R v KAP - [2016] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAP [2016] QCA 349

PARTIES:

R
v
KAP
(appellant)

FILE NO/S:

CA No 69 of 2016
DC No 1500 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 22 March 2016

DELIVERED ON:

23 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2016

JUDGES:

Morrison and Philip McMurdo JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted, by jury trial, of one count of rape – where the appellant and the complainant had been married for two years, but were separated at the time of the incident – where the sexual intercourse took place in contested circumstances, with the prosecution alleging the complainant was raped whilst being forcibly held down by the appellant and threatened, and defence alleging that the intercourse was consensual and initiated by the complainant – where the prosecution adduced evidence from a medical expert witness, who gave evidence as to the frequency of genital injury in sexual assault cases – where the appellant contends that this was prejudicial and should not have been adduced as part of the prosecution case – whether the expert evidence as to frequency of genital injury should not have been adduced

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISIDRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant contends that the evidence given by the medical expert witness should have been the subject of a direction to the jury in the learned trial judge’s summing up – whether the learned trial judge erred in not giving a direction to the jury about the use of the expert witness’s evidence

Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited

COUNSEL:

C C Minnery for the appellant
D R Kinsella for the respondent

SOLICITORS:

Raniga Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: Mr KAP and his wife (HMN) separated in 2013 after a two-year marriage. On 8 May 2014 Mr KAP went to HMN’s house, ostensibly for the purpose of visiting their child. Sexual intercourse took place, in circumstances which were contested. HMN complained that she had been raped when Mr KAP forcibly held her down on the bed and verbally threatened her. Mr KAP’s case was that the sexual intercourse was consensual and initiated by HMN.
After a trial Mr KAP was convicted of one count of rape. The sole issue at trial was whether HMN had consented to the sexual intercourse. An expert witness who had medically examined HMN gave evidence about…

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 KAP

Details

AGLC: R v KAP [2016] QCA 349
Case: [2016] QCA 349
Decision Date: 23 December 2016

CaseChat Overview and Summary

In the matter of R v KAP, the appellant was convicted by a jury of one count of rape. The appellant and the complainant had been married for two years, but were separated at the time of the incident. The sexual intercourse took place in contested circumstances, with the prosecution alleging the complainant was raped whilst being forcibly held down by the appellant and threatened, and the defence alleging that the intercourse was consensual and initiated by the complainant. The prosecution adduced evidence from a medical expert witness, Dr Griffin, who gave evidence as to the frequency of genital injury in sexual assault cases. The appellant contends that this evidence was prejudicial and should not have been adduced as part of the prosecution case, and that the trial judge should have directed the jury about the use of the expert witness’s evidence.

The court considered whether the evidence given by Dr Griffin about the frequency of genital injuries in sexual assault cases was properly admitted and whether the trial judge should have directed the jury about the use of this evidence. The court found that the evidence was not prejudicial and did not result in a miscarriage of justice. The evidence was relevant to the issue of whether the complainant had suffered genital injuries, which was a matter in dispute. The court also found that the trial judge did not err in not giving a direction to the jury about the use of the expert witness’s evidence.

The appeal was dismissed. The court proposed the following order: “The appeal is dismissed.” This order was agreed to by the other judges.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Griffin gave evidence that there were no genital injuries, but that was common in many cases of sexual assault.Ground 1 – admissibility of evidence The first ground of appeal contends that evidence given by Dr Griffin as to the frequency of injury should not have been adduced as part of the prosecution case. The specific evidence occurred in this exchange, in Dr Griffin’s examination in chief, after he had given evidence as to the nature of the injuries found, and the sampling for DNA:[16]“Okay. Now, just finally, in most cases of sexual assault, are there no findings of genital injuries?---So in the cohort studies that we’ve looked at and review studies across the world, in fact, we’ve found there’s an incidence of around 32 per cent of cases that have injury at the time of examination who’ve reported sexual assault. My own cohort is actually slightly smaller than that. Instead of about one in three, it’s 10 about one in four in the group that I’m attending to. So it’s injury that’s visible to the naked eye is what we’re specifically looking for. So the absence of injury, not seeing injury there, doesn’t mean that penetration didn’t occur. It may have still occurred, there’s just no injury to actually see on examination.And it’s not definitive as to whether someone was assaulted or had consensual sex?---That’s correct.Okay?---It’s still possible to have injury with consensual sex [indistinct] it’s just less frequent than it is with non-consensual sex.Okay. All right. And you said, in your experience, you averaged about one in four. How many such examinations have you conducted?---So this year alone, I’ve suffered 16 examinations.Okay?---And previous to that, it’s around 40 a year.Yeah. And you’ve been doing this for about 20 years?---I’ve been doing this particular role for eight years.” [16]AB 65 lines 5-28. Mr KAP contends that because the case presented by the prosecution relied solely on the complainant’s version of events, the evidence of Dr Griffin could have been used by the jury to bolster the credibility of the complainant and was thus prejudicial. It was put that because the “cohort studies” referred to by Dr Griffin were in no way contextualised by the expert witness, the jury had no way of knowing if those cases were at all comparable to the facts they had to consider. The evidence was therefore irrelevant and inadmissible. The admission of the evidence therefore resulted in a miscarriage of justice.Discussion Counsel for Mr KAP submitted that the questions by the prosecution led to irrelevant and prejudicial evidence being given. In order to deal with that contention it is instructive to set out the component parts of the questions and answers, and the context in which they occurred. Dr Griffin had just identified the injuries that had been found on HMN. They were to the right hand (specifically the third knuckle), and the area above her left knee.[17] He did not identify any sign of injury to the vagina or genital area.[17]AB 64 lines 12-18.

Decision

Reasons for decision

This ground of appeal fails.Conclusion For the reasons expressed above, I would dismiss the appeal. I propose the following order:1.The appeal is dismissed. PHILIP McMURDO JA: I agree with Morrison JA. MULLINS J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v KAP [2016] QCA 349
PARTIES:	R v KAP (appellant)
FILE NO/S:	CA No 69 of 2016 DC No 1500 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 22 March 2016
DELIVERED ON:	23 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2016
JUDGES:	Morrison and Philip McMurdo JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted, by jury trial, of one count of rape – where the appellant and the complainant had been married for two years, but were separated at the time of the incident – where the sexual intercourse took place in contested circumstances, with the prosecution alleging the complainant was raped whilst being forcibly held down by the appellant and threatened, and defence alleging that the intercourse was consensual and initiated by the complainant – where the prosecution adduced evidence from a medical expert witness, who gave evidence as to the frequency of genital injury in sexual assault cases – where the appellant contends that this was prejudicial and should not have been adduced as part of the prosecution case – whether the expert evidence as to frequency of genital injury should not have been adduced CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISIDRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant contends that the evidence given by the medical expert witness should have been the subject of a direction to the jury in the learned trial judge’s summing up – whether the learned trial judge erred in not giving a direction to the jury about the use of the expert witness’s evidence Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
COUNSEL:	C C Minnery for the appellant D R Kinsella for the respondent
SOLICITORS:	Raniga Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent