KRM v The Queen [2001] HCA 11 8 March 2001 M11/2000
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation:
P F Tehan QC with C B Boyce for the appellant (instructed by Allan McMonnies)
G R Flatman QC with C M Quin for the respondent (instructed by Solicitor for Public Prosecutions, Victoria)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
KRM v The Queen
Criminal law – Practice and procedure – Sexual offences – Multiple counts – One count of maintaining relationship with child under 16 pursuant to s 47A Crimes Act1958 (Vic) – Whether propensity warning required when presentment involves multiple counts of sexual offences and relationship count pursuant to s 47A – Whether propensity warning required in respect of individual acts that form basis of a charge under s 47A – Use of "separate consideration" warning – Operation of proviso.
Criminal law – Sexual offences – s 47A Crimes Act1958 (Vic) – Whether legislature can modify the need for particulars of criminal charges – Whether evidence of uncharged sexual acts admissible to prove the nature of the relationship between the accused and the complainant.
Evidence – Propensity evidence – "No rational view" test – Application to relationship evidence.
McHUGH J. Section 47A of the Crimes Act 1958 (Vic) ("the Act")[1] relevantly provided[2]:
[1]The section has been amended since the date of the appellant's offence.
[2]Other jurisdictions have created similar offences: Crimes Act 1900 (ACT), s 92EA; Crimes Act 1900 (NSW), s 66EA; Criminal Code (NT), s 131A; Criminal Code (Qld), s 229B; Criminal Law Consolidation Act 1935 (SA), s 74; Criminal Code (WA), s 321A. In Tasmania the offence relates to young people under 17 years: Criminal Code (Tas), s 125A.
"Sexual relationship with child under the age of 16
(1)A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married and who is under his or her care, supervision or authority is guilty of an indictable offence.
(2)To prove an offence under sub-section (1) it is necessary to prove –
(a)that the accused during a particular period (while the child was under the age of 16 and under his or her care, supervision or authority) did an act in relation to the child which would constitute an offence under a particular provision of this Subdivision or Subdivision (8A) or (8B); and
(b)that such an act also took place between the accused and the child on at least two other occasions during that period.
(3)It is not necessary to prove the dates or the exact circumstances of the alleged occasions."
The appellant was tried by a judge and jury in the County Court of Victoria on a presentment that contained a…
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.
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AGLC
KRM v The Queen [2001] HCA 11
Case
[2001] HCA 11
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by KRM against convictions for multiple sexual offences against a child, including one count of maintaining a sexual relationship with the complainant under s 47A of the *Crimes Act 1958* (Vic). The appeal concerned whether a propensity warning was required in circumstances where the presentment contained multiple counts of sexual offences alongside the s 47A charge, and whether such a warning was necessary in relation to the individual acts forming the basis of the s 47A charge.
The central legal issues before the High Court were whether the trial judge erred by failing to give a propensity warning to the jury, and whether evidence of uncharged sexual acts was admissible to prove the nature of the relationship between the appellant and the complainant. The Court also considered the operation of the proviso and the admissibility of propensity evidence under the "no rational view" test.
The High Court affirmed that there is no absolute rule requiring a propensity warning simply because a presentment includes a count under s 47A or similar provisions, nor in respect of the individual acts forming the basis of such a charge. Ordinarily, a direction that the jury must consider each count and its evidence separately is sufficient. Propensity evidence is generally inadmissible at common law unless it has no rational explanation other than supporting an inference of guilt. The Court found that the trial judge's directions, which emphasised separate consideration of each count, were adequate in this case, and that the evidence of uncharged acts was admissible as it met the test for propensity evidence.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
In my opinion, there is no absolute rule that a judge must always give a propensity warning when the presentment contains a count under s 47A or its equivalents in other jurisdictions. Nor is a judge always required to give such a warning in respect of the individual acts that form the basis of a charge under s 47A or its equivalents. Ordinarily, no such warning is required. The circumstances of some cases, however, may require the judge to give a propensity warning. But ordinarily, it will be sufficient if the judge directs the jury that they must consider each count and the evidence relating to each count, separately.The factual background The appellant and the complainant's mother were married when the complainant was two years old[3]. In October 1992, the appellant confessed to his wife that he had been sexually molesting the complainant[4]. He took an overdose of tablets and spent a night in hospital. Five months later he left home, never to return. In 1995, the complainant's mother arranged for the complainant to make a statement to the police about the appellant's conduct. He was later charged with various sexual offences against the complainant.[3]KRM (1999) 105 A Crim R 437 at 438.[4]KRM (1999) 105 A Crim R 437 at 438. The presentment alleged various acts of penile penetration or other sexual misconduct between June 1984 and February 1986 (counts 1 and 2), between March 1988 and December 1988 (counts 3, 4 and 5), between March 1990 and November 1990 (counts 6, 7 and 8), between March 1991 and October 1991 (counts 9 and 10), between August 1991 and October 1991 (counts 11 and 12), in November 1991 (counts 13 and 14), between September 1991 and March 1992 (counts 15 and 16), and between March 1991 and March 1992 (count 17). Count 18 of the presentment alleged that, between August 1991 and March 1992, the appellant maintained a sexual relationship with the complainant "in that he introduced his penis into the vagina of [the complainant] … on at least [three] occasions during that period". The jury convicted the appellant on all counts[5].[5]KRM (1999) 105 A Crim R 437 at 438. He sought leave to appeal against his convictions to the Court of Appeal of the Supreme Court of Victoria (Phillips, Batt and Buchanan JJA). Among the numerous grounds of appeal were grounds alleging that the trial judge had erred in allowing the count of maintaining a sexual relationship to go to the jury and in failing to give a propensity warning to the jury with respect to the relationship between count 18 and the other counts in the presentment. The Court of Appeal dismissed the appellant's application for leave to appeal holding that a propensity warning is not required simply because the presentment contains two or more counts concerning the same victim, even if one of the counts is based on s 47A, a section that the Court thought created "an offence which may offend the sensibilities of an experienced criminal lawyer"[6]. Although the Court acknowledged that the facts of a particular case may require a propensity warning to be given[7], it held that nothing in the present case required that warning to be given[8]. [6]KRM (1999) 105 A Crim R 437 at 442.[7]KRM (1999) 105 A Crim R 437 at 444. [8]KRM (1999) 105 A Crim R 437 at 444.The appeal to this Court
Evidence
Evidence Before The Court
The appellant provided this Court with a document setting out the relevant directions that he contended the trial judge should have given to the jury in this case. The proposed directions were comprehensive and lengthy and they included propensity warnings. In substance, however, the learned trial judge gave all of them, apart from the propensity warnings. In addition, his Honour directed the jurors that they had to consider each count separately, saying[11]:"There are, as you well know, 18 different charges ... The [appellant] is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged. It may be that the same logic applies to some of them or all of them, but it would be quite wrong to say that simply because you found the accused man guilty or not guilty on one count, he must be guilty or not guilty as the case may be, of another.Each count must be considered by you separately, in the light of the evidence that applies to it. You must ask yourselves as to each count separately, 'Am I satisfied beyond reasonable doubt by the evidence, that the accused is guilty of this crime?' If the answer to that question, is 'Yes', then you would find him guilty; if it is 'No', then of course you would find him not guilty."[11]See KRM (1999) 105 A Crim R 437 at 443.Propensity evidence To evaluate the appellant's submissions, it is first necessary to understand when and why propensity evidence is admitted in a criminal trial. Only then can it be determined whether a propensity warning is needed because of the presence of a charge brought under s 47A and similar sections or because of the evidence led in the particular case. For more than a century, the common law has insisted, with few exceptions, that proof of a criminal charge cannot rest, in whole or in part, on any inference to be drawn from "the character and tendencies of the accused"[12]. As a result, it has generally excluded evidence that shows that the accused has previous convictions, or is a person of bad character or has committed other crimes or misdemeanours. If the evidence does no more than reveal the criminal or discreditable propensities of the accused or show that he or she is the sort of person who is likely to have committed the crime charged, the common law requires the evidence to be excluded[13]. But propensity evidence may be admissible at common law, according to the prevailing view in this Court, if "the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged"[14]. Moreover, according to the prevailing view, in determining whether the evidence is admissible, "the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused"[15]. Only when there is no rational view of the evidence consistent with the innocence of the accused is propensity evidence admissible. [12]Dawson v The Queen (1961) 106 CLR 1 at 16 per Dixon CJ.[13]Pfennig v The Queen (1995) 182 CLR 461 at 480-481.[14]Pfennig v The Queen (1995) 182 CLR 461 at 481-482.[15]Pfennig v The Queen (1995) 182 CLR 461 at 483.