R v Kay

Case [2021] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAY [2021] QCA 5

PARTIES:

R
v
KAY
(appellant)

FILE NOS:

CA No 151 of 2019
DC No 291 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 27 May 2019 (Horneman-Wren SC DCJ)

DELIVERED ON:

29 January 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2020

JUDGES:

Morrison and Philippides JJA and Bradley J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – STRIKING OUT AND WARNING JURY TO DISREGARD EVIDENCE – where the appellant was convicted after trial of, among other offences, maintaining a sexual relationship with his daughter during three discrete periods of time – where the complainant gave evidence that, between the first and second periods, she was raped by the appellant while they were living together in New South Wales – where the complainant’s mother and sister gave evidence that the complainant told each of them about the appellant raping her in New South Wales – where, because the alleged rape was an uncharged act, what the complainant said to her mother and sister about it was not admissible as evidence of a preliminary complaint – where the learned trial judge, with the concurrence of the appellant’s trial counsel, did not direct the jury to ignore the evidence of the complainant’s mother and sister, in circumstances where the appellant’s trial counsel had indicated he wished to address the jury about the inconsistency between the complainant’s sister’s evidence and other evidence that had been adduced at the trial – whether a miscarriage of justice occurred by reason of the learned trial judge’s treatment of the evidence of the complainant’s mother and sister

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted after trial of 20 counts of offending against his daughter over an eight year period – where there was a delay of approximately 14 years between when the offending commenced and when the complainant reported it – where other circumstances existed such that careful scrutiny of the complainant’s uncorroborated evidence by the jury was warranted – where it was common ground that the learned trial judge needed to give Longman and Robinson directions to the jury – where the appellant contends the Longman direction should have been specifically extended to certain uncharged acts and the Robinson direction should have referred to certain additional circumstances – where the directions the appellant now submits should have been made were not requested by his trial counsel – whether there could be a reasonable explanation for the appellant’s trial counsel’s not requesting the directions – whether the learned trial judge’s failure to give Longman and Robinson directions in the terms sought on appeal caused a miscarriage of justice to occur

Criminal Law (Sexual Offences) Act 1978…

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AGLC
R v Kay [2021] QCA 5
Case
[2021] QCA 5
Decision Date

CaseChat Overview and Summary

The appellant, in the case of R v Kay, was convicted by a jury of maintaining a sexual relationship with his daughter over an eight-year period, among other charges. The case was heard by the Supreme Court of Appeal, which was tasked with determining whether there were grounds for appeal and, if so, whether a new trial should be ordered. The primary grounds for appeal related to the improper admission of evidence and alleged misdirections given to the jury by the trial judge.

The first issue was whether the trial judge improperly admitted hearsay evidence from the complainant’s mother and sister regarding an alleged rape that occurred while they were living in New South Wales. The court found that this evidence was inadmissible as it related to uncharged acts and was not a preliminary complaint. However, the court held that no miscarriage of justice occurred because the appellant’s trial counsel had indicated an intention to address the jury about the inconsistency in the evidence, and thus, the trial judge’s failure to direct the jury to disregard the evidence did not lead to a miscarriage of justice.

The second issue concerned the trial judge’s directions to the jury, referred to as Longman and Robinson directions. The appellant argued that the Longman direction should have been extended to specifically warn the jury about the dangers of convicting on the basis of the complainant’s evidence concerning uncharged acts, given the long delay in reporting. Additionally, the appellant contended that the Robinson direction should have included certain additional circumstances that warranted scrutiny of the complainant’s uncorroborated evidence. The court determined that the trial judge’s directions were adequate and that the appellant’s trial counsel had not requested the specific directions sought on appeal. Therefore, the court concluded that no miscarriage of justice occurred due to the trial judge’s handling of these directions.

Ultimately, the appeal was dismissed, and no new trial was ordered. The court found that the trial judge’s handling of the evidence and directions did not result in a miscarriage of justice, and thus, the convictions were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The first ground is that evidence given by the complainant’s mother and her sister was incorrectly dealt with in four respects. The first two respects are that hearsay from each of them was inadmissible and should not have been heard by the jury. Their hearsay was what the complainant told each of them about the appellant raping her while they were living in NSW. These were uncharged acts, so reports of them were not preliminary complaints. The third respect is that the learned trial judge ought to have directed the jury to disregard that evidence. The fourth is that his Honour ought to have directed the jury that they could use some of the mother’s evidence to the effect that the complainant had recalled the appellant’s offending in dreams.How the evidence was adduced at the trial Before the jury was empanelled, the Crown indicated an intention to lead evidence of uncharged acts. Referring to a document he proposed to give to the jury, Mr Needham told the court:“So, your Honour, the document indicates that for the offences of – the various offences of maintaining, there are three, that there will be references to other sexual activity that is captured within those time frame periods. There will also be three other time frames where sexual offences are alleged that fall outside of those indictment dates. They are times when the accused and the complainant are said to be interstate, and also at the end of the indictment at times when the complainant is beyond the age of 16. So the Crown’s seeking to lead evidence of those other sexual offences that occurred outside of the indictment periods as evidence of sexual interest in the complainant. It also can be read and accepted that if the jury is satisfied that the nature of the sexual activity as described by the complainant continued in New South Wales and then continued when she returned, but that’s also evidence of the habitually [sic] of the relationship as well in the indictment period.” In opening the Crown case, Mr Needham handed the jury the foreshadowed document with a brief breakdown of each offence. He told the jury:“The complainant is going to be talking about things outside of those offences – offences both sexual and violent. So you need to focus on those particular offences when coming to your conclusions about guilt or otherwise in this trial. The other evidence is being led for a specific purpose, and that is to give you an understanding of the relationship between the defendant and the complainant.” In outlining the Crown case in a chronological sequence, Mr Needham reached the end of the period for the first maintaining offence. He then told the jury, speaking of the complainant:“Now, ladies and gentlemen, she recalls that she moved to New South Wales with the defendant and other members of her family … She recalls that during this period of time in New South Wales, this kind of offending didn’t stop. You’re going to hear that she makes an allegation of rape against another person … whilst she’s living in New South Wales. Now, she will tell you that [the other person] and the defendant were drinking together and when the defendant went asleep, this person … raped her. And she reported that to the police. The purpose of that, ladies and gentlemen, is it gives us a point in time in New South Wales. Because what the complainant says happened after this is that the defendant began to rape her in a penile-vaginal sense following on from that. You’ll hear that when he found out what [the other person] had done, he raped her. He was present during the police investigation – the complainant made no complaint against him when she made her complaint about [the other person]. She will tell you why. But that’s the relevance of that evidence. Because in that point in time the complainant will tell you that sexual intercourse became the norm between the two of them.”

Decision

Reasons for decision

In the circumstances, there could be a reasonable explanation for the course Mr Kissick adopted, electing to make use of this part of the mother’s evidence in his address, notwithstanding his successful objection to it, and not to seek what would have had to be a much more nuanced and balanced explanation of the evidence and its uses from the learned trial judge.Conclusion on the first ground In the circumstances, no miscarriage of justice is shown to have occurred by reason of the treatment of the evidence of the complainant’s mother and sister at the trial.The second ground of appeal The second ground concerns the learned trial judge’s directions to the jury commonly referred to as Longman and Robinson directions.The Longman direction The appellant contends the jury should have been warned, specifically, in relation to the uncharged acts relied on to show the appellant’s sexual interest in the complainant, that the complainant’s long delay in reporting those uncharged acts had affected the fairness of the trial and that it would be dangerous to convict the appellant on her evidence alone unless, after scrutinising her evidence about the uncharged acts with great care and considering the relevant circumstances, they were satisfied beyond reasonable doubt of its truth and accuracy. The learned trial judge did warn the jury of these matters. His Honour dealt with the charged acts and the uncharged acts in a single warning, describing them as “the many incidents she says happened up to 16 years ago”. The warning included drawing the jury’s attention to the relevant circumstances as they related to both charged and uncharged acts. The appellant submits “there was no specific extension of the Longman direction to these [uncharged] acts”. The submission is rejected. The true complaint appears to be that, having given the warning about all the incidents alleged in the complainant’s evidence, the learned trial judge should have given the same form of warning again – about six paragraphs later in the transcript – when his Honour identified the evidence of the appellant’s sexual interest in the complainant by way of uncharged acts. This submission is also rejected. It makes no more sense than a submission that the warning should have been repeated, once again, later in the summing up, when the learned trial judge took the jury through the evidence relating to each of the charged acts. The direction given by the learned trial judge was adequate to warn the jury of the consequences flowing from the long delay in the complainant reporting any and all of the alleged conduct, charged and uncharged. Mr Kissick did not ask for a separate specific direction. It was not reasonably required. There was no miscarriage of justice on this account.The Robinson direction In the course of the Longman warning, the learned trial judge warned the jury about the specific circumstances that warranted their scrutiny “with great care” of the complainant’s uncorroborated evidence. These were:·“the delay, to which I have already referred, between the time of each alleged incident and the time the defendant was told of the complaint, and the lack of any opportunity to prove or disprove the allegation by, for example, timely medical examination or things of that kind”;·“the age of the complainant at the time of the alleged incidents”;·“the fact the complainant could recall very little detail about matters such as her schooling and interaction with health professionals at or about the times that the alleged offending was said to be occurring”;·“that there was a statement by the complainant’s mother attributed to the complainant that the complainant’s allegations concerning earlier alleged offending by another person were lies”;·“that the mother expressed concern based on a statement attributed to the complainant that the complainant would allege sexual interference by her, the mother”; and·“that in 2007, following a report of the matter to police by the defendant, there was an investigation into the alleged rape of the complainant by [another person] which is now alleged by the complainant to have occurred on the same occasion as one upon which she now alleges she was also raped twice by the defendant, but no report of any such rape was made to police at that earlier time.”

Ratio Decidendi

Legal Principle Established

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