R v Kent

Case [2020] SADC 159


DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v KENT

[2020] SADC 159

Ruling of her Honour Judge Fuller 

9 November 2020

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINDER OF COUNTS AND DEFENDANTS

The accused is charged with three sexual offences against two child complainants - application to sever the charges to allow for a separate trial for each complainant - whether evidence cross-admissible as discreditable conduct evidence on the basis of similarity of account, a Nieterink use and propensity.

Held: The evidence of each complainant is not cross-admissible and does not have a permissible use under s 34P(2)(a) or (b) of the Evidence Act 1929 (SA).

Application allowed. Order for severance of counts requiring separate trials for each complainant.

Criminal Procedure Act 1921 (SA) s 102(6)(b); Evidence Act 1929 (SA) ss 34P, 34P(2)(a), 34P(2)(b), 34P(3); District Court Rules 2014 (SA) Rule 49(1)(e), referred to.
R v Maiolo (No 2) (2013) 117 SASR 1; R v M, JJ; R v C, JN (2013) 117 SASR 81; R v Nieterink (1999) 76 SASR 56; R v C, CA [2013] SASCFC 137; De Jesus v The Queen (1986) 68 ALR 1; R v N, SH [2010] SASCFC 74; Sutton v The Queen (1984) 152 CLR 528; Des v The Queen [2020] SASCFC 32; R v Bolte [2010] SASC 112; MDM v The Queen [2020] SASCFC 80; McPhillamy v The Queen [2018] HCA 32; Hughes v The Queen (2017) 263 CLR 228, considered.

R v KENT
[2020] SADC 159

  1. Jeffrey Thomas Kent is charged on one Information with three sexual offences against two sisters, BJL and TL, which are all said to have been committed between 16 June 2017 and 31 January 2018.

  2. The accused is charged with one count of unlawful sexual intercourse in respect of BJL. It is alleged that she was a person under the age of 14 years and that the accused had unlawful sexual intercourse with her by inserting his finger or fingers into her vagina.

  3. The accused is charged with one count of aggravated indecent assault and one count of gross indecency in respect of TL. It is alleged that she was a person under the age of 14 years and that the accused indecently assaulted her by taking her pants off and then looking at her vagina as he was trying to take her underpants off. It is further alleged that she was a person under the age of 16 years and that the accused exposed his penis to her through the fly of his underwear.

  4. On 5 June 2020, the prosecution filed a notice of intention to adduce discreditable conduct evidence. The first item of discreditable conduct sought to be led was each charged and uncharged act of sexual misconduct against each complainant. It was asserted that there was a permissible use for this evidence as:-

    …circumstantial evidence demonstrating a specific sexual attraction to…

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R v Kent [2020] SADC 159
Case
[2020] SADC 159
Decision Date

CaseChat Overview and Summary

In the case of R v Kent, the defendant was charged with multiple counts of sexual assault. The complainants were two different individuals, and each had separate incidents of alleged sexual assault. The case was heard in the Supreme Court of South Australia. The defendant challenged the joinder of the counts and argued that the evidence from the two complainants should not be admissible against him due to the separate nature of the alleged offences.

The central legal issue was whether the evidence of the two complainants could be joined under the Evidence Act 1929 (SA). Specifically, the court had to determine if the evidence of each complainant was cross-admissible under section 34P(2)(a) or (b). The court examined whether the evidence of one complainant could be used to prove facts in issue in relation to the other complainant, or whether it had some other permissible use. The defendant argued that the evidence was not sufficiently similar or connected to be admissible under the Act.

The court found that the evidence of each complainant was not cross-admissible. The court concluded that the separate nature of the alleged offences meant that the evidence of one complainant could not be used to prove facts in issue in relation to the other. Furthermore, the court found that the evidence did not have a permissible use under section 34P(2)(a) or (b) of the Evidence Act. The court held that the evidence of each complainant was not admissible against the defendant and that the counts should be tried separately.

The final orders of the court were that the counts of sexual assault against the defendant should be tried separately, and that the evidence of each complainant was not admissible against the defendant. The court's decision highlights the importance of carefully considering the admissibility of evidence in cases involving multiple complainants and separate incidents of alleged criminal behaviour.

Orders

Orders of the court

Held: The evidence of each complainant is not cross-admissible and does not have a permissible use under s 34P(2)(a) or (b) of the Evidence Act 1929 (SA).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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