KSB v The Queen - [1992] HCATrans 223

.~
~

IN THE HIGH COURT OF AUSTRALIA

Registry No C3 of 1992
B e t w e e n -

K.S.B.

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

B(2)

6/8/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 AUGUST 1992, AT 2.13 PM

MR s.w. TILMOUTH, QC:

May it please the Court, I appear

with my learned friend, MR S.H. PILKINTON, for the
applicant. (instructed by Porter Pilkinton)

MR K.J. CRISPIN, QC:

May it please the Court, I appear with

my learned friend, MR P.S. HASTINGS, for the

respondent. (instructed by the Director of Public
Prosecutions)

MASON CJ:

I should say at the outset that I express the

Court's regret that counsel have been held up so long but the circumstances were beyond our control.

MR TILMOUTH:

May it please the Court.

We have endeavoured

to trim our argument in view of those exigencies
and, indeed, I think the Court would have by now
the written outline for both parties, in fact.

MASON CJ: Yes, we have.

MR TILMOUTH:	Your Honours, I think, would also have a summary of the evidence. There should be a short
chronology and summary of the evidence.
MASON CJ:	Mr Tilmouth, we will just take a minute or two to

read through your outline of submissions.

MR TILMOUTH:

May it please the Court.

The other materials

we submitted by consent of my learned friends was a
legislation summary.

MASON CJ: Yes, we have that.

MR TILMOUTH:

I will deal with the legislation a little

later but the point is that for current
purpose ..... there is comparable legislation; there
are some differences but there is comparable
legislation in all but Queensland and the Northern
Territory to the section under consideration here.

Your Honours, because of the factual summary,

I will not go into the facts at all in detail but
may I just spend a minute in opening explaining why
it was that the defence introduced the evidence of
prior conduct, why it had to, in the nature of the
case.
The case was, of course, one of a general

denial, and that would be obvious from the papers.
And, of course, the applicant himself had given evidence that he had embarked upon a new course -
he was on a suspended sentence, of course - and
there was no way, as he put it, that this was going
to happen again.

B(2)

6/8/92

In effect, the case for him was that the

allegations were not new but they arose out of the
old 1984 matters and that these were just a
repetition of them, at least in the case of the
first three charges; the third one was new on its
facts.
Your Honours, at the risk of simplicity, there

were three reasons why the applicant was locked into having to bring up these previous matters,
despite their obvious prejudice.…

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 KSB v The Queen

Details

AGLC: KSB v The Queen [1992] HCATrans 223
Case: [1992] HCATrans 223
Decision Date

CaseChat Overview and Summary

This matter comes before the High Court of Australia on an application for special leave to appeal. The applicant, KSB, seeks to challenge a decision made in relation to criminal charges. The respondent is the Crown.

The central legal issue before the Court is whether the trial judge erred in admitting evidence of the applicant's prior conduct. This evidence was introduced by the defence, despite its potential for prejudice, as part of the applicant's strategy to explain certain statements made by the complainant. The applicant contended that these statements could only be understood by reference to earlier events in 1984.

The applicant's defence relied on explaining the complainant's alleged threat, "It took a phone call to bring you back, and it'll only take a phone call to send you away again," by linking it to the 1984 matters. Furthermore, the applicant argued that the significant delay between the alleged misconduct and the initial complaint, approximately three years, supported his defence that no misconduct had occurred. The applicant's case was that the allegations were not new but a repetition of past events.

Orders