R v KAW

Case [2020] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAW [2020] QCA 57

PARTIES:

R
v
KAW
(appellant)

FILE NO/S:

CA No 229 of 2019
DC No 602 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 31 July 2019 (Williamson QC DCJ)

DELIVERED ON:

Date of Orders: 25 March 2020
Date of Publication of Reasons: 31 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2020

JUDGES:

Morrison JA and Bond and Callaghan JJ

ORDERS:

Date of Orders: 25 March 2020

1.   Appeal allowed.

2.   Verdicts set aside.

3.   Convictions quashed.

4.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted after a trial of two counts of rape and one count of indecent treatment – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the complainant’s mother and aunt gave evidence about things purportedly said to them by the complainant – where the evidence did not resemble descriptions of the offences the subject of the trial – where the trial judge identified evidence as preliminary complaint evidence – where the evidence was not preliminary complaint evidence pursuant to s 4A of the Criminal Law Sexual Offences Act 1978 – where the appellant’s trial counsel did not object to characterisation of evidence and attempted to use it to the appellant’s advantage – where the trial judge gave a standard preliminary complaint direction to the jury that the evidence could be used to bolster the complainant’s credibility – whether a miscarriage of justice has occurred – whether the appeal should be allowed and a retrial ordered

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), s 21AK, s 93A

R v Dalton[2020] QCA 13, applied
R v NM [2013] 1 Qd R 374; [2012] QCA 173, cited

COUNSEL:

J A Fraser for the appellant
N W Needham for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I have read the reasons of Callaghan J and agree with those reasons and the orders his Honour proposes.

  2. BOND J:  I agree with the reasons for judgment of Callaghan J and with the orders proposed by his Honour.

  3. CALLAGHAN J:  After a trial which concluded on 31 July 2019 the appellant was convicted of two counts of rape and one count of indecent treatment.  He has appealed against those convictions and, for the reasons that follow his appeal should be allowed and a retrial ordered.

  4. The appellant and “M” were in a de facto relationship for over 10 years, during which they had four children.[1]  One of those was a girl, “H”, born in May 2006.  The relationship deteriorated…

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Details
AGLC
R v Kaw [2020] QCA 57
Case
[2020] QCA 57
Decision Date

CaseChat Overview and Summary

In the case of R v KAW, the appellant was convicted following a trial on two counts of rape and one count of indecent treatment. The appellant brought an appeal against the conviction, arguing that the verdict was unreasonable or insupportable having regard to the evidence, and that a miscarriage of justice had occurred. The legal issues before the court were whether the verdict was unreasonable or insupportable, and whether the evidence presented in court was properly admitted and whether the trial judge's directions to the jury were appropriate.

The court found that the complainant was the only source of evidence capable of sustaining convictions, and her evidence was vague and confused, given that she was only four years old at the time of the alleged offences. The court noted that the trial judge had admitted evidence of the complainant's prior allegations against another individual as evidence of the appellant's sexual interest in his daughter, and that no objection was taken to its admissibility. The court found that the trial judge had mischaracterised evidence given by the complainant's mother and aunt as "preliminary complaint" evidence, when it was in fact hearsay evidence of uncharged acts. This evidence did not resemble the descriptions of the offences that were the subject of the trial, and was therefore inadmissible. The trial judge had given a standard preliminary complaint direction to the jury, which the court found to be inappropriate in light of the mischaracterisation of the evidence. The court concluded that the mischaracterisation of the evidence and the inappropriate direction to the jury had led to a miscarriage of justice, and that the appeal should be allowed and a retrial ordered.

The court allowed the appeal, set aside the verdicts, quashed the convictions, and ordered a retrial. The court found that the evidence given by the complainant's mother and aunt was inadmissible hearsay, and that the trial judge's direction to the jury was inappropriate in light of the mischaracterisation of the evidence. The court concluded that these errors had led to a miscarriage of justice, and that a retrial was necessary to ensure a fair trial for the appellant.

Orders

Orders of the court

Date of Orders: 25 March 2020

1. Appeal allowed.

2. Verdicts set aside.

3. Convictions quashed.

4. Retrial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This shall be referred to as “Ground 2”.The complainant’s evidence The complainant was the only source of evidence capable of sustaining convictions. Her evidence came in four parts.April 2011 The complainant was just four years of age when she made certain claims to M’s sister, “B”. As a result she was interviewed by police. In the course of this interview, she made allegations about another individual, “R”, who had, she said – in language of a kind to be expected from a child of her age – touched her vagina. But she also said, of the appellant, that he had “sexed” her[5] and that he, too, had touched her on her vagina.[5]AB 266. As might be anticipated in the case of a child so young, and in circumstances where it was said that she had been subject to mistreatment by more than one person, this account was attended by considerable vagueness and confusion. It did not form the basis of any charge. It was, none the less, admitted - pursuant to s 93A of the Evidence Act 1977 (Qld) - as evidence which was available to be used by the jury to establish that the appellant had a sexual interest in his daughter. No objection was taken to its admissibility on that basis, and it was ultimately the subject of directions to that effect – these were delivered in terms supplied by the Benchbook and which reflect the judgment of the High Court in HML v The Queen.[6][6](2008) 235 CLR 334. No exception was taken to those directions, either at trial or on appeal.12 June 2014 As noted above,[7] a further interview with the complainant was conducted on this date. It, too, was admitted into evidence pursuant to s 93A of the Evidence Act 1977 (Qld). In it, the complainant alleged that the appellant had done “rude stuff” to her.[8][7]At [5].[8]AB 278. Upon further questioning, it was explained – again in age appropriate language - that “rude stuff” consisted of the appellant’s insertion of his finger into her vagina. It was possible to discern, from the answers given to the police officers’ questions that this had occurred on two separate occasions, which were reflected in the two charges of rape to which I have earlier referred.[9][9]At [6]. It was apparent that, prior to the interview, the police officer had been told by M of certain things that H had said her. The following exchange occurred:“POLICE: Okay. I heard um that you told um mummy –H: Yeah.P: Something about um about some white stuff coming out of his rude parts?H: I don’t know.P: Did that happen?H: It did happen but I don’t want to talk.P: Tell me about that?H: [INDISTINCT]P: Do you want to tell me about that time?H: That was the first time.P: Okay so tell me about that?H: [INDISTINCT]P: Tell me about what happened?H: All he did was rub it.[10]”[10]AB 294 – 295. Attempts to elicit further information yielded only the detail that this incident was said to have occurred in her father’s bedroom. Notwithstanding the fact that the topic was introduced by way of a leading question, no objection was taken to this piece of evidence and the appellant was indicted on the charge of indecent treatment (exposure).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As will be apparent from the length of this extract, this evidence was a prominent feature of the trial. For current purposes, the effect of it can be summarised as follows:(a)M gave evidence that H had told her that the appellant had:(i)in effect, performed (at the very least a simulated act of) penile/vaginal intercourse which concluded with ejaculation,(ii)attempted to compel an act of oral intercourse,(iii)inserted a cold sausage into her vagina; and(iv)performed cunnilingus upon her.(b)B gave evidence that H had told her about:(i)an act of indecent dealing that occurred in the bath; and(ii)an incident of penile/vaginal intercourse.Consideration It is convenient to deal first with the ground which directly relates to the evidence discussed in the preceding paragraphs.Ground 2 The learned trial judge, in the course of his summing up, identified this evidence as “preliminary complaint” evidence.[19] It was not.[19]AB 58 lines 1-30; It was noted that both counsel had referred to it in the same way. Section 4A of the Criminal Law (Sexual Offences) Act 1978 provides:[20][20]Underlining added.“4A Evidence of complaint generally admissible(1)This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.(2)Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.…(6)In this section—complaint includes a disclosure.preliminary complaint means any complaint other than—(a) the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence;” (emphasis added) As will be obvious, very little of the “complaint” attributed to H, as summarised in [29] and [30] above, bore any resemblance to the descriptions of the offences which were the subject of the trial. It could not, therefore, meet the statutory requirement that the complaint be “about the alleged commission of the offence”. The attributed assertion by H that a finger had been used to “rub her rude parts” may at least have been a complaint about something comparable to some of the offending charged, but it was not linked, sufficiently for the purpose, for it to have become admissible under this heading. It was at best – like the balance of such evidence given by M and B – a hearsay account of a complaint about “uncharged acts”. Such evidence does not qualify for admission as preliminary complaint. As Fryberg J wrote in R v NM [2012] QCA 173 at [25]:“In a trial for a sexual offence, evidence of uncharged acts of sexual abuse by the accused against the complainant may be admissible for the purpose of explaining and rendering intelligible the complainant’s account of the charged acts, or to show that he or she was not purporting to describe an isolated event if otherwise his or her account might appear implausible. It does not follow that references to uncharged acts in a complaint are ‘about the alleged commission of the offence’. On the contrary, such references will normally not answer the statutory description. Exceptional cases may exist where the uncharged acts form an integral part of the charged act (eg indecent dealing by touching immediately before an act of rape). The courts do not encourage prosecutors to split up what is essentially one integrated course of conduct into multiple offences. No bright line test can be stated save by reiterating the terms of the section.”