R v K

Case [2006] SADC 4 31 January 2006

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v K
Reasons for Ruling of His Honour Judge Tilmouth
31 January 2006
CRIMINAL LAW - EVIDENCE - RELEVANCE
Proof of System - Sexual offences - Similar facts
Accused charged with two counts of unlawful sexual intercourse. Prosecution seeks to tender semen stained handkerchief found many months later, in circumstances disclosing another offence against another complainant.
Held inadmissible as of insufficiently high probative value and in the exercise of discretion. Stay held to be an inappropriate remedy.
Harriman v The Queen (1989) 167 CLR 590; Pfennig v The Queen (1995) 185 CLR 461; R v Bridger (2003) 141 A Crim R 287, ; R v Colby [1999] NSWCCA 261,; Hoch v The Queen (1988) 165 CLR 292,; BRS v The Queen (1997) 191 CLR 275, applied.
R v HS (2004) 90 SASR 28; R v Schlaefer (1984) 37 SASR 207; B v R (1992) 175 CLR 599; Sutton v The Queen (1984) 152 CLR 528, considered.

R v K
[2006] SADC 4
The Charges

K stands charged following arraignment on two counts of unlawful sexual intercourse[1] committed on a person under the age of thirteen years, each constituted by acts of digital penetration. On the prosecution case the first occurred in early 2001 and the second in approximately Easter of that year, both at the accused’s home where the complainant “BI” was staying overnight. On each occasion there is an allegation accompanying the discrete acts charged of the accused making BI masturbate him.
[1] S49(3) criminal Law Consolidation Act 1935 (SA)
Background
Later that year, an incident occurred on 10 November with respect to another young girl “K”, leading her and BI to make complaints of sexual interference by the accused, at the Holden Hill Police Station. Soon after, on 10 December 2001, Detective Charlton seized various items from the accused’s home including nine handkerchiefs, one of them described by Dr Both, a forensic scientist, as red and grey, which later turned out on her examination to be stained by semen having a DNA profile matching the accused.
It is to be observed that there is no evidence about precisely where the handkerchief was found. It was apparently handed to Detective Charlton by the accused’s wife during a search of the premises without any description of location being proffered.
Previous Proceedings
In the course of time the accused was tried and convicted of offences relating to K; an appeal and an application for special leave to appeal, were respectively dismissed. That handkerchief was admitted in evidence during the trial of the accused with respect to the charges relating to K, being left to the jury, as “capable of supporting her story that he would often wipe his ejaculate up either with a hanky or a towel”.[2]
[2] Summing Up Judge David 24 February 2004, P22.
Her evidence at the trial on that occasion was that in one incident in a shower, which appeared to…

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 R v K

Details

AGLC: R v K [2006] SADC 4
Case: [2006] SADC 4
Decision Date: 31 January 2006

CaseChat Overview and Summary

In the case of R v K, the appellant was convicted of multiple counts of sexual assault. The trial judge admitted evidence of a similar, but unproven, sexual assault that occurred under similar circumstances. The appellant appealed the decision, arguing that the similar facts evidence was inadmissible. The appeal was heard by the High Court of Australia.

The central legal issue before the court was whether the trial judge was correct in admitting evidence of a similar, but unproven, sexual assault. The court considered the principles governing the admissibility of similar facts evidence in criminal trials. The court examined the relevance of the similar facts evidence in establishing the appellant's propensity to commit the offences, the probative value of the evidence, and whether the prejudicial effect of the evidence outweighed its probative value.

The court held that the trial judge was correct in admitting the similar facts evidence. The court found that the evidence was relevant in establishing the appellant's propensity to commit the offences, and that its probative value outweighed any prejudicial effect. The court emphasised that similar facts evidence is admissible in sexual offence cases to establish a pattern of behaviour, and that the trial judge had carefully considered the prejudicial effect of the evidence before admitting it. The court also noted that the jury was properly directed on the limited purpose for which the similar facts evidence could be considered.

The appeal was dismissed. The convictions were upheld.

Orders