R v Knight

Case [2022] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v Knight [2022] QCA 31

PARTIES:

R
v
KNIGHT, Brenden Charles
(appellant)

FILE NO/S:

CA No 109 of 2021
DC No 464 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 23 April 2021 (Lynham DCJ)

DELIVERED ON:

11 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2021

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDERS:

1.   Appeal allowed.

2.   Set aside the convictions recorded on 23 April 2021.

3.   A retrial is ordered.
CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted of four counts of indecent assault of a child, four counts of indecent assault and one count of rape – whether the complainant came up to proof – where the trial judge ordered an amendment of the particulars after the cross-examination of the complainant – whether the trial judge considered the amendment of particulars was not material to the merits of the case – whether the trial judge gave consideration to the question of prejudice – whether there was a miscarriage of justice

Criminal Code (Qld) s 572, s 573, s 574

Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9, cited
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Fahey, Solomon & AD [2002] 1 Qd R 391; [2001] QCA 82, cited
R v EQ[2021] QCA 257, cited
R v C[2000] QCA 145, cited
R v CAE[2008] QCA 177, cited
R v Chong[2012] QCA 265, cited
R v Miller[2021] QCA 126, cited
R v R[2001] QCA 488, cited
R v Sun[2018] QCA 24, cited
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

K M Hillard and L Ygoa-McKeown for the appellant
S L Dennis for the respondent

SOLICITORS:

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

  1. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.

  2. MORRISON JA:  The appellant was charged with 13 counts of sexual assault in relation to a male victim.  The appellant was a friend of the complainant, but about 20 years older.  The offending commenced when the complainant was 10 years old and continued until he was 17 and a half.  He was 20…

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Details
AGLC
R v Knight [2022] QCA 31
Case
[2022] QCA 31
Decision Date

CaseChat Overview and Summary

In the case of R v Knight, the appellant was convicted of multiple counts of indecent assault and rape. The court of appeal was tasked with determining whether the trial judge's amendment of particulars after the cross-examination of the complainant amounted to a miscarriage of justice. The appeal centred on whether the trial judge properly considered the impact of the amendment and whether it caused prejudice to the appellant's case. The complainant's testimony detailed specific instances of assault, including descriptions of locations, positions, and actions taken by the appellant. The trial judge's amendment of the particulars post-cross-examination raised concerns about the potential for prejudice and whether the trial judge adequately assessed this risk.

The court examined whether the trial judge's amendment of the particulars constituted a misdirection or non-direction that could result in a miscarriage of justice. The appeal argued that the trial judge did not sufficiently consider the prejudice that might have arisen from the amendment, potentially impacting the fairness of the trial. The court had to determine if the trial judge's failure to consider prejudice warranted a retrial. Additionally, the court reviewed the nature of the complainant's testimony, particularly whether it met the required standard of proof for the charges of indecent assault and rape.

The court concluded that the trial judge's amendment and the subsequent considerations did indeed amount to a miscarriage of justice. The court found that the trial judge failed to adequately assess the potential prejudice resulting from the amendment, which impacted the fairness of the trial. Consequently, the convictions were set aside, and a retrial was ordered to ensure the appellant received a fair trial. The appeal was allowed, and the convictions were quashed, with the case being remitted for a new trial.

The court made the following orders: 1. The appeal was allowed. 2. The convictions recorded on 23 April 2021 were set aside. 3. A retrial was ordered to ensure the appellant received a fair trial.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the convictions recorded on 23 April 2021.

3. A retrial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There was no opening address by counsel for the appellant.The complainant’s evidence on count 10 When the complainant came to that part of his evidence dealing with counts 8, 9 and 10, which all took place at the house of the appellant’s parents, he gave evidence which included these components:(a)identifying where they were in the house and their respective positions;(b)that the appellant pulled the complainant’s shorts down;(c)that the complainant was sitting on a chair and, at times, standing beside the chair;(d)the details of counts 8 and 9;(e)identified, by reference to photographs, a number of features of the house relevant to counts 8, 9 and 10; and(f)that the appellant opened a pocket in his bag and received some “lube” which he put on his finger. As to the details of count 10 the complainant said the following:(a)the appellant “tried to stick his finger in the middle of my bum cheeks, and that’s where I’ve turned around and said no”;[13](b)that the complainant was standing up by that time;[14](c)with relevance to the lube, “that’s where he put it over his hand to stick his finger … between my cheeks, and that’s where I’ve said no”;[15] and(d)when asked what happened after the appellant tried to put his finger in, that they discussed the fact that the complainant would have to go home soon, and eventually he was dropped home.[13]AB 173 l46 to AB 174 l2.[14]AB 174 l4.[15]AB 176 l25. At that point the following exchange occurred in the complainant’s evidence in chief:[16]“You’ve just said – and I just want to clarify this – that he’s tried to put his finger in between your buttocks?---Yes.How many fingers are you talking about?---One.And how far did he go?---He got the tip, so fingernail width. And that’s where I’ve said no.And the fingernail tip, where did that go?---Into, yeah, my butt cheeks into my – yeah.I just want to clarify how far it went?---So fingernail width – centimetres – yeah – yeah, I’m not really good with my maths, or that sort of stuff. So end of the – yeah, end of the finger. So before the first knuckle.So are you talking about though your finger penetrating just the outside of your cheeks or further than that?---No, into – into my – into my bum to back out, and that’s where I’ve said no.All right. Well, when you say “Bum,” what do you mean? Well, what’s another word for what you’re describing?---Can I say arsehole, does that work?If that’s what you’re describing, then yes?---Yeah.”[16]AB 177 ll 11-33. The prosecutor returned to that passage later in evidence in chief,[17] and having rehearsed those details led the following evidence:[18]“And when you say he’s put his finger up your bum, is that something you saw or only something you could feel?---I felt.And you’re sure that it was his finger?---Yes.Now, did anything else happen on that occasion at his house?---Not that I recall, no.”[17]AB 186 l35.[18]AB 187 ll 14-19. As is apparent from the opening and the particulars, the complainant’s evidence in chief did not come up to proof of anal rape with a penis. Instead, his evidence was of anal rape with a finger.

Decision

Reasons for decision

This ground fails.Conclusion The foregoing reasons warrant the conclusion that there has been a miscarriage of justice which potentially affects all convictions and they must be set aside. A new trial should be ordered. I propose the following orders:1.Appeal allowed.2.Set aside the convictions recorded on 23 April 2021.3.A retrial is ordered. McMURDO JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

The investigating officer gave evidence concerning aspects of the investigation, including attempts to gather evidence and taking and retrieving photos.Consideration – Ground 2 For the reasons which follow this ground must be rejected. The submissions urge that inconsistencies in the evidence are such that the jury could not have accepted the complainant’s evidence to the requisite standard. I disagree. Such inconsistencies are to be expected when a witness is recalling events from as long ago as 11 years and doing so from a memory that has been impacted by those very events. The complainant was up front in confessing the imperfect quality of his recall, yet was able to give considerable detail of places, general timing, surrounding events, and the particular conduct. True it is that his account of count 10 was one which he accepted that he had not given before. But that does not mean the jury was obliged to reject his evidence otherwise. With the exception of those counts about which he said nothing (counts 7 and 12), count 10 was the only one where there was a major departure from what he had previously said. He offered an explanation for that, saying that he had not paid sufficient attention to the statement. It was an explanation that was offered in respect of other discrepancies. There is no compelling reason why the jury, who got to see the evidence given in person, should not have accepted that explanation. Especially where the offences are committed in a way that impacts upon memory. This sort of sexual offending notoriously results in victims who try to suppress their memories, and have them surface years later in ways that are not obviously logical. The appellant’s complaint here that there was inconsistent evidence about whether the appellant placed his hand on top or underneath the clothing in relation to the offence in count 1, is an example of overreach on a ground such as this. The allegation of skin-on-skin contact was made in the 2019 statement. There was no inconsistency. The same response can be made to the second submission, namely that while the complainant may well have appeared credible to the jury, the verdict of guilty for count 1 was unreasonable when having regard to the unchallenged evidence of the complainant and his step-mother, that the complainant was supervised at the waterhole. The complainant’s evidence was that the water was waist high and the contact occurred beneath the water. If the jury accepted that to be so, then evidence of supervision is inutile. The next submission is that there was such implausibility in one respect that the jury could not accept the complainant’s evidence generally. That submission was that there was implausibility on count 2, of the appellant using his left hand to reach behind him and touch the complainant’s penis for a minute or two, while controlling the quad bike with only his right hand “at pace”, about 40 km/h on a dirt track with gullies, dips and bends. Here is nothing inherently implausible at all. The evidence was that the appellant was an experienced rider. Nothing about the road or speed makes that manoeuvre implausible. And the evidence did not establish that on that occasion there was a convoy on the quad bikes. Even if there was, those ahead are hardly likely to screw their heads around to scrutinize a bike to the rear.