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R v Kristiansen

R v Kristiansen

Case [2008] ACTSC 83 15 August 2008

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HUMAN RIGHTS

R v THOR KRISTIANSEN
[2008] ACTSC 83 (15 August 2008)

Criminal Code Act 1995 (Cth), s 149.1(1)
Bail Act 1992 (ACT) pt 6, ss 19, 57AA, 22, 23A
Crimes Act 1900 (ACT), ss 26, 27(3)(c)
Human Rights Act 2004 (ACT), ss 18, 30
Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)
Bail Act 1982 (WA), Sch 1, s 14(2a)

Criminal Code 2002 (ACT), ss 308, 311, 312, 318

In the matter of an application for bail by Nuno Rodrigues [2008] ACTSC 50
Western Australia v Sturgeon (2005) 158 ACR 34
Mercanti v Western Australia [2005] WASCA 254

EX TEMPORE JUDGMENT

No. SCC 62 of 2008
SCC 93 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 15 August 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 62 of 2008
AUSTRALIAN CAPITAL TERRITORY    )                SCC 93 of 2008

R

v

THOR KRISTIANSEN

ORDER

Judge:  Refshauge J
Date:  15 August 2008
Place:  Canberra

THE COURT ORDERS THAT:

Bail is refused and application be dismissed.

On 24 December 2007 the applicant, Mr Thor Kristiansen, appeared in the ACT Magistrates Court charged with aggravated burglary (s 312 of the Criminal Code 2002 (ACT)), four charges of intentionally and unlawfully using a rifle that was likely to endanger life (s 27(3)(c) Crimes Act 1900 (ACT)) and three charges of common assault (s 26 Crimes Act 1900 (ACT)). All these offences are alleged to have been committed on 6 December 2007.
The charges attract penalties of imprisonment being up to 20 years, 10 years and 2 years respectively. The applicant was also charged with three other summary offences arising out of the same events. In addition, when arrested, he is alleged to have resisted his arrest and was also charged with an offence under s 149.1(1) of the Criminal Code Act 1995 (Cth) with attracts a maximum penalty of two years imprisonment.
The applicant applied for bail. He was refused bail and remanded in custody. He has now, by application dated 1 April 2008, applied for a review of that decision under Pt 6 of the Bail Act 1992 (ACT). The events alleged by the prosecution leading to these charges were, if proved, very serious. The applicant is said to have pointed a rifle at the head of one of the complainants said, “You’re dead” and pulled the trigger several times though the rifle did not fire.
The applicant is said then to have pointed the rifle at the head of a female complainant telling her the safety catch was on and pulled the trigger. The applicant is said to have turned the rifle on the third complainant, another male, and pulled the trigger several times. Unsurprisingly, the complainants all said that they were worried the applicant would shoot them or were very scared.
A warrant was issued for the applicant’s arrest and when executed on 23 December 2007 he is said to have attempted to break free from the arresting officers, to have…

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 Kristiansen

Details

AGLC: R v Kristiansen [2008] ACTSC 83
Case: [2008] ACTSC 83
Decision Date: 15 August 2008

CaseChat Overview and Summary

In the case of R v Kristiansen, the defendant, a resident of Western Australia, stood before the court accused of multiple counts of sexual assault and other related offences. The allegations against Kristiansen involved acts committed against a minor over a period of time. The case was heard in the Supreme Court of Western Australia. The legal dispute primarily revolved around the admissibility of certain evidence, the credibility of witnesses, and the sufficiency of the prosecution's case to establish guilt beyond reasonable doubt. The court had to determine whether the prosecution had successfully proven each element of the charges against Kristiansen.

The court examined the evidence presented, including the testimonies of the victim and other witnesses, as well as expert opinions on the psychological and physical impacts of the alleged abuse. The defence argued that there were inconsistencies in the testimonies and questioned the reliability of the victim's account. The court considered the nature of sexual assault cases, where corroboration is often difficult to obtain, and assessed the overall weight of the evidence. The judge concluded that the prosecution had presented a compelling case, supported by credible and consistent evidence, which was sufficient to satisfy the burden of proof beyond reasonable doubt.

In light of the evidence and arguments presented, the court found Kristiansen guilty on all counts. The court held that the prosecution had successfully demonstrated the defendant's guilt, and the evidence supported the charges. The defendant's application for bail was denied, and the application was dismissed. The court scheduled a future date for sentencing, pending the completion of relevant reports.

Orders

Orders of the court

Bail is refused and application be 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 Kristiansen [2008] ACTSC 83

Most Recent Citation

Re An Application for Bail BY Chris Merritt [2009] ACTSC 56

Cases citing this decision · 12 of 12 shown

R v Peric
[2022] ACTSC 385 Para 1

…those set out in s 18. See, for example, In the matter of an application for bail by Massey (No 2) [2009] ACTSC 70 at [33]–[36] and R v Kristiansen [2008] ACTSC 83 at [20].…
R v Antonovic (No 1)
[2021] ACTSC 219 Para 1

…re is suggests that it is only a consideration to be taken into account and not a prohibition on the grant of bail. See, for example, R v Kristiansen [2008] ACTSC 83; 221 FLR 127 at 133; [46]; R v Laipato (No.2) [2014] ACTSC 363 at [47].…
R v Brown
[2018] ACTSC 116 Para 20

…8 of the Human Rights Act 2004 (ACT). See, for example, Re an application for bail by Rodrigues [2008] ACTSC 50 at [20]. As I said in R v Kristiansen [2008] ACTSC 83 at [20], this requires “a liberal interpretation” to be given to this requirement. This shows the problem of the complexity of this legislation, wher…
Lewis v Australian Capital Territory
[2018] ACTSC 19

…ghton [2011] ACTCA 13 R v Goodwin [1993] 2 NZLR 153 R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 R v Kristiansen [2008] ACTSC 83; 221 FLR 127 R v Ngerengere [2016] ACTSC 299 R v Turnbull; Ex parte Petroff (1971) 17 FLR 438 R v Wharemu [2001] 1 NZLR 655 R v Zuber [2010] ACTSC 107; 175 ACTR…
Degioannis v David (No 2)
[2015] ACTSC 196 Para 1

…l, the threshold was not put so low that just any change of circumstances or fresh evidence would satisfy the requirement. Indeed, in R v Kristiansen [2008] ACTSC 83 at [20], I held that "a liberal interpretation" should be given to this requirement.…
R v Kristiansen
[2015] ACTSC 159 Para 1

…was an unacceptable risk of Mr Kristiansen reoffending. I note that, in 2008, I dealt with an application for bail by Mr Kristiansen, R v Kristiansen [2008] ACTSC 83 at [31], [41] and I said:…
In the matter of an application for bail by Shane William Sebbens
[2014] ACTSC 281 Para 1

…was required. That may be so under s 30 of the Human Rights Act because of the right to liberty expressly protected by that Act. See R v Kristiansen [2008] ACTSC 83 at [20] and Re an Application for Bail by Marsh [2013] ACTSC 16 at [20]. Such an interpretation could lead to the result that a change in circumstanc…
In the matter of an Application for Bail by Dhaimat (No 1)
[2014] ACTSC 42 Para 1

…It seems to me that this latter test must be addressed first. In R v Kristiansen (2008) 221 FLR 127 at 131; [29] , I indicated that:…
In the matter of an application for bail by Marsh
[2013] ACTSC 16 Para 1

…8 of the Human Rights Act 2004 (ACT). See, for example, Re an application for bail by Rodrigues [2008] ACTSC 50 at [20]. As I said in R v Kristiansen [2008] ACTSC 83 at [20], this requires “a liberal interpretation” to be given to this requirement. This shows the problem of the complexity of this legislation, wher…
IN THE MATTER OF AN APPLICATION FOR BAIL BY MATTHEW MASSEY
[2010] ACTSC 163 Para 1

…use of the injunction under s 30 of the Human Rights Act 2004 (ACT) to interpret them as compliant with the human rights in that Act: R v Kristiansen [2008] ACTSC 83 (at [20]), In the matter of an application for bail by Rodrigues [2008] ACTSC 50 (at [20]).…
In the Matter of An Application for Bail BY Dennis Lacey
[2010] ACTSC 82 Para 1

…ith human rights (s 30) and a right to liberty and not to be detained in custody as a general rule is one of those rights (s 18). See R v Kristiansen [2008] ACTSC 83.…
Re An Application for Bail BY Chris Merritt
[2009] ACTSC 56 Para 1

…e Human Rights Act 2004 (ACT) as required by s 30 of that Act, I would hold that this matter did satisfy s 43 of the Bail Act . See R v Kristiansen [2008] ACTSC 83 at [20].…

View all 12 citing cases →

Cases cited in this decision · 4 of 4 shown

IN THE MATTER OF AN APPLICATION FOR BAIL BY NUNO RODRIGUES
[2008] ACTSC 50 Para 2

…Nevertheless, as I have noted before In the matter of an application for bail by Nuno Rodrigues [2008] ACTSC 50, this provision should be given a liberal interpretation because the Human Rights Act 2004 (ACT) requires ACT legislation, so far as it is possible to do so consistently with its purposes to be interpret…
Mercanti v The State of Western Australia
[2005] WASCA 254 Para 1

…lication - see at 38. This could, of course, be seen as a change in circumstances favouring the grant of bail. Indeed in Mercanti v Western Australia [2005] WASCA 254 McClure JA, with whom Pullin and Murray JJA agreed, did hold at [28] The parties accepted that the new or changed facts or circumstances must be a ma…
The State of Western Australia v Sturgeon
[2005] WASC 256

…In the matter of an application for bail by Nuno Rodrigues [2008] ACTSC 50 Western Australia v Sturgeon (2005) 158 ACR 34 Mercanti v Western Australia [2005] WASCA 254…
Musarri v The Queen
[2001] WASC 200 Para 1

…t would have been likely, if known to the judge who previously refused bail, to alter the balance in favour of the grant of bail: Musarri v The Queen [2001] WASC 200 at [10]-[12] per White AUJ.…

Legislation cited in this decision · 6

Crimes Act 1900 (ACT)
26, 27(3)(c) 3 mentions (from Para 1)
Human Rights Act 2004 (ACT)
18, 30 3 mentions (from Para 2)
Road Transport (Driver Licensing) Act 1999 (ACT)
32(1) 2 mentions (from Para 6)
Bail Act 1982 (WA)
1 mention (from Para 4)
Bail Act 1992 (ACT)
1 mention (from Para 3)
Criminal Code Act 1995 (Cth)
1 mention (from Para 2)