R v Kemp - [1995] QCA 386

IN THE COURT OF APPEAL	[1995] QCA 386
SUPREME COURT OF QUEENSLAND	C.A. No. 82 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Shepherdson J.
[R. v. K]

T H E Q U E E N

v.

K Appellant

FITZGERALD P.
DAVIES J.A.

SHEPHERDSON J.

Judgment delivered 29/08/1995

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT,

C	*ONCURRING AS TO THE ORDER*

Appeal allowed and a new trial ordered

CATCHWORDS:	CRIMINAL LAW - unsafe and unsatisfactory verdict - unlawful and indecent dealing with a child in the appellant’s care - evidence against the accused included both specific and generalised evidence - whether the generalised evidence led against the accused presented special risks of unfairness to the accused which had to be addressed in the trial judge’s summing up - proper construction of s. 229B of the Criminal Code - whether trial judge’s directions were inadequate to ensure the accused received a fair trial
Counsel:	F. Connolly for the Appellant D. Bullock for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	30 May 1995

REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 29/08/1995

On 8 February 1995, the appellant was convicted after trial on one count of unlawfully and indecently dealing with a female child under the age of 12 years who was at the time in his care, four counts of unlawful carnal knowledge of the girl when she was under the age of 16 years and in his care, and one count of maintaining an unlawful sexual relationship with the girl while she was under the age of 16 years and in his care: it was a circumstance of aggravation that, in the course of that relationship, the appellant had unlawful carnal knowledge of the girl while she was under the age of 12 years and in his care. The offence of maintaining an unlawful sexual relationship was count 1 on the indictment, which also alleged eleven specific offences; counts 2 and 3 charged indecent dealing and counts 4 to 12 charged unlawful carnal knowledge. The jury was unable to agree on count 2, acquitted the appellant on counts 4, 5, 6, 8 and 11 and convicted him on counts 3, 7, 9, 10 and 12. The appellant, who gave evidence denying the offences, has appealed against his convictions.

The appellant was born on 20 September 1946 and, in late 1990, was living at Helidon with at least some of the children of his first marriage; his first wife was dead. The appellant subsequently remarried, and, at the time of his conviction, had five children, ranging in age from 27 to 4 years.

The complainant, who was born on 14 March 1979, was in Grade 6 at school in 1990, and living with her father and some of her siblings at Acacia Ridge. Her parents were divorced. Her sister, P, who was born in 1976, was living at Helidon with the appellant and his family,…

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 [1995] QCA 386
Case: [1995] QCA 386
Decision Date: 29/08/1995

CaseChat Overview and Summary

In the case of R v Kemp, the appellant stood accused of unlawful and indecent dealing with a child under his care. The case was heard in the High Court of Australia, which reviewed the decision of the Queensland Court of Appeal. The central issue before the court was whether the trial judge's summing up adequately addressed the risks of unfairness presented by generalised evidence against the accused. The appellant argued that the generalised evidence, which included both specific instances and broader patterns of behaviour, required specific judicial directions to mitigate the risk of an unsafe and unsatisfactory verdict.

The court examined whether the trial judge's directions under section 229B of the Criminal Code were sufficient to ensure the accused received a fair trial. The generalised evidence, while not independently sufficient to secure a conviction, could still play a crucial role when considered alongside specific evidence. The court considered the need for the trial judge to provide explicit guidance to the jury regarding the weight and manner in which generalised evidence should be considered. The primary concern was ensuring that the jury did not convict based solely on a generalised pattern of behaviour without proper correlation to the specific charges.

The High Court found that the trial judge's directions were inadequate. The court held that the summing up did not sufficiently address the risks of unfairness inherent in the use of generalised evidence. Consequently, the trial judge failed to ensure the accused received a fair trial. The court emphasised the necessity for clear judicial directions when generalised evidence is presented, to prevent the potential for an unsafe and unsatisfactory verdict. The High Court allowed the appeal, quashed the conviction, and ordered a new trial to be conducted with appropriate judicial guidance on the use of generalised evidence.

Orders