The King v KBF

[2023] QCA 193

[2023] QCA 193

COURT OF APPEAL

BOND JA
RYAN J
KELLY J

CA No 329 of 2021
DC No 17 of 2021

THE KING

v

KBF  Appellant

BRISBANE

WEDNESDAY, 27 SEPTEMBER 2023

JUDGMENT

THE COURT:  On 17 November 2021 the appellant was convicted of four counts of rape and three counts of indecent treatment of a child, following a jury trial in the District Court.  At the time of trial the appellant was aged 79.  The offending was alleged to have occurred between 29 December 2004 and 30 June 2008.

The appellant appeals his conviction on the sole ground that evidence obtained after his conviction demonstrates that there is a real and substantial question as to whether he was fit to plead and to stand trial at the time he did.  In R v Dunn [2015] 2 Qd R 407 at 429, McMurdo P observed, citing Hayne J in Eastman v The Queen (2000) 203 CLR 1 at 107:

“[T]here will be a miscarriage of justice if an accused has gone to trial and been convicted when he may not have been fit to plead and stand trial.  If there is a real and substantial question to be considered about an accused’s fitness to plead, there is a miscarriage of justice.  The question is not whether the appellate court is persuaded the accused was not fit to plead, but whether there was a question as to the accused’s fitness.  Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred so that the question of fitness can be put aside.”

In order to make good his case, the appellant sought and obtained leave to rely on new evidence.  The leave was not opposed by the Crown.  The new evidence revealed that the question of the appellant’s fitness for trial did not arise until after his conviction.  Two days after his conviction the appellant was admitted to hospital.  Less than a month later the appellant’s daughter had engaged new lawyers with a view to conducting an appeal.  After only a few conversations the new lawyers quickly realised that there were concerns over his then capacity to provide instructions and, by implication, questions as to whether he had been fit to plead and to provide instructions at his trial.

It is not necessary to delve too deeply into the process by which ultimately appropriately qualified medical professionals were engaged.  Although there were some delays, they were explicable and not such as would have justified refusing leave to rely on the new evidence.  Dr Brand, a psychiatrist, was engaged to provide a report for the purposes of sentencing.  She was not specifically asked to provide a retrospective assessment of whether the appellant was fit to plead and stand trial at the time of his trial.

In a report dated 9 May 2022 Dr Brand opined that the appellant met the DSM-5 criteria…