R v Kemp - [2008] QDC 65

[2008] QDC 65

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE BRITTON SC

Indictment No 185 of 2004
THE QUEEN
v.

MICHAEL SHANE KEMP

ROCKHAMPTON

..DATE 10/03/2008

EXTRACT OF PROCEEDINGS - RULING
HIS HONOUR: Prior to the commencement of the trial, agreement

had been reached between the prosecution and defence to
exclude certain parts of the record of interview between the
investigating police officer and the accused which was

undertaken on the 22nd of October 2002.

The trial proceeded and the evidence of the complainant was
concluded and a number of other Crown witnesses gave evidence,
and the stage has now been reached where the investigating
police officer is to be called and give evidence inter alia in

relation to the record of interview which is to be played to	20
the jury. The Crown now wishes to have played to the jury some of the portions of the record of interview which were the subject of the agreement previously mentioned.
The defence case has been conducted on the basis that sexual	30
intercourse did in fact occur between the complainant and the
accused but was consensual. The Crown correctly argues that
it is necessary for the prosecution to exclude mistake of fact
on the part of the accused in relation to the issue of
consent.	40
If there is evidence that the accused was intoxicated at the
time of the alleged offence, then this is relevant to whether or not he made an honest and reasonable mistake of fact as to consent to sexual intercourse. Reference is made by the Crown	50

to the R v Mrzljak [2004] QCA 420, and also R v Graham [1995]
QCA 190.
It was argued by the Crown that if the accused was voluntarily

RULING

intoxicated due to his consumption of drugs, then that any
mistake of fact made by him in relation to consent would not

be a reasonable mistake of fact.

The defence does not object to those passages in the record of	10
interview which relate to the accused's consumption of alcohol
and cannabis prior to the commission of the offence. The
passages which are objected to are firstly on page 2 of the
transcript of the record of interview at about line 55 which
reads: Question: "Okay, did you take anything else?"	20
Answer: "No, probably" - [indistinct] - "a bit of" -
[indistinct]. And page 4 commencing at about line 8. In this
passage the word "gulley" appears, but it is agreed that it
should refer to "gowie". The passage reads:
30

"All right. And you said you had some gulley as well,
okay, that’s amphetamines, speed. When did you have
that?-- Also this afternoon too.
And how did you have that?-- In a Syringe.
Okay. So you injected it?-- Yeah.

Do you remember how much you had?-- Probably about 60 40
mils.

Sixty mils, okay. And how did that make you feel?-- Just keep me going.
Okay. Are you feeling any lasting effects from…

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 Kemp

Details

AGLC: R v Kemp [2008] QDC 65
Case: [2008] QDC 65
Decision Date: 10/03/2008

CaseChat Overview and Summary

The case of R v Kemp involved Michael Shane Kemp, who was on trial in the Rockhampton District Court, presided over by Judge Britton SC. The dispute centred around the admissibility of certain parts of a police interview with the accused that had been previously agreed to be excluded from the trial. The Crown sought to present these excluded parts to the jury, which the defence objected to, arguing they were prejudicial and of little probative value.

The legal issue before the court was whether the excluded portions of the interview should be played to the jury, given the prior agreement to exclude them. The Crown argued that these parts were relevant to disproving the defence's claim that the accused's mistake about consent was reasonable, particularly in light of evidence that he had consumed drugs, including speed, prior to the offence. The defence countered that the evidence was equivocal, highly prejudicial, and would have led to a different line of cross-examination had it not been excluded.

The court considered the potential prejudice of admitting the excluded portions against the probative value. It found that the excluded passages were not clearly indicative of drug consumption beyond alcohol and cannabis, and that allowing them would be unfair given the nature of the defence and the lack of cross-examination on the accused's intoxication. Accordingly, the court exercised its discretion to exclude the contested passages from being played to the jury.

Orders