R v Kau - [2019] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAU [2019] QCA 73

PARTIES:

R
v
KAU
(appellant)

FILE NO/S:

CA No 246 of 2018
DC No 2655 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 24 August 2018 (Jones DCJ)

DELIVERED ON:

3 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2019

JUDGES:

Fraser and Gotterson JJA and Bradley J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with four counts of rape as a domestic violence offence – where the four counts were alleged to have been committed on the same occasion, against the appellant’s then wife – where the jury reached verdicts of guilty on two counts and not guilty on the other two counts – whether the guilty verdicts were inconsistent with the not guilty verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where it is alleged that the learned trial judge ought to have directed the jury to consider whether they were satisfied beyond reasonable doubt that the appellant did not act under a mistake of fact as to the complainant’s consent in relation to the two counts upon which the appellant was convicted – where mistake of fact was not raised by counsel at trial – whether the learned trial judge ought to have given a mistake of fact direction – whether any failure to give such a direction is likely to have affected the verdicts

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited

COUNSEL:

C F C Wilson for the appellant
C N Marco for the respondent

SOLICITORS:

Martin Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Bradley J and the order proposed by his Honour.
GOTTERSON JA: I agree with the order proposed by Bradley J and with the reasons given by his Honour.
BRADLEY J: On 28 September 2018, the appellant was convicted on two counts of rape as a domestic violence offence and sentenced to five years imprisonment, suspended after two and a half years in custody. The sentence followed a three day trial, which concluded on 24 August 2018 when the jury reached verdicts of guilty on the two counts and verdicts of not guilty on two other counts of rape.
The complainant was the appellant’s wife. The four counts were alleged to have been committed on the same occasion and in sequence at their then home. Counts 1 and 3, the subjects of the guilty verdicts, were particularised as vaginal rapes. Counts 2 and…

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 Kau

Details

AGLC: R v Kau [2019] QCA 73
Case: [2019] QCA 73
Decision Date: 3 May 2019

CaseChat Overview and Summary

The appellant in this case was convicted by a jury of two counts of rape as a domestic violence offence and acquitted on the other two counts of the same offence. The appellant appealed against his convictions on the basis that the verdicts were inconsistent and that the trial judge should have directed the jury to consider whether he had acted under a mistake of fact as to the complainant’s consent.

The court considered whether the jury’s verdicts on the four counts were inconsistent. The complainant’s evidence on counts 2 and 4 was less consistent, more inferential, and more equivocal than her evidence as to counts 1 and 3. The appellant’s admissions in the recorded conversation with the complainant were inconsistent with the vaginal penetrations not occurring and amounted to an admission of count 1 and a failure to deny count 3. The jury was given a Markuleski direction and the court held that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on counts 1 and 3. The differences in the quality of the complainant’s evidence and the appellant’s corroborative evidence provided a logical and reasonable basis for the jury to arrive at different conclusions and return different verdicts.

The court considered whether the trial judge should have directed the jury to consider whether the appellant had acted under a mistake of fact as to the complainant’s consent. The appellant’s counsel did not raise the issue of mistake of fact at trial, and the court held that there was no basis for the trial judge to have given a mistake direction. The court further held that it was not reasonably possible that the failure to give such a direction affected the verdicts.

The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In these three respects, the complainant’s evidence on counts 2 and 4 was less consistent, more inferential and more equivocal than her evidence as to counts 1 and 3.Corroborative evidence There was evidence that might have corroborated counts 1 and 3. In the recording of the conversation between the complainant and the appellant, the complainant described the vaginal rapes in graphic terms and the appellant said he was “sorry it happened” and “things got carried away.” The recording also included this exchange:“Complainant: Just answer the f***ing question. Hurt me how?Appellant: I hurt you physically. I put my hand in your vagina.Complainant: And tore me up.Appellant: Well I didn’t know that.Complainant: How would you when you’re holding me down?Appellant: I --Complainant: And then you proceeded to ram me with your penis after you’d finished ripping my insides out. Thank you for acknowledged [sic] what you’d done.Appellant: Sorry.” The Crown’s counsel drew this evidence to the jury’s attention in the address. The jury could have considered the appellant’s statements to be inconsistent with the vaginal penetrations not occurring. The jury could also have considered the statements amounted to an admission of count 1 (vaginal penetration with his hand) and a failure to deny count 3 (vaginal penetration with his penis). The jury had no corroborative evidence of this kind about count 2 or 4. The possibility of different verdicts on the four counts was identified at the trial. The appellant’s counsel sought a Markuleski direction, which the learned trial judge gave. It appears the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution on each count and to apply to each count the requirement that all of the elements must be proved beyond reasonable doubt.[5] The jury saw and heard the complainant and the confidante witnesses give evidence, including under cross-examination. They had the recording of the complainant and the appellant.[5]MacKenzie at 367. It was open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on counts 1 and 3. The differences in the quality of the complainant’s evidence and appellant’s corroborative evidence provide a logical and reasonable basis for the jury to arrive at different conclusions and return different verdicts for counts 1 and 3 and counts 2 and 4. The second ground of appeal is that the jury ought to have been directed to consider whether the Crown had satisfied them beyond reasonable doubt that the appellant had not acted under an honest and reasonable, but mistaken, belief that the complainant had consented to the vaginal penetrations. To succeed on this proposed ground, the appellant must demonstrate that the learned trial judge should have given a mistake direction and that it is reasonably possible that the failure to do so may have affected the verdict.[6][6]Dhanhoa v The Queen (2003) 217 CLR 1 at 13 [38], 15 [49].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v KAU [2019] QCA 73
PARTIES:	R v KAU (appellant)
FILE NO/S:	CA No 246 of 2018 DC No 2655 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 24 August 2018 (Jones DCJ)
DELIVERED ON:	3 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2019
JUDGES:	Fraser and Gotterson JJA and Bradley J
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with four counts of rape as a domestic violence offence – where the four counts were alleged to have been committed on the same occasion, against the appellant’s then wife – where the jury reached verdicts of guilty on two counts and not guilty on the other two counts – whether the guilty verdicts were inconsistent with the not guilty verdicts CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where it is alleged that the learned trial judge ought to have directed the jury to consider whether they were satisfied beyond reasonable doubt that the appellant did not act under a mistake of fact as to the complainant’s consent in relation to the two counts upon which the appellant was convicted – where mistake of fact was not raised by counsel at trial – whether the learned trial judge ought to have given a mistake of fact direction – whether any failure to give such a direction is likely to have affected the verdicts Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
COUNSEL:	C F C Wilson for the appellant C N Marco for the respondent
SOLICITORS:	Martin Law for the appellant Director of Public Prosecutions (Queensland) for the respondent