R v Kent

Case [2020] SADC 159 9 November 2020

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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

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.
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.
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.
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…

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 Kent

Details

AGLC: R v Kent [2020] SADC 159
Case: [2020] SADC 159
Decision Date: 9 November 2020

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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Citations

AGLC Citation

R v Kent [2020] SADC 159

Most Recent Citation

R v Kent (No 2) [2021] SADC 56

Cases citing this decision · 1 of 1 shown

R v Kent (No 2)
[2021] SADC 56 Para 1

…one count of gross indecency. I granted an application for severance of the count of unlawful sexual intercourse from the remaining counts: R v Kent [2020] SADC 159. On 14 April 2021, the prosecution entered a nolle prosequi in respect of the count of unlawful sexual intercourse which was count 1 on the Informati…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

MDM v The Queen
[2020] SASCFC 80 Para 16

…nts such as to make it improbable that each complainant would have independently falsified to that same level of detail.[9] [9] MDM v The Queen [2020] SASCFC 80 at [130] per Peek J. In R v C, CA, at [92] – [93], Kourakis CJ said that the features identified by the trial Judge of the similar age of the complainants,…
DES v The Queen
[2020] SASCFC 32 Para 14

…t that the evidence of the three complainants was cross-admissible under s 34P (2)(a) of the Evidence Act on a similarity of account basis. [6] [2020] SASCFC 32. [7] At [70].…
BNM v The Queen
[2020] SASCFC 10 Para 6

…Queen v C, CN (2013) 117 SASR 64, 69 per White J, Peek J concurring; Blue J also concurring subject to two unrelated matters; BNM v The Queen [2020] SASCFC 10 per Doyle J, Peek J and David AJ agreeing; R v Wickers (2019) 134 SASR 504.…
McPhillamy v The Queen
[2018] HCA 52 Para 8

…ssary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together: McPhillamy v The Queen [2018] HCA 52. Proof that an accused person has sexually assaulted one child is not strongly probative of the fact that he has sexually assaulted a different child…
DL v The Queen
[2018] HCA 32

…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.…
Hughes v The Queen
[2017] HCA 20

…s 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 C, CA
[2013] SASCFC 137 Para 13

…beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other. [5] [2013] SASCFC 137.…
R v C, CN
[2013] SASCFC 44 Para 6

…he admissibility of all discreditable conduct evidence (whether or not involving a propensity or disposition use).[17] [17] The Queen v C, CN (2013) 117 SASR 64, 69 per White J, Peek J concurring; Blue J also concurring subject to two unrelated matters; BNM v The Queen [2020] SASCFC 10 per Doyle J, Peek J and David A…
R v N, SH
[2010] SASCFC 74 Para 8

…e evidence is not cross admissible the Judge, in exercising his or her discretion, must have regard to the principles in Sutton and De Jesus. [2] [1] [2010] SASCFC 74 [2] At [44]. Discreditable Conduct…
R v Bolte
[2010] SASC 112 Para 19

…t evidence should be excluded by reason of prejudicial content. Reliance was place upon the following passages in the judgment of Gray J in R v Bolte [2010] SASC 112: The present trial was by Judge alone, and accordingly the risk of impermissible reasoning by a jury did not arise. However, as is evident from the t…
De Jesus v The Queen
[1986] HCA 65 Para 20

…must be severed from counts 2 and 3 to avoid impermissible prejudice to the accused. [28] Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 68 ALR 1.…
Sutton v The Queen
[1984] HCA 5 Para 20

…l is by Judge alone, I rule that count 1 must be severed from counts 2 and 3 to avoid impermissible prejudice to the accused. [28] Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 68 ALR 1.…
R v Nieterink
[1999] SASC 560

…istrict 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 Quee…

Legislation cited in this decision · 3

Evidence Act 1929 (SA)
34P, 34P(2)(a), 34P(2)(b), 34P(3) 5 mentions (from Para 9)
Criminal Procedure Act 1921 (SA)
102(6)(b) 2 mentions (from Para 7)
District Court Rules 2014 (NZ)
1 mention (from Para 6)