R v KBG

Case [2024] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v KBG [2024] QCA 45

PARTIES:

R
v
KBG
(appellant)

FILE NO/S:

CA No 164 of 2022
DC No 1568 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction & Sentence: 18 July 2022 (Chowdhury DCJ)

DELIVERED ON:

3 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2023

JUDGES:

Mullins P and Dalton JA and Davis J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of rape after a jury trial – where the appellant attacked the complainant’s credit in various ways – where these matters concerning the complainant’s credit were for the jury – whether the jury must have had a reasonable doubt about guilt such that the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the prosecutor told the jury the discreditable uncharged acts of the appellant about an hour prior to the rapes showed the appellant was going to act against the complainant regardless of what she wanted – where appellant’s counsel submitted that the evidence did not support the prosecutor’s address to the jury and the trial judge did not correct this error of fact – whether the prosecutor’s address went beyond what was reasonably and fairly available on the evidence – whether any fault identified in the summing-up was prejudicial to the appellant

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, cited
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, considered
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
Pfennig v The Queen (1994-1995) 182 CLR 461; [1995] HCA 7, considered
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited

COUNSEL:

The appellant appeared on his own behalf on the unreasonable verdict ground
A I O’Brien and G F Perry for the appellant on the specific error ground (pro bono)
J D Finch for the respondent

SOLICITORS:

The appellant appeared on his own behalf on the unreasonable verdict ground
Fisher Dore for the appellant on the specific error ground (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P: The appellant was found guilty after trial before a jury of three counts of rape. Counts 1 and 3 were particularised as penile penetration and count 2 as anal penetration. The appellant’s case at the trial was that he had penile-vaginal intercourse with the complainant on the morning of 23 December 2018 when the complainant gave him a lift in her car and that it was consensual. The appellant disputed…

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Details
AGLC
R v KBG [2024] QCA 45
Case
[2024] QCA 45
Decision Date

CaseChat Overview and Summary

In the case of R v KBG, the appellant, KBG, was convicted of three counts of rape following a jury trial. The appeal against conviction was dismissed by the Supreme Court of Victoria, with the Court of Appeal ordering a retrial. The primary issue was whether the verdict was unreasonable or insupportable given the evidence. The Court of Appeal also examined whether the summing-up contained any misdirection or non-direction that prejudiced the appellant.

The Court of Appeal held that the trial judge did not adequately address an inappropriate submission made by the prosecutor during the summing-up. The prosecutor's address suggested that the appellant's prior uncharged acts indicated an intention to act against the complainant regardless of her wishes. The trial judge did not correct this error of fact, which the Court of Appeal found to be prejudicial to the appellant. The Court held that the summing-up as a whole did not adequately direct the jury, leading to a miscarriage of justice. Consequently, the convictions were set aside, and the appellant was ordered to be retried.

The final orders made by the Court of Appeal were to allow the appeal, set aside the convictions on all three counts, and order a retrial of the appellant. The Court of Appeal did not acquit the appellant outright as the verdicts were found to be open on the evidence.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In her address to the jury the prosecutor did just that: “Now, in terms of what she said, you’ve heard evidence from her about what happened in that party when she went on the 22nd of December. You’ve heard how the defendant had made some comments to her through the night, questions of for $120 would she give [Ch] a blow job, or words to that effect.You might also think she very clearly rejected the proposition that was put to her that she’d said to [T] that she was a prostitute, or had been boasting about that at the party. You might recall her immediate reaction to that was one of disbelief, you might think. She very clearly rejected that proposition. And also think of her clear evidence about what she said to the defendant, to [the appellant], when he was making those comments about the $120. ‘No, fuck off, [appellant]’, or words to that effect.You might think that that shows she clearly was not interested in him on that night. ‘No, fuck off, [appellant]’, or ‘Fuck off, [appellant]. Leave me alone.’ And what happened with [Ch] is relevant later that evening, in the Crown’s submission to you. Is when you consider that the defendant knew what had happened between the complainant and [Ch]. And then used it in a form of pressure to her. She was already upset in the car. Telling her that he was going to tell [T] about what happened unless she gave him a blow job, or words to that effect, he wouldn’t say anything. Going to pressure her, as he knew that she and [T] were friends.You might also think that his actions that the complainant described in that encounter on the 22nd, before the car, clearly showed his state of mind, what he wanted from the complainant. As she described, he put his penis in her mouth when she was unaware that he was going to be there.And ultimately you think about what he did afterwards. As she described not long after that, she got into the car, and as she’d already told the defendant she would give him a lift. That was when they left for home. And you might think that that evidence from her where he put his penis in her mouth clearly shows what he wanted. He was going to act against her, regardless of what she wanted. And you might think that that’s particularly evident also from his actions on the 23rd when in the car and he started to then touch her thigh. As she described, he was sliding his hand, moving it on and off repeatedly in that drive while she was upset.You might think it was clear, though, that she rebuffed him when he was putting this pressure on her about telling [T]. She rejected what he was asking. Saying, ‘No, let me talk to [T].’ And you’d think from that that that clearly showed she was not giving him consent to sexual acts that day in the car. She was clearly telling him no. ‘Let me talk to [T]’, when he was putting this pressure on her. ‘If you give me a blow job [T] won’t have to find out’, or words to that effect.” – tt 1 – 4 – 5 (my underlining). Although there does not seem to have been any relevant argument before the summing‑up, the trial judge did go to this part of the prosecutor’s address in his summing‑up. He said:“… So you heard evidence in this case of other conduct which took place between the defendant and [the complainant], which the prosecution says is necessary to explain what occurred in the incidents which are the subject of the alleged offences. So this relates to the incident in the garage when she’s having, it appears, consensual sexual intercourse with [Ch], and either the defendant’s there all the time, or he walks in, and he pulls his penis out of his pants and the complainant performs oral sex on him.You’ll recall the complainant said that she felt pressured to take part in the activity with [Ch]. Now she – the defendant’s not charged with that as a criminal offence, okay? That evidence has been led as part of the narrative of the events that led up to it, and the prosecution in effect say that puts it all in context that clearly the defendant took the opportunity to engage in sexual activity with the complainant on that occasion, and was determined to have full sexual intercourse with her in the car against her will.You must understand the relevance of this evidence is limited. If you accept this evidence that it occurred, it doesn’t make it more probable that he committed the alleged offences in the back seat of the Mazda. The evidence is relevant only to answer questions which you might naturally have about the background to the incidents, which the prosecution allege are the charged offences.” – t 2 – 16.

Decision

Reasons for decision

In my view, the appellant has demonstrated a miscarriage of justice in relation the added ground and the convictions must fall.Conclusions In my view, the appeal ought to be allowed as the trial judge failed to adequately direct the jury in the face of an inappropriate submission made by the Crown prosecutor. That failure led to a miscarriage of justice. For the reasons given by Dalton JA the verdicts were open on the evidence. Therefore acquittal of the appellant on appeal is not appropriate. He should be retried. I would make the following orders:1.The appeal is allowed.2.The convictions on all three counts are set aside.3.The appellant be retried.

Ratio Decidendi

Legal Principle Established

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