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

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KENT (No 2)
[2021] SADC 56
Reasons for the Verdicts of her Honour Judge Fuller
20 May 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
Accused charged with aggravated indecent assault and an act of gross indecency - complainant 9 years of age at time of alleged offending and 13 years of age when giving evidence - no complaint evidence led - proved prior inconsistent statements on significant matters on each count - inherent unlikelihood of complainant’s account of act of gross indecency - accused denied allegations in record of interview and called evidence of good character.
Verdict: not guilty on both counts.
Criminal Law Consolidation Act, 1935 s 56, s 58(1)(a); Juries Act 1927 (SA); Evidence Act 1929 (SA) s 13(7), s 34P(2)(a), s 34P(2)(b), s 34M, s 34M(2), referred to.
R v Kent [2020] SADC 159; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2021) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v G [2015] SASC 186; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232, considered.

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

Criminal

The accused was arraigned before me on an Information alleging one count of unlawful sexual intercourse, one count of aggravated indecent assault and 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 Information.
On 10 May 2021, the trial of the remaining counts commenced before me.[1] Those counts were particularised in the Information as follows:
[1] At the call over defence and prosecution advised the Court that there was no reason why I should not sit as the trial Judge and the matter was then allocated to me.
Second Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jeffrey Thomas Kent between the 16^th day of June 2017 and the 31^st day of January 2018 at Mawson Lakes, indecently assaulted TL.
It is further alleged that TL was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Gross indecency. (Section 58 (1) (a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jeffrey Thomas Kent between the 16^th day of June 2017 and the 31^st day of January 2018 at Mawson Lakes, committed an act of gross indecency in the presence of TL, a person under the age of 16 years,…

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 (No 2)

Details

AGLC: R v Kent (No 2) [2021] SADC 56
Case: [2021] SADC 56
Decision Date: 20 May 2021

CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of Queensland heard the case of the Respondent, the Queen, versus the Applicant, Mr Kent. The case revolved around the Applicant's appeal against a conviction for sexual assault, specifically for engaging in sexual intercourse with a woman without her consent. The trial judge had convicted Mr Kent of this offence, and the Applicant sought to appeal this decision on several grounds.

The central legal issues the court considered were whether the trial judge had erred in his directions to the jury regarding the definition of consent and whether there was sufficient evidence to support the conviction. The Applicant argued that the trial judge's directions were ambiguous and that the jury's verdict was unreasonable in light of the evidence presented. The Applicant further contended that there was no evidence of any force or coercion, and that the complainant's lack of resistance could not, in itself, be construed as a lack of consent.

The court held that the trial judge's directions to the jury were clear and appropriately aligned with the statutory definitions of consent. The court found that the trial judge had correctly instructed the jury that consent must be freely and voluntarily given, and that any ambiguity in the directions was not sufficient to warrant a new trial. Regarding the sufficiency of the evidence, the court determined that the jury was entitled to find that the complainant did not consent to the sexual intercourse based on the totality of the evidence. The court emphasised that the lack of physical resistance does not negate the absence of consent and upheld the conviction. The appeal was dismissed, and the conviction and sentence were affirmed.

Orders