R v KH - [2015] ACTSC 339

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KH
Citation:	[2015] ACTSC 339
Hearing Date(s):	23 October 2015
DecisionDate:	4 November 2015
Before:	Burns J
Decision:	See [26] – [27]
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Particular Offences – offences against the person – engaging in sexual intercourse without consent. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind, namely to exert domination and control through the use of physical force on the complainant – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways, namely to use violence against the complainant and to use violence against the complainant to have her submit to sexual intercourse without her consent – application allowed in part.
Legislation Cited:	Crimes Act 1900 (ACT) s 92D Evidence Act 2011 (ACT) ss 97, 101, 135, 137 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 32, 37, 38E, 43 Magistrates Court Act 1930 (ACT) s 90B Supreme Court Act 1933 (ACT)
Cases Cited:	R v Dunn [2004] NSWCCA 346 R v Lam [2014] ACTSC 49 R v Tilley (1992) 109 FLR 155
Parties:	The Queen (Crown) KH (Defendant)
Representation:	Counsel Ms S McMurray (Crown) Mr R Thomas (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Gil-Jones Barker (Defendant)
File Number(s):	SCC 7A of 2014; SCC 242 of 2014

BURNS J:

The accused is currently awaiting trial with respect to one count contrary to s 92D (1) of the Crimes Act 1900 (ACT) alleging that, between 1 May 1992 and 25 October 1993, he engaged in sexual intercourse with QQ (the complainant) without her consent, knowing that she was not consenting, or being reckless as to whether she was consenting. The trial of the accused is listed to commence on 23 November 2015.

A number of summary offences of assault have also been transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT) as, I understand, related offences to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT).

On or about 18 August 2014, the Crown served on the accused a Notice of Intention to Adduce Tendency Evidence (the notice), setting out 11 incidents the Crown proposes leading at the trial of the accused to prove that:

(a)the accused had a tendency to have a particular state of mind, namely:
(i)to exert domination and control through the use of physical force on QQ; and

(b)the accused had a tendency to act in particular ways, namely:
(i)to use violence towards QQ; and
(ii)to use violence towards QQ to have her submit to sexual intercourse without her consent.

By an application dated 19 August 2014, the Crown seeks orders that it be permitted to adduce evidence as outlined in incidents 1 to 11 in the notice as tendency…

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 KH

Details

AGLC: R v KH [2015] ACTSC 339
Case: [2015] ACTSC 339
Decision Date: 4 November 2015

CaseChat Overview and Summary

The case of R v KH involved the defendant, KH, who was charged with engaging in sexual intercourse without the consent of the complainant. The matter was heard in the relevant court where the judge was tasked with determining whether the Crown was entitled to lead evidence that KH had a tendency to exert domination and control through the use of physical force on the complainant, as well as a tendency to act in particular ways such as using violence against the complainant to have her submit to sexual intercourse without her consent.

The legal issues before the court were whether the Crown's application to admit tendency evidence was permissible under the relevant statutory provisions. Specifically, the court needed to determine whether the evidence was relevant to a matter in issue between the parties and whether the probative value of the evidence outweighed any prejudicial effect it might have on the defendant. The court also considered whether the evidence was necessary in the interests of justice.

The court concluded that the Crown was entitled to lead evidence of the accused's tendency to exert domination and control through the use of physical force on the complainant. The court found that this evidence was relevant to the issue of consent and the nature of the relationship between the parties. However, the court declined to allow evidence of the accused's tendency to act in particular ways, namely to use violence against the complainant to have her submit to sexual intercourse without her consent, on the basis that it was not necessary in the interests of justice. The court found that such evidence was unlikely to assist the jury in determining the issue of consent and would have a significant prejudicial effect on the defendant.

As a result of the court's ruling, the Crown was permitted to lead evidence of the accused's tendency to exert domination and control through the use of physical force on the complainant, but not evidence of the accused's tendency to act in particular ways, namely to use violence against the complainant to have her submit to sexual intercourse without her consent. The court's decision highlights the importance of carefully considering the admissibility of tendency evidence in sexual offence cases and the need to balance the probative value of such evidence against its potential prejudicial effect on the accused.

Orders

Orders of the court

See [26] – [27]

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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