KA v Linden - [2020] ACTSC 182

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	KA v Linden
Citation:	[2020] ACTSC 182
Hearing Date:	6 July 2020
DecisionDate:	6 July 2020
Before:	Murrell CJ
Decision:	Appeal dismissed.
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – Act of indecency – Whether verdict was unreasonable – Whether Magistrate erred in considering complainant’s credit in directed verdict charge – Liberato direction
Legislation Cited:	Crimes Act 1900 (ACT) ss 26, 60 Magistrates Court Act 1930 (ACT) pt 3.10
Cases Cited:	De Silva v The Queen [2019] HCA 48; 94 ALJR 100 Head v Evans [2020] ACTCA 26 Liberato v The Queen (1985) 159 CLR 507 Libke v The Queen [2007] HCA 30; 230 CLR 559 Linden v KA [2020] ACTMC 2 Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 M v The Queen (1994) 181 CLR 487 Murray v The Queen [2002] HCA 26; 211 CLR 193 R v Murray (1987) 11 NSWLR 12
Parties:	KA (Appellant) Nicole Linden (Respondent)
Representation:	Counsel T Jackson (Appellant) R Christensen (Respondent)
Solicitors Aulich (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 20 of 2020
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 12 March 2020 Case Title: Linden v KA Citation: [2020] ACTMC 2

MURRELL CJ

Background

The appellant was charged with common assault on New Year's Eve 2016/2017 and committing an act of indecency without consent on 11 April 2017, contrary to ss 26 and 60 of the Crimes Act 1900 (ACT) respectively. The hearing proceeded on 8 November 2018, 26 February 2019 and 27 February 2019.

At the hearing, the prosecutor conceded that, in relation to the charge of common assault, there was no case to answer. The charge was dismissed. In relation to that charge, the complainant had not conveyed to the appellant that she did not want the touching to occur. It was not determined on the issue of consent.

Having reserved the decision on the outstanding charge on 27 February 2019, it was not until 12 March 2020 that Special Magistrate Hunter (the Magistrate) found the appellant guilty of committing an act of indecency without consent: Linden v KA [2020] ACTMC 2.

In substance, the appellant appealed on the grounds that:

(a)On the evidence, it was not open to the Magistrate to be satisfied of guilt beyond reasonable doubt; and
(b)Her Honour failed to expose her reasoning in a manner that supported a finding of guilt; her Honour failed to apply Liberato v The Queen (1985) 159 CLR 507 (Liberato).

Today, the appellant raised a further and related ground. The appellant submitted that, in her Honour's reasons in relation to the charge of act of indecency, the Magistrate detailed the earlier incident and expressed her view of the complainant's credit in relation to the earlier incident. The appellant contended that it was an error for her Honour to rely upon her view of the complainant’s credit in relation to the earlier…

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 [2020] ACTSC 182
Case: [2020] ACTSC 182
Decision Date: 6 July 2020

CaseChat Overview and Summary

KA v Linden involved an appeal from the Magistrates Court where the appellant was convicted of an act of indecency. The appellant contested the conviction, arguing that the verdict was unreasonable and that the Magistrate had erred in considering the credit of the complainant during the directed verdict charge. Additionally, the appellant argued that the Magistrate failed to provide an appropriate direction to the jury in line with the Liberato principles.

The central legal issues were whether the verdict was unreasonable, whether the Magistrate erred in assessing the credit of the complainant, and whether the proper legal direction was given to the jury in accordance with the principles set out in Liberato. The court had to determine if the verdict was based on a sound and logical assessment of the evidence and if the appropriate legal standards were applied in directing the jury.

The court found that the Magistrate's assessment of the evidence was logical and reasonable. It was determined that the Magistrate appropriately considered the credibility of the complainant, and there was no error in the direction given to the jury. The court held that the Liberato direction was correctly applied, ensuring that the jury was properly guided in their consideration of the evidence. Consequently, the appeal was dismissed, affirming the conviction.

The court ordered that the appeal be dismissed and the conviction in the Magistrates Court upheld.

Orders

Orders of the court

Appeal dismissed.

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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