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 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 |
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…
Continue reading Nicole Linden v KA
Sign in free to access the full text
- AGLC
- Nicole Linden v KA [2020] ACTMC 2
- Case
- [2020] ACTMC 2
- Decision Date
CaseChat Overview and Summary
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.