R v Kelly - [2020] QDC 116

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,…

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 Kelly

Details

AGLC: R v Kelly [2020] QDC 116
Case: [2020] QDC 116
Decision Date: 12 June 2020

CaseChat Overview and Summary

In the case before the court, the defendant was charged with one count of rape. The dispute involved the evidence presented by the Crown, which sought to prove that the defendant had raped the complainant. The matter was heard and determined by the Supreme Court of the relevant jurisdiction. The court had to decide whether the Crown had established the defendant's guilt beyond reasonable doubt, given the legal burden of proof required in criminal cases. Additionally, the court considered whether there was any other charge to which the defendant might be found guilty if the primary charge of rape was not proven.

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