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R v KP; ex parte

R v KP; ex parte

Case [2006] QCA 301 22 August 2006

Admissibility of Evidence

Res Judicata

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v KP; ex parte A-G (Qld) [2006] QCA 301

PARTIES:

R
(respondent)
v
KP
(appellant/respondent/applicant)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 169 of 2005
CA No 234 of 2005
CA No 123 of 2006
DC No 1996 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Appeal by A-G (Qld)
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2006

JUDGES:

Williams JA, Holmes JA and Helman J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDER:

1. Appeal against conviction is allowed
2. Conviction on counts 16, 19, 21, 25, 33, 34 and 35 are set aside and appellant is to be retried on those counts
3. Appeal against conviction is dismissed on remaining counts
4. Attorney-General’s appeal against sentence is dismissed
5. Application for extension of time for leave to appeal against sentence is dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where appellant convicted after trial of 34 counts of indecent dealing committed over a period between 1981 and 1984 – where he was sentenced to concurrent sentences with the longest being three years imprisonment – where majority of convictions relate to one complainant but some to this complainant’s brother, the appellant’s son and the appellant’s daughter – whether fresh evidence could be adduced by appellant on appeal – whether proceedings should have been stayed due to media reports – whether charges were adequately particularised – whether charges relating to all complainants should have been joined – whether relationship evidence ought to have been admitted – whether verdicts were unreasonable – admissibility of similar fact evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where appellant sentenced to two years imprisonment on majority of counts involving complainant A, and three years imprisonment on counts involving other children – where appellant seeks extension of time to apply for leave to appeal against sentence to have it suspended in part – where Attorney-General seeks maximum sentence – whether sentence imposed was manifestly inadequate

Criminal Code 1899 (Qld), ss 567, 597A(1), 597(A)(1AA)
Evidence Act 1977 (Qld), s 132A

Gallagher v R (1986) 160 CLR 392, applied
Hoch v The Queen (1988) 165 CLR 292, applied
Mickelberg v R (1989) 167 CLR 259, applied

Phillips v The Queen (2006) 80 ALJR 537; [2006] HCA 4, 9 December 2005, applied

R v B [1989] 2 Qd R 343, applied

R v Condren, ex parte Attorney-General [1991] 1 Qd R 574, applied

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 KP; ex parte

Details

AGLC: R v KP; ex parte A-G (Qld) [2006] QCA 301
Case: [2006] QCA 301
Decision Date: 22 August 2006

CaseChat Overview and Summary

The appellant, KP, was convicted following a trial of 34 counts of indecent dealings committed over a period from 1981 to 1984. The appellant was sentenced to concurrent sentences with the longest being three years imprisonment. The majority of the convictions relate to one complainant, but some relate to this complainant’s brother, the appellant’s son, and the appellant’s daughter. The appellant brought an appeal against the conviction, and the Attorney-General appealed against the sentence. The appellant also sought an extension of time to apply for leave to appeal against the sentence to have it suspended in part, while the Attorney-General sought the maximum sentence. The appeal was heard by the court which had to decide on several legal issues.

The legal issues that the court had to decide on included whether fresh evidence could be adduced by the appellant on appeal, whether proceedings should have been stayed due to media reports, whether charges were adequately particularised, whether charges relating to all complainants should have been joined, whether relationship evidence ought to have been admitted, and whether verdicts were unreasonable. The court also had to consider the admissibility of similar fact evidence. The court had to determine whether the sentence imposed was manifestly inadequate and whether the appeal against the conviction and sentence were valid.

The court held that the appeal against the conviction was allowed and the conviction on counts 16, 19, 21, 25, 33, 34, and 35 were set aside, and the appellant is to be retried on those counts. The appeal against conviction was dismissed on the remaining counts. The Attorney-General’s appeal against the sentence was dismissed. The application for extension of time for leave to appeal against the sentence was also dismissed. The court held that the sentence imposed was not manifestly inadequate, and the appeal against the conviction and sentence were not valid. The court ordered that the appeal against the conviction is allowed, and the conviction on counts 16, 19, 21, 25, 33, 34, and 35 are set aside, and the appellant is to be retried on those counts. The appeal against conviction is dismissed on the remaining counts. The Attorney-General’s appeal against sentence is dismissed. The application for extension of time for leave to appeal against sentence is dismissed.

Orders

Orders of the court

1. Appeal against conviction is allowed

2. Conviction on counts 16, 19, 21, 25, 33, 34 and 35 are set aside and appellant is to be retried on those counts

3. Appeal against conviction is dismissed on remaining counts

4. Attorney-General’s appeal against sentence is dismissed

5. Application for extension of time for leave to appeal against sentence is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v KP; ex parte A-G (Qld) [2006] QCA 301

Most Recent Citation

R v BBG [2007] QCA 275

Cases citing this decision · 6 of 6 shown

R v GJL
[2020] QDC 213 Para 2

…ear and distinct, and readily distinguishable from the other charges levelled against the accused. I do not accept this submission.”[126] [126] [2006] QCA 301, [2].…
R v CCG
[2018] QCA 361 Para 1

…ty. Accordingly, this was not a case where latent ambiguity was raised. Nor is it surprising that no particulars were sought as to count 2. [47][2006] QCA 301 at [48].…
R v Beattie; Ex parte Attorney-General (Qld)
[2014] QCA 206 Para 1

…features.[7] [7] R v S; ex parte Attorney-General (Qld) [2002] QCA 141; R v SAQ [2002] QCA 221; R v Nash [2001] QCA 543; R v KP; ex parte A-G (Qld ) [2006] QCA 301; R v Wharton; ex parte A-G (Qld) [2009] QCA 396; R v Koster [2012] QCA 302 and R v Bradfield [2012] QCA 337.…
R v Koster
[2012] QCA 302 Para 1

…x parte A-G (Qld) [4]; R v Kay [5]; R v Craig; ex parte A-G (Qld) [6]; R v Tracey [7]; and R v Wharton; ex parte A-G (Qld) [8]. [3][1996] QCA 104. [4][2006] QCA 301. [5][1996] QCA 192. [6][2002] QCA 414. [7][2010] QCA 97. [8][2009] QCA 396.…
R v TS
[2008] QCA 370 Para 1

…put to evidence of this kind at trial may raise somewhat different issues from its use on sentence (see, eg. R v KP; ex parte Attorney-General (Qld ) [2006] QCA 301; R v Josifoski [1997] 2 VR 68). In dealing with the position for the purpose of sentence, Debelle J said that he was being sentenced only for the off…
R v BBG
[2007] QCA 275 Para 1

…w of that evidence consistent with the appellant's innocence on count 2 involving J: Pfennig [14] and Phillips .[15] [12][2005] 1 Qd R 169, [37]. [13][2006] QCA 301; CA No 169 of 2005, CA No 234 of 2005, CA No 123 of 2006, 22 August 2006, [56]. [14](1995) 182 CLR 461. [15](2006) 225 CLR 303, [54].…

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Cases cited in this decision · 21 of 21 shown

Nudd v The Queen
[2006] HCA 9 Para 1

…are readily explicable, had an appropriate command of the legal issues, and displayed considerable stamina. The appellant received a fair trial. [23](2006) 80 ALJR 614.…
Phillips v The Queen
[2006] HCA 4

…ied Mickelberg v R (1989) 167 CLR 259, applied Phillips v The Queen (2006) 80 ALJR 537; [2006] HCA 4, 9 December 2005, applied R v B [1989] 2 Qd R 343, applied R v Condren, ex parte Attorney-General [1991] 1 Qd R 574, applied R v F [1994] QCA 537, unreported, CA No 439 of 1994; 12 December 1994, considered R v…
R v PV; Ex parte Attorney-General (Qld)
[2004] QCA 494

…d R v Glennon (1992) 173 CLR 592, applied R v PV; ex parte A-G (Qld) (2005) 2 Qd R 325; [2004] QCA 494, CA No 238 of 2004, 23 December 2004, considered R v S (2001) 125 A Crim R 527; [2001] QCA 501; CA No 136 of 2001, 16 November 2001, considered S v The Queen (1989) 168 CLR 266, followed COUNSEL: The appellant a…
R v S
[2001] QCA 501

…QCA 494, CA No 238 of 2004, 23 December 2004, considered R v S (2001) 125 A Crim R 527; [2001] QCA 501; CA No 136 of 2001, 16 November 2001, considered S v The Queen (1989) 168 CLR 266, followed COUNSEL: The appellant appeared on his own behalf in CA No 169 of 2005 and CA No 123 of 2006 A J Rafter SC for the resp…
Pfennig v the Queen
[1995] HCA 7

…-4, 456 per Gibbs CJ; Sultan v R (1984) 152 CLR 528 at 533; 51 ALR 435 at 438 per Gibbs CJ; Pfennig v R (1995) 182 CLR 461 at 481; 127 ALR 99 at 113; [1995] HCA 7 per Mason CJ. Deane and Dawson JJ.…
R v F
[1994] QCA 537

…R 343, applied R v Condren, ex parte Attorney-General [1991] 1 Qd R 574, applied R v F [1994] QCA 537, unreported, CA No 439 of 1994; 12 December 1994, considered R v Glennon (1992) 173 CLR 592, applied R v PV; ex parte A-G (Qld) (2005) 2 Qd R 325; [2004] QCA 494, CA No 238 of 2004, 23 December 2004, considered…
R v Glennon
[1992] HCA 16

…[1994] QCA 537, unreported, CA No 439 of 1994; 12 December 1994, considered R v Glennon (1992) 173 CLR 592, applied R v PV; ex parte A-G (Qld) (2005) 2 Qd R 325; [2004] QCA 494, CA No 238 of 2004, 23 December 2004, considered R v S (2001) 125 A Crim R 527; [2001] QCA 501; CA No 136 of 2001, 16 November 2001, consider…
Harriman v the Queen
[1989] HCA 50

…Sutton v R (1984) 152 CLR 528 at 548-9; 51 ALR 435 at 450-2 per Brennan J, CLR 560; ALR 460 per Deane J, CLR 565; ALR 464 per Dawson J; Harriman v R (1989) 167 CLR 590 at 633; 88 ALR 161 at 192-3 per McHugh J; Pfennig v R (1995) 182 CLR 461 at 481; 127 ALR 99 at 113; [1995] HCA 7 per Mason CJ, Deane and Dawson JJ.…
Jago v District Court (NSW)
[1989] HCA 46

…[4] Jago (1989) 168 CLR 23 at p 34.…
Mickelberg v The Queen
[1989] HCA 35

…(1986) 160 CLR 392, applied Hoch v The Queen (1988) 165 CLR 292, applied Mickelberg v R (1989) 167 CLR 259, applied Phillips v The Queen (2006) 80 ALJR 537; [2006] HCA 4, 9 December 2005, applied R v B [1989] 2 Qd R 343, applied R v Condren, ex parte Attorney-General [1991] 1 Qd R 574, applied R v F [1994] QCA 537, u…
Hoch v the Queen
[1988] HCA 50

…, 597(A)(1AA) Evidence Act 1977 (Qld), s 132A Gallagher v R (1986) 160 CLR 392, applied Hoch v The Queen (1988) 165 CLR 292, applied Mickelberg v R (1989) 167 CLR 259, applied Phillips v The Queen (2006) 80 ALJR 537; [2006] HCA 4, 9 December 2005, applied R v B [1989] 2 Qd R 343, applied R v Condren, ex parte Attorney-Gen…
De Jesus v The Queen
[1986] HCA 65

…nduct of a single trial on all counts - and there usually is such a risk in sexual cases - separate trials should be ordered: De Jesus v. The Queen (1986) 61 ALJR 1; 68 ALR 1.”[9]…
Gallagher v The Queen
[1986] HCA 26

…1899 (Qld), ss 567, 597A(1), 597(A)(1AA) Evidence Act 1977 (Qld), s 132A Gallagher v R (1986) 160 CLR 392, applied Hoch v The Queen (1988) 165 CLR 292, applied Mickelberg v R (1989) 167 CLR 259, applied Phillips v The Queen (2006) 80 ALJR 537; [2006] HCA 4, 9 December 2005, applied R v B [1989] 2 Qd R 343, applied R…
Sutton v The Queen
[1984] HCA 5

…per Gibbs ACJ, Stephen, Jacobs and Aickin JJ concurring; Perry v R (1982) 150 CLR 580 at 586, 589; 44 ALR 449 at 453-4, 456 per Gibbs CJ; Sultan v R (1984) 152 CLR 528 at 533; 51 ALR 435 at 438 per Gibbs CJ; Pfennig v R (1995) 182 CLR 461 at 481; 127 ALR 99 at 113; [1995] HCA 7 per Mason CJ. Deane and Dawson JJ.…
Perry v The Queen
[1982] HCA 75

…d Wilberforce, approved in Markby v R (1978) 140 CLR 108 at 117; 21 ALR 448 at 455 per Gibbs ACJ, Stephen, Jacobs and Aickin JJ concurring; Perry v R (1982) 150 CLR 580 at 586, 589; 44 ALR 449 at 453-4, 456 per Gibbs CJ; Sultan v R (1984) 152 CLR 528 at 533; 51 ALR 435 at 438 per Gibbs CJ; Pfennig v R (1995) 182 CLR…
Barton v the Queen
[1980] HCA 48

…[5] Barton (1980) 147 CLR 75 at p 111.…
Markby v The Queen
[1978] HCA 29

…[11] R v Boardman [1975] AC 421 at 444; [1974] 3 All ER 887 at 897-8 per Lord Wilberforce, approved in Markby v R (1978) 140 CLR 108 at 117; 21 ALR 448 at 455 per Gibbs ACJ, Stephen, Jacobs and Aickin JJ concurring; Perry v R (1982) 150 CLR 580 at 586, 589; 44 ALR 449 at 453-4, 456 per Gibbs CJ; Sultan v R (1984) 152…
S v the Queen
[1989] HCA 66 Para 1

…ems inherent in pleading autrefois convict or autrefois acquit where there was uncertainty as to the offence of which an accused had been charged. [8](1989) 168 CLR 266.…
[1975] AC 421
[1975] AC 421

…[11] R v Boardman [1975] AC 421 at 444; [1974] 3 All ER 887 at 897-8 per Lord Wilberforce, approved in Markby v R (1978) 140 CLR 108 at 117; 21 ALR 448 at 455 per Gibbs ACJ, Stephen, Jacobs and Aickin JJ concurring; Perry v R (1982) 150 CLR 580 at 586, 589; 44 ALR 449 at 453-4, 456 per Gibbs CJ; Sultan v R (1984…
[1991] 2 AC 447
[1991] 2 AC 447

…[17] Director of Public Prosecutions v P [1991] 2 AC 447 at 460; [1991] 3 All ER 337 at 346 per Lord Mackay of Clashfern LC.…
[1973] AC 729
[1973] AC 729

…h v R (1988) 165 CLR 292 at 301; 81 ALR 225 at 231-2 per Brennan and Dawson JJ, approving words of Lord Hai1sham of St Marylebone LC in R v Kilbourne [1973] AC 729 at 749; [1973] 1 All ER 440 at 454-5.…

Legislation cited in this decision · 1

Evidence Act 1977 (Qld)
132A 2 mentions (from Para 1)

CITATION:	R v KP; ex parte A-G (Qld) [2006] QCA 301
PARTIES:	R (respondent) v KP (appellant/respondent/applicant) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 169 of 2005 CA No 234 of 2005 CA No 123 of 2006 DC No 1996 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Appeal by A-G (Qld) Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2006
JUDGES:	Williams JA, Holmes JA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction is allowed 2. Conviction on counts 16, 19, 21, 25, 33, 34 and 35 are set aside and appellant is to be retried on those counts 3. Appeal against conviction is dismissed on remaining counts 4. Attorney-General’s appeal against sentence is dismissed 5. Application for extension of time for leave to appeal against sentence is dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where appellant convicted after trial of 34 counts of indecent dealing committed over a period between 1981 and 1984 – where he was sentenced to concurrent sentences with the longest being three years imprisonment – where majority of convictions relate to one complainant but some to this complainant’s brother, the appellant’s son and the appellant’s daughter – whether fresh evidence could be adduced by appellant on appeal – whether proceedings should have been stayed due to media reports – whether charges were adequately particularised – whether charges relating to all complainants should have been joined – whether relationship evidence ought to have been admitted – whether verdicts were unreasonable – admissibility of similar fact evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where appellant sentenced to two years imprisonment on majority of counts involving complainant A, and three years imprisonment on counts involving other children – where appellant seeks extension of time to apply for leave to appeal against sentence to have it suspended in part – where Attorney-General seeks maximum sentence – whether sentence imposed was manifestly inadequate Criminal Code 1899 (Qld), ss 567, 597A(1), 597(A)(1AA) Evidence Act 1977 (Qld), s 132A Gallagher v R (1986) 160 CLR 392, applied Hoch v The Queen (1988) 165 CLR 292, applied Mickelberg v R (1989) 167 CLR 259, applied Phillips v The Queen (2006) 80 ALJR 537; [2006] HCA 4, 9 December 2005, applied R v B [1989] 2 Qd R 343, applied R v Condren, ex parte Attorney-General [1991] 1 Qd R 574, applied