Kim v The King [2023] VSCA 228

[2023] VSCA 228

Court of Appeal (Vic)|2023-09-20|Before: Priest JA, Walker JA, Taylor JA

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General information, not legal advice.

At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2023-09-20

Before

Priest JA, Walker JA, Taylor JA

Source

Original judgment source is linked above.

Judgment (66 paragraphs)

[1]

The applicant is a Korean-born medical doctor who, on 26 September 2017, was visiting Melbourne from Sydney. He was then aged 48 years. At about 11:00 pm he attended at a karaoke club in the Melbourne CBD. Ms Price, then aged 26 years, was a Korean woman in Australia on a student visa. She worked as a hostess at the club.
Upon arrival the applicant booked a private room and requested the services of a Korean hostess. Ms Price and one other hostess, AY,[3] attended the room. The applicant selected Ms Price. AY left the room.
Ms Price sat down with the applicant. She served him drinks and they talked. They exchanged telephone numbers. At about 3:28 am on 27 September 2017 the applicant gave a lit cigarette to Ms Price. She understood it to be ordinary tobacco. When Ms Price inhaled from it she immediately felt sick, weak and lethargic, struggling to keep her eyes open. She had trouble talking and could not control her body.
At trial the prosecution alleged that the applicant had administered Ms Price with a substance via the cigarette. He was acquitted of the charge of administering a drug for sexual purposes (charge 1).
The prosecution case was that while Ms Price was in a physically compromised state the applicant touched her breasts over her clothes (charge 2), kissed her on the lips (charge 3) and touched her vagina over her clothes after he spread her legs apart (charge 4). He then put his right hand down the front of her pants and touched her vagina (charge 5) before penetrating Ms Price's vagina with his fingers (charge 7). While the applicant was doing this, he put his left hand on Ms Price's breasts underneath her clothing (charge 6). At this stage Ms Price's body was limp and she appeared barely conscious. She slid off the couch almost to the floor. When the applicant ceased touching Ms Price, she did then slide to the floor. He pulled her back onto the couch and again touched her vagina over her clothing (charge 8). The applicant left the room a short time later.

[26]

In relation to ground 2, the applicant argues that two of the answers he gave to police in the record of interview, namely his answer to question 789 - the denial of touching Ms Price's vagina beneath her underwear - and the answer he gave to question 791 - the denial of digital penetration - were incapable of constituting lies amounting to implied admissions of having committed an element of an offence charged. They were nothing more than bald denials of the acts relevant to charges 5 and 7. A finding that those denials were lies was possible only by 'bootstraps' reasoning that the applicant had in fact engaged in those acts.
These bald denials were contained within a discrete series of answers given by the applicant during the record of interview in which he denied a number of the acts relied upon for the separate charges. The applicant does not take issue that the other denials were reasonably capable of being viewed by the jury as evidence of incriminating conduct, because those denials were contradicted by the CCTV footage and the applicant's later answers in the record of interview. Rather, the applicant argues that the trial judge erred in directing the jury that, if satisfied that the series of answers (which included the two bald denials) were lies, it could use them as evidence that the applicant believed he had committed 'the offences' charged, except charge 1. He submitted that the case required the judge to specifically direct the jury as to which alleged lie related to which separate charge. This is the complaint under ground 3.
The respondent argued that the two answers concerning the touching of Ms Price's vagina beneath her underwear and of digital penetration were more than bare denials and were reasonably capable of being viewed by the jury as evidence of incriminating conduct. The respondent submitted that the jury was entitled to use these false denials in the context of other patently false denials of any sexual touching as a concocted story by the applicant to minimise his illicit conduct.
The respondent further argued that this was not a case which required the trial judge to isolate each alleged lie as relevant to each charge. The jury had been instructed to consider each charge separately and that evidence relating to the various acts comprising charges 2 to 8 could not be used in proof of one another. Accordingly, the jury would not, for example, have mistaken that a lie in relation to the touching of a breast could be used in proof of a charge concerning vaginal touching.

[31]

However, the manner in which his Honour directed the jury about the use of the alleged lies, reproduced at paragraph 43, was at odds with the separate consideration instruction, reproduced at paragraph 55. The judge directed the jury that 'a lie' could be used as evidence that the applicant believed he had committed 'the various sexual offences', specifically that he had 'touched and penetrated' Ms Price, and also that the 'lies' were relied upon in proof of 'all the sexual offences, including the rape and any alternatives'. His Honour added that this use of the 'lies' was not permissible in relation to charge 1. Irrespective of the earlier separate consideration direction, the jury may well have understood these later directions to mean that any single lie could be used in relation to any of the charges (except charge 1) and that the combined force of the lies was also relevant to all the charges. That danger is compounded by the fact that two of the alleged lies, be they used as a single lie or as part of the suite, were incapable of being used as evidence of incriminating conduct at all.
Further, the risk of infection of impermissible reasoning spreading from the bald denials of the conduct relevant to charges 5 and 7 in the trial judge's global direction was heightened by the nature of the prosecution case. The various sexual offences were alleged to have occurred in a temporally limited sequence that escalated both in brazenness and seriousness. As a result of the fused direction that 'a lie' or 'the lies' could be used as incriminating conduct with respect to 'all of the sexual offences', there was a very real risk that, for example, the jury would have reasoned that a lie about touching Ms Price's breast under her clothing could be used as incriminating conduct in relation to rape which, on the prosecution case, occurred simultaneously, or that a lie about digital penetration - which could not be used as a lie in any manner - would necessarily mean that all the other earlier alleged sexual touching had occurred.
It follows that ground 3 must be upheld. There is a real risk that the jury may have reasoned impermissibly in this manner, which is productive of a substantial miscarriage of justice with respect to all of the charges of which the applicant was convicted.

[45]

The applicant argues that it was 'abundantly clear' that the defence case was that the applicant did not touch Ms Price's vagina beneath her underwear. He maintained his denial of that act in the record of interview. Senior counsel addressed the jury on that basis, arguing that the applicant's hand reached the top of the pubic hair but not beyond. There was cross-examination conducted and argument made in the trial designed to show that the applicant's finger(s) could not have reached Ms Price's vagina. The latter concerned the alleged small size of the applicant's hands, the high-waisted pants worn by Ms Price and the visibility on the CCTV footage of the applicant's shirt cuff and watch at the time his hand was beneath Ms Price's pants.
The applicant further argues that the abundant clarity of that position should not have been clouded by junior counsel for the applicant accepting as accurate the trial judge's characterisation of the issues in dispute with respect to charge 5 as being the same for the other charges of sexual assault, in that the elements in dispute were limited to consent and reasonable belief in consent.
The applicant submits that, inconsistently with the defence case throughout the trial (aside from the concessions made by junior counsel), his Honour directed the jury that the act of touching the vagina relevant to charge 5 was not in dispute. Not only did that undermine the defence with respect to that charge, it inexorably infected the reasoning process with respect to charge 7. A central plank of the defence to the rape charge was that the applicant's finger(s) could not have penetrated Ms Price's vagina because they never went beyond the top of her pubic hair.
The respondent submits that the trial judge directed the jury on the basis of the applicant's junior counsel's concession that the applicant touched Ms Price's vagina beneath her underwear and was correct to do so. There was a basis for that concession in the evidence of Ms Price and the CCTV footage. Alternatively, the respondent submits that the jury would have understood, in the context of the evidence, that the allegation was that the applicant placed his hand beneath Ms Price's pants and touched her genital region, being her pubic hair, and that such touching was sexual in nature.

[46]

Charge 5 alleged that the applicant touched the vagina of Ms Price underneath her clothing - 'skin on skin' as described by the prosecutor. It was not an allegation that he touched the vaginal, genital or pubic area. So much is plain from the indictment.
What is equally plain is that the defence case was that the applicant did not touch Ms Price's vagina underneath her clothing. He consistently denied doing so. His senior counsel argued to the jury that his hand went no further than the start of Ms Price's pubic hair. While that intentional touching (if the other three elements of sexual assault were satisfied beyond reasonable doubt) would amount to a sexual assault, it was not the sexual assault alleged in the particulars of charge 5.
That being so, the dissonance between the concessions made by junior counsel for the applicant in the absence of the jury and the defence case as argued by senior counsel to the jury is unfathomable. The resulting dissonance between the defence address and his Honour's charge was obviously perceived by the jury and caused them concern. There could be no other basis for their second question. In this regard, it is to be noted that in his charge concerning the elements of rape, his Honour directed the jury as to the legal definition of 'vagina'.
Having then been told that the first element of charge 5 was not in dispute, the verdict could mean either that the jury rejected the defence case and were satisfied beyond reasonable doubt of an intentional touching 'on the vagina' or that the jury were satisfied beyond reasonable doubt that the intentional touching to the top of the pubic hair equated with an intentional touching on the vagina. While the verdict of guilty on charge 7 may indicate the former is more likely, there is an obvious and unacceptable risk that the applicant was convicted of an offence other than that pleaded on the indictment.
That being so, we are of the view that, on this basis, the conviction on charge 5 amounts to a substantial miscarriage of justice even in light of the conduct of defence counsel not only failing to take exception to the charge but acquiescing to it. The interests of justice demand that course.[9]
It follows that ground 1 must be upheld.

[58]

The principles relating to the inquiry necessitated by s 276(1)(a) of the Criminal Procedure Act 2009 are well settled. The question for this court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.[11]
The question is to be decided by the appellate court's independent assessment of the evidence. That assessment must proceed on the assumption that the jury assessed the complainant's evidence to be credible and reliable.[12] A doubt an appellate court experiences when embarking on an independent assessment will, in most cases, be a doubt which a jury ought to have experienced. However, the court must consider that the jury is entrusted with the primary responsibility of determining guilt and give full weight to the advantage it had in seeing and hearing witnesses give their evidence.[13]
It is only where such an advantage is capable of resolving a doubt experienced by an appellate court that the court may conclude that no miscarriage of justice occurred. If, even making full allowance for the advantages enjoyed by the jury in assessing the credibility of witnesses, the appellate court concludes that there is a significant possibility that an innocent person has been convicted because the evidence on the record is tainted, contains discrepancies, displays inadequacies or otherwise lacks probative force, that court is bound to act and set aside the impugned verdict.[14]
Having undertaken our own review of all of the evidence in this case, we are not persuaded that the jury must have had a reasonable doubt about the applicant's guilt on either charge 5 or 7.
Dealing first with charge 7 (ground 5), issues concerning the credibility of Ms Price and the differences in her account were ventilated before the jury. Even though Ms Price made no allegation of penetration in her first police statement and was equivocal about it at committal, the complaint evidence to AY in the immediate aftermath of the incident was powerful. While Ms Price described herself as being 'unconscious' during the events, she explained that her incapacitation did not affect all of her senses and did not affect her memory at all. Next, the jury may well have accepted the defence argument that 'Vanessa' did not exist and that Ms Price attempted to exploit the situation for her own financial benefit after the event. However, the defence case that Ms Price feigned incapacity and consented to all sexual acts for the purposes of extracting money from the applicant depended upon her deciding upon that course after learning he was a doctor but before any sexual act occurred. That is, the defence case is that she assumed that if she feigned unconsciousness she would - and in fact did - tempt the applicant to engage in sexual acts which she could later claim were not consensual. The jury may have accepted the prosecution's characterisation of that notion as ludicrous. Finally the jury question concerning touching of the clitoris may have simply reflected confusion about the legal definition of vagina as including the external genitalia, particularly in light of some of the cross-examination of Ms Price about the nature of the penetration she alleged. But, whatever it reflected, it cannot lead to a conclusion that the verdict was not open on the evidence.
Turning to charge 5 (ground 6), it was clear on the prosecution case that the touching of the vagina on the skin preceded the act of penetration. That is, the applicant first touched Ms Price on her vagina beneath her underwear and then penetrated her vagina with his finger(s). The evidence was that at the time of the act of charge 5 Ms Price attempted to grab the applicant's hand to stop him but was unable to fully move her arm. Her movement is discernible in the CCTV footage, as is that of the applicant's hand while it was inside Ms Price's pants. His hand was there for about one and a half minutes. In accepting Ms Price's evidence that penetration had occurred, the jury may well have reasoned that in the factual circumstances it was impossible for that digital penetration inside the underwear to have occurred without prior 'skin on skin' touching of the vagina. Further, there is no risk that the jury could have understood that any touching of the vagina short of penetration as an alternative charge to charge 7 was indistinguishable from or interchangeable with count 5.
It follows that grounds 5 and 6 must fail.

Kim v The King [2023] VSCA 228

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Judgment (66 paragraphs)

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Legislation Cited (2)

Cases Cited (9)

Kim v The King [2023] VSCA 228 (20 September 2023)