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

1

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.

10

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 2 RULING 60

1

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 that? So how would you describe how you feel now? Is this-----?-- Just want to get it all over and done with and-----
50
Okay. So is this how - the way you feel now, is that how you feel normally when you wake up or anything? Okay, I see you nod your head?-- Yeah, just go partying, like just the last couple of days I have been, yeah, I suppose."

3 RULING 60

The Crown argues that the jury may draw an inference from this

1

passage that the accused took speed prior to the commission of
the alleged offences and, therefore, that is relevant to
whether, if he made a mistake of fact in relation to consent,

it was a reasonable mistake of fact.

10

The defence argues that there is no clear evidence that the
accused had any drugs other than alcohol and cannabis prior to

sexual intercourse with the complainant, and that the last answer in the passage referred to is at best equivocal and therefore of little, if any, probative value, whilst at the	20
same time, being highly prejudicial. I agree with this submission.
The defence also argues that if there had not been agreement
in relation to the exclusion of this passage, the cross-	30
examination of the complainant would probably have proceeded somewhat differently and that there would have been, for example, questions of the complainant in relation to the state of intoxication of the accused.
40
These matters were not the subject of any cross-examination of the complainant. Because of this, it was argued that it would be unfair to now allow this passage to be played to the jury.
I agree with this proposition. In the exercise of my
discretion, I exclude the two passages referred to above.	50

-----

4 RULING 60