Kirkland v The Queen

The case of *Kirkland v The Queen* was heard in the Court of Criminal Appeal of South Australia, with Kelly P, Lovell and Bleby JJ presiding. The appeal concerned a conviction for sexual offences against the appellant, who had been in a de facto relationship with the complainant's mother. The complainant alleged that the offending occurred between late 2018 and February 2019, when she was approximately 13 years old, and involved acts such as sucking her breast and touching her vagina over her clothes, with restraints used on one occasion. The defence argued that the sexual acts did not occur and sought to cast doubt on the complainant's evidence by highlighting inconsistencies and implausibilities.

The legal issues before the Court of Criminal Appeal included whether the trial judge erred in his evaluation of the complainant's reliability as distinct from her credibility, and whether the trial judge's reasons for his findings were adequate. Further grounds of appeal concerned the use of evidence from the complainant's mother regarding sexual restraints, with the appellant arguing that this evidence was improperly used to corroborate the complainant's account or for a propensity purpose that was not open to the judge. The appellant contended that the trial miscarried due to the judge's use of this evidence in a manner not foreshadowed by the prosecution or submissions.

Kelly P found that the trial judge's reasons, though brief, were adequate given the short nature of the trial and the single issue in dispute, and would have dismissed the appeal on all grounds. However, Lovell JA disagreed with Kelly P's conclusions on grounds 3 and 4, finding that the trial judge's use of the complainant's mother's evidence regarding restraints was problematic. Lovell JA considered that the combination of grounds 3 and 4 complained that the trial was unfair because the judge used the evidence in a way that was not opened by the prosecutor and was not the subject of submissions by counsel, implying the evidence was inadmissible if its sole purpose was to show propensity.

Lovell JA concluded that there was a breach of procedural fairness leading to a miscarriage of justice, and therefore would have allowed the appeal on grounds 3 and 4. The specific outcome regarding the appeal's allowance or dismissal was not fully detailed in the provided text, as Lovell JA indicated disagreement with Kelly P on certain grounds, while agreeing on others, and stated it was unnecessary to decide all grounds.