KQE v The Queen - [2022] ACTCA 18

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	KQE v The Queen
Citation:	[2022] ACTCA 18
Hearing Date:	20 April 2022
DecisionDate:	27 April 2022
Before:	Elkaim J
Decision:	See [46]
Catchwords:	APPEAL – APPLICATION – Application for leave to appeal against orders made in the Supreme Court – tendency evidence – whether primary judge incorrectly assessed probative value of relevant evidence in respect of certain uncharged acts allegedly committed by the accused – whether the primary judge should have ruled that an admission made by the accused to a police officer be excluded from evidence
Legislation Cited:	Crimes Act 1914 (Cth) s 23V Evidence Act 2011 (ACT) ss 85, 90, 97A, 138 Supreme Court Act 1933 (ACT) s 37J
Cases Cited:	DS v R [2018] NSWCCA 195; 274 A Crim R 551 R v DL [2018] ACTCA 9 R v Helmout [2000] NSWSC 185 R v KQE [2022] ACTSC 69 R v Lou [2017] ACTSC 127
Parties:	KQE (Appellant) The Queen (Respondent)
Representation:	Counsel J Cooper (Appellant) K McCann (Respondent)
Solicitors Aboriginal Legal Service (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 13 of 2022
Decision under appeal:	Court/Tribunal: Supreme Court Before: McWilliam AJ Date of Decision: 4 April 2022 Case Title: R v KQE Citation: [2022] ACTSC 69 Court File Numbers: SCC 65 of 2021; SCC 135 of 2021

Elkaim J:

I have heard this matter as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).

On 4 April 2022 McWilliam AJ handed down her decision on a number of interlocutory applications that had been listed for pre-trial determination (R v KQE [2022] ACTSC 69).

There were six applications filed, but three were resolved prior to the hearing. Two of the applications, which were decided contrary to the submissions of the current applicant, generated an application for leave to appeal from an interlocutory judgment. This application was filed on 11 April 2022.

The current application (henceforth to be referred to as the application) requests that leave be given to appeal against the following orders made by McWilliam AJ:

Order 1: In respect of the application in proceeding filed by the Crown on 10 September 2021, the applicant is permitted to adduce tendency evidence as notified in the Amended Notice of Intention to Adduce Tendency Evidence dated 14 December 2021.

Order 2: The statement made by the accused to Senior Constable Vesna Johnston on 28 October 2020 is admissible at the accused’s trial.

At this stage the accused is due to go to trial on 4 July 2022. If the application is granted the parties envisaged that an appeal would not be heard until November 2022 or later. The accused is currently in custody awaiting his trial.

The parties agreed that the principles to be applied in considering leave to appeal from an interlocutory decision were set out by Burns J in R v DL [2018] ACTCA 9. The Crown correctly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KQE v The Queen

Details

AGLC: KQE v The Queen [2022] ACTCA 18
Case: [2022] ACTCA 18
Decision Date: 27 April 2022

CaseChat Overview and Summary

KQE (the applicant) sought leave to appeal against orders made by the Supreme Court. The dispute concerned the admissibility of certain evidence, specifically tendency evidence relating to uncharged acts allegedly committed by the applicant, and an admission made by the applicant to a police officer.

The Court was required to determine whether the primary judge had incorrectly assessed the probative value of the tendency evidence in relation to the uncharged acts. Additionally, the Court had to consider whether the primary judge should have excluded the admission made by the applicant to the police officer from evidence.

The Court's reasoning focused on the principles governing the admission of tendency evidence and admissions. It examined the balance between the probative value of such evidence and its potential prejudicial effect. The Court applied established legal principles concerning the admissibility of evidence, considering whether the evidence was relevant and whether its prejudicial impact outweighed its probative value. The Court ultimately made orders regarding the application for leave to appeal.

Orders

Orders of the court

See [46]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.