trial – where the trial judge should have given such a direction as failure to do so may have affected the jury verdict – where defence counsel’s failure to request the direction was an oversight and not a tactical, forensic decision – whether there was an error of law – whether there was a substantial miscarriage of justice

Criminal Code (Qld), s 229B, s 668E(1)

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, applied
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited
R v GAP [2013] 1 Qd R 427; [2012] QCA 193, distinguished
R v Khaled[2014] QCA 349, distinguished
R v WO[2006] QCA 21, applied but distinguished in part

COUNSEL:

C Eberhardt for the appellant
M B Lehane for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  The appellant,…

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Details
AGLC
R v Kan [2016] QCA 108
Case
[2016] QCA 108
Decision Date

CaseChat Overview and Summary

In the case of R v Kan, the appellant was found guilty of one count of maintaining a sexual relationship with a child under 16 and two counts of rape. The case was appealed on the grounds of misdirection and non-direction by the trial judge, which led to a substantial miscarriage of justice. The appellant argued that the trial judge did not adequately direct the jury regarding the relevance of uncharged, unlawful sexual acts the complainant alleged began when she was about five years old, and that occurred nearly every night. The trial judge directed the jury that these acts were only relevant to “background” but failed to inform them that they must be persuaded beyond reasonable doubt that some or all of those uncharged acts occurred before they could be used as proof of the appellant’s sexual interest in the complainant.

The legal issues in this case revolved around the adequacy of the judge’s directions to the jury regarding the complainant’s evidence of sexual abuse. The court had to determine whether the trial judge’s directions were sufficient, and if not, whether this constituted a substantial miscarriage of justice. The court also needed to consider the defence counsel’s failure to request a specific direction at trial, and whether this could be considered an oversight rather than a tactical decision. The court found that the trial judge should have given a direction regarding the uncharged acts, as failure to do so may have affected the jury's verdict.

The court concluded that the appeal must be allowed on ground A, as the trial judge’s directions to the jury were inadequate in some important respects. The court found that the failure to provide the necessary direction constituted a substantial miscarriage of justice. The appeal against conviction was allowed, the verdicts of guilty were set aside, and a retrial was ordered.

Orders

Orders of the court

1. Appeal against conviction allowed.

2. The verdicts of guilty are set aside.

3. A retrial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons which follow, I consider this appeal must be allowed on ground A. The primary judge’s directions to the jury, as to the complainant’s evidence that the appellant committed unlawful sexual acts against her which were not the subject of specific charges, were inadequate in some important respects.Ground A: the adequacy of the judge’s directions as to the evidence of sexual abuse in South Australia. Before directly discussing the parties’ contentions on this ground of appeal, I will summarise relevant aspects of the trial including the complainant’s evidence, counsel’s submissions and the judge’s directions to the jury.Relevant events at the beginning of the trial At the commencement of the trial, whilst waiting for the jury panel to become available, the judge and counsel discussed issues likely to arise in the case. The judge noted that although there were two specific charges of rape, the complainant’s evidence in her recorded statement to police on 4 May 2012[4] was of four incidents of alleged rape: one in South Australia; the incident constituting count 2; the incident constituting count 3; and a later incident at a property near a dam. The judge also raised the complainant’s evidence about physical abuse including welts on her bottom, observing that he assumed a strategic decision had been made to lead that evidence. The prosecutor agreed and defence counsel did not dissent.[5] Defence counsel told the judge that the directions to the jury should include, “the direction with respect to discreditable conduct at 61 through to 66.9” of the Supreme and District Court’s Benchbook.[6][4]Exhibit MFI B, AB 203 – 219. The complainant’s interview with police was admitted as evidence under s 93A Evidence Act 1977 (Qld).[5]T1-2 – T1-3, AB 45 – 46.[6]T1-13, AB 56. During her opening address to the jury the prosecutor stated: “Count 1 covers all of the [appellant’s] sexual offending against [the complainant]. You will hear evidence from her in that regard like this: ‘He raped me every night. He would do the same thing a lot of nights a week. Sometimes every night. Sometimes it was every few nights.’ You will hear her describing an occasion not long after her parents separated, which is how you will hear her describe the time that that happened. She will describe the [appellant] comforting her because she couldn’t sleep. He started rubbing her back. Then he took her clothes off and raped her. [The complainant] will give evidence that these things happened lots and often.In a house they lived near [a dam], you will hear her described [sic] that he would take her into his room, cuddle her, take her clothes off, touch her, take his clothes off and then have sex with her. You will hear that evidence, ladies and gentlemen, to prove the offence of maintaining, which is count 1, to reveal and to reflect the whole of the relationship the [appellant] had with [the complainant] over that period of time and to show you his sexual interest in his daughter. You will hear [the complainant] say that she was too scared to do anything because she had a fear of physical punishment. You will hear her describe not being able to sit down at school on occasions because she went to school with welts on her bottom, and a time that he struck her for dropping a glass of milk.”[7][7]Opening Addresses, pp 3 – 4, lines 30 – 2.Relevant aspects of the evidence at trial

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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