Kelly v The Queen

In *Kelly v The Queen*, the Court of Appeal of Western Australia considered an appeal by the appellant against his conviction for a sexual offence involving a child. The substantive offence alleged was that the appellant engaged in a sexual relationship with a child on three or more occasions, contrary to section 131A of the *Criminal Code*.

The central legal issue before the Court of Appeal was the meaning of "occasions" within the context of section 131A of the *Criminal Code*. Specifically, the court had to determine whether the jury's findings of guilt in relation to certain particulars of the charge were sufficient to establish that the offending acts occurred on three or more distinct occasions as required by the legislation.

The Court of Appeal reasoned that the acts described in particulars 6 and 7, and those in particulars 8 and 9, were so close in time and circumstance that they constituted a single occasion for each pair. Consequently, the jury's findings could not support a conclusion that the appellant had engaged in the offending conduct on "three or more occasions". The learned trial judge had therefore misdirected the jury as to the elements of the offence, and the jury's findings were insufficient to sustain a guilty verdict. Accordingly, the appeal was allowed, and the conviction was set aside.