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R v CBK [2014] QCA 35 (7 March 2014)

Last Updated: 7 March 2014

SUPREME COURT OF QUEENSLAND

CITATION:
PARTIES:
R

v

CBK

(appellant/applicant)

FILE NO/S:
CA No 173 of 2013

DC No 488 of 2011

DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Ipswich
DELIVERED ON:
Orders delivered ex tempore on 18 February 2014

Reasons delivered 7 March 2014

DELIVERED AT:
Brisbane
HEARING DATE:
18 February 2014
JUDGES:
Margaret McMurdo P and Muir JA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
Delivered ex tempore on 18 February 2014:
  1. The appeal is allowed.
  2. The verdicts of guilty are set aside.
  3. A retrial is ordered.
  4. The application for leave to appeal against sentence in respect of Count 4 is granted.
  5. The appeal against sentence is allowed.
  6. The sentence is set aside.
  7. The question of sentence on that Count is remitted to the District Court.
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – STANDARD OF PROOF – DIRECTIONS TO JURY – REASONABLE DOUBT – GENERALLY – where the appellant was convicted of four offences after a three day trial – where the trial judge directed the jury as to the standard of proof in the trial by drawing an analogy with an LBW decision in cricket – where the direction was unhelpful and confusing – where the appellant contends this amounted to a misdirection warranting a retrial – where the respondent contends that the direction did not elaborate on the meaning of beyond reasonable doubt but rather on the effect of having a reasonable doubt – whether a retrial should be ordered
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of one count of rape involving a single episode of digital penetration and sentenced to five years imprisonment – where the complainant was very young and vulnerable – where the applicant was in a position of trust – where the applicant did not have the mitigating features of a timely plea, cooperation with the authorities, remorse or insight – where the applicant had previous convictions for sexual offences against children – whether the sentence was manifestly excessive – whether this Court should re-sentence the applicant – whether the sentence should be remitted to the District Court to be dealt with at the conclusion of the appellant's retrial
Darkan v The Queen (2006) 227 CLR 373; (2006) 80 ALJR 1250; [2006] HCA 34, cited

Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74, cited

Green v The Queen (1971) 126 CLR 28; [1971] HCA 55, considered

R v AAD [2008] QCA 4, cited

R v Lee [2012] QCA 313, cited

R v RAH [2011] QCA 35, cited

COUNSEL:
C Reid on behalf of the appellant/applicant

D Meredith on behalf of the respondent

SOLICITORS:
Legal Aid Queensland for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

[1] MARGARET McMURDO P: The appellant was charged with six counts of rape (counts 1, 4, 6, 8, 9 and 11) and five counts of indecent treatment of a child under 12 under care (counts 2, 3, 5, 7 and 10). The complainant in each count was eight years old at the time of her complaint to police. Her father was the foster child of the appellant's partner and she called the appellant "Pop". After a five day trial in June 2012 he was acquitted on counts 3, 5, 7, 9 and 10; convicted on count 4; and as the jury were unable to agree on counts 1, 2, 6, 8 and 11, they were discharged from returning verdicts on those counts. The allocutus was administered on count 4 and the sentence adjourned to a date to be fixed. The retrial on the remaining counts commenced over a year later on 11 June 2013. After a three day trial, the appellant was convicted on counts 1, 2, 8 and 11 and acquitted on count 6. On 13 June 2013, he was sentenced for all counts on which he was convicted (including count 4 on which he was convicted the previous year). He was sentenced on count 1 to six years imprisonment; on count 2 to four years; and on each of counts 4, 8 and 11 to five years. All sentences were concurrent and 371 days presentence custody was declared time served under the sentence. Parole eligibility was set at 50 per cent of the effective six year sentence on 8 June 2015.

[2] He has appealed against his 2013 convictions on a number of grounds, including that "the Trial Judge erred in expanding on and/or attempting to define further the term 'reasonable doubt'." He has also applied for leave to appeal against his sentences contending they were manifestly excessive. His written and oral submissions, however, only addressed the sentence imposed on his 2012 conviction for count 4.

[3] At the appeal hearing on 18 February 2014, this Court made orders allowing the appeal against conviction; setting aside the guilty verdicts and ordering retrials on counts 1, 2, 8 and 11. The application for leave to appeal against sentence in respect of count 4 was granted and the appeal against sentence allowed. The sentence was set aside and the question of the sentence on count 4 was remitted to the District Court. This Court stated it would publish its reasons later. These are my reasons for joining in those orders.

The judge's directions on reasonable doubt

[4] The trial judge gave the following direction to the jury as to the standard of proof in the trial:

"And then you go away to the jury room and you sit down and think about it, talk about it – whether the prosecution’s case is one that satisfies you beyond reasonable doubt that the person charged with the alleged offence did it.

And if you’re not satisfied beyond reasonable doubt, you have to give the benefit of the doubt to [the defendant], like an LBW decision. You know, you can look at where the front foot is, you can look at the height of the ball, you can look at the snicker and any other replays that are available, where the ball pitched, whether it was in line with the stumps. And if you’re satisfied of all of those things, the batsman’s out. But if you’re not sure that that ball is really going to hit the stumps or whether there’s some element of doubt about whether the ball pitched in line or not, you have to give the benefit – the umpires have to give the benefit of the doubt to the batsman. And that’s the thing about criminal trials; the benefit of the doubt goes to the defendant.

Now, if it’s a clear-cut case that you are satisfied beyond reasonable doubt, that’s it. It’s guilty times five. Similarly, if you think that you just don’t believe the girl or if you think she might be trying to tell the truth but there’s a whole lot of reasons or some reasons that may have caused her to not have recalled precisely what happened, then that’d be a clear case where you’d find [the defendant] not guilty of these five offences. But where there’s a doubt, you have to give the benefit of the doubt to the defendant. That’s the way our system works. Clear-cut cases result in either clearly guilty or clearly not guilty.

Doubtful cases – if there’s a doubt, a reasonable doubt that you have about the defendant's guilt, you’ve got to give him the benefit of the doubt and find him not guilty. And similarly, if there’s – if you all think, and that’s got to be unanimous, that he’s guilty of each of these counts or any of them, then your duty is to find him guilty. Quite clear. Clear-cut cases result in guilty, because then you’d be satisfied beyond reasonable doubt. But if you’ve got a doubt, you’re not satisfied, you think he may have done it, even if you thought he probably did and you couldn’t go any higher, you’d find him not guilty."

[5] The appellant's counsel contends that this amounted to a misdirection warranting a retrial. It was a direction of the kind of which appellate courts have consistently disapproved. Trial judges should not attempt to explain the concept of reasonable doubt, at least not before being asked for an explanation by the jury. The direction would have confused the jury.

[6] The respondent contends that the direction did not elaborate on the meaning of beyond reasonable doubt but rather on the effect of having a reasonable doubt. The judge made clear that if there was any reasonable doubt the appellant should have the benefit of it and be acquitted. The cricket analogy merely emphasised this. It was not a misdirection.

[7] In Green v The Queen,[1] the High Court found the direction on reasonable doubt given to the jury in that case[2] would have been at best confusing. For this and other reasons, the appeal was allowed and a retrial ordered. The court cited with approval Sir Owen Dixon's well-known statement about the term "reasonable doubt" in Dawson v The Queen:[3]

"... it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, ... have never prospered. It is wise as well as proper to avoid such expressions ... ."

[8] Those observations have recently been affirmed by Gleeson CJ, Gummow, Heydon and Crennan JJ in Darkan v The Queen.[4]

[9] The primary judge's direction to the jury as to the standard of proof of which they must be satisfied before convicting was, in its own way, as unhelpful and confusing as that in Green. It is true that it did not attempt directly to explain the meaning of the actual words "beyond reasonable doubt", but the cricket analogy was an attempt to indirectly explain the phrase. It is impossible to determine what the jury would have made of the direction. To liken reaching a verdict in a jury trial on five serious charges involving the sexual abuse of a little girl to an umpire's LBW decision in a cricket match is apt to trivialise the solemn role the community demands of jurors. The direction was given a few weeks before the Australian cricket team's 2013 Ashes tour when cricket-lovers' interest in the game was likely to have been high so that the judge must have thought this analogy would assist the jury. Whilst some consider cricket to be Australia's national sport, at least when the Australian team is performing well, there are many Australians who do not play, enjoy, watch or understand the game. For them, the judge's direction would have been especially puzzling. Concerningly, it left open the real possibility that a juror who professed to be knowledgeable about umpiring LBW decisions might improperly influence jurors unfamiliar with cricket in determining whether they were satisfied of the appellant's guilt beyond reasonable doubt. Even for those intimately familiar with the rules of cricket relating to LBW, the term "beyond reasonable doubt" is not one used in the rules of the game or in cricket parlance. They, too, would have been confused and may have been misled by the inappropriate direction. Unfortunately, neither trial counsel sought a redirection which might have cured the difficulty created.

[10] The judge's direction on reasonable doubt leaves open the real possibility that the jurors may have reached their verdicts in this case without a clear understanding of their obligation to be satisfied of the appellant's guilt beyond reasonable doubt on each count before convicting. It amounts to an error of law. This was a matter so fundamental to the appellant's procedural right to a fair trial according to law that it is not a case in which the proviso in s 668E(1A) Criminal Code can be applied. For these reasons, I joined in this Court's orders allowing the appeal against conviction, setting aside the guilty verdicts and ordering a retrial.

[11] Unfortunately, this means that there must be a third trial on these counts. At least the young complainant will not need to give evidence again as her evidence has been pre-recorded. The retrial will cause, however, some distress to her and her family, inconvenience to other witnesses and considerable expense. The necessity for this third trial could so easily have been avoided. All Queensland judges have access to the Queensland Supreme and District Courts' benchbook which clearly set out the model direction to be given as to the standard of proof:[5]

"For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict you must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged ... . ... It for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence ... . If you are left with a reasonable doubt about guilt, your duty is to acquit: that is, to find the defendant not guilty. If you are not left with any such doubt, your duty is to convict: that is, to find the defendant guilty."

[12] Footnotes to that direction explain that a trial judge should not expand on the meaning of "reasonable doubt" or attempt to define the concept any further than in the model direction, unless the jury asks for assistance. In that case, the benchbook provides a further model direction:

"A reasonable doubt is such a doubt as you, the jury, consider to be reasonable on a consideration of the evidence. It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable. If at the end of your deliberations, you, as reasonable persons, have such a doubt about the guilt of the defendant, the charge has not been proved beyond reasonable doubt." [6]

Application for leave to appeal against sentence

[13] The orders made mean that the sentences imposed on counts 1, 2, 8 and 11 are automatically set aside. The remaining sentence of five years imprisonment on count 4 on which the appellant was convicted in the 2012 trial was a single episode of digital penetration. There were serious aspects to this offending. The complainant was very young and vulnerable. The appellant was in a position of trust. He did not have the mitigating features of a timely plea, cooperation with the authorities, remorse or insight. In addition, he had previous convictions for sexual offences against children in Victoria in 1969 and again in 1986 for which he received non-custodial sentences.

[14] In light of the sentences imposed in R v Lee,[7] R v RAH[8] and R v AAD,[9] the respondent has properly conceded that the five year sentence for a single episode of digital rape was manifestly excessive. Both parties submitted that, rather than this Court re-sentencing the appellant on that count, the sentence should be remitted to the District Court to be dealt with at the conclusion of the appellant's retrial.

[15] For these reasons, I joined in this Court's orders granting the application for leave to appeal on count 4, allowing the appeal, setting aside the sentence and remitting the matter to the District Court.

[16] MUIR JA: I agree with the President’s reasons.

[17] MULLINS J: I agree with the reasons of the President.


[1] [1971] HCA 55; (1971) 126 CLR 28.

[2] Set out at 30-31.

[3] [1961] HCA 74; (1961) 106 CLR 1, 18.

[4] [2006] HCA 34; (2006) 80 ALJR 1250, 1265, [69].

[5] 24.5.

[6] 57.1.

[7] [2012] QCA 313.

[8] [2011] QCA 35.

[9] [2008] QCA 4.


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