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KRI v The Queen

KRI v The Queen

Case [2011] VSCA 127 13 May 2011

Appeal

Criminal Liability

Evidence Law

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0040
KRI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN, HANSEN and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2011
DATE OF JUDGMENT:	13 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 127

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CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Sexual offences – Evidence – Tendency and coincidence evidence – Evidence cross-admissible – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Singh	Michael Brugman
For the Respondent	Mr C W Beale with Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Hansen JA.

HANSEN JA:

This is an application for leave to bring an interlocutory appeal. The applicant has indicated that he will plead not guilty to an indictment charging him with 15 sexual offences committed against four complainants in 1996, 1997 and 1998.[1]There are ten charges of committing an indecent act with a child under 16, three charges of attempt to commit an indecent act with a child under 16, and two charges of sexual penetration of a child under 16. The complainants, A, B, C and D, were boys aged between seven and 13 at the time of the alleged offending.
[1]The indictment lists 15 charges, however the judge’s ruling refers to 16 charges. The disconformity seems to have arisen from the Crown opening which refers to 16 charges. It is apparent that the alleged chest-touching incident (described in the ruling and the Crown opening as charge 14) is not charged on the indictment. Accordingly, the incidents described by the judge as charges 15 and 16 respectively should be read as charges 14 and 15. When referring below to the judge’s discussion of those charges, I have amended the numbers accordingly.

The applicant lived in Corio with his wife and two sons, one of whom is referred to as ‘X’. The complainants lived nearby and were friends of X, who was born in January 1990. The offending is said to have occurred when, on separate occasions, they stayed over at the applicant’s home.

In January the Crown served four notices of tendency evidence and coincidence evidence intending that at the trial the evidence of the complainants be cross-admissible.

On 8 March 2011 a judge in the County Court at Geelong ruled that the tendency and coincidence evidence was admissible at the trial. In consequence, severance did not arise.

A voir dire was not conducted, the parties agreeing that the judge could rely on the depositions.

A jury has not been empanelled.

The applicant seeks leave to appeal against the ruling, the judge having certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009.

The charges

Charge 1 alleges an indecent act in relation to A, who lived next door to the applicant. Some time in 1996 (when he was aged 12 or 13) A stayed over and, after watching television, went to sleep on the top bunk in X’s…

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 KRI v The Queen

Details

AGLC: KRI v The Queen [2011] VSCA 127
Case: [2011] VSCA 127
Decision Date: 13 May 2011

CaseChat Overview and Summary

In the case of KRI v The Queen, the appellant, KRI, sought leave to appeal against an interlocutory decision of the Supreme Court of Victoria which involved a sexual offence case. The decision in question pertained to the admissibility of certain evidence, specifically tendency and coincidence evidence, in the proceedings against the appellant. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, consisting of Justices Maxwell, Weinberg, and Byrne.

The primary legal issue before the court was whether the trial judge had erred in his ruling that certain evidence was cross-admissible, meaning that it could be used for both tendency and coincidence purposes. The appellant argued that the trial judge had misapplied the legal principles governing the admissibility of such evidence and that this misapplication had potentially prejudiced the outcome of the trial. The appellant contended that the evidence in question should not have been admitted as it was irrelevant and prejudicial, and therefore, the trial judge's decision should be quashed.

The Court of Appeal found that the trial judge had not erred in his assessment of the admissibility of the evidence. The court held that the trial judge had correctly applied the relevant legal principles and that the evidence was indeed cross-admissible. The court also found that the trial judge had given appropriate weight to the probative value of the evidence against its potential prejudicial effect. Consequently, the Court of Appeal refused the appellant's application for leave to appeal, affirming the trial judge's decision on the admissibility of the evidence. The appellant was therefore not granted leave to appeal against the interlocutory decision.

Orders