R v Kemp (No 2) - [1996] QCA 514

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 82 of 1996

Brisbane

BeforeMacrossan CJ
Pincus JA
Mackenzie J

[R v. Kemp (No. 2)]

THE QUEEN
v.

BARRIE LEONARD KEMP
Appellant

Judgment delivered 13 December 1996.

Separate reasons for judgment of each member of the Court, all concurring as to the order.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL LAW - sexual offences - maintaining an unlawful sexual relationship - whether generalised evidence of touching the complainant was admissible - whether the trial judge should have excluded the evidence in the exercise of discretion - whether trial judge's directions to the jury were adequate - R v. Kemp [No. 1] (C.A. No. 82 of 1995) - Hoch v. R (1988) 165 CLR 292 - R v. Pfennig (1995) 182 CLR 461 - S 229B Criminal Code.

CRIMINAL LAW - sexual offences - whether medical evidence of complainant's previous sexual experience was admissible - examination 8 months after last alleged act of intercourse with appellant - complainant had admitted intercourse with others - R v. Morris (1995) 78 A Crim. R 465 - R v. Kerim [1988] 1 Qd R 426.
CRIMINAL LAW - conviction - whether trial judge misdirected jury on assessing complainant's credibility - whether trial judge failed adequately to direct the jury as to the complainant's possible motive for making a false complaint - whether Crown Prosecutor's address to the jury exceeded proper bounds - whether it was otherwise dangerous to convict the appellant.

Counsel: Mr F. Connolly for the appellant.
Mr P. Ridgway for the respondent.

Solicitors: Legal Aid Office (Qld) for the appellant.
Director of Public Prosecutions (Qld) for the respondent.

Hearing Date: 9 August 1996.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 13 December 1996.

In his reasons Mackenzie J has dealt with the circumstances involved in this appeal and concluded, after due consideration of all of the grounds raised, that none of them is entitled to succeed. The trial judge's summing up was full and careful and free of what I would regard as material error. The evidence provided a satisfactory basis for the verdicts. I agree with Mackenzie J's conclusions and generally with his reasons and only wish to add to them by making the observations which follow.
The offence of maintaining a sexual relationship under s.229B of the Criminal Code was a charge of a more general nature joined in this case with charges of a number of specific offences of a sexual nature. The general charge could not, under the section, be proved without proof of at least three specific sexual offences within the category referred to: see subsection (1A). The trial judge directed the jury that only the offences charged could be considered for the purpose of providing proof of the required three or more offences which were a necessary ingredient in proof of the general charge. There was, therefore, no unfairness in the way the trial was conducted stemming from any lack of particularity. In…

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 (No 2)

Details

AGLC: R v Kemp (No 2) [1996] QCA 514
Case: [1996] QCA 514
Decision Date: 13 December 1996

CaseChat Overview and Summary

This appeal was against conviction. The appellant was convicted of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years between 1 November 1990 and 7 February 1993, two offences of indecently dealing with a child under 12 years of age with the circumstance of aggravation that the child was in his care, and three counts of unlawful carnal knowledge with the circumstance of aggravation that the child was in his care. The jury was unable to reach a verdict on count 4, an alleged offence of aggravated unlawful carnal knowledge at Murphy's Creek between 31 January and 31 March 1992. The grounds of appeal were that the trial judge should have excluded evidence of generalised touching, the trial judge misdirected the jury on assessing the complainant's credibility, and the trial judge failed to properly direct the jury as to the complainant's possible motive for making a false complaint. The trial judge's summing-up was full and careful and free of material error. The evidence provided a satisfactory basis for the verdicts. The trial judge was not in error in admitting the evidence of further conduct referred to by the majority although it was not part of the specific offences charged. The trial judge's summing-up was adequate and there was no miscarriage of justice. The appeal was dismissed.

Orders