Kemp v The King

This case concerned an appeal by Oliver James Alfred Kemp to the High Court of Australia from a decision of the Court of Criminal Appeal of New South Wales. Kemp had been indicted on three counts of indecent assault on a thirteen-year-old boy, with each count relating to a separate occasion. He was acquitted on the first two counts but convicted on the third. A subsequent appeal resulted in a new trial being ordered for the third count. At this second trial, evidence of similar acts by Kemp, including occasions in respect of which he had previously been acquitted, was admitted despite objection, leading to a conviction.

The central legal issue before the High Court was the admissibility of evidence of similar acts when those acts had formed the subject of counts on which the accused had been acquitted. The Court was required to determine whether such evidence was permissible in proving the offence for which the accused was on trial, or if the prior acquittals rendered it inadmissible.

The High Court, in allowing the appeal, reasoned that the evidence of the occasions in respect of which Kemp had been acquitted was inadmissible. Applying the principle from *Sambasivam v. Public Prosecutor, Federation of Malaya*, the Court held that the accused must be taken to have been innocent of the charges covered by the first two counts for the purpose of admitting evidence of similar acts. The Court noted that no specific direction was given to the jury to disregard evidence relating to the acquitted counts. Consequently, the conviction could not be supported.

Given that Kemp had already been serving his sentence for nearly two years, the High Court ordered that the appeal be allowed and the conviction quashed, rather than ordering a further new trial.