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R v Knigge

R v Knigge

Case [2003] VSCA 94 1 August 2003

Criminal Liability

Admissibility of Evidence

Recent Complaint

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 326 of 2001

THE QUEEN
	v.
JACK RONALD KNIGGE

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JUDGES:	WINNEKE, P., PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 June 2003
DATE OF JUDGMENT:	1 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 94

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Criminal law – Sexual offences – Evidence – Use of VATE tape procedure – Whether special directions required.

Evidence – Recent complaint – Whether modification to common law principles required in respect of complainants of tender years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson, Q.C.	Grubissa White

WINNEKE, P.:

On 26 November 2001 Jack Ronald Knigge (“the applicant”) was presented in the County Court at Melbourne on a presentment containing five counts which alleged sexual molestation of a girl (whom I shall call either “K” or “the complainant”) with whose mother the applicant had been cohabiting over a period from approximately April 1997 to June 1998. In that period K. was aged approximately six to seven years. Three of the counts (counts 1, 3 and 5) alleged that the applicant had wilfully committed an indecent act with K., a child under the age of 16 to whom he was not married. That is the offence described by s.47(1) of the Crimes Act 1958 (Vic.); it carries a maximum penalty of 10 years’ imprisonment. The other two counts (namely counts 2 and 4) alleged offences of taking part in an act of sexual penetration with a child under the age of 10 years, an offence described by s.45(2)(a) of the Crimes Act, and which carries a maximum penalty of 25 years’ imprisonment. All counts were “between date counts”; counts 1, 2 and 3 alleging offences which occurred between 8 April 1997 and 30 June 1998 (i.e. the entire period of the relationship); and the remaining two counts alleging an offence between 1 June 1998 and 30 June 1998; i.e. the last month of the relationship. At all material times the applicant was approximately 45 years of age.

On 4 December 2001, the applicant was convicted by the jury on all counts. Following a plea in mitigation, the trial judge, on 20 December 2001, sentenced the applicant as follows:

Count 1-  12 months’ imprisonment
Count 2-  24 months’ imprisonment
Count 3-  18 months’ imprisonment
Count 4-  36 months’ imprisonment
Count 5-  24 months’ imprisonment.

His Honour declared pursuant to the provisions of the Sentencing Act 1991 that he had sentenced the applicant on counts 3, 4 and 5 as a “serious sexual offender”. Specifically, he ordered that 12 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1; and he further ordered that 12 months, 18 months and 12 months of the sentences imposed on counts 3, 4 and 5 respectively be served cumulatively upon the sentences imposed on counts 1 and 2. The total effective sentence was, thus, one…

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 Knigge

Details

AGLC: R v Knigge [2003] VSCA 94
Case: [2003] VSCA 94
Decision Date: 1 August 2003

CaseChat Overview and Summary

The case of R v Knigge involved the defendant, Knigge, who was charged with sexual offences against a young girl. The trial was conducted in the Supreme Court of Victoria, which had to determine the admissibility of the evidence obtained from the complainant using the Video Assisted Therapeutic Examination (VATE) tape procedure. Additionally, the court had to consider whether the principles governing recent complaints in sexual offence cases needed to be modified for complainants of tender years.

The central legal issues in the case were whether the use of the VATE tape procedure necessitated special directions to the jury and whether the common law principles concerning recent complaints in sexual offence cases should be altered for very young complainants. The court had to balance the need to protect the welfare of the child against the rights of the accused to a fair trial.

The court held that the use of the VATE tape procedure did not require special directions to the jury, as the procedure was an accepted method of obtaining evidence from young complainants and did not inherently prejudice the defendant. However, the court did find that the common law principles concerning recent complaints in sexual offence cases should be modified for complainants of tender years. The court reasoned that the trauma experienced by very young children could result in a delay between the offence and the complaint, and this delay should not automatically undermine the credibility of the child's evidence. The court emphasised the importance of considering the unique circumstances of each case when assessing the credibility of a young complainant's evidence.

The court ordered that the evidence obtained through the VATE tape procedure be admitted, subject to the usual rules of evidence. The court also directed that the jury be mindful of the special circumstances of young complainants when assessing the credibility of their evidence. The court's decision in this case provides guidance for future cases involving the admissibility of evidence obtained through the VATE tape procedure and the assessment of credibility for young complainants in sexual offence cases.

Orders