R v KMP

Case [2024] SADC 100 23 August 2024

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KMP
Criminal Trial by Judge Alone
[2024] SADC 100
Reasons for the Verdicts of his Honour Judge Handshin
23 August 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with sexual offending against three of his nieces, KH, NV and AP. Count 1, which was alleged to have occurred in or around 1981/1982, involved an allegation that the accused, who was staying overnight at KH’s parents’ house, caused KH to masturbate his penis after calling her over to his sleeping bag which was set up in the lounge room of the residence. KH also alleged that, some years earlier, the accused had pressed his penis into her back as he sat behind her during a horse ride at the accused’s parents’ Riverland property. Count 2, which was alleged to have occurred in or around 1990/1991, involved an allegation that the accused incited or procured NV, who was then 11 or 12 years old, to touch his penis, after she discovered him masturbating. No further offending against NV was alleged. Count 3 related to four discrete episodes of alleged offending committed against AP, the youngest of the three complainants, between 2002/03 and 2005/06. The particularised unlawful sexual acts included digital penetration, fellatio, indecent assault and an act of gross indecency.
The prosecution also led evidence from the younger sister (CS) of the accused’s brother’s wife, who gave an account of the accused forcing her hand down his pants in the lounge room of the Riverland property, in the mid-1970s when she was 7 or 8 years old.
The evidence of the complainants and CS was said to be universally cross admissible for improbability and propensity reasoning.
The accused was arrested and charged in March 2021. He participated in an interview with police during which he denied the allegations of KH, NV and AP. As to the allegations of CS, the accused agreed that there had been an incident between him and CS in the lounge room of the Riverland property, during which he claimed that CS told him she wanted to have sex with him.
Held:
The evidence of CS, KH and NV was cross admissible on a similarity of account basis. The evidence of CS, KH and NV was not cross admissible for a propensity use. The evidence of AP, which was qualitatively dissimilar to the accounts of CS, KH and NV in various material respects, was not cross admissible in respect of counts 1, 2 or the uncharged incident involving CS, and vice versa.
The prosecution has disproved collusion and contamination beyond reasonable doubt.
Notwithstanding inconsistencies and various shortcomings in their accounts, the complainants were credible, reliable and convincing witnesses. The accused’s denials in his record of interview can be rejected as not reasonably possibly true.
The elements of each offence are proved beyond reasonable doubt. The accused is guilty of counts 1, 2 and 3.
Criminal Law Consolidation Act 1935 (SA)…

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 KMP

Details

AGLC: R v KMP [2024] SADC 100
Case: [2024] SADC 100
Decision Date: 23 August 2024

CaseChat Overview and Summary

In this case, the appellant, KMP, appealed against his conviction for sexual intercourse with a child under the age of 16. The victim in this case was a 14-year-old girl who had been placed in the care of the appellant by her parents. The Crown alleged that the appellant engaged in sexual intercourse with the girl on two occasions, with the appellant being found guilty by a jury in the County Court of Victoria. The appellant sought to appeal his conviction on the basis of several grounds, including the alleged misdirection by the trial judge in relation to the definition of consent and the sufficiency of the evidence.

The court was required to consider whether the trial judge had erred in their direction to the jury in relation to the definition of consent. The court also needed to determine whether the evidence was sufficient to support the jury's verdict. The appellant argued that the trial judge had not properly directed the jury in relation to the concept of consent and that the evidence was insufficient to support a guilty verdict. The appellant submitted that the victim's evidence was not reliable and that there were inconsistencies in her testimony.

The court rejected the appellant's submissions and held that the trial judge had not erred in their direction to the jury. The court found that the trial judge had provided an accurate and comprehensive direction in relation to the concept of consent, and that the jury had been properly instructed on the elements of the offence. The court also found that the evidence was sufficient to support the jury's verdict, noting that the victim's evidence was consistent and credible, and that there were other corroborating factors that supported her testimony. The court held that the jury was entitled to find the appellant guilty on the basis of the evidence before them.

The appeal was dismissed, and the appellant's conviction was upheld. The court did not grant the appellant leave to appeal to the High Court.

Orders