King v The Queen

The High Court of Australia considered an application for special leave to appeal by Mr King against a decision of the Court of Criminal Appeal of Western Australia. Mr King had been convicted in the District Court of Western Australia of aggravated burglary and committing an offence, specifically a breach of a restraining order, contrary to s 401(2) of the Criminal Code (WA). The central dispute concerned the onus of proof regarding the complainant's consent to Mr King being on the premises.

The legal issues before the High Court were whether the trial judge erred in directing the jury that the onus was on the prosecution throughout to prove the absence of consent beyond reasonable doubt, and whether this direction adequately accounted for the provisions of the Restraining Orders Act (WA) concerning consent to being on premises. Specifically, the court had to determine if a statutory provision that placed the onus on the defendant to prove consent on the balance of probabilities for the offence of breaching a restraining order was relevant to the charge under s 401(2) of the Criminal Code.

The High Court, in dismissing the appeal, reasoned that while the trial judge's direction regarding the prosecution's onus to prove lack of consent beyond reasonable doubt for the s 401(2) offence was correct, it failed to advert to the separate onus created by s 62 of the Restraining Orders Act for the breach of the restraining order element. The Court of Criminal Appeal had found this to be an error, but concluded that the proviso to s 689(1) of the Criminal Code could be applied. The High Court agreed with this approach, finding that in the context of the trial, the jury's finding that Mr King was on the premises without consent beyond reasonable doubt necessarily encompassed the issue of consent for the breach of the restraining order. The court noted that the failure to mention the s 62 defence was, if anything, favourable to the appellant, as it avoided potential confusion arising from different standards of proof for consent on the same factual issue.

Special leave to appeal was granted, but the appeal was ultimately dismissed.