K v The Queen - [1992] FCA 74

Re: K
And: THE QUEEN
No. ACT G58 of 1990
FED No. 74
Criminal Law
(1992) 34 FCR 227
(1992) 59 A Crim R 113

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Spender(1) and Miles JJ.(1)

CATCHWORDS

Criminal Law - particular offences - incest and indecent dealing - corroboration - directions to jury - whether jury to be warned on uncorroborated evidence of child - whether warning required by rule of practice or law - what may constitute corroboration - corroboration in a material particular - what constitutes a material particular - accused's own evidence of prior acts of indecency - evidence common to prosecution and defence case - adequacy of guidance to jury on nature and sufficiency of corroboration.

Evidence Ordinance 1971 (ACT), s.76F

Criminal Justice Act 1988 (UK), s.34

Kelleher v. The Queen (1974) 131 CLR 534

Hargan v. The King (1919) 27 CLR 13

Paine v. The Queen (1974) Tas SR 117

Director of Public Prosecutions v. Hester (1973) AC 296

Severo Dossi (1918) 13 Cr App R 158

Kate Warner, Child Witnesses in Sexual Assault Cases (1988) Crim LJ 286

J. Spencer, Child Witnesses, Corroboration and Expert Evidence (1987) Crim LR 239

R v. Morgan (1978) 1 WLR 735

The King v. Baskerville (1916) 2 KB 658

Director of Public Prosecutions v. Kilbourne (1973) AC 729

Patrick William McKeon (1987) 31 A Crim R 357

The King v. Ball (1911) AC 47

The King v. Shellaker (1914) 1 KB 14

Marsh (1949) Cr App R 185

Regina v. Witham (1962) Qd R 49

Director of Public Prosecutions v. Boardman (1975) AC 421

The Queen v. Lindsay (1977) 18 SASR 103

The Queen v. Stephenson (1978) 18 SASR 381

HEARING

CANBERRA

#DATE 18:2:1992

Counsel for the appellant: Mr G. Stretton

Solicitors for the appellant: Porter Pilkington

Counsel for the respondent: Mr Webster

Solicitors for the respondent: Director of Public Prosecutions

ORDER

The appeal be dismissed.

The convictions and sentences be confirmed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellant appeals against his conviction in the Supreme Court of the Australian Capital Territory on 11October 1990 on each of three counts on an indictment. They were as follows:

"1. THAT between the 1st day of December 1985 and

the 31st day of December 1986 at Canberra in the Australian Capital Territory he committed an act of indecency upon the named complainant who was then a person above the age of 10 years but under the age of 16 years.

2. THAT between the 1st day of January 1987 and the 31st day of December 1987 at Canberra in the said Territory he engaged in sexual intercourse with the complainant who was then a person above the age of 10 years but under the age of 16 years and who was to his knowledge his lineal descendant namely his daughter.

3. THAT between the 1st day of January…

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 v The Queen

Details

AGLC: K v The Queen [1992] FCA 74 ((1992) 34 FCR 227; (1992) 59 A Crim R 113)
Case: [1992] FCA 74
Decision Date: 18 FEBRUARY 1992

CaseChat Overview and Summary

The case of K v The Queen involved the appellant, who was convicted of multiple counts of incest and indecent dealing with a child. The case was heard in the High Court of Australia, where the appellant sought to appeal his convictions. The primary issue before the court was the adequacy of the trial judge's directions to the jury regarding the requirements for corroboration in relation to the uncorroborated evidence of a child. The appellant argued that the trial judge failed to properly warn the jury that uncorroborated evidence from a child required special caution, and that the warning was not merely a matter of practice but of law. Additionally, the court considered what may constitute corroboration, particularly in relation to a material particular, and whether the appellant's own evidence of prior acts of indecency could serve as corroboration. The court also examined the sufficiency of the guidance provided to the jury on the nature and sufficiency of corroboration, especially in light of evidence that was common to both the prosecution and defence cases.

The court found that while the trial judge's directions to the jury on the need for corroboration were not ideal, they were sufficient to ensure that the jury understood the necessity for independent evidence to support the child's testimony. The court held that there was no mandatory requirement for the trial judge to provide a specific warning about the uncorroborated evidence of a child, as long as the jury was adequately directed on the general principles of corroboration. The court emphasised that the focus should be on whether the jury was properly guided on the need for independent evidence to support the child's testimony, rather than on the precise wording of the directions. Furthermore, the court held that the appellant's own evidence of prior acts of indecency could constitute corroboration in a material particular, provided that it was independent and sufficient to support the child's evidence. The court concluded that the trial judge's directions, taken as a whole, were adequate to ensure that the jury understood the need for corroboration, and that the appellant's convictions should be upheld.

Following the court's reasoning, the appeal was dismissed, and the convictions and sentences were confirmed. The High Court held that the trial judge's directions to the jury, although not perfect, were sufficient to ensure that the jury understood the necessity for corroboration in relation to the child's evidence. The court found that the appellant's own evidence of prior acts of indecency could serve as corroboration in a material particular, and that the trial judge's directions adequately guided the jury on the nature and sufficiency of corroboration. The final orders of the court were that the appeal be dismissed, and the convictions and sentences be confirmed, in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The appeal be dismissed.

The convictions and sentences be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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