Pringle, Karen L. --- "R v Robyn Bella Kina" [1994] AboriginalLawB 15; (1994) 3(67) Aboriginal Law Bulletin 14

• R V Robyn Bella Kina
• Comment

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R v Robyn Bella Kina

Queensland Court of Appeal, President, Davies J and McPherson J

29 Novemeber 1993

by Karen L Pringle

Robyn Bella Kina was indicted for the murder in Brisbane on 20 January 1988 of Anthony David Black, her de facto husband. She pleaded not guilty and was tried in the Supreme Court of Queensland before Mr Justice Williams on 5 September 1988. The trial lasted less than a day, Kina electing not to give or call evidence.

At trial, the evidence revealed that Kina and the deceased had lived in a de facto relationship and when the deceased was drunk he was often aggressive towards Kina and had injured her on several occasions.

On the morning of the fatal stabbing, the evidence revealed that Kina and the deceased were in the bedroom of the house which they shared with others. There had been about ten minutes of loud thumping and screaming coming from this bedroom and Kina was heard crying. Kina was subsequently seen running out of the bedroom and into the kitchen where she grabbed a knife and then ran back into the bedroom where the deceased was, having to push the door open with her shoulder in order to gain entry. When she went into the room she was heard saying, "I am going to stab you, you bastard", and in the course of some scuffling with the deceased she stabbed him.

At trial, any defence was dependent upon establishing the absence of the necessary intent to cause death or grievous bodily harm, as the trial judge held that there was insufficient evidence to allow a defence of provocation to go to the jury. The major difficulty was the absence of direct evidence as to what had occurred in the bedroom prior to Kina running to the kitchen and grabbing the knife.

On the issue of provocation the trial judge stated:

...it would be speculative for the jury to conclude that it was the deceased who was the aggressor in any argument that occurred in the bedroom and it would also be speculative for them to come to any positive conclusion as to the nature and extent of the provocative act. Therefore, there would be at least no proper basis on which they could consider the question whether the retaliation was proportionate to the provocation offered. It follows, in my view, that on the evidence given at the trial, the question of provocation should not be left to the jury. (p32 transcript of trial.)

Kina was found guilty of murder and sentenced to imprisonment with hard labour for life. She appealed to the Court of Criminal Appeal on the ground that the trial judge erred in failing to permit the jury to consider the defence of provocation. (CA No. 258 of 1998.) This appeal was unsuccessful.

A petition for a pardon was presented to the Governor on behalf of Kina on 24 May 1993. Subsequently, pursuant to s672A of the Qld Criminal Code relating to the power of the Crown Law Office, on consideration of a petition for pardon, to refer a case to Court, the Attorney-General referred Kina's case to the Court of Appeal "to be heard and determined by the said Court as in the case of an appeal by the said Robyn Bella Kina". (CA No. 221 of 1993, p2.) This is only the second time in 25 years where this section has been applied. (See “AJAC Considers Kelvin Condren", [1994] AboriginalLB 6; 3(66)pg10).

Three grounds of appeal were relied on:

“1. I did not receive a fair trial and a miscarriage of justice was occasioned thereby by reason of:

(1) problems, difficulties, misunderstandings and mishaps occurring in the communication of my instructions to the Lawyers who prepared my case and represented me upon my trial; and
(2) which led to errors so fundamental as to vitiate entirely the decisions of myself and those Lawyers that I would neither give nor call evidence upon my trial.

2. Further, or in the alternative, there is now available to myself evidence which should be accepted as fresh evidence and which is of such a nature that, had it been placed before the jury who decided my case, there is a significant possibility that that jury, acting reasonably, would have acquitted me of the offence of murder.
3. Further, or in the alternative, whether or not that evidence be fresh evidence, it is of such a nature that a refusal by this Court to receive it would lead to a miscarriage of justice, in that its receipt would demonstrate that it is unsafe in the administration of justice to allow my conviction for murder to stand."(p3.)

The Court of Appeal (comprising the President, Davies J and McPherson J) considered the evidence which Kina could now adduce to raise issues of provocation, self-defence and lack of the necessary intent. (p3 CA No.221 of 1993; all following quotes are from this transcript.)

In the joint judgment of the President and Mr Justice Davies, it was stated that the "appellant's life, from childhood, has been filled with abuse, trauma and hardship." (p4.) Kina eloquently traced her life experiences in the affidavit evidence before the Court revealing that she was the victim of violence and sexual assault and in particular, that on the morning of the stabbing she had refused anal intercourse with the deceased. Kina's refusal led to violence and to the deceased stating that if Kina "could not have sex in that way he bet that my niece ... would". (pp12-13.) According to Kina it was while she was thinking of what had just been said about her niece that she picked up the knife. (p13.)

Other witnesses corroborated Ki na's account of her relationship with the deceased. (p14.) The Court noted that "there is an overwhelming impression that she was repeatedly violently assaulted by the deceased followed by denials by the appellant that the deceased was responsible for her injuries."(p14.)

The Court went on to consider the number of lawyers who had assisted or represented Kina. It was revealed that none of the lawyers "who acted for the appellant received any training or instructions concerning how to communicate or deal with Aborigines or Islanders". (p17) This led to Kina being seen as somewhat reluctant to communicate with her legal advisers. (p18.) In her affidavit evidence she acknowledged her difficulty in speaking with her legal advisers:

“My own reasons for not wanting to give evidence were that I was scared, shy and embarrassed. I found it hard to talk and I was unable to speak out about the threat to [Kina's niece] and what I had said seemed to be irrelevant to my legal representatives so I just did what they suggested.” (p28)

Amongst others, Dr Diana Eades, a sociolinguist, gave evidence and concluded that:

“... the manner in which information has emerged in Robyn s story is totally consistent with her Aboriginality ... even though this may seem extraordinary to a non-aboriginal person ... given her limited 'bicultural competence' at the time of the killing and her trial, the appellant would have been unlikely to reveal sensitive or significant information unless a person communicated with her in the Aboriginal way, which does not involve direct questions ... the extent of the information which she would have been willing to provide would have been affected by the degree of trust which she felt in the person with whom she was speaking; her sense of family responsibility would have obstructed her ability or willingness to involve her niece and 'shame her sister ... the passage of time would have allowed her to prepare to reveal the sensitive details of the deceased's threat to her niece, with its family significance.” (p30.)

Dr Eades explained why Kina accepted the advice of her lawyers not to give evidence at her trial:

“... simply put, she did not have a close relationship with them and her Aboriginal way of dealing with 'white business' such as the Court, would guide her not to oppose her lawyers.” (p30.)

An argument by counsel for the respondent that the appellant's evidence should not be accepted "because there are significant differences in the various accounts which she has given which 'become more favourable to her cause as time progresses' " was rejected. (pp32-33.) The Court stated:

"The force of the respondent's argument based on the changes in the appellant's account of events is diminished if regard is had to the cultural, psychological and personal obstacles to full and frank disclosure by the appellant which have been eliminated or reduced by the passage of time, counselling and an increasing understanding of Aboriginal communication difficulties and the 'battered woman syndrome' and the problems which are presented in these matters ... there is no basis upon which ... this Court could hold that the appellant's evidence must or should be rejected." (pp33-34.)

According to the Court, the question for it was "whether there has or might have been a miscarriage of justice". (p34.) In considering this issue it was stated that "the question whether a miscarriage of justice has occurred should usually be assessed in light of the way the criminal justice system operates so that, as a general rule, an accused person is bound by his or her counsel's conduct of the case." (p34.) However, the Court went on to note that "the concept of a miscarriage of justice is broad and flexible and should not be curtailed by judicial exegesis:" (p34.)

With respect to what the appellant's lawyers should have done, the Court stated:

"With the benefit of hindsight, they should have taken steps to better deal with the appellant's difficulties in giving instructions and her potential difficulty in giving evidence; other than in exceptional circumstances, it surely can not be a proper basis for detriment to an accused person that, for reasons not associated with the offence charged, that person is substantially deterred from communicating effectively in preparing for or participating in his or her trial." (pp34-35)

The Court found it unnecessary "to second guess the appellant's lawyers at her trial or to attribute blame for what was done, or not done", in order to come to the "inescapable" conclusion that the appellant's trial miscarried. (p35.) The Court enunciated the factors leading to the miscarriage of justice as follows:

" ...there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of:
(i) her Aboriginality;
(ii) the battered woman syndrome; and
(iii) the shameful (to her) nature of the events which characterised her relationship with the deceased.

These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice." (p35.)

On the grounds of the miscarriage of justice, the appeal was allowed and a new trial ordered at the discretion of the Director of Prosecutions. (p36.) On 11 December 1993, it was announced by the Hon. Dean Wells MLA, Minister for Justice and Attorney-General, that Kina would not again be put on trial. It was thought that she had suffered enough.

Comment

This case serves yet again to typify the many difficulties facing Aboriginal people in effectively participating in the Australian legal system. It is time that full recognition was given to the cultural differences between Aboriginal and non-Aboriginal people and to how these differences can be accommodated in all aspects of the justice system - from the interview stage to communicating effectively with legal advisers, and into the court-room.

It can only now be hoped that the case of Robyn Kina will lead to steps being taken to ensure that Aboriginal people are treated in a more culturally appropriate way by the legal system. Clearly, something urgently needs to be done.

Karen L Pringle