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K R I v The Queen

K R I v The Queen

Case [2012] VSCA 186 16 August 2012

Criminal Liability

Jurisdiction

Appeal

Miscarriage of Justice

Admissibility of Evidence

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0297

KRI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, OSBORN JJA and KING AJA
WHERE HELD	GEELONG
DATE OF HEARING	30 May 2012
DATE OF JUDGMENT	16 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 186
JUDGMENT APPEALED FROM	DPP v [KRI] (Unreported, County Court of Victoria, Judge Hampel, 11 August 2011 (conviction))

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CRIMINAL LAW — Application for leave to appeal against conviction — Indecent act with or in the presence of child under 16 years — Sexual penetration of a child under 16 — Four complainants — Whether failure to order separate trials caused miscarriage of justice — Whether alleged collusion deprived tendency and coincidence evidence of significant probative value — Whether judge adequately directed jury on possibility of collusion —Whether failure by judge to summarise evidence and submissions of counsel caused miscarriage of justice — Whether judge’s comments on children’s possible reaction to sexual abuse caused miscarriage of justice.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J D Singh	Michael Brugman
For the Respondent	Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
KING AJA:

The applicant, KRI, was indicted on 15 charges of sexual offences against four boys, TAD, BRM, SJP and BA. The alleged offences occurred on or between specified dates in 1996, 1997 and 1998, when the complainants were aged between seven and 13.

On 11 August 2011, the applicant was found guilty by a County Court jury of eight charges of an indecent act with or in the presence of a child under 16 years (charges 1, 2, 3, 4, 6, 13, 14 and the second alternative to charge 15[1]) and one charge of sexual penetration of a child under 16 (charge 7).
[1]The judge ruled during the trial that there was no evidence to support the primary charge, and therefore, only the alternative charges were left to the jury.

The jury could not reach a verdict on charges 8 and 10 (indecent act) and the applicant was found not guilty on three charges of attempting to commit an indecent act (charges 9, 11 and 12). Charges 8, 9, 10 and 11 related to the complainant BA and charge 12 related to the complainant SJP.

No evidence was led in support of charge 5 (indecent act with or in the presence of BRM) and the jury was directed to enter a verdict of acquittal. The jury was also directed to acquit the applicant of charge 15 (sexual penetration of SJP), although the applicant was convicted of the second alternative charge of an indecent act with or in the presence of SJP.

The applicant now seeks leave to appeal against his convictions.

Circumstances of the offending

The offences were alleged to have occurred between 1996 and 1998, when the applicant was living in Corio with his wife and two sons. He was then aged between 40 and 42. The complainants lived in the neighbourhood and were friends with the…

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 K R I v The Queen

Details

AGLC: K R I v The Queen [2012] VSCA 186
Case: [2012] VSCA 186
Decision Date: 16 August 2012

CaseChat Overview and Summary

The appellant, K R I, was convicted by a jury in the Supreme Court of Victoria of multiple counts of sexual penetration of children under 16 years, and multiple counts of indecent acts with or in the presence of children under 16 years. The appellant applied for leave to appeal against his conviction, raising several grounds of appeal. The primary issue for the court was whether the failure to order separate trials for the appellant's multiple convictions, the alleged collusion between the complainants, the judge's direction to the jury regarding collusion, the failure to summarise evidence and submissions of counsel, and the judge's comments on the children's possible reaction to sexual abuse, resulted in a miscarriage of justice.

The court found that the failure to order separate trials did not cause a miscarriage of justice, as the evidence was properly before the jury and the appellant was not prejudiced by the joinder of charges. The court also found that the alleged collusion between the complainants did not deprive the tendency and coincidence evidence of significant probative value, as the evidence was properly admitted and the jury was adequately directed on the possibility of collusion. The court further found that the failure by the judge to summarise evidence and submissions of counsel did not cause a miscarriage of justice, as the jury was properly directed on the law and the evidence. Lastly, the court found that the judge's comments on the children's possible reaction to sexual abuse did not cause a miscarriage of justice, as the comments were not such as to deprive the appellant of a fair trial.

The application for leave to appeal was dismissed.

Orders