R v KBC

Case [2023] QCA 60

SUPREME COURT OF QUEENSLAND

CITATION:

R v KBC [2023] QCA 60

PARTIES:

R
v
KBC
(appellant)

FILE NO/S:

CA No 140 of 2022
DC No 1333 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 24 June 2022 (Clare SC DCJ)

DELIVERED ON:

Date of Orders: 31 March 2023
Date of Publication of Reasons: 4 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2023

JUDGES:

Morrison and McMurdo and Bond JJA

ORDERS:

Date of Orders: 31 March 2023

1.   The appeal is allowed.

2.   Each of the convictions is set aside.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of nine counts of aggravated indecent treatment of a child against two complainants who were sisters – where collusion was in issue – where the trial judge purported to give a comprehensive statement of the evidence on the issue of collusion between the complainants – where the trial judge’s directions suggested that the complainants did not talk to one another until April 2019, when that was in issue – where the trial judge’s directions failed to refer to the part of the evidence most relevant to the issue of collusion – whether the jury was misdirected

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was convicted of nine counts of aggravated indecent treatment of a child against two complainants who were sisters – where the appellant argued that it was not open to the jury to convict because the complainants were not reliable witnesses or because there were some contradictions in the evidence – whether it was open to the jury to convict the appellant

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, followed
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Jones v The Queen (1997) 71 ALJR 538; [1997] HCA 12, cited
Kilby v The Queen (1973) 129 CLR 460; [1973] HCA 30, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, considered
R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited
R v Miller (2021) 8 QR 221; [2021] QCA 126, considered
R v PS[2004] QCA 347, cited

COUNSEL:

M J Copley KC, with M Black, for the appellant
D Kovac for the respondent

SOLICITORS:

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

  1. MORRISON JA:  On 24 June 2022, the appellant was convicted on nine counts of aggravated indecent treatment.  The two complainants, M and P, were sisters.  The appellant was M and P’s stepfather.  At the time of the offending M was aged between…

Continue reading R v KBC

Sign in free to access the full text

Details
AGLC
R v KBC [2023] QCA 60
Case
[2023] QCA 60
Decision Date

CaseChat Overview and Summary

In the matter of R v KBC, the appellant was convicted of nine counts of aggravated indecent treatment of a child against two complainants who were sisters. The appellant appealed the conviction, raising issues of misdirection and non-direction by the trial judge, as well as the reliability and consistency of the complainants' evidence. The court was required to decide whether the jury was misdirected and if the verdict was unreasonable or insupportable given the evidence.

The court found that the trial judge did not misdirect the jury, as the jury had been reminded of the evidence relevant to the risk of collusion between the complainants. Furthermore, the court held that it was open to the jury to convict the appellant, as the weaknesses in the evidence did not reduce its probative value to the extent that it was unreasonable to convict the appellant. The court noted that the jury had the advantage of seeing and hearing the complainants and other witnesses, which the appellate court did not have.

The appeal was dismissed, and the convictions were upheld. However, the majority opinion differed on the first ground of appeal. The majority held that the trial judge misdirected the jury when giving a comprehensive statement of the evidence on the issue of collusion between the two complainants. The minority held that the appeal should be allowed, and each of the convictions was set aside, ordering a retrial.

Date of Orders: 31 March 2023
1. The appeal is allowed.
2. Each of the convictions is set aside.
3. A retrial is ordered.

Orders

Orders of the court

Date of Orders: 31 March 2023

1. The appeal is allowed.

2. Each of the convictions is set aside.

3. A retrial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This ground fails.Second point – omission of evidence The second point relied upon a submission that, in giving the direction set out in paragraph [11] above, the learned trial judge omitted to remind the jury about certain conversations between M and her friends and P and her friend, earlier in time than April 2019. The submission summarised the omitted evidence thus:[11](a)P said that she first told M about what the appellant had done to her in April 2019, after the family had returned home from Stradbroke Island;(b)M said that she had no idea that anything had been done to P until P told her after Stradbroke Island, and that conversation occurred at Easter 2019;(c)Easter Sunday was on 21 April that year;(d)LN, a school friend of M’s, said that in 2018 M told her in a Snapchat exchange that the appellant had interfered with her little sister, P; and(e)DG, another of M’s school friends, said she was pretty sure that in 2018 M approached her at school and said that the appellant was being sexual with her and her little sister, that her little sister had told her he was touching her inappropriately.[11]Appellant’s outline, paragraph 8. The central submission was that the evidence was relevant to the risk of collusion but the jury were not reminded of it. By not mentioning that evidence the trial judge “quarantined” the jury’s consideration of the risk of collusion to the evidence set out in paragraph [11] above. The omission to remind the jury of the evidence set out at paragraph [23] above occasioned a miscarriage because the jury was not permitted to consider it in assessing the risk of collusion, or the jury’s assessment of the risk was wrongly circumscribed. In my view, there are reasons why that submission cannot be accepted. First, the jury were reminded of that evidence. In the course of the impugned direction the learned trial judge referred to examples of evidence that had occurred before April 2019. At that point the evidence was not reviewed in detail, but in a shorthand way. Included in that was this reference: “You also have the evidence that [M] talked to her two friends at school, and you have the Snapchat messages in 2018”.[12][12]AB 65 lines 1-2. The “two friends” were LN and DG, the witnesses referred to in paragraphs [23](d) and [23](e) above. The “Snapchat messages in 2018” involved LN. It is true that at that point the learned trial judge used a shorthand way of referring to that evidence. But, a short while later the learned trial judge referred to it again, referring to what M “had previously told [DG] and [LN]” in the passage set out in paragraph [13] above. Immediately thereafter her Honour again referred to that evidence in a shorthand way, when she told the jury (referring to M and P) that “Some parts of what they previously said is in the text messages. So you have the actual words of those messages.”[13] This was a plain reference to the Snapchat texts.[13]AB 67 line 41. That was followed shortly thereafter, in the course of reviewing M’s evidence, by the jury being reminded:[14]“You also heard evidence that through 2018 and 2019 and perhaps 2017, she also talked at various times with her two friends, [DG] and [LN].”[14]AB 69 lines 32-33.

Decision

Reasons for decision

The jury’s advantage of seeing and hearing M and P and the other witnesses provides an answer to the criticisms raised on the appeal. Critically, it cannot be concluded, in my view, that the jury should have had such a doubt about the evidence of M and P that they could not have been satisfied to the requisite standard that the appellant was guilty. Ultimately, neither the evidence of M nor P had irreconcilable difficulties. It was, in my view, reasonably open to a jury, taking account of the problems that were highlighted at the trial and the trial judge’s directions to it, to be satisfied that each complainant was truthful and reliable. Put another way, those weaknesses raised in the appeal do not reduce the probative value of the evidence in such a way that this Court ought to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.Conclusion For the reasons expressed above the appeal should be dismissed. The order I propose is:1.Appeal dismissed. McMURDO JA: Morrison JA has set out the evidence at the trial and the arguments in this Court, making it unnecessary for me to do so. I agree with the analysis leading to his conclusion that it was open to the jury to convict on each of the charges. However I have reached a different view on the first ground of appeal. In my opinion, the trial judge misdirected the jury when giving what purported to be a comprehensive statement of the evidence on the issue of collusion between the two complainants. The relevant part of the summing up was in this passage:“So I direct you that you cannot use the evidence of the sisters in combination unless you are satisfied that there is no real risk that the evidence is untrue by reason of concoction. No real risk that the evidence is untrue by reason of concoction. A real risk – a real risk is not a theoretical risk. It is a risk that is based on the evidence before you. Not one that is fanciful or a theoretical risk. That is talking about a risk based on the evidence before you. On that evidence you must be satisfied that there is no real risk of concoction.You have the evidence from both girls maintaining that their description of what happened to them was, in fact, their own experience – what actually happened to them. And the evidence is that [M] and [P] did not talk together about these things until the 20th of April 2019. After that, there were periods of couch talks at unspecified times. Before that, you know that [M] had complained to various people about some things. In August of 2017, [M] had spoken to her mother and her stepmother. I think her stepmother’s recollection of that was that [M] had told her that the defendant was always hugging her, grabbing her butt, and asking her if she loved him. The mother’s evidence about what [M] told her in 2017 was that he had been inappropriate, that he had looked down her top, that he had touched her bottom.You also have the evidence that [M] talked to her two friends at school, and you have the Snapchat messages in 2018. Then you have [P]. [P] said that she told her mother things that were happening. The mother’s evidence was at some point earlier [P] had complained of the defendant touching her breasts in bed – this was the time when [P] – [P] wanted to come with her mother when she was collecting [M]. After that, in 2020 – April two – 20th of April 2019, the two girls talked. [P] talked to her stepmother and made the writing – and they both spoke to the police in June. She said she made the writing the day before she went to the police.”[115][115]Adopting the initials M and P for the two complainants as in the judgment of Morrison JA.

Ratio Decidendi

Legal Principle Established

VY’s evidence was contained in her s 93A interview, which was played to the jury. VY said that P had texted her on 21 April 2019 saying that the appellant had been “touching her inappropriately”, “touching her”, “rubbing up beside her” and “touching her chest area”. In one of the texts P said:[109] “When I was around 9 or 10 he stuck his finger up my bum hole and at the end of last year I was asleep and I woke up with my eyes still shut and he was rubbing my boob”.[109]AB 220.Consideration As is often the case, and as reflected in the submissions advanced for the appellant, the jury’s assessment of whether the evidence satisfied them of the appellant’s guilt depended to a large degree upon the credibility and reliability of the complainants, M and P. And, as is usually the case, the suggested deficiencies in the evidence of the complainants was made a feature in the defence address to the jury. Thus, defence Counsel urged the jury to consider:[110](a)the “high degree of implausibility in the stories that have been told”;(b)that “the versions of events that have been given by these two witnesses, [P] and [M], are wildly inconsistent, both internally and externally …, in the retelling, but also they’re contradicted by external sources”;(c)there was “evidence of significant dishonesty on behalf of these two witnesses”;(d)there was “lack of credibility on the part of the witnesses … a lack of corroboration … the presence of contradiction … the presence of collusion”; and(e)there was “a motive to lie and make a false complaint … [and] significant delay in the making of any such complaint”.[110]AB 36. Those themes were then developed in detail by defence Counsel, by reference to the evidence of M and P, by reference to the evidence of the other witnesses, and by reference to each count. In the course of doing so, defence Counsel effectively raised the substance of all of the points advanced on the appeal: see paragraphs [52] and [53] above. Thus the jury were asked to assess the credibility and reliability of M and P with all those points in mind, but they had the unquestionable advantage of seeing and hearing them, and all the other witnesses. This Court does not have that advantage. Further, I am mindful that an attack on verdicts on this ground requires not only that the weaknesses in the evidence must be identified, but also that it is demonstrated that these weaknesses reduced the probative value of the evidence in such a way that the this Court ought to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. For the reasons which follow, I am unable to conclude that this ground has been made out. M’s evidence as to her compulsion to lie could well have been seen by the jury as something that applied to her younger days, and not applicable to matters as serious as her complaints about sexual assault. M said she would lie to get out of trouble, and some of the lies (that she had COVID-19 or was threatened by her mother) could well be seen as attempts to gain attention. What is more, the lies about threats by her mother led to the commencement of long-term counselling by a psychologist. The jury could well have taken the view that M was a troubled younger person, but that did not mean she was to be disbelieved about a matter as serious as sexual assault. That is all the more so, given that the lies in the past were to extract her from some situation, whereas the complaints of sexual assault were inevitably going to start a process involving police and courts. In my view, they were of a different nature and quality of anything before.