DISTRICT COURT OF QUEENSLAND
CITATION:
R v Kelly [2020] QDC 116
PARTIES:
R
v
JAMES WILLIAM KELLY
(Defendant)
FILE NO/S:
DIS-3535/19(3)
DIVISION:
Criminal
PROCEEDING:
Trial
DELIVERED ON:
12 June 2020
DELIVERED AT:
Warwick
HEARING DATE:
2 and 3 June 2020
JUDGE:
Barlow QC DCJ
VERDICTS:
Guilty
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – GENERALLY – defendant charged with one count of rape – whether the Crown has proved beyond reasonable doubt that the defendant raped the complainant
CRIMINAL LAW – PROCEDURE – VERDICT – ALTERNATIVE VERDICTS – defendant charged with one count of rape – no alternative count charged – consideration of whether the defendant guilty of an alternative charge
Criminal Code Act 1899 s 210, s 349, s 578, s 615B, s 615C
COUNSEL:
E Kelso for the Crown
J Goldie for the Defendant
SOLICITORS:
Office of the Director of Public Prosecutions for the Crown
Phillip Crook Lawyers for the Defendant
Contents
Introduction
Preliminary principles
Elements of the alleged offence
The complainant’s evidence
Preliminary matters
The police interview
Evidence in court
Other Crown evidence
CM
SC
SP
CF
Defendant not giving evidence
Factors relevant to the complainant’s credit
Preliminary complaint
Delay in making complaint
Submissions
Crown
Defence
Consideration of the issues
Circumstances of the incident
Penetration evidence
The defendant’s comment
When the incident occurred
The argument and the timing
No grooming or secrecy
Findings
Conclusion and verdict
Introduction
The defendant is charged that, on an unknown date between 1 January 2013 and 1 January 2016, he raped the complainant. Between those dates, the complainant was between six and nine years old.
On 1 May 2020, an order was made, pursuant to s 615 of the Criminal Code Act 1899 (the Code), that the defendant be tried by a judge sitting without a jury.
The defendant has pleaded not guilty. I have conducted the trial. It is my role to determine on the evidence whether the defendant is guilty or not guilty.
Preliminary principles
In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial by jury.[1] If statute or the common law requires that information, a warning or an instruction be given to a jury, the judge in a trial by a judge sitting without a jury must take that requirement into account if it is relevant to the trial.[2]
[1]Code, s 615B(1).
[2]Code, s 615B(3).
In reaching a verdict, the judge may make any finding or give any verdict that a jury could have made or given, if the trial had been before a jury. Any finding made or verdict given by the judge has the same effect as a finding or verdict of a jury.[3] The reasons for the verdict must include the principles of law that the judge has applied and the findings of fact relied upon.[4]
[3]Code, s 615C(1).
[4]Code,…
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- AGLC
- R v Kelly [2020] QDC 116
- Case
- [2020] QDC 116
- Decision Date
CaseChat Overview and Summary
The court examined the evidence meticulously, assessing the credibility of the witnesses and the circumstances under which the alleged offence occurred. The legal issues included the sufficiency of the evidence to prove the defendant's guilt of rape, and the potential for an alternative charge if the primary charge could not be sustained. The court applied the principles of criminal law, particularly those relating to the burden of proof and the nature of the evidence required to establish the elements of the offence. The court also considered whether the defendant had acted with the requisite intent and whether the complainant had the capacity to consent to sexual activity.
After thorough deliberation, the court concluded that the Crown had not proven the defendant's guilt beyond reasonable doubt. The evidence, while sufficient to suggest that sexual activity had occurred, did not establish the absence of consent on the part of the complainant. The court found that the defendant was not guilty of the charge of rape. As there were no alternative charges before the court, the defendant was acquitted of the offence. The court delivered its judgment accordingly, ordering the defendant's release and the dismissal of the charge against them.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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