Hu v Kennedy - [2016] WASC 312

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HU -v- KENNEDY [2016] WASC 312

CORAM: BANKS-SMITH J

HEARD: 20 SEPTEMBER 2016

DELIVERED : 29 SEPTEMBER 2016

FILE NO/S: SJA 1024 of 2016

BETWEEN: YUNTAO HU
Appellant
AND
JACK MICHAEL KENNEDY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY CHIEF MAGISTRATE E A WOODS
File No  :PE 12821 of 2015

Catchwords:

Criminal law - Single judge appeal against conviction - Whether safe to convict absent corroboration - Whether any relevant delay in reporting - Whether failure to take into account delay

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Criminal Code (WA), s 323
Evidence Act 1906 (WA), s 50

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr H J R Rigby
Respondent: Ms K C Cook

Solicitors:

Appellant: HRL Legal Australia
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

LBC v The State of Western Australia [2011] WASCA 201
Longman v The Queen (1989) 168 CLR 79; (1989) 89 ALR 161
R v GG [2004] VSCA 238; (2004) 151 A Crim R 92
SPW v The State of Western Australia [2012] WASCA 41
BANKS-SMITH J:

Introduction

The appellant seeks leave to appeal against his conviction in the Magistrate's Court after trial of one count of indecent assault contrary to s 323 of the Criminal Code (WA). The appellant was fined $800.

The prosecution case

The prosecution alleged that on 12 February 2015, the complainant was at the share house where she lived with four others, including the appellant and the appellant's wife. In the early hours of the morning, she went to the toilet. The appellant came to the toilet door, forced his way in and touched the complainant on the breasts, and the touching was uninvited and unwelcome (ts 4).

Evidence relied on by the prosecution

There were three witnesses who gave evidence for the prosecution.
The complainant (who gave evidence via an interpreter) said that she went to the toilet at about 3.00 am, and that when she finished she tried to come out. It was a very small room, about one metre square (ts 5 ‑ 7). The appellant suddenly came in and tried to cover her mouth. She tried to push him out but he held her in a bear hug. He blocked her way but they ended up in the corridor outside the toilet. She struggled with him. He touched her on the breasts and buttocks (ts 7 ‑ 9).
They reached her bedroom and she had a difficult time pushing him out of the bedroom. The complainant said to him, 'If you keep on doing this I will tell your wife'. The appellant then said something like sorry and said he would move out, and left the bedroom (ts 10 ‑ 11).
The complainant said she then locked her bedroom door and wrote in her diary, some five minutes after…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hu v Kennedy

Details

AGLC: Hu v Kennedy [2016] WASC 312
Case: [2016] WASC 312
Decision Date: 29 SEPTEMBER 2016

CaseChat Overview and Summary

The case of Hu v Kennedy involved the appellant, Hu, appealing against a conviction for sexual assault. The matter was heard by the Supreme Court of Victoria, with the appeal conducted by a single judge. The appeal centred on the adequacy of the evidence presented against the appellant and the potential impact of any delay in reporting the incident on the reliability of the evidence.

The primary legal issues the court had to address were whether the evidence was sufficiently reliable to warrant a conviction without corroboration and whether any delay in reporting the incident had an impact on the evidence's reliability. The court was required to determine if the trial judge had erred in failing to adequately consider the delay in reporting when assessing the reliability of the evidence.

The court held that the evidence was reliable enough to support the conviction without the need for corroboration. It was determined that the trial judge had correctly assessed the evidence and that there was no error in the judge's approach. The court also found that the trial judge had not failed to take into account the delay in reporting; rather, the judge had adequately considered it in the context of the overall evidence presented. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders