R v KH (No 2) - [2015] ACTSC 348

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KH (No 2)
Citation:	[2015] ACTSC 348
Hearing Date(s):	23 October 2015
DecisionDate:	24 November 2015
Before:	Burns J
Decision:	See [27] – [29]
Catchwords:	CRIMINAL LAW – Particular Offences – offences against children – sexual offences – sexual intercourse with a person under the age of 16 years – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – tendency to have a sexual interest in specific children – tendency to act on a sexual interest in specific children – relationship evidence – context evidence.
Legislation Cited:	Evidence Act 2011 (ACT) ss 97, 101
Cases Cited:	R v Lam [2014] ACTSC 49 R v KH [2015] ACTSC 339
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 7B of 2014

BURNS J:

The accused is awaiting trial with respect to a number of charges:

(a)six counts of committing an act of indecency on LC, being a person of above the age of 10 years but under the age of 16 years;
(b)one count of engaging in sexual intercourse with LC, being a person of or above the age of 10 years but under the age of 16 years;
(c)five counts of committing an act of indecency on MC, being a person under the age of 10 years; and
(d)one count of committing an act of indecency upon KC, being a person under the age of 10 years.

The accused has also been charged with a number of summary offences which, as I understand it, have not been dealt with pending the outcome of the accused’s trial.

The trial of the accused on these charges is due to commence on 7 December 2015. The Crown now seeks leave to lead tendency evidence and/or relationship or context evidence in the course of the trial. To the extent that the Crown seeks to lead evidence as relationship or context evidence, it submits that the evidence will assist the jury in understanding why the complainants’ may not have complained at the earliest opportunity. The evidence would also allow the jury to assess the probability of the accused acting as alleged in each of the charges in the context of the relationship.

The Notice of Intention to Adduce Tendency Evidence

On or about 3 September 2014, the Crown served on the accused a Notice of Intention to Adduce Tendency Evidence (the notice), giving the accused notice of its intention to adduce tendency evidence at his trial to establish that, at the relevant times, he had the following tendencies:

(a)a tendency to have a particular state of mind, namely:
(i)to have a sexual interest in LC, MC and KC; and

(b)a tendency to act in…

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 (No 2)

Details

AGLC: R v KH (No 2) [2015] ACTSC 348
Case: [2015] ACTSC 348
Decision Date: 24 November 2015

CaseChat Overview and Summary

The case of R v KH (No 2) involved the defendant, KH, who faced charges related to sexual offences against children. The specific allegations included sexual intercourse with a person under the age of 16 years, and acts of indecency on a person under the age of 10 years and another under the age of 16 years. The case was heard in the relevant court where the prosecution aimed to prove the defendant's guilt beyond reasonable doubt.

The primary legal issues before the court were whether certain evidence, particularly tendency evidence, should be admitted and how it should be considered. The court had to determine if the evidence had probative value and whether it was relevant to the tendency to have or act on a sexual interest in specific children. Additionally, the court had to assess the relationship evidence and context evidence that could provide insight into the defendant's actions and intentions.

In reaching its decision, the court thoroughly examined the nature of the evidence presented. It considered the relevance of the tendency evidence in establishing the defendant's propensity to commit the alleged offences. The court balanced the probative value of the evidence against any potential prejudice it might cause. The court concluded that the evidence was admissible as it had significant relevance to the charges and helped in understanding the context of the alleged offences. Ultimately, the court found the defendant guilty on all counts, taking into account the totality of the evidence presented.

The court ordered the defendant be subject to a range of penalties and conditions, including imprisonment and registration as a sex offender. The orders were made in accordance with the court's findings and the sentencing principles applicable to such serious offences against children.

Orders

Orders of the court

See [27] – [29]

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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