R v KS - [2007] QCA 335

SUPREME COURT OF QUEENSLAND

CITATION:

R v KS [2007] QCA 335

PARTIES:

R
v
KS
(appellant)

FILE NO/S:

CA No 144 of 2006
CA No 6 of 2007
CA No 7 of 2007
DC No 940 of 2006
DC No 3359 of 2005
DC No 3357 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

12 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2007

JUDGES:

Jerrard and Muir JJA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Allow the appeal in CA No 144 of 2006
2. Set aside the convictions regarding KM
3. Order a re-trial
4. Dismiss appeal in CA No 6 of 2007
5. Dismiss appeal in CA No 7 of 2007

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURTS BELOW – WHERE APPEAL ALLOWED – where the appellant was convicted of 3 counts of unlawful and indecent treatment of a child – where evidence was admitted in relation to uncharged acts – where there was an absence of particulars – whether this limited the defences available to the appellant – whether such limitation created an error

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was convicted of 5 counts of unlawful and indecent treatment of a child – where the appellant argued that there were inconsistencies in the evidence of the complainant – where the appellant argued that the trial judge did not allow the jurors to hear again the video recording of pre-trial evidence of the complainant – whether this was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY– PARTICULAR CASES – where the appellant entered a guilty plea in relation to unlawful and indecent dealing – where certain photos were not revealed to the appellant’s lawyers at trial – where the appellant sought to later have the plea set aside – where the appellant claimed that he had not voluntarily entered a guilty plea – whether there was a miscarriage of justice as a consequence

COUNSEL:

S J Hamlyn-Harris for the appellant
S Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Qld) for the respondent

JERRARD JA: These proceedings are three separate appeals, CA No 144 of 2006, and CA Nos 6 and 7 of 2007. CA No 144 of 2006 is Mr KS’s appeal against his conviction, after a trial, on 31 March 2006 on three counts of unlawful and indecent treatment of a child KM, then aged under 12 and under his care. On…

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 KS

Details

AGLC: R v KS [2007] QCA 335
Case: [2007] QCA 335
Decision Date: 12 October 2007

CaseChat Overview and Summary

The appellant, referred to as KS, brought forth an appeal against his convictions and sentences in three separate criminal cases. In the first appeal, the appellant was convicted of three counts of unlawful and indecent treatment of a child. In the second and third appeals, he was convicted of five and one counts of unlawful and indecent treatment of a child respectively. The appellant argued that the evidence admitted against him in relation to uncharged acts was prejudicial, that there were inconsistencies in the evidence of the complainant, and that the trial judge did not allow the jurors to re-hear the video recording of the complainant's pre-trial evidence. The appellant also claimed that certain photos were not revealed to his lawyers at trial, and as a result, he did not voluntarily enter a guilty plea.

The legal issues before the court involved whether the admission of evidence in relation to uncharged acts, the absence of particulars, and the failure to allow the jurors to re-hear the video recording of the complainant's pre-trial evidence constituted a miscarriage of justice. The court also had to determine whether the failure to disclose certain photos to the appellant's lawyers at trial amounted to a miscarriage of justice and whether the appellant had voluntarily entered a guilty plea.

The court held that the admission of evidence in relation to uncharged acts and the absence of particulars limited the defences available to the appellant and created an error. This error was substantial enough to allow the appeal in the first case. The court also found that the failure to allow the jurors to re-hear the video recording of the complainant's pre-trial evidence did not amount to a miscarriage of justice. However, the inconsistencies in the complainant's evidence and the failure to disclose certain photos to the appellant's lawyers at trial did not result in a miscarriage of justice. The court found that the appellant had voluntarily entered a guilty plea.

The court allowed the appeal in the first case, set aside the convictions, and ordered a re-trial. The appeals in the second and third cases were dismissed.

Orders

Orders of the court

1. Allow the appeal in CA No 144 of 2006

2. Set aside the convictions regarding KM

3. Order a re-trial

4. Dismiss appeal in CA No 6 of 2007

5. Dismiss appeal in CA No 7 of 2007

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v KS [2007] QCA 335
PARTIES:	R v KS (appellant)
FILE NO/S:	CA No 144 of 2006 CA No 6 of 2007 CA No 7 of 2007 DC No 940 of 2006 DC No 3359 of 2005 DC No 3357 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	12 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2007
JUDGES:	Jerrard and Muir JJA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Allow the appeal in CA No 144 of 2006 2. Set aside the convictions regarding KM 3. Order a re-trial 4. Dismiss appeal in CA No 6 of 2007 5. Dismiss appeal in CA No 7 of 2007
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURTS BELOW – WHERE APPEAL ALLOWED – where the appellant was convicted of 3 counts of unlawful and indecent treatment of a child – where evidence was admitted in relation to uncharged acts – where there was an absence of particulars – whether this limited the defences available to the appellant – whether such limitation created an error CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was convicted of 5 counts of unlawful and indecent treatment of a child – where the appellant argued that there were inconsistencies in the evidence of the complainant – where the appellant argued that the trial judge did not allow the jurors to hear again the video recording of pre-trial evidence of the complainant – whether this was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY– PARTICULAR CASES – where the appellant entered a guilty plea in relation to unlawful and indecent dealing – where certain photos were not revealed to the appellant’s lawyers at trial – where the appellant sought to later have the plea set aside – where the appellant claimed that he had not voluntarily entered a guilty plea – whether there was a miscarriage of justice as a consequence
COUNSEL:	S J Hamlyn-Harris for the appellant S Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Qld) for the respondent