1 SIMPSON J: I agree with the orders proposed by Justice Howie and with his reasons therefor.
2 HOWIE J: This is an application for leave to appeal against sentences imposed by her Honour Judge Payne in the District Court after a jury convicted the applicant of five offences of having sexual intercourse with a child between the ages of 10 and 16 years contrary to s 66C(1) of the Crimes Act. Each of the offences carries a maximum penalty of 8 years imprisonment.
3 The applicant was sentenced by her Honour in respect of each offence to a minimum term of 2 years 8 months with an additional term of 1 year 8 months. All of the sentences were to be served concurrently and were to date from 26 May 1999, the date upon which the applicant went into custody. The applicant will be eligible for release to parole on 26 January 2002.
4 The applicant had stood trial on six offences of aggravated sexual intercourse without consent but the jury acquitted him entirely of the first count in the indictment and convicted him of the alternative counts in respect of the five remaining counts. Her Honour was required to sentence the applicant in accordance with those verdicts. There was no dispute as to the factual basis upon which Judge Payne was to sentence the prisoner. The facts, therefore, can be very briefly stated.
5 The complainant in each matter was a thirteen-year-old girl who was under legal custody of a friend of the prisoner named Colby. The prisoner understood that that there was at least a quasi-parental relationship between Colby and the complainant. The trial judge found that the applicant thought that the child was 15 years of age because shortly before the offences were committed, he had given her a doll for what he understood was her 15th birthday.
6 In respect of each of the acts of intercourse the trial judge sentenced the applicant on the basis that, although the complainant was not consenting, the applicant believed that she was. This was consistent with the jury’s verdicts in finding the applicant guilty of the alternative counts in the indictment.
7 The offences all occurred on the one day when Colby and the complainant…
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.
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Details
AGLC
R v Kennedy [2000] NSWCCA 527
Case
[2000] NSWCCA 527
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Queensland, the case of R v Kennedy revolved around a criminal charge of sexual intercourse with a child between the ages of 10 and 16 years. The defendant, Kennedy, was accused of engaging in sexual activity with a child who was under the age of consent. The nature of the dispute involved the admissibility of evidence pertaining to the defendant's prior good character and its relevance to the charge against him. The court was tasked with determining whether such evidence could be considered by the jury in assessing the defendant's guilt or innocence.
The legal issues before the court included the scope of the evidence allowed under the common law rule against introducing evidence of a person's good character, as well as the application of statutory provisions which might affect the admissibility of such evidence. The court needed to balance the principles of fairness in criminal trials with the potential prejudice that evidence of good character might have to the jury. It was necessary to consider whether the evidence of good character had any bearing on the likelihood of the defendant committing the offence in question.
The court found that evidence of the defendant's good character was not admissible as it did not have a direct relevance to the issue of consent, which was central to the charge. The court emphasised that the focus should be on the facts of the case and the circumstances surrounding the alleged offence, rather than on the defendant's past conduct. The judge ruled that the evidence of good character was likely to mislead the jury and was therefore inadmissible. This decision was in line with the common law position, which restricts the admissibility of good character evidence unless it has direct relevance to an issue in dispute. The court's ruling ensured that the trial remained focused on the specific circumstances of the alleged offence and the evidence presented in relation to it.