Criminal Code – section 188(2)(k)
Evidence – admissibility – tendency evidence.
Evidence – admissibility – to rebut accident.
Boardman v DPP [1974] 3 AllER 887
Hoch v The Queen (1988) 165 CLR 295
Thompson v R (1988-1989) 169 CLR 1
Pfennig v The Queen (1995) 182 CLR 461
R v Gum [2007] SASC 311

REPRESENTATION:

Counsel:
Complainant: Ms Ganzer
Defendant: Ms McLaren

Solicitors:
Complainant: Summary Prosecutions
Defendant: Ms McLaren

Judgment category classification: A
Judgment ID number: [2008] NTMC 037
Number of paragraphs: 75

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20706385
[2008] NTMC 037

BETWEEN:

KERRY LEANNE RIGBY
Complainant

AND:

RICHARD KERR
Defendant

REASONS FOR DECISION

(Delivered 28 May 2008)

Mr Daynor Trigg SM:

1. On 10 April 2007 information was taken out against the defendant charging him as follows:
On 25 January 2007 – At Casuarina, Northern Territory of Australia:
1. Unlawfully assaulted Verna Macauley;
And that the said unlawful assault involved the following circumstance of aggravation, namely:
(i) that the said Verna Macauley was indecently assaulted
contrary to s 188(2) of the Criminal Code.
2. The matter came before me on 16 May 2008. At this time, the prosecution was represented by Ms Ganzer and the defendant (who appeared) was represented by Ms McLaren. It was indicated to me that the matter was to proceed as a contested hearing. Prior to the charge being read, I pointed out to prosecution that there was no allegation of any aggravating circumstance in relation to the defendant being a male and Ms Macauley being a female. Accordingly, Ms Ganzer sought leave to amend the information to add a further circumstance of aggravation as follows:
(ii) That the said Verna Macauley was a female and the defendant was a male.
3. Ms McLaren did not object to this amendment to the information and the amendment was accordingly made. The amended information was then read to the defendant and the defendant pleaded not guilty to the charge and each circumstance of aggravation.
4. The first witness called in a prosecution case was the alleged victim, Verna Macauley.
5. Ms Macauley gave evidence that she was a Library Assistant and had been for some 16 years. On 25 January 2007, she was rostered to work at the Casuarina Library. She said that at 2.30pm that day, two sisters had been booked to have access to computer numbers two and four. She checked the screen and noticed someone was logged onto a computer who had not booked in.
6. Ms Macauley said that the Casuarina Library had seven computers for use by patrons. Six of these were in a circle and were together. The seventh one was separate and was for use by persons…

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 Police v Kerr

Details

AGLC: Police v Kerr [2008] NTMC 37
Case: [2008] NTMC 37
Decision Date: 28 May 2008

CaseChat Overview and Summary

Police v Kerr [2008] NTMC 037 is a decision of the Court of Summary Jurisdiction in the Northern Territory of Australia. The defendant, Richard Kerr, was charged with the unlawful and indecent assault of Verna Macauley at the Casuarina Library on 25 January 2007. The case hinged on the admissibility of "tendency evidence" from five other library staff members who alleged that Kerr had inappropriately touched them. The court found that the tendency evidence was inadmissible due to the high likelihood of concoction among the witnesses, who were all library staff and potentially acquainted with each other. The court ruled that the prosecution had failed to sufficiently demonstrate that the evidence was not reasonably explicable on the basis of concoction. Consequently, the tendency evidence was excluded from the court's deliberations. The court proceeded to decide the case based on the remaining admissible evidence, which the prosecution argued was sufficient to raise a case to answer. The defendant's legal representation indicated that Kerr intended to call evidence in his defence.

Orders