KN v The Queen

Case [2019] ACTCA 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

KN v The Queen

Citation:

[2019] ACTCA 37

Hearing Date(s):

4 November 2019

DecisionDate:

5 December 2019

Before:

Murrell CJ, Mossop and Rangiah JJ

Decision:

Appeal dismissed.

Catchwords:

APPEAL – CRIMINAL LAW – Statutory interpretation of s 56 of Crimes Act – Elements of maintain sexual relationship with a young person – Engage in sexual intercourse with a young person charged on the same indictment as relationship offence – Whether the acts relied upon to satisfy specific sexual offences can also be relied upon to satisfy sexual relationship offence – Model Provision of the Royal Commission into Institutionalised Sexual Abuse – Double jeopardy – Departure from cardinal principle of criminal law requiring jury unanimity

Legislation Cited:

Court Procedure Rules 2006 (ACT) r 5531

Crimes Act 1900 (ACT) ss 55, 55A, 56, 92EA (repealed)
Crimes (Amendment) Act (No 3) 1991 (ACT) s 3
Criminal Code Act 1899 (Qld) s 229B
Criminal Law Consolidation Act 1935 (SA) s 50
Human Rights Act 2004 (ACT) s 24

Legislation Act 2001 (ACT) ss 137, 138, 139, 141, 142, table 142

Cases Cited:

BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499

GW v The Queen [2015] ACTCA 15; (2015) 306 FLR 104
KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 2976
Perara-Catchart v The Queen [2017] HCA 9; (2017) 260 CLR 595
Picken v The Queen [2007] NSWCCA 319
R v CAZ [2011] QCA 231; [2012] 1 Qd R 440
R v DU [2018] ACTSC 281
R v FAL [2017] QCA 22
R v Kemp (No 2) [1996] QCA 514; [1998] 2 Qd R 510

R v KN (No 2) [2019] ACTSC 5

R v M, DV [2019] SASCFC 59
R v McCarthy (2015) SASR 190
Re Bolton Ex parte Beane (1987) 162 CLR 514
Richardson v The Queen [2013] NSWCCA 218
S v The Queen (1989) 168 CLR 266

Stubbs v The Queen [2017] ACTCA 58

Texts Cited:

Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 October 1991

Explanatory Statement, Crimes Legislation Amendment Bill 2017 (No 2) (ACT)
Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017)
South Australia, Parliamentary Debates, Legislative Council, 19 October 2017

Queensland, Parliamentary Debates, Legislative Council, 6 November 2002

Parties:

KN (Appellant)

The Queen (Respondent)

Representation:

Counsel

K Archer (Appellant)

R Christensen (Respondent)

Solicitors

Kamy Saeedi Law (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number(s):

ACTCA 67 of 2018

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Elkaim J

Date of Decision:          30 January 2019

Case Title:  R v KN (No 2)

Citation: [2019] ACTSC 5

MURRELL CJ AND RANGIAH J

The appeal

  1. The appellant appealed against six convictions for sexual misconduct:

(a)One conviction for maintaining a sexual relationship with a…

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AGLC
KN v The Queen [2019] ACTCA 37
Case
[2019] ACTCA 37
Decision Date

CaseChat Overview and Summary

The appeal concerned the interpretation of section 56 of the *Crimes Act 1900* (NSW), which creates the offence of maintaining a sexual relationship with a young person. The appellant, KN, was convicted of this offence and other sexual offences involving a young person. The central dispute revolved around whether the acts of sexual intercourse relied upon to prove the specific sexual offences could also be used to establish the "sexual relationship" element of the section 56 offence. The appeal was heard by Murrell CJ, Mossop and Rangiah JJ of the Court of Criminal Appeal of New South Wales.

The primary legal issue before the Court was whether the prosecution was required to prove a sexual relationship separate and apart from the specific sexual acts constituting the sexual offences. This question arose in the context of the Model Provision recommended by the Royal Commission into Institutionalised Sexual Abuse, which aimed to capture ongoing exploitative relationships. The Court also considered whether the approach taken by the prosecution, which relied on the same conduct for both the relationship offence and the specific sexual offences, gave rise to an issue of double jeopardy or a departure from the cardinal principle of jury unanimity.

The Court reasoned that section 56 of the *Crimes Act* was intended to capture a broader pattern of conduct than isolated sexual acts. However, it held that the elements of the offence of maintaining a sexual relationship with a young person could be satisfied by the same conduct that constituted the specific sexual offences, provided that conduct demonstrated the existence of such a relationship. The Court found that the jury, by convicting the appellant of the specific sexual offences, had necessarily found that the appellant had engaged in sexual intercourse with the young person, and this conduct was sufficient to establish the "sexual relationship" element of the section 56 offence. The Court rejected the argument that this approach violated principles of double jeopardy or jury unanimity, concluding that the jury had made a single finding of guilt based on the evidence presented.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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