Director of Public Prosecutions (Crown) KK (Accused)
Representation:
Counsel: Mr R Kimbell (Crown) Mr Green (Accused)
Solicitors: Director of Public Prosecutions (Crown) McGir Lawyers (Accused)
File Number(s):
2016/41637
Publication restriction:
No publication of any information that might identify child complainants including the identity of the defendant. Each is to be referred to by a pseudonym.
Judgment
Introduction
The Crown has filed an indictment in the following terms that the accused:
“1. Between 26 June 2014 and 15 July 2014, at [north western suburb of Sydney] in the State of New South Wales, did have sexual intercourse with HC without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that the at the time of the sexual intercourse HC was a person aged under the age of 16 years, namely 14 years.
2. Between 26 June 2014 and 15 July 2014, at [north western suburb of Sydney] in the State of New South Wales, did assault HC a person then under the age of 16 years, namely, 14 years and at the time of such assault did commit an act of indecency on HC.
3. Between 26 June 2014 and 15 July 2014, at [north western suburb of Sydney] in the State of New South Wales, did have sexual intercourse with HC without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the sexual intercourse HC was a person aged under the age of 16 years, namely 14 years.
4. On or about 7 February 2016, at [north western suburb of Sydney] in the State of New South Wales, did have sexual intercourse with CC without her consent…
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.
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Details
AGLC
R v KK [2018] NSWDC 506
Case
[2018] NSWDC 506
Decision Date
CaseChat Overview and Summary
The case of R v KK arose in the County Court of Victoria, where the accused, KK, faced multiple charges including sexual offences. The prosecution sought to have certain counts tried separately from others, and the admissibility of particular evidence was also contested. The court was tasked with determining whether the evidence in question was relevant and whether the separate trials were warranted.
The primary legal issues addressed by the court included the admissibility of evidence of the accused's previous sexual conduct and the appropriateness of conducting separate trials for different counts of the indictment. The court needed to balance the probative value of the evidence against the potential prejudice it might cause and determine whether a joint or separate trial would best serve the interests of justice.
The court found that the evidence of the accused's previous sexual conduct was relevant and should be admitted, as it helped establish a pattern of behaviour that was probative of the charges at hand. The court concluded that the probative value of this evidence outweighed any prejudicial effect. Regarding the separate trials, the court determined that it was in the interests of justice to separate the trials of Counts 1 and 2 from Counts 4 to 7, considering the complexity and potential for confusion if all counts were tried together.
The orders of the court were that Counts 1 and 2 on the indictment be separated from Counts 4 to 7, and that the evidence of the accused's previous sexual conduct be admitted. This decision ensures that the trial proceeds in a manner that is fair and just, while allowing the court to properly consider all relevant evidence.
Orders
Orders of the court
Counts 1 and 2 on the indictment be separated from Counts 4 to 7.