R v Kynuna

Case [2023] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kynuna [2023] QCA 112

PARTIES:

R
v
KYNUNA, Tyson Blayn
(appellant)

FILE NO/S:

CA No 147 of 2022
DC No 53 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 15 July 2022 (Coker DCJ)

DELIVERED ON:

30 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2023

JUDGES:

Mullins P and Morrison and Boddice JJA

ORDERS:

1.   Appeal allowed.

2.   The verdict on Count 3 be set aside and a retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was tried for one count of oral rape (count 1), two counts of penile rape (counts 2 and 4) and one count of attempted anal rape (count 3) – where the appellant was found guilty by jury of count 3, with no verdict reached on the other counts – where the appellant and complainant had engaged in consensual sexual intercourse prior to the alleged offending – where the complainant did not want to continue the relationship, but the appellant pursued her by text messages and face-to-face contact – where the appellant’s case at trial was that the acts constituting counts 1, 2 and 4 were consensual and that the acts alleged in count 3 never occurred – where a forensic nurse examiner gave evidence of what she observed when she examined the complainant – where the forensic nurse examiner gave evidence that it was highly unusual to have multiple lacerations to the fourchette in consensual sex – where the respondent concedes the impugned evidence was inadmissible – whether the trial judge erred in not ordering a mistrial in respect of the impugned evidence – whether the admission of the impugned evidence occasioned a miscarriage of justice – whether the trial judge’s direction on the impugned evidence was sufficient to overcome a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the Crown prosecutor’s closing address emphasised that the complainant’s evidence was consistent with what the forensic nurse examiner had said about the lacerations – where the appellant submits, inter alia, that the complainant was shown to be an unreliable witness and that the likely explanation for the jury’s failure to reach a verdict on counts 1, 2 and 4 was a concern about the complainant’s credibility – where the appellant further submits that the only rational explanation for the guilty verdict on count 3 was a reliance on the inadmissible opinion evidence and that, accordingly, without the inadmissible evidence, the concern about the complainant’s credibility should have resulted in an acquittal – whether the verdict in respect of count 3 is unreasonable

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA…

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AGLC
R v Kynuna [2023] QCA 112
Case
[2023] QCA 112
Decision Date

CaseChat Overview and Summary

In the case of R v Kynuna, the appellant was convicted of one count of attempted anal rape, but the jury did not reach a verdict on other charges related to oral and penile rape. The central issue in this appeal was whether the trial judge erred in admitting inadmissible evidence, which led to a miscarriage of justice, and whether the verdict on count 3 was unreasonable. The inadmissible evidence in question was provided by a forensic nurse examiner, who testified that it was highly unusual to find multiple lacerations to the fourchette in consensual sex. The appellant argued that this evidence was prejudicial and not properly founded, leading to an unreliable verdict. The court had to determine if the admission of this evidence necessitated a retrial and if the verdict on count 3 was justifiable.

The court acknowledged that the evidence provided by the forensic nurse examiner was indeed inadmissible and highly prejudicial. The prosecution accepted that the evidence lacked proper foundation, which was a critical error. The court noted that the prejudicial nature of the evidence was exacerbated by its repetition, which influenced the jury's decision. The respondent argued that the evidence only related to the complainant's vaginal injuries and did not directly impact the anal penetration charge. However, the court found that the evidence still had a significant prejudicial effect, which undermined the fairness of the trial. The manner in which the prosecution used this evidence further compounded the issue, as it was highlighted in the closing address, potentially biasing the jury.

Given the significant errors in the trial, the court concluded that a retrial was necessary to ensure a fair trial. The court found that the admission of the inadmissible evidence had caused a miscarriage of justice, and the verdict on count 3 was unreasonable. The court allowed the appeal and set aside the verdict on count 3, ordering a retrial. This decision ensures that the appellant will have the opportunity for a fair trial, free from the prejudicial effects of inadmissible evidence.

Orders

Orders of the court

1. Appeal allowed.

2. The verdict on Count 3 be set aside and a retrial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant challenges his conviction on several grounds:(a)Ground 1 – a miscarriage of justice occurred because the trial judge failed to discharge the jury after it received inadmissible and/or highly prejudicial evidence;(b)Ground 2 – a miscarriage of justice occurred because the trial judge did not adequately direct the jury on the opinion evidence received by the jury; and(c)Ground 3 – the verdict on ground 3 is unreasonable or cannot be supported having regard to the evidence.Evidence at the trial The principal witness at the trial was the complainant. Her partner was called to give evidence in respect of the contact he had with the complainant subsequent to the events she described on 4 June 2020. A co-resident of the lodge was called to give some general evidence as to the interaction between the complainant and the appellant on 4 June 2020. A forensic nurse examiner gave evidence of what she observed when she examined the complainant. Finally, two police witnesses were called to give evidence as to scientific examination results concerning the car and items of clothing, as well as DNA results, CCTV footage and other results of the investigation. There were formal admissions made in the following terms:“Admission 1The [appellant’s] DNA was in/on the following areas of the complainant:a)High vagina;b)Vulva;c)Perianal area; andd)Upper chest area.The [appellant’s] sperm was in the complainant’s high vagina and on her vulva.The complainant’s DNA was on the following areas of the [appellant]:a)Under the fingernails of both hands;b)The base of the penis;c)The shaft of the penis; andd)The glans of the penis.Admission 2On 4 June 2020, at 8:11pm, the [appellant] telephone called ‘07 4725 0077’ which is the telephone number for Battery World, Townsville. The duration of this telephone call was one minute and eleven seconds.”The complainant’s evidence The complainant met the appellant when she was working at the lodge in which he was a resident. She was working in reception and as a support worker. Over time, the relationship developed from one confined to the workplace to friendship and then eventually a relationship involving sexual intercourse. Eventually, she did not want to continue the relationship but the appellant “was pursuing [her] by texting [her] and hanging around outside [her] workplace when [she] was in with a client”.[3][3]AB 90, lines 10–12. A series of texts between the appellant and the complainant were admitted into evidence.[4] The time span of those messages was 18 May 2020 through to 4 June 2020. A sample of the messages demonstrates the exchanges which the jury could have understood as being friendly or loving up to 23 May 2020, but then diminishing, and even becoming resentful on the appellant’s part.[4]Exhibit 2, AB 252. The exchange of texts diminishes substantially, particularly from the complainant, from 24 May 2020 until 28 May 2020. Then, on 28 May 2020, the following exchange occurred:[5][5]The messages listed have been left in the form in which they were sent.

Decision

Reasons for decision

Ground 3 therefore fails.Conclusion I propose the following orders:1.Appeal allowed.2.The verdict on Count 3 be set aside and a retrial ordered. BODDICE JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

For reasons which will appear, there is no present need to set out a full review of the police evidence. However, the two police witnesses produced evidence of testing for seminal fluid, photographs of the car and clothing, a description of the tape lifts taken for the purpose of DNA testing, and the retrieval of evidence such as CCTV footage and the downloading of text messages from telephones.Grounds 1 and 2 – Consideration The appellant’s contentions on these grounds centred around the evidence of the forensic nurse examiner, namely that it was unusual to find multiple lacerations to the fourchette in consensual sex. It was contended that the trial judge erred by ruling that that evidence was admissible, and in not ordering a mistrial. Quite apart from whether the evidence was admissible, it was contended that it was so prejudicial it ought not to have gone before the jury, and as a consequence a miscarriage of justice had occurred. Further, a mistrial was not ordered and the trial judge indicated that a direction could be given to remedy any issues with that evidence. However, the only direction given was a direction about how to deal with expert evidence, and nothing was said as to the dangers of using the nurse examiner’s opinion[65] in reasoning to guilt.[65]That it was unusual to find multiple lacerations to the fourchette in consensual sex. It was pointed out in the appellant’s submissions that there was no identification and proof of the factual basis upon which that opinion was advanced and it was, in any event, beyond the expertise of a forensic nurse examiner. Further, it was said that the forensic nurse examiner’s evidence in that respect was, even if technically admissible, highly prejudicial, and that the prejudicial effect was compounded by the fact that it had been repeated in evidence. The respondent accepted that there was not a proper foundation for the admission of the opinion evidence of the forensic nurse examiner. The case must therefore be approached on the basis that it was conceded to be inadmissible evidence. The point made by the respondent’s submissions was that the evidence related only to the injuries to the complainant’s vagina and could not have directly impacted upon the consideration of whether the appellant attempted to penetrate the complainant’s anus without her consent. It was pointed out that the complainant had accepted in her evidence that she had previously had sexual intercourse with the appellant on a number of occasions, but also had testified that she had never previously had anal sex. It was submitted that it was open to the jury to conclude that, whilst they had a reasonable doubt about the lack of consent on the other sexual acts, they could accept there was clearly no consent given to the anal intercourse, and therefore there was no miscarriage of justice. It is relevant to consider the way in which the prosecution used the evidence of the forensic nurse examiner. In the Crown prosecutor’s opening address, the evidence was referred to in constrained terms, namely that she had observed “three lacerations to the folds of the skin at the bottom of the entrance of the complainant’s vagina”.[66][66]AB 15, lines 16–17.