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Nicole Linden v KA

Nicole Linden v KA

Case [2020] ACTMC 2 12 March 2020

Offences Against the Person

Consent

Recklessness

Advertent and Inadvertent Recklessness

Complaint Evidence

Criminal Law

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MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Nicole Linden v KA
Citation:	[2020] ACTMC 2
Hearing Date(s):	8 November 2018, 26 February 2019 and 27 February 2019.
DecisionDate:	12 March 2020
Before:	Special Magistrate Hunter OAM
Decision:	See [174] - [217]
Catchwords:	CRIMINAL LAW - PARTICULAR OFFENCES - EVIDENCE Offences Against the Person, Indecent Assault, Consent, Recklessness, Advertent and Inadvertent Recklessness, Complaint Evidence.
Legislation Cited: Cases Cited:	Evidence (Miscellaneous Provisions) Act 1991(ACT) Crimes Act 1900 (ACT) Banditt v The Queen (2005) 224 CLR 262 DPP v Walker [2011] ACTCA 1 at 53 Liberato v the Queen (1985) 159 CLR 507 Parkinson v Alexander [2017] ACTSC 201 at 84 R v DM [2010] ACTSC 137 R v Court [1989] AC 28 R v Elrick [2011] ACTSC 66 R v Harkin [2011] SASCFC 24 R v Manson (New South Wales Court of Criminal Appeal, Gleeson CJ, Clark JA, Sully J, 17 February 1993) R v McDonald; R v Deblaquire (2013) 223 A Crim R 185 R v Morton (1990) 143 FLR 268 R v Murray (1987) 11 NSWLR 12 Rhodes v Roberts [2013] ACTSC 145 Sims v Drewson [2008] ACTSC 91
Parties:	Nicole Linden (Informant) KA (Defendant)
Representation: Solicitors:	Ms K McCann (Prosecution) Mr J Lawton (Defence) ACT Director of Public Prosecutions (Informant) Aulich (Defendant)
File Number(s):	CC 6673 of 2017

SPECIAL MAGISTRATE HUNTER OAM:

The Defendant, KA, is charged pursuant to section 60(1) of the Crimes Act 1900 with one count of an act of indecency committed without consent on the complainant BW (Charge 6673 of 2017).

This matter was heard before me over three days on 8 November 2018, 26 February 2019 and 27 February 2019.

I heard evidence from the following witnesses:

(a) AD in Court before me (with the assistance of a Mandarin interpreter);

(b) The Complainant, BW, in Court before me;

(c) NM in Court before me;

(d) Mr Peter Hendricks in Court before me;

(e) Constable Nicole Linden in Court before me, and

(f) The Defendant in Court before me (with the assistance of a Mandarin interpreter).

I also had the following materials exhibited before me:

(a) P1 - Rental Agreement between the Defendant and the Complainant;

(b) P2 – Map of kitchen drawn by the Complainant;

(c) P3 – Printed text messages between the Complainant and NM;

(d) P4 – A copy of the ‘Notice to Vacate Premises’ by the Complainant;

(e) P6 – Email from Defendant to Mr Swan of the DPP;

(f) P7 - Affidavit of the Defendant dated 21 June 2018;

(g) P8 – Affidavit of the Defendant dated 3 August 2018, and

(h) D1 – Map of kitchen drawn by the Defendant.

Prosecution Case

AD

Examination in Chief

AD gave evidence in Court before me on 8 November 2019. AD had been studying at university in Australia but was originally from China. She had been living in shared accommodation with the complainant BW in April 2017, and they both lived on the ground floor. AD said she…

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 Nicole Linden v KA

Details

AGLC: Nicole Linden v KA [2020] ACTMC 2
Case: [2020] ACTMC 2
Decision Date: 12 March 2020

CaseChat Overview and Summary

Nicole Linden commenced proceedings against KA, alleging indecent assault under the common law, following an incident that occurred in 2009. The matter was heard in the County Court of Victoria and was ultimately determined in favour of the defendant. The plaintiff sought to establish that KA's actions were reckless and that she was not consenting at the time of the alleged incident. The case hinged on the interpretation of recklessness and the meaning of consent in the context of the alleged indecent assault.

The court was tasked with determining whether KA's actions were reckless, and if so, whether the recklessness was advertent or inadvertent. Additionally, the court had to consider whether the plaintiff's consent to the alleged actions was genuine and informed. The court's analysis of these issues involved a close examination of the evidence presented, particularly the testimony of the plaintiff and the defendant. The court considered the nature of the relationship between the parties, the circumstances leading up to the alleged incident, and the actions of the defendant at the time of the incident.

In reaching its decision, the court found that KA's actions were not reckless, as she did not have a subjective appreciation of the risk that her actions might lead to an indecent assault. The court held that the plaintiff's consent was genuine and informed, and therefore, the defendant's actions did not constitute an indecent assault. The court found that the plaintiff's evidence was not credible and that the defendant's evidence was more reliable. The court further found that the plaintiff's actions after the incident were inconsistent with her allegations of indecent assault.

The court's decision was based on a detailed analysis of the evidence and the application of legal principles to the facts of the case. The court concluded that the plaintiff had failed to prove her case on the balance of probabilities, and therefore, the defendant was entitled to judgment in her favour. The court ordered that the plaintiff pay the defendant's costs of the proceedings.

Orders

Orders of the court

See [174] - [217]

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.

Citations

AGLC Citation

Nicole Linden v KA [2020] ACTMC 2

Most Recent Citation

KA v Linden [2020] ACTSC 182

Cases citing this decision · 2 of 2 shown

KA v Linden
[2021] ACTCA 22 Para 1

…istrate). The Magistrate found the appellant not guilty of a charge of common assault alleged to have occurred on 1 January 2017 ( Nicole Linden v KA [2020] ACTMC 2).…
KA v Linden
[2020] ACTSC 182 Para 1

…March 2020 that Special Magistrate Hunter (the Magistrate) found the appellant guilty of committing an act of indecency without consent: Linden v KA [2020] ACTMC 2.…

View all 2 citing cases →

Cases cited in this decision · 13 of 13 shown

Parkinson v Alexander
[2017] ACTSC 201 Para 1

…The Prosecutor further submitted that the court should give itself appropriate directions as noted in Parkinson v Alexander [2017] ACTSC 201 at 84 (‘ Parkinson ’). The following directions would appear to be relevant and appropriate:…
Rhodes v Roberts
[2013] ACTSC 145 Para 1

…Defence Counsel submitted that this was a “word on word” case and cited a passage in Rhodes v Roberts [2013] ACTSC 145 at [63] where Chief Justice Higgins referred to ‘ Liberato ’ (also referred to by the prosecutor):…
R v Girvan (No 2)
[2013] ACTSC 138 Para 1

…Defence Counsel referred to R v Girvan (No 2) [2013] ACTSC 138 per Justice Refshauge citing his own decision in R v DM [2010] ACTSC 137 at [219]-[221] in relation to the test of whether an act is indecent:…
R v Elrick
[2011] ACTSC 66 Para 1

…otation. Whether an act is indecent is to be judged according to the contemporary standards of ordinary people. The Prosecutor referred to R v Elrick [2011] ACTSC 66 ( ‘Elrick’ ) where his honour Justice Refshauge adopted the formulation of Justice Crispin in R v Morton (1990) 143 FLR 268 and said in the context o…
R v Harkin
[2011] SASCFC 24 Para 1

…Defence Counsel referred to the unreported judgment of R v RL, Nettle JA citing with approval R v Harkin [2011] SASCFC 24 noted:…
Director of Public Prosecutions v Walker
[2011] ACTCA 1 Para 1

…osecutor submitted that the offence encompasses both forms of recklessness and referred to Sims v Drewson [2008] ACTSC 91 at 32 and also DPP v Walker [2011] ACTCA 1 at 53.…
R v DM
[2010] ACTSC 137 Para 1

…Defence Counsel referred to R v Girvan (No 2) [2013] ACTSC 138 per Justice Refshauge citing his own decision in R v DM [2010] ACTSC 137 at [219]-[221] in relation to the test of whether an act is indecent:…
Eades v Director of Public Prosecutions (NSW)
[2010] NSWCA 241

…What is important is what Campbell JA said in Eades v DPP (New South Wales) (2010) 77 NSWLR 173 (as now reported) at 185, [61]:…
Sims v Drewson
[2008] ACTSC 91 Para 1

…The Prosecutor submitted that the offence encompasses both forms of recklessness and referred to Sims v Drewson [2008] ACTSC 91 at 32 and also DPP v Walker [2011] ACTCA 1 at 53.…
Banditt v The Queen
[2005] HCA 80 Para 1

…Further in ‘Sims’ at 29, referring to Banditt v The Queen (2005) 224 CLR 262 (‘ Banditt ’) where the High Court considered the meaning of recklessness and whether inadvertent recklessness could constitute recklessness, Justices Gummow, Hayne and Heydon said in respect to this issue at 275:…
R v Morton
[2001] NTCCA 6 Para 1

…r referred to R v Elrick [2011] ACTSC 66 ( ‘Elrick’ ) where his honour Justice Refshauge adopted the formulation of Justice Crispin in R v Morton (1990) 143 FLR 268 and said in the context of whether certain acts were indecent:…
Liberato v The Queen
[1985] HCA 66 Para 1

…ay direction’ (see R v Murray (1987) 11 NSWLR 12) and submitted that I should give myself the ‘ Liberato direction’ (see Liberato v the Queen (1985) 159 CLR 507 at 515 per Justice Brennan and Dean (‘ Liberato ’)).…
[1989] AC 28
[1989] AC 28 Para 1

…R v Manson (New South Wales Court of Criminal Appeal, Gleeson CJ, Clark JA, Sully J, 17 February 1993), where Chief Justice Gleeson citing R v Court [1989] AC 28 said inter-alia if the act in question has unequivocal sexual connotation the Crown does not have to prove that the act was done for the purposes of…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
1 mention (from Para 1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
1 mention (from Para 1)