R v Kahu [2006] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION: R v Kahu [2006] QCA 33

PARTIES: R v KAHU, Hoane Joseph (appellant)

FILE NO/S: CA No 290 of 2005 / DC No 226 of 2005

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Gladstone

DELIVERED ON: 17 February 2006

DELIVERED AT: Brisbane

HEARING DATE: 3 February 2006

JUDGES: McPherson and Keane JJA and Muir J / 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 - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - where appellant convicted by jury of one count of rape for fellatio but jury unable to reach verdict on two other counts of rape - where appellant initially denied ever meeting complainant - where appellant later claimed that fellatio was consensual - whether conviction unsafe and unsatisfactory having regard to all of the evidence / CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IRREGULARITIES IN RELATION TO JURY - PARTIALITY - where appellant convicted by jury of one count of rape but jury unable to reach verdict on two other counts of rape - where juror disobeyed instructions of learned trial judge by sending a text message to a person not on jury - where text message alleged to indicate racial bias - where juror said he had not conveyed any racist views to other jurors - whether learned trial judge erred in dismissing an application to discharge the jury for reasons of bias / Criminal Code 1899 (Qld), s 668E(1) / MFA v The Queen (2002) 213 CLR 606, applied / Osland v The Queen (1998) 197 CLR 316, cited / R v Czajkowski [2002] NSWCCA 530; (2002) 137 A Crim R 111, considered / R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited

COUNSEL: The appellant appeared on his own behalf / M J Copley for the respondent

SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I have read and agree with the reasons of Keane JA that the appeal against conviction in this matter should be dismissed.

KEANE JA: On 24 October 2005, the appellant was convicted upon the verdict of a jury of one count of rape. The jury was unable to reach a verdict on two other counts of rape. The appellant seeks to appeal against the conviction on the following grounds:

"(a)That the conviction is unsafe and unsatisfactory having regard to all of the evidence;

(b)That the learned trial judge erred in dismissing the application to have the jury discharged because of concerns of juror bias."

I shall discuss these grounds of appeal in turn, but before doing so I should summarise the evidence.

The case at trial

The complainant was born in 1989. According to the complainant, on the evening of 5 March 2005 she had a number of drinks at a friend's house before moving to the Grand Hotel on Goondoon Street, Gladstone with two friends, AF and LM. Once at the Grand Hotel, the complainant had several more drinks. She parted company with AF and LM after they left the hotel.

She was walking up Yarroon Street when the appellant walked in front of her and bumped into her. By this time the complainant, by her own account, was "pretty drunk". The appellant then pulled her, by the hair at the front of her head, up some steps and pushed her onto a raised platform. She landed on her hands and knees. He pulled her dress up to her hips and pulled her underpants down to her feet.

In relation to the first count on the indictment, the complainant said that the appellant pushed his penis into her vagina. She said that she did not call out for help because she was afraid of being hurt by the appellant. She was crying. She had never seen the appellant before and did not agree to having sexual intercourse with the appellant. The jury did not reach a verdict on this count.

In relation to the second count, the complainant's evidence was that the appellant then "flipped" her over onto her hands and knees. Before this Court, the appellant submitted that the complainant's evidence in this regard was inconsistent with her earlier evidence to the effect that she had landed on her hands and knees prior to the events which were the subject of the first count. This was not explored in cross-examination at trial. It may be that the complainant's account had omitted the fact that she had been placed on her back when the incident the subject of the first count occurred. In any event, the complainant said that he put "it" in her anus. This caused her pain although the appellant did not penetrate her anal passage. She said that she did not agree to this act of sodomy. The jury did not reach a verdict on this count.

In relation to the third count, the complainant said that the appellant pulled her up by the hair into a sitting position, and forced his penis into her mouth. He ejaculated into her mouth and onto her dress. He then jumped over the railing and ran off. She said that she did not agree to the appellant putting his penis into her mouth. The jury found the appellant guilty on this count.

The complainant said that she sat crying for a while before trying to ring AF on her mobile phone. She said that he rang her back and she told him that she had been raped. It was apparent at trial that in this she was mistaken and that this conversation was actually with LM.

Police photographs showed bruises on the complainant's knees. She said that she came by these bruises when she was on the platform. She also said that she had a bruise on her left elbow which had not been there earlier in the evening when she had left the hotel.

On the complainant's account, there had been no conversation between herself and the appellant. It was put to the complainant on the appellant's behalf that she first met the appellant in Goondoon Street near KC's take-away, spoke with him and told him her name before going willingly with him to the stairs where they kissed. It was put to her that the appellant kissed her breasts, that she got on all fours, that the appellant put his penis into her vagina, that she then sucked his penis until he ejaculated, that he then asked her for her mobile phone number which she provided and he put into his phone and then left her.

AF had not seen the complainant talking to anybody after they left the hotel where they had been drinking, but he was walking down Goondoon Street ahead of her.

LM's evidence was that he made a number of attempts to telephone the complainant, but each time her mobile phone rang out. When LM was finally able to speak to her on her phone, he asked her where she was. She was crying over the phone. Eventually she said "Oh, I don’t know where I am. I think I've been raped."

AT and LM eventually found the complainant. LM said she was on the steps of the old post office, curled up in a ball and crying. Her hair was messed up and he saw a little spot of blood on the back of her dress. He hailed a passing police car. AF also described her as curled up in a ball on the steps and crying.

Constables Steel and James each said that the complainant was moaning and was not responsive to their questions. They called the ambulance. The ambulance officer gave evidence that the complainant was "very distressed" and "actively crying" at the scene of the incident. The ambulance officer's evidence was that the complainant continued crying in the ambulance on the way to the hospital.

At the hospital, one of the nursing staff noted that the complainant's strapless bra was out of place in that it was sitting too far down her chest. The complainant denied that the appellant touched her bra or breasts and was not aware that the bra was out of place.

Dr Mawer saw the complainant at 6.50 am on 6 March 2002. He noted that her feet and knees were dirty. She had tiny abrasions on her knees and small red patches on both elbows. Genital and anal examination revealed nothing, but Dr Mawer gave evidence that this did not exclude the possibility of non-consensual penetration.

Constable Johnson saw the complainant in distress at the old post office at about 3.00 am. She also saw the appellant on Goondoon Street near KC's take-away at 4.27 am. The appellant was arguing with his girlfriend Ms MacB. She had a pair of shoes in her hand that she was "waving around near the appellant's face".

On 12 March 2005, the appellant and Ms MacB were interviewed by police. The appellant was told that police were investigating a serious sexual assault that had occurred on 6 March 2005. The appellant said that he had read about it in the paper. The appellant denied that he recalled seeing a white-skinned female in a pink dress at the Grand Hotel or anywhere else that evening. He was asked to provide a DNA sample and did so.

The appellant's DNA was found to match the semen on the complainant's dress. As a result, the police interviewed the appellant again.

At the second interview, the appellant said he knew nothing about the alleged rape and that he did not know who the girl was. When asked if he had met any girls on the night of the alleged rape, he said that he met "some girl" outside KC's and that she wore "a pink dress like you just said, that's what I was just thinking". He said that the girl gave him "signals" and that they went behind the old post office and he "got with her". He said that they had sex within three minutes of meeting. He said that the complainant had told him her first name and he was "pretty sure" that he told the complainant his name. He said that they had vaginal intercourse followed by oral sex. He said he ejaculated in her mouth. He said that she gave him her phone number which he put into his phone. He said that he later deleted it so that his girlfriend would not see it. He said that he had written the number down before he deleted it but that he did not then know where that piece of paper was. He said that he was with his cousin, HM, when he first met the complainant. He said that HM was still in Goondoon Street when he returned after his encounter with the complainant.

HM said in evidence that he had seen the appellant in Goondoon Street across the road from KC's, but he did not see the appellant talking to any girls, other than Ms MacB, on the night of the alleged rape.

The appellant did not give evidence at the trial, but called Ms MacB. Ms MacB gave evidence that, on the day after the appellant was arrested, he asked Ms MacB if she could find a piece of paper with a mobile telephone number on it. She said she found it in a washing basket in the house where the appellant had been living. She then kept it for a couple of weeks before giving it to the appellant's solicitor. The mobile phone number matched the number of the complainant's mobile phone.

Having summarised the evidence, I now turn to consider the grounds of appeal.

Was the verdict unreasonable?

In relation to the first ground of appeal, the issue is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the third count of rape.¹

In this regard, the evidence of the complainant herself, supported as it was by the evidence of her distressed condition and her prompt complaint to LM, certainly meant that it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. This is especially so when one bears in mind that the appellant's case in response carried the baggage of the appellant's false denials and the inherent improbability of the proposition that the complainant willingly engaged in consensual sex after three minutes' acquaintance.

As to the evidence that the appellant knew the complainant's name and phone number, the extent of its claim upon the consideration of the jury depended on the exclusion of other possible means whereby the appellant might have ascertained the appellant's name and phone number and secured the assistance of Ms MacB to present the piece of paper in evidence. The jury were entitled to be sceptical in this regard, bearing in mind both Ms MacB's obvious motive to assist the appellant to defeat the charges against him and the late production of the piece of paper with the phone number on it. Further, it had emerged from the complainant's evidence that she attended school with a young man, TC. The appellant could possibly have ascertained the complainant's name and mobile phone number through TC (who was, according to the evidence of HM, a brother of the appellant) or through other students known to him.

At this point, I should note that the failure of the jury to reach a verdict on the first and second counts does not imply that the verdict of guilty on the third count was unreasonable. While "inconsistent verdicts" may give rise to an argument that a jury has acted unreasonably in returning a verdict of guilty so as to justify the intervention of this Court under s 668E(1) of the Criminal Code,² it is not possible to equate, for this purpose, a jury's failure to reach a verdict with a verdict of acquittal.³ As this Court explained in R v DAL,⁴ a failure to reach a verdict on one or more counts in an indictment does not throw into question a verdict of guilty on other counts; it simply means that the members of the jury were not able to reach a unanimous view one way or the other upon the evidence germane to the counts upon which no verdict was reached.

In the present case, the jury may not have been able to reach a unanimous view as to the absence of consent on the complainant's part in relation to the first two counts, but that does not cast any doubt on the integrity of the unanimous view, which they did reach in relation to the third count, that the complainant did not consent to the appellant inserting his penis into the complainant's mouth.

In my opinion, the first ground of appeal should be rejected.

Should the jury have been discharged?

One juror was discharged because, in sending a text message about the case to a person not on the jury after the first day of the hearing, that juror had disobeyed the directions of the learned trial judge that the jurors should not discuss the case with any other person.

The appellant's counsel had sought the discharge of the whole jury on the basis that the juror who was discharged may have affected the other jurors with some form of racial bias. The learned trial judge ruled that the trial should continue with the remaining jurors. The concern in this regard arose from the allegation that the juror in question had said to a workmate that if the accused is "black, I'm going to say guilty". The juror in question said that he had not conveyed any such views to other members of the jury. There was no evidence to the contrary, and there was no reason to suppose that the remaining jurors had been in any way tainted by any bias which may have been apprehended on the part of the juror who was discharged.

In my view, it is not possible to say that the learned trial judge erred in the exercise of his discretion to continue the case with the remaining jurors. The appellant's counsel sought to rely upon the decision of the New South Wales Court of Criminal Appeal in R v Czajkowski⁵ where it was said: "If a juror indicates that he or she is biased, the jury should be discharged." It should be noted that this observation was made in the context of a case in which the foreperson of the jury sent a note to the trial judge to the effect that some of the jurors were biased against drugs and had made up their minds on the first day of the trial. The note was sent, after closing addresses by counsel, but before the summing-up. In such a case, where the bias of some jurors had been made manifest to the rest of the jury over the period of the trial, there was only one possible answer to the crucial question of "whether the parties or the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding".⁶ The court in Czajkowski held that the jury should have been dismissed in that case. The position is entirely different in the present case where there was simply no basis for an inference that the remaining jurors had been affected in any way by the beliefs of the juror who was discharged or that there was a real possibility that they had been so influenced.

For these reasons, I would reject the second ground of appeal.

Conclusion and orders

The appellant's challenges to the conviction are not made out. The appeal against conviction should be dismissed.

MUIR J: I agree with the reasons of Keane JA and with the order he proposes.

Footnotes

1. MFA v The Queen (2002) 213 CLR 606 at 614 - 615 [25] and 624 [59]. ↩

2. Osland v The Queen (1998) 197 CLR 316 at 356 - 357 [116]. ↩

3. Osland v The Queen (1998) 197 CLR 316 at 406 [232]. ↩

4. [2005] QCA 281 at [2] - [8], [21] - [23]. ↩

5. [2002] NSWCCA 530; (2002) 137 A Crim R 111 esp at 116 [20]. ↩

6. [2002] NSWCCA 530; (2002) 137 A Crim R 111 at 115 [19]. ↩