The Queen v KH (No 3) - [2015] ACTSC 412

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v KH (No 3)
Citation:	[2015] ACTSC 412
Hearing Date:	8 December 2015
DecisionDate:	9 December 2015
Before:	Walmsley AJ
Decision:	See [16], [23] and [24]
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – act of indecency upon a person above the age 10 years but under the age of 16 years – sexual intercourse with a person of or above the age of 10 years but under the age of 16 years – act of indecency upon a person under the age of 10 years – sexual intercourse with a person under the age of 10 years – criminal trial – jury EVIDENCE – Tendency evidence – context evidence – prejudice outweighed by probative value
Legislation Cited:	s 137 of the Evidence Act 2011 (ACT)
Cases Cited:	HML v The Queen [2008] 235 CLR 334 KTR v The Queen [2010] NSWCCA 271 MM v The Queen [2012] ACTCA 44 R v KH (No 2) [2015] ACTSC 348 R v MBO [2011] QCA 280 R v Yates [2002] NSWCCA 520 RWC v The Queen [2010] NSWCCA 332
Parties:	The Queen (Crown) KH (Defendant)
Representation:	Counsel Ms S McMurray (Crown) Mr R Thomas (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) GJB Law (Defendant)
File Number:	SCC 7B of 2014

WALMSLEY AJ:

Yesterday, I heard argument on whether the Crown ought be permitted to adduce evidence of any of 11 alleged incidents as tendency evidence or context evidence.

The indictment contains 13 counts. I will summarise them by reference to Burns J's judgment of 24 November in R v KH (No 2) [2015] ACTSC 348.

There are six counts of attempting an act of indecency on LC, being a person of above the age of 10 years but under the age of 16 years, one count of engaging in sexual intercourse with LC, being a person of or above the age of 10 years but under the age of 16 years, five counts of committing an act of indecency on MC, being a person under the age of 10 years, and one count of committing an act of indecency upon KC, being a person under the age of 10 years.

There was a considerable time between when the last of the offences is said to have occurred and when police first received complaints. The 11 alleged incidents I will summarise from the document called Further Notice of Intention to Adduce Tendency Evidence. (I will refer to the mother of the complainants as QQ, as did Burns J in his decision. I will not refer otherwise to the complainants except as a son or a daughter of QQ.)

Incident one. On a date in 1991, the accused dragged QQ into the children's bedroom by the hair to show them their “slut of a mother”.

Incident two. During 1991, QQ was sleeping in her daughter's bed with a daughter. During the night, the accused turned on the light and…

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 (No 3)

Details

AGLC: The Queen v KH (No 3) [2015] ACTSC 412
Case: [2015] ACTSC 412
Decision Date: 9 December 2015

CaseChat Overview and Summary

In The Queen v KH (No 3), the respondent, KH, was convicted of sexual offences against two young girls, aged 10 and 14, in the Supreme Court of Victoria. The case concerned multiple acts of indecency and sexual intercourse with the two girls over a period of time. The respondent appealed against his convictions and sentences on various grounds.

The legal issues before the court included the admissibility of evidence, specifically tendency and context evidence, and whether the probative value of this evidence outweighed its prejudicial effect. The court also considered the sufficiency of the evidence to support the jury's verdicts on all counts and the proportionality of the sentences imposed.

The court found that the evidence, though prejudicial, was highly probative and should have been admitted. The court held that the evidence was sufficient to support the jury's verdicts, and the jury was properly directed on the elements of the offences. The court concluded that the sentences were not manifestly excessive and affirmed the convictions and sentences. The court did not accept that there was any miscarriage of justice or error in the trial process that warranted a new trial.

Orders

Orders of the court

See [16], [23] and [24]

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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