R v Kitayama - [2001] QCA 511

SUPREME COURT OF QUEENSLAND

CITATION: R v Kitayama [2001] QCA 511

PARTIES: R
v
KITAYAMA, Akiko
(appellant)

FILE NO/S: CA No 59 of 2001
SC No 103 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 23 November 2001

DELIVERED AT: Brisbane

HEARING DATE: 5 November 2001

JUDGES: de Jersey CJ, Mackenzie and Chesterman JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal against conviction dismissed.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PROOF AND EVIDENCE – OTHER CASES – appeal against murder conviction on grounds of unsafe and unsatisfactory verdict and unfair trial

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – whether evidence referent to specific dates should have been excluded or accompanied by strong judicial warning where the dates did not accord with other, objective evidence – consideration of the prejudicial and probative value of that evidence and the reference made to it in summing-up – whether identification evidence based on photo board was properly left for the jury’s consideration and the subject of proper instruction to jury – whether selection of photographs fair

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW

TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DRECTION – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – consideration of Judge’s direction on alleged lies – whether form disadvantaged appellant’s case – whether imbalanced where Judge failed to point out appellant’s explanation – where no application made for redirection

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – consideration of Crown case – consideration of circumstances argued to support a finding of unsafe and unsatisfactory conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – OTHER CASES – whether miscarriage of justice occurred where certain evidence not heard by jury – whether likely that a jury would reasonably have acquitted the appellant if it had heard that evidence – consideration in context of Crown case

Domican v R (1991-2) 173 CLR 555, applied
Gallagher v R (1986) 160 CLR 392, referred to
Lambert (2000) 111 A Crim R 564, considered
M v R (1994) 181 CLR 487, followed
Mickelberg v R (1989) 167 CLR 259, referred to
R v Brookes CA No 317 of 1991, 13 May 1992, considered
R v Carroll [2001] QCA 394; CA Nos 315 of 2000 and 330 of 2000, 21 September 2001, distinguished
R v Houghton & Roussetty [2000] QCA 341;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kitayama

Details

AGLC: R v Kitayama [2001] QCA 511
Case: [2001] QCA 511
Decision Date: 23 November 2001

CaseChat Overview and Summary

The appellant, Kitayama, appealed his conviction for murder, arguing that the verdict was unsafe and unsatisfactory and that he was denied a fair trial. The case was heard in the court of appeal where the appellant sought to overturn his conviction on several grounds, including the improper admission of evidence, misdirection by the trial judge, an unreasonable or insupportable verdict, and the unavailability of fresh evidence at trial.

The court first considered whether certain evidence, which referred to specific dates, should have been excluded or accompanied by a strong judicial warning due to discrepancies with objective evidence. The court assessed the prejudicial and probative value of the evidence and its mention in the summing-up, concluding that the trial judge’s handling of the evidence was appropriate. The court also examined the identification evidence based on a photo board, finding that it was properly left for the jury’s consideration and that the jury received proper instruction regarding the evidence. Regarding the alleged lies, the court found no disadvantage to the appellant’s case, noting that no application for a redirection was made. The court then evaluated the evidence presented in the Crown's case and the circumstances argued to support a finding of an unsafe and unsatisfactory conviction. The court concluded that the evidence was sufficient to uphold the conviction.

In light of the evidence and arguments presented, the court found that the conviction was reasonable and supported by the evidence. The court further found that no miscarriage of justice had occurred due to the unavailability of certain evidence at trial, as it was unlikely that a jury would have acquitted the appellant if it had heard that evidence. Consequently, the appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Kitayama [2001] QCA 511
PARTIES:	R v KITAYAMA, Akiko (appellant)
FILE NO/S:	CA No 59 of 2001 SC No 103 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 November 2001
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2001
JUDGES:	de Jersey CJ, Mackenzie and Chesterman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PROOF AND EVIDENCE – OTHER CASES – appeal against murder conviction on grounds of unsafe and unsatisfactory verdict and unfair trial CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – whether evidence referent to specific dates should have been excluded or accompanied by strong judicial warning where the dates did not accord with other, objective evidence – consideration of the prejudicial and probative value of that evidence and the reference made to it in summing-up – whether identification evidence based on photo board was properly left for the jury’s consideration and the subject of proper instruction to jury – whether selection of photographs fair CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DRECTION – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – consideration of Judge’s direction on alleged lies – whether form disadvantaged appellant’s case – whether imbalanced where Judge failed to point out appellant’s explanation – where no application made for redirection CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – consideration of Crown case – consideration of circumstances argued to support a finding of unsafe and unsatisfactory conviction CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – OTHER CASES – whether miscarriage of justice occurred where certain evidence not heard by jury – whether likely that a jury would reasonably have acquitted the appellant if it had heard that evidence – consideration in context of Crown case Domican v R (1991-2) 173 CLR 555, applied Gallagher v R (1986) 160 CLR 392, referred to Lambert (2000) 111 A Crim R 564, considered M v R (1994) 181 CLR 487, followed Mickelberg v R (1989) 167 CLR 259, referred to R v Brookes CA No 317 of 1991, 13 May 1992, considered R v Carroll [2001] QCA 394; CA Nos 315 of 2000 and 330 of 2000, 21 September 2001, distinguished R v Houghton & Roussetty [2000] QCA 341;…