Criminal law—Sexual offences—Maintaining a sexual relationship with a child—Statutory offence requiring commission of an act defined to constitute offence of a sexual nature on three or more occasions—Evidence of general course of sexual misconduct—Whether jury required to be satisfied as to the commission of the same three acts constituting offences of a sexual nature—Whether failure to direct in those terms occasioned a substantial miscarriage of justice—Application of proviso provision. Criminal Code (Q), ss 229B(1), (1A), 668E(1A).
Orders
Order: 1. Appeal allowed.
2. Set aside the orders of the Court of Appeal so far as they relate to count 2 in the indictment and in lieu thereof order that:
(a) the appeal to that Court be allowed in part; (b) the conviction on count 2 in the indictment be quashed; and (c) there be a retrial on count 2 in the indictment.
Decision
BRENNAN CJ, TOOHEY, GAUDRON AND GUMMOW JJ.
The appellant, KBT, appealed to this Court from a decision of the Court of Appeal of the Supreme Court of Queensland. So far as is presently relevant, that Court dismissed his appeal against a conviction for maintaining a sexual relationship with a child under 16 contrary to s 229B(1) of the Criminal Code (Q) ("the Code")[1]. At the conclusion of the hearing of his appeal to this Court, the appeal was allowed and orders were made setting aside the orders of the Court of Appeal as they related to the offence under s 229B(1) of the Code (count 2 in the indictment), allowing his appeal to that Court in part, quashing his conviction for that offence and ordering a new trial. The following are our reasons for joining in those orders.
Section 229B(1) of the Code creates an offence of maintaining a sexual relationship with a child. Prior to the amendment of s 229B in 1997[2], sub-s (1) was in these terms:
" Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years."[3]
The offence was elaborated by sub-s (1A) which provided:
" A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions."
The offences defined in ss 210(1)(e) and…
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 KBT v The Queen
Sign in free to access the full text
Details
AGLC
KBT v The Queen [1997] HCA 54
Case
[1997] HCA 54
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by KBT against the decision of the Queensland Court of Appeal, which had upheld his conviction for maintaining a sexual relationship with a child under section 229B(1) and (1A) of the *Criminal Code* (Qld). This offence required the commission of an act defined as constituting an offence of a sexual nature on three or more occasions. The central dispute concerned the nature of the evidence required to prove the offence and the directions given to the jury.
The primary legal issues before the High Court were whether the jury was required to be satisfied beyond reasonable doubt as to the commission of the *same* three specific acts that constituted offences of a sexual nature, or whether evidence of a general course of sexual misconduct was sufficient. Further, the Court had to determine whether any failure by the trial judge to direct the jury in the former terms occasioned a substantial miscarriage of justice, and if so, whether the proviso to section 668E(1A) of the *Criminal Code* (Qld) should be applied.
The High Court reasoned that section 229B(1) and (1A) of the *Criminal Code* (Qld) required proof of three or more distinct acts, each of which constituted an offence of a sexual nature. The jury needed to be satisfied of the commission of three specific acts, not merely a general course of conduct. The Court found that the jury directions at trial had not adequately conveyed this requirement, leading to a substantial miscarriage of justice. Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal relating to count 2 of the indictment, quashed the conviction on that count, and ordered a retrial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal so far as they relate to count 2 in the indictment and in lieu thereof order that:
(a) the appeal to that Court be allowed in part;
(b) the conviction on count 2 in the indictment be quashed; and
(c) there be a retrial on count 2 in the indictment.