R v KBE

Case [2023] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

R v KBE [2023] QCA 161

PARTIES:

R
v
KBE
(appellant)

FILE NO/S:

CA No 198 of 2022
DC No 13 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg – Date of Conviction: 24 August 2022 (Moynihan KC DCJ)

DELIVERED ON:

Date of Orders: 2 May 2023
Date of Publication of Reasons: 11 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2023

JUDGES:

Mullins P, Dalton JA and Mitchell AJA

ORDERS:

Date of Orders: 2 May 2023

1.   Appeal allowed.

2.   Conviction set aside.

3.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of maintaining a sexual relationship with a child – where the appellant gave evidence in a record of interview in which he admitted acts that are the subject of the offence but stated the touching was in an endearing way and not a sexual way – where the trial judge identified for the jury that a real issue was whether the appellant’s acts which were relied on to constitute the offence were indecent – where the trial judge did not give a direction on the appellant’s motive or reason relevant to the acts that were admitted by the appellant – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted of maintaining a sexual relationship with a child – where the credibility and reliability of the complainant was in issue at the trial – where the appellant submits there were inconsistencies and discrepancies between the complainant’s evidence and evidence of her mother and brother – whether the verdict is unreasonable or cannot be supported having regard to the evidence

De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, cited
Drago v The Queen (1992) 8 WAR 488; [1992] WASC 489, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Harkin (1989) 38 A Crim R 296, cited
R v Jones (2011) 209 A Crim R 379; [2011] QCA 19, considered
Western Australia v Jackson (2019) 55 WAR 285; [2019] WASCA 118, cited

COUNSEL:

T A Ryan KC for the appellant
E L Kelso for the respondent

SOLICITORS:

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

  1. MULLINS P AND MITCHELL AJA:  The appellant was convicted on 24 August 2022 after a trial before a jury in the District Court of maintaining a sexual relationship with a child.  The complainant was the daughter of his partner.  At the hearing of the appeal on 2 May 2023, the Court made the following…

Continue reading R v KBE

Sign in free to access the full text

Details
AGLC
R v KBE [2023] QCA 161
Case
[2023] QCA 161
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant, who had been convicted of maintaining a sexual relationship with a child, against the decision of a trial judge in the Supreme Court of Queensland. The nature of the dispute centred around the appellant's contention that the trial had resulted in a miscarriage of justice due to various errors and omissions by the trial judge. Specifically, the appellant argued that the trial judge failed to properly direct the jury on certain critical issues, such as the nature of the appellant's motives and reasons relevant to the acts he admitted during his recorded interview.

The central legal issues the court was required to decide involved whether the trial judge's omissions amounted to a misdirection or non-direction that resulted in a miscarriage of justice. Additionally, the court had to assess whether the verdict was unreasonable or insupportable in light of the evidence, particularly considering the inconsistencies and discrepancies in the complainant's evidence as compared to the testimonies of her mother and brother.

The court reasoned that the trial judge did not adequately address the appellant's motive or reason for his acts, which was a significant oversight given the appellant's admission of the acts in question. This non-direction was identified as a fundamental error that undermined the fairness of the trial. The court also found that the jury's verdict was unreasonable or at least could not be supported by the evidence presented, especially when considering the noted inconsistencies and discrepancies in the complainant's evidence. The court concluded that these factors cumulatively amounted to a miscarriage of justice.

Accordingly, the appeal was allowed, the conviction was set aside, and a new trial was ordered.

Orders

Orders of the court

Date of Orders: 2 May 2023

1. Appeal allowed.

2. Conviction set aside.

3. New trial ordered.

Background

Background to the litigation

The grounds of appeal will be dealt with in the order in which they were addressed by the appellant on the hearing of the appeal which was grounds 2, 1, 3 and 4.Relevant background The offending was particularised as occurring between November 2011 and August 2019 (which was three months short of eight years) during which period the complainant was aged between seven and 14 years. The appellant is 30 years older than the complainant. When the appellant first met the complainant’s mother, he was a seasonal fruit picker. Around July 2011 when they had been in a relationship for about six months, the complainant’s mother together with the complainant and the complainant’s elder brother (complainant’s brother) who was about 16 months older than the complainant went to live with the appellant on the farm where he was working. At that stage, the appellant drove a Hino Rainbow motorhome (which was described in evidence as “the bus”). They eventually ended up at a regional centre in Queensland (which will be referred to as Town A) where the complainant was enrolled to attend primary school between November 2011 and November 2012. They then moved to another regional centre (which will be referred to as Town B) where the complainant attended primary school from November 2012 until December 2016. The complainant started high school in Town B in January 2017. The complainant spoke to a school counsellor on 18 February 2020. The complainant moved out of the home where she had been living with her mother and the appellant on 22 February 2020. On 24 February 2020 her first s 93A statement was recorded by the police. The complainant was interviewed by Detective Senior Constable Applebee. The appellant was interviewed by Detective Applebee on 26 February 2020 in relation to the complainant’s allegations. The complainant returned to the police station on 20 April 2021 where a second s 93A statement was recorded in relation to three further instances that the complainant recalled about sexual assaults committed against her by the appellant. The complainant’s evidence for the purpose of the trial was pre-recorded on 23 June 2021. The acts relied on by the prosecution to constitute the offence were ultimately particularised at the trial by reference to five categories as follows:(a)Category 1 – Touching and/or rubbing the complainant’s vaginal area with his hand, under her clothing when living at the Town A house and he picked the complainant up for koala hugs.(b)Category 2 – Touching and/or rubbing the complainant’s vaginal area with his hand, under her clothing when living at the Town A house and sitting on the couch.(c)Category 3 – Touching and/or rubbing the complainant’s vaginal area with his hand, over her clothing when the complainant was living at the Town A house and writing a letter to Santa.(d)Category 4 – Touching and/or rubbing the complainant’s legs and/or buttocks when living in the Town B area.(e)Category 5 – Touching and/or rubbing the complainant’s breast and/or breasts when living in the Town B area.

Evidence

Evidence Before The Court

Apart from the complainant’s evidence in both s 93A statements and the pre-recorded evidence that were played for the jury, the complainant’s brother and mother and Detective Applebee gave evidence for the prosecution. The appellant’s record of interview (exhibit 8) was tendered in the prosecution case. The appellant neither gave nor called evidence. The appellant’s contention at the trial was that the jury would not be satisfied beyond reasonable doubt by the complainant’s evidence that the acts relied on in categories 1, 2 and 3 and the acts relied on to show sexual interest happened and that the conduct in categories 4 and 5 had been mischaracterised and the prosecution could not prove the conduct was indecent.The complainant’s evidence The complainant’s evidence in the first s 93A statement included the following. The first occasion that she was sexually assaulted by the appellant was when she was seven years old, they were living in his bus and they all had to sleep together in the bed, and one night the appellant touched her in the vaginal area. It continued when they moved to Town A when the appellant would pick her up in what is called a “koala hug” when he would touch her inappropriately. When they were sitting on the couch, the complainant would sit on the appellant’s lap and he would touch her. When they moved to the Town B area, the appellant did not touch the complainant in the vaginal area anymore but would touch her on the bottom, the thigh or close to her breast area and that continued until she was 14 years old. In relation to the bus incident, the complainant was in the bed on the bus with the appellant next to her, her mother next to the appellant and then her older brother. The complainant felt the appellant’s fingers touching her vagina but they did not go in. She was lying on her left side and the appellant was behind her. He put his hand in the bottom part of the boxers that she was wearing. The complainant told her brother the next morning when they went outside. She said that the appellant “touched my wee-wee”. She did not tell her mother. When they were living in the house at Town A and the appellant picked the complainant up in a koala hug, he would put his hands in her pants or whatever she was wearing and rub or touch the surface of the vaginal area. It was painful. It happened “quite often”. He put his hand underneath her bottom and inside her clothing. She told her mother after a couple of months about it but she could not remember the detail of the conversation. It also happened “quite often” when they lived in Town A that, while watching television, the complainant would sit on the appellant’s lap on the couch and the complainant would feel the appellant’s hand as he rubbed her vagina inside her clothing. She did not say anything and she did not tell anyone at that time. When they moved to the area of Town B, the appellant would place his hand on the complainant’s lower back or on her bottom, if she was walking past him or standing next to him. When they went places in the car, if the complainant was in the front seat, he would grab her thigh. He touched her on the bottom multiple times a day. She did tell her mother that the appellant was touching her. She could not recall what her mother said. They moved to another address in the Town B area and the appellant continued to touch the complainant in the area of her bottom but not as often. The appellant touched her on the thigh only rarely when she was in the passenger seat of the car, when he would hold her inner thigh. The complainant did not know if it was done intentionally, but when she and the appellant would hug and he was holding her back, he would touch her under the armpit area. They moved to another place in the Town B area and the appellant would brush her bottom lightly. He had stopped touching her in the breast area but that was not common in the first place. One morning at this house when the complainant was using the sunroom next to her parents’ bedroom as her bedroom, she was getting dressed and saw the blinds on the window between the two rooms peeking open and shutting quickly. The appellant was upstairs at the time. The complainant finished getting ready and challenged the appellant about looking through the blinds. He responded that he was not doing that. She spoke to her mother about it.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.