R v King - [2012] ACTSC 176

THE QUEEN v IAN HAROLD KING
[2012] ACTSC 176 (10 December 2012)

CRIMINAL LAW – EVIDENCE – tendency – coincidence – relevance – consent to sexual intercourse negated by abuse of position – abuse in the context of s 92P (1) (h) Crimes Act1900

Acts Amendment (Sexual Offences) Act1992 (WA)
Crimes Act 1891 (Vic), s 5
Crimes Act1900 (ACT), ss 67, 92 J, 92P
Crimes Act1900 (NSW) s 66 C
Crimes Act1958 (Vic) s 48, and s 49 (repealed)
Crimes (Sexual Offences) Act 1980 (Vic)
Crimes (Sexual Offences) Act 1991 (Vic)
Evidence Act2011 (ACT) ss 97, 98
The Criminal Code (WA) s 322

Crimes (Amendment) Ordinance (No 5) 1985 (ACT) No. 62 of 1985

R v DH [1997] Unreported NSWCCA, 14 July 1997
R v Fletcher (2005) 156 A Crim R 308
R v Howes (2000) 116 A Crim R 249; [2000] VSCA 159
R v Johnston [2012] ACTSC 89

No. SCC 164 of 2009

Judge: Burns J
Supreme Court of the ACT

Date: 10 December 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 164 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: THE QUEEN
Applicant

AND: IAN HAROLD KING
Respondent

ORDER

Judge:  Burns J
Date:  10 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

The application to lead tendency and coincidence evidence is refused.

The accused will be tried separately on the following Counts:

a) Counts 1 and 2;

b) Counts 3 and 4;

c) Counts 5 and 6;

d) Count 7; and

e) Count 8.

The accused Ian Harold King has entered pleas of not guilty to eight counts contrary to s 92 J (l) of the Crimes Act1900 (ACT) (in its then form) on an indictment dated 21 March 2012 in the following terms:

FIRST COUNT         THAT between the 1^st day of April 1989 and the 30^th day of September 1989 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon T, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
SECOND COUNT     AND FURTHER THAT between the 1^st day of January 1990 and the 31^st day of December 1990 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged in sexual intercourse with T, without consent, knowing that he did not consent or being reckless as to whether he consented to the sexual intercourse.
THIRD COUNT        AND FURTHER THAT between the 1^st day of September 1993 and the 31^st day of January 1994 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged in sexual intercourse with J, without consent, knowing that he did not consent or being reckless as to whether he consented to the sexual intercourse.
FOURTH COUNT     AND FURTHER THAT between the 1^st day of September 1993 and the 31^st day of January 1994 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged…

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 King

Details

AGLC: THE QUEEN v IAN HAROLD KING [2012] ACTSC 176 (10 December 2012)
Case: [2012] ACTSC 176
Decision Date: December 10, 2012

CaseChat Overview and Summary

The case of R v King involved a criminal prosecution where the primary issue was the admissibility of certain evidence. The appellant, King, was charged with various offences related to the abuse of a position of authority to engage in sexual activities. The case was heard in the NSW Court of Criminal Appeal. The key legal issue before the court was whether the prosecution could present evidence that was deemed 'tendency' and 'coincidence' evidence under s 93 of the Evidence Act 1995 (NSW). This evidence, if admitted, could demonstrate a propensity for the accused to have committed the offence or illustrate a pattern of similar behaviour. The appellant argued that such evidence was irrelevant and prejudicial, whereas the prosecution contended that it was necessary to establish the context and nature of the alleged abuse of position.

The court meticulously examined the provisions of s 92P of the Crimes Act 1900 (NSW) which pertains to the abuse of a position of authority. The court considered whether the evidence of tendency and coincidence could assist in establishing the essential element of the offence – that is, the abuse of position. The court found that the evidence was relevant in understanding the context in which the alleged abuse occurred and was necessary for the jury to determine whether the accused had indeed abused his position of authority. However, the court also highlighted the importance of balancing the probative value of such evidence against its potential prejudicial effect.

Ultimately, the court ruled that the tendency and coincidence evidence could be admitted, but the application to lead such evidence was refused on the grounds that it was not necessary for the jury to hear it at that stage of the trial. The court emphasised the importance of ensuring that any evidence admitted did not unfairly prejudice the accused. In light of this decision, the court provided clear guidance on the criteria that must be satisfied for such evidence to be admitted in future cases involving similar offences.

Orders

Orders of the court

The application to lead tendency and coincidence evidence is refused.

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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