R v Knuth - [1998] QCA 161

IN THE COURT OF APPEAL	[1998] QCA 161
SUPREME COURT OF QUEENSLAND

C.A. No. 64 of 1998

Brisbane

[R. v. K]

T H E Q U E E N

v.
K

(Applicant) Appellant
Pincus J.A. Ambrose J. Lee J.

Judgment delivered 23 June 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF THE APPELLANT IS SENTENCED TO TWO YEARS IMPRISONMENT ON EACH COUNT, TO BE SERVED CONCURRENTLY.

CATCHWORDS:	CRIMINAL LAW - indecent dealing - appeal against conviction whether verdict unsafe and unsatisfactory - whether sufficient particulars given for each charge - whether inconsistent evidence given by complainant and witness rendered verdict unsafe and unsatisfactory - whether inconsistent verdicts on separate counts - whether evidence of uncharged sexual incidents admissible - whether trial judge required to give a direction to the jury on the use of uncharged sexual offences - relationship evidence - propensity evidence - whether trial judge erred in explanation of beyond reasonable doubt - whether prejudicial effect of Crown Prosecutor’s comments in opening and closing addresses resulted in a miscarriage of justice - desirability of transcribing addresses.
CRIMINAL LAW - sentence application - indecent dealing - father and daughter relationship - whether sentencing discretion miscarried by reliance on evidence of uncharged sexual offences - course of sexual conduct - totality principle.
B.R.S. v. R. (1997) 148 C.L.R. 101 Croll v. McRae (1930) 30 S.R.(N.S.W.) 137 R. v. D. [1996] 1 Qd.R. 63 Gipp v. R. (1998, H.C.A. 21, 16 June 1998) Green v. R. (1971) 126 C.L.R. 28 R. v. M. [1991] 2 Qd.R. 68 M. v. R. (1994) 181 C.L.R. 487 MacKenzie v. R. (1996) 71 A.L.J.R. 91 R. v. P (C.A. 330 of 1997, 19 December 1997) R v. R (C.A. No.445 of 1997, 6 May 1998) Varga v. Matri (N.S.W. C.A. 264 of 1985, 28 August 1987) R. v. W (C.A. No. 62 of 1996, 20 August 1996) R. v. W (C.A. No. 349 of 1997, 21 November 1997)
Counsel:	Mr S. Hamlyn-Harris for the applicant/ appellant Mr M.C. Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	3 June 1998
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 23 June 1998

I have read and agree with the reasons of Lee J. I propose to add some observations concerning ground 4, relating to evidence of uncharged sexual incidents. Each of the four sets of reasons in Gipp (1998, H.C.A. 21, 16 June 1998), deals with this topic. Kirby J. took the view that with respect to evidence of such incidents, each of the descriptions "dispositional", "background", "tendency", "propensity", "relationship" and "similar fact" was apposite; his Honour’s preference was for the description "tendency" (140). Callinan J. held that if receivable such evidence must owe its admissibility -

".…

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 Knuth

Details

AGLC: R v Knuth [1998] QCA 161
Case: [1998] QCA 161
Decision Date: 23/06/1998

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent against his convictions and sentences imposed following a trial in the Supreme Court of Queensland. The respondent, Knuth, was found guilty on three counts of indecent dealing with a child under 16 years of age. The appeal questioned the validity of the verdict, whether the particulars of the charges were sufficient, the admissibility of evidence of uncharged sexual incidents, and potential errors in the trial judge's directions to the jury. Additionally, the appeal addressed whether prejudicial comments made by the Crown Prosecutor during the trial and closing addresses resulted in a miscarriage of justice.

The central legal issues revolved around the adequacy of the charge particulars, the effect of inconsistent evidence given by the complainant and a witness, the admissibility of evidence of uncharged sexual incidents, and the propriety of the trial judge's explanations and directions to the jury. Furthermore, the appeal challenged the admissibility of relationship evidence and propensity evidence, as well as the potential prejudice caused by the Crown Prosecutor's comments. The court was tasked with determining whether these issues, individually or collectively, rendered the verdict unsafe and unsatisfactory.

In considering these issues, the court found that while there were procedural irregularities, they did not individually or collectively render the verdict unsafe and unsatisfactory. The court held that the trial judge's explanation of the concept of beyond reasonable doubt was accurate and appropriate. Regarding the admissibility of evidence of uncharged sexual incidents, the court found that the trial judge did not err in admitting such evidence. The court also determined that the Crown Prosecutor's comments, although potentially prejudicial, did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and the convictions and sentences were upheld.

The court's final orders were to dismiss the appeal and confirm the convictions and sentences imposed by the Supreme Court of Queensland. The respondent's appeal was without merit, and the original judgments were affirmed.

Orders