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KA v Linden

KA v Linden

Case [2021] ACTCA 22 13 September 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	KA v Linden
Citation:	[2021] ACTCA 22
Hearing Dates:	19 February 2021
DecisionDate:	13 September 2021
Before:	Burns, Loukas-Karlsson, and Charlesworth JJ
Decision:	See [124]
Catchwords:	APPEAL - APPEAL FROM SUPREME COURT – Act of indecency – whether new grounds of appeal may be relied upon where not raised before the primary judge – whether magistrate erroneously considered evidence relating to a dismissed charge – error of fact – Liberato direction
Legislation Cited:	Crimes Act 1900 (ACT) s 60(1) Magistrates Court Act 1930 (ACT), s 218(1)(c) Supreme Court Act 1933 (ACT) s 37OA
Cases Cited:	Clifton v Duong [2019] ACTCA 22 Cruz v The Queen [2017] ACTCA 48 De Silva v The Queen [2019] HCA 48; 268 CLR 57 Fox v Percy [2003] HCA 22; 214 CLR 188 Garrett v The Queen (1977) 139 CLR 437 Greenwood v Barlee [2018] ACTCA 62 Head v Evans [2020] ACTCA 26 House v The King (1936) 55 CLR 499 KA v Linden [2020] ACTSC 182 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6 Liberato v The Queen (1985) 159 CLR 507 Libke v The Queen [2007] HCA 30; 230 CLR 559 Linden v KA [2020] ACTMC 2 Lobban v Minister for Justice [2016] FCAFC 109; 244 FCR 76 Mraz v The Queen (1955) 93 CLR 493 Nash v The Queen [2019] NSWCCA 124 Nicole Linden v KA [2020] ACTMC 2 R v Baden-Clay [2016] HCA 35; 258 CLR 308 R v Carroll [2002] HCA 55; 213 CLR 635 Roberts v Rhodes [2014] ACTCA 20 Rogers v The Queen (1994) 181 CLR 251
Parties:	KA ( Appellant) Nicole Linden ( Respondent)
Representation:	Counsel FJ Purnell SC and J Dempster ( Appellant) A Williamson ( Respondent)
Solicitors Lin Tang & Co Lawyers ( Appellant) ACT Director of Public Prosecutors ( Respondent)
File Number:	ACTCA 28 of 2020
Decision under appeal:	Court ACT Supreme Court Before: Murrell CJ Date of Decision: 6 July 2020 Case Title: KA v Linden Citation: [2020] ACTSC 182

BURNS AND LOUKAS-KARLSSON JJ:

Introduction

On 12 March 2020, the appellant was found guilty in the Magistrates Court of committing an act of indecency without consent on 11 April 2017, contrary to s 60(1) of the Crimes Act 1900 (ACT) by Special Magistrate Hunter (the Magistrate). The Magistrate found the appellant not guilty of a charge of common assault alleged to have occurred on 1 January 2017 (Nicole Linden v KA [2020] ACTMC 2).

On 6 July 2020, Murrell CJ (the primary judge) dismissed an appeal in the ACT Supreme Court with respect to the conviction imposed (KA v Linden [2020] ACTSC 182).

The appellant now appeals against the decision of the primary judge.

The Evidence

The evidence was usefully summarised by the primary judge as follows.

The complainant was…

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 KA v Linden

Details

AGLC: KA v Linden [2021] ACTCA 22
Case: [2021] ACTCA 22
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for an act of indecency, arising from an incident on 11 April 2017. The appellant had been found guilty in the Magistrates Court, and an appeal to the ACT Supreme Court was dismissed by the primary judge. The appellant now sought to appeal the Supreme Court's decision to the ACT Court of Appeal. The complainant alleged that the appellant had suggested they have dinner, and after dinner, had made unwanted advances, including touching her under her clothing. The appellant admitted to dining with the complainant and hugging her, but denied the extent of the touching alleged and claimed a kiss was accidental.

The legal issues before the Court of Appeal included whether the appellant could raise new grounds of appeal that were not argued before the primary judge, specifically concerning alleged errors of fact by the Magistrate regarding the complainant's express refusal and the lack of contact between incidents. The court also considered whether the primary judge erred in dismissing the appeal, particularly in relation to the Magistrate's alleged consideration of evidence from a dismissed charge and the application of the principles in *Liberato v The Queen*. The appellant contended that the Magistrate's findings were unreasonable and that the primary judge's review of the evidence was inadequate.

The Court of Appeal held that the appeal was from the primary judge's decision, not a second appeal from the Magistrate. Therefore, the appellant was required to demonstrate error on the part of the primary judge. The court found that grounds relating to alleged factual errors by the Magistrate, such as the complainant saying "no" and the finding of no contact between incidents, could not be raised on appeal as they were not argued before the primary judge. The court also addressed the *Liberato* issue, noting that the primary judge had considered the Magistrate's findings of credibility and corroboration, and found no error in the primary judge's conclusion that the Magistrate had properly applied the relevant principles.

The appeal was dismissed. The court found that the appellant had failed to demonstrate any error on the part of the primary judge. The grounds relating to the Magistrate's alleged errors of fact were not properly before the court, and the arguments concerning the reasonableness of the verdicts and the application of *Liberato* were not made out.

Orders