Kemp v R [1951] HCA 39; (1951) 83 CLR 341 (17 July 1951)

HIGH COURT OF AUSTRALIA

KEMP v. THE KING [1951] HCA 39; (1951) 83 CLR 341

Criminal Law

High Court of Australia
Dixon(1), Williams(1) and Webb(1) JJ.

CATCHWORDS

Criminal Law - Indecent assault - Evidence of similar acts - Acts in respect of &which accused had been acquitted - Admissibility.

HEARING

Sydney, 1951, July 17. 17:7:1951
APPEAL from the Court of Criminal Appeal of New South Wales.

DECISION

The following judgment of the Court was delivered by:-
DIXON J. This is an appeal by special leave from an order of the Court of p342)

2. The prisoner was indicted upon three counts for indecent assault upon the same boy. The first count laid the offence on 12th July 1948; the second on 15th July 1948; and the third on 22nd July 1948. On his first trial the prisoner was acquitted on the first and second count and convicted on the third count. A new trial was ordered on the third count. On that second trial evidence was tendered of similar acts consisting of offences by the prisoner on the boy prior to 22nd July. At one stage the boy said there were only two such offences. Clearly if that was so they must have been the subject of the two counts on which the prisoner was acquitted. It is however suggested that they were in fact other occasions. The decision of the Privy Council in Sambasivan v. Public Prosecutor, Federation of Malaya (1950) AC 458, at p 479 is decisive to show that the prisoner must be taken to have been innocent of the charges covered by the two first counts of the indictment for such a purpose as that for which the evidence was tendered. As to the effect of issue estoppel based upon acquittal see also R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at pp 518, 519 . (at p342)

3. The boy may have been uncertain as to dates and confused. But it seems to us to be clear upon the evidence that the occasions covered by the indictment were at least included in the evidence of similar acts which was tendered and received. Evidence of these occasions was, in our opinion, inadmissible. The evidence was admitted after objection. Moreover, no direction was given to the jury enabling them to understand that they should discard any evidence covering the same matters as were the subject of the two first counts. The conviction, therefore, in our opinion, cannot be supported. (at p343)

4. We would, in these circumstances, order a new trial, were it not that the prisoner has been serving his sentence under the conviction, and that sentence commenced on 26th July 1949, nearly two years ago. As it is we think that it is enough to allow the appeal and quash the conviction. (at p343)

ORDER

Appeal allowed. Conviction quashed: