The Queen v KH (No 4) - [2015] ACTSC 413

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v KH (No 4)
Citation:	[2015] ACTSC 413
Hearing Dates:	14 December 2015
DecisionDate:	16 December 2015
Before:	Walmsley AJ
Decision:	See [25]
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 – Complaint evidence – fresh in the memory – delay – 10 year delay – 20 year delay – memory revived
Legislation Cited:	Evidence Act 2011 (ACT), s 66, 66(2)(a)
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(s):	SCC 7B of 2014

WALMSLEY AJ:

Evidence of MC

On 14 December 2015, I ruled that the Crown should not be permitted to adduce certain evidence as evidence which was “fresh in the memory” under s 66 of the Evidence Act 2011 (ACT).

In 2003-04, a complaint was made to QQ by MC. The words said to have been used were to the effect of, “JG has done sexual things to me.” When MC gave evidence to the jury, she said that when she was originally asked by her mother if the accused had done anything to her, she denied it. She told the jury that she had, in effect, pushed it to the back of her mind, and she did not want to deal with it.

Later, she said, she felt that she could, and so she spoke to her mother about things that had happened to her.

When she gave her evidence to the jury, she did not say that this had been fresh in her memory at the time she said the words to her mother. That is not, of course, conclusive.

I was referred by both counsel to authorities from Victoria, New South Wales and the ACT.

What was said to QQ by MC was ten years after the event. It was made after she had said initially that nothing had happened with JG. There was too her statement that she had pushed it to the back of her mind.

When MC gave evidence as to what she had said to her mother, the words she used were very far from specific in detail.

Although she may have, or appear to have, a vivid memory now, given the background shortly before she said what she said to her mother, I was not prepared to find that it was relevantly fresh in her memory. That was because she had pushed it to the back of her mind and, in effect, what happened was that there…

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 4)

Details

AGLC: The Queen v KH (No 4) [2015] ACTSC 413
Case: [2015] ACTSC 413
Decision Date: 16 December 2015

CaseChat Overview and Summary

The case before the court was a criminal trial involving the accused, KH, who was charged with multiple sexual offences against a child. The victim, who was under the age of 16 years at the time of the alleged offences, made a complaint about the incidents many years later, with varying timelines for the reporting of the events. The court was required to determine whether the evidence provided by the victim, despite the significant delays in reporting, was reliable and admissible in the criminal trial.

The primary legal issues the court had to address were the admissibility of the victim's complaint evidence, particularly in light of the substantial delay between the alleged offences and the reporting of the incidents. The court also had to consider whether the evidence was still "fresh in the memory" of the complainant and whether the passage of time impacted the reliability of the testimony. Additionally, the court needed to assess whether the jury could be satisfied beyond reasonable doubt of the accused's guilt based on the evidence presented.

In its reasoning, the court considered the principles of evidence law and the factors that could impact the credibility of a complainant's testimony, including the length of time between the alleged offence and the reporting of the incident. The court determined that despite the lengthy delays in reporting, the evidence provided by the victim was still reliable and admissible, as it was fresh in the memory of the complainant. The court found that the jury could be satisfied beyond reasonable doubt of the accused's guilt based on the evidence presented, leading to the conviction of the accused on the charges.

The final orders of the court were that the accused, KH, was found guilty on all charges, and sentencing was to be determined in a subsequent proceeding. The court considered the nature and circumstances of the offences, along with the impact on the victim, in reaching its decision.

Orders

Orders of the court

See [25]

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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