The Queen v KH - [2002] ACTSC 108

THE QUEEN v KH [2002] ACTSC 108 (31 OCTOBER 2002)

CATCHWORDS

CRIMINAL LAW – acts of indecency with young person – s 92K Crimes Act 1900 (ACT).
CRIMINAL LAW & PROCEDURE - trial by judge alone – warnings – separate consideration of offences.
CRIMINAL LAW – evidence – character evidence – evidence of character of accused – admissibility – use to which character evidence may be put – s 57 Evidence Act 1995 (Cth).
CRIMINAL LAW – evidence – possibility of concoction of evidence – admissibility not challenged - burden on Crown to negate reasonable possibility of concoction – burden discharged.

Evidence Act 1971 (ACT), s 76E
Crimes Act 1900 (ACT), s 61, s 76, s 92

Evidence Act 1995 (Cth), s 57, s 97, s 98
Supreme Court Act 1933 (ACT), s 68C

R v Markuleski (2001) 52 NSWLR 82
Copley v The Queen [2000] FCA 994
R v Wheeler (NSW Court of Criminal Appeal, unreported, 16 November 1989)
R v OGD [No. 2] (2000) 50 NSWLR 443
TKWJ v The Queen [2002] HCA 46 (10 October 2002)

BRS v The Queen (1990) 191 CLR 275
R v Lawrence (1984) 3 NSWLR 674
KRM v R [2001] HCA 11

No. SCC 62 of 2002

Judge: Gray J
Supreme Court of the ACT
Date: 31 October 2002

IN THE SUPREME COURT OF THE       )
  )          No. SCC 62 of 2002
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
KH

ORDER

Judge:  Gray J
Date:  31 October 2002
Place:  Canberra

THE COURT FINDS THAT the accused is guilty of count 1 in the indictment.
THE COURT FURTHER FINDS THAT the accused is guilty of count 2 in the indictment.

Non-publication order

On 23 May 2002 I made a non-publication order in this matter concerning the complainant’s name and any evidence which might identify her. In addition, s 76E of the Evidence Act 1971 (ACT) provides that a person, without the complainant’s consent, is not to publish the name of the complainant or any reference or allusion by which the identity of the complainant be disclosed or from which that identity might reasonably be inferred. In order to maintain the integrity of that provision and my order, I have not referred in these reasons to the name of the complainant or the witnesses who gave evidence whose identities might identify the complainant. Nor do I identify in these reasons the school concerned or the particular school activity in respect of which these charges are connected. I attach an appendix referred to in the reasons which I order not be published but be made available to the prosecution and the accused to be used by them for the purpose of these and any subsequent proceedings only.

The Charges

The accused was arraigned before me on 2 counts. As finally amended, the indictment charged:

“1.… THAT [the accused] between 17 April 1999 and 17 August 1999 at Canberra in the Australian Capital Territory committed an act of indecency upon [the complainant] who was then…

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 KH

Details

AGLC: The Queen v KH [2002] ACTSC 108
Case: [2002] ACTSC 108
Decision Date

CaseChat Overview and Summary

The Queen brought a case against KH in the Supreme Court of the Australian Capital Territory. The accused was charged with two counts of committing an act of indecency upon a person under the age of 16 years. The accused pleaded not guilty to both counts. The court had to decide on the admissibility of character evidence, the possibility of concoction of evidence, and whether the prosecution proved the charges beyond reasonable doubt. Justice Gray found the accused guilty on both counts. The court determined that the prosecution discharged its burden to negate any reasonable possibility of concoction of evidence. The complainant's evidence was accepted as convincing, and the accused's credibility was questioned based on his explanations and previous good character. The court found the accused guilty on both counts beyond reasonable doubt.

Orders