R v Kan

[2016] QCA 108

Queensland Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal and new trial
3. › Misdirection and non-direction
4. › Non-direction
5. › Evidence of uncharged sexual acts
6. › Whether trial judge required to direct jury on standard of proof for uncharged acts used as background or relationship evidence
7. › Whether failure to direct may have affected jury verdict
8. › Criminal Code (Qld), s 229B, s 668E(1)
1. Criminal Law
2. › Evidence
3. › Sexual offences
4. › Uncharged acts
5. › Admissibility as background or relationship evidence
6. › Standard of proof applicable to uncharged acts before use as tendency evidence
7. › Whether jury must be satisfied beyond reasonable doubt
1. Criminal Law
2. › Appeal and new trial
3. › Points and objections not taken below
4. › Whether failure to request direction was deliberate forensic decision or oversight
5. › Whether trial judge relieved of obligation to direct where counsel did not request direction

Quick Take

Where evidence of uncharged sexual acts predating the charged period is led as background or relationship evidence in a maintaining a sexual relationship prosecution, the trial judge must direct the jury that they must be satisfied beyond reasonable doubt that those acts occurred before using them as proof of the accused's sexual interest in the complainant. A bare direction that such evidence is relevant only to 'background' without explanation of the standard of proof is inadequate. Defence counsel's failure to request such a direction does not relieve the trial judge of the obligation to give it where the failure may have affected the verdict.