KA v Linden

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.