The Queen v Ian Harold King - [2013] ACTCA 23

THE QUEEN v IAN HAROLD KING
[2013] ACTCA 23 (20 May 2013)

EVIDENCE – similar facts – sexual offences –tendency and coincidence evidence – whether relevant to the issue of abuse of position of authority or trust
CRIMINAL LAW – engaging in sexual intercourse without consent – committing acts of indecency without consent – consent alleged to have been negated by abuse of position of authority or trust – abuse in the context of s 92P(1)(h) (now 67(1)(h)) of the Crimes Act 1900
APPEAL – appeal from order for separate trials following ruling against the admission of tendency and coincidence evidence

WORDS AND PHRASES – “abuse of position of authority … or … trust”

Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc (1981) 148 CLR 170
AW v The Queen [2009] NSWCCA 1
Dao v The Queen (2011) 81 NSWLR 568
Gillard v The Queen [2013] ACTCA 17
In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318
McNamara v R (1978) 20 ALR 98 Phillips v R (2006) 225 CLR 303
R v Fletcher (2005) 156 A Crim R 308
R v Lockyer (1996) 89 A Crim R 457

Crimes Act 1900 (ACT) s 92P(1)(h) (now 67(1)(h))
Evidence Act 2011 (ACT) ss 97, 98
Supreme Court Act 1993 (ACT) s 37E(4)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 71 – 2012
No. SCC 164 of 2009

Judges: Higgins CJ, Katzmann J & Nield AJ

Court of Appeal of the Australian Capital Territory
Date: 20 May 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 71 – 2012
  )          No. SCC 164 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN
Appellant

AND:IAN HAROLD KING
Respondent

ORDER

Judges:  Higgins CJ, Katzmann J & Nield AJ
Date:  29 April 2013
Place:  Canberra

THE COURT ORDERS THAT:

Leave to appeal be granted.

The appeal be allowed.

The orders made on 10 December 2012 be set aside.

The proceeding be remitted to the Supreme Court for the applications by the Crown to lead tendency and coincidence evidence to be determined according to law, with any subsequent application to sever the indictment to be dealt with in the light of those determinations.

IN THE SUPREME COURT OF THE     )          No. ACTCA 71 – 2012
  )          No. SCC 164 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN
Appellant

AND:IAN HAROLD KING
Respondent

Judges:  Higgins CJ, Katzmann J & Nield AJ
Date:  20 May 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Ian Harold King is charged with three counts of engaging in sexual intercourse without consent and five counts of committing acts of indecency without consent, in each case knowing or being recklessly indifferent as…

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 The Queen v Ian Harold King

Details

AGLC: The Queen v Ian Harold King [2013] ACTCA 23
Case: [2013] ACTCA 23
Decision Date: 20 May 2013

CaseChat Overview and Summary

The Queen, represented by the Crown, appealed to the Court of Criminal Appeal of New South Wales against an order for separate trials. The appeal concerned the admissibility of similar fact evidence in a criminal proceeding where the accused, Ian Harold King, was charged with sexual offences, including engaging in sexual intercourse and committing acts of indecency without consent. The alleged negation of consent was based on the accused's abuse of a position of authority or trust, as contemplated by section 92P(1)(h) (now section 67(1)(h)) of the *Crimes Act 1900* (NSW).

The central legal issues before the Court of Criminal Appeal were whether the proposed similar fact evidence was relevant to the question of whether the accused abused a position of authority or trust, and consequently, whether the ruling against its admission was correct. The Court was required to determine the admissibility of tendency and coincidence evidence in the context of these specific charges and the alleged abuse of a position of authority or trust.

The Court allowed the appeal, finding that the ruling against the admission of the similar fact evidence was erroneous. The reasoning focused on the relevance of such evidence to establishing the alleged abuse of a position of authority or trust, which was a crucial element of the charges. The Court held that the similar fact evidence had the potential to demonstrate a pattern of conduct or a common design indicative of such abuse, thereby being relevant to the ultimate issues in the trial. Consequently, the orders made for separate trials were set aside, and the matter was remitted to the Supreme Court. The Supreme Court was directed to determine the applications by the Crown to lead the tendency and coincidence evidence according to law, with any subsequent applications to sever the indictment to be dealt with in light of those determinations.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The orders made on 10 December 2012 be set aside.

4. The proceeding be remitted to the Supreme Court for the applications by the Crown to lead tendency and coincidence evidence to be determined according to law, with any subsequent application to sever the indictment to be dealt with in the light of those determinations.

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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