King v The Queen [2003] HCA 42

King v The Queen [2003] HCA 42

Where an offence under s 61 Restraining Orders Act 1997 (WA) is a subsidiary offence to a charge under s 401(2) Criminal Code (WA), the prosecution bears the onus to prove absence of consent throughout. The defence of consent in s 62 does not require the accused to bear an onus in such a context. Accordingly, the...

Source-derived case information.

Parties
Applicant: Rodney Nathan King; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
06 August 2003
Procedural Posture
Criminal / Special Leave to Appeal to the High Court From the Court of Criminal Appeal of Western Australia
Outcome
Special leave granted; appeal dismissed
Legal Topics
Burglary, Breach of Restraining Order, Onus of Proof, Consent, Directing the Jury, Defences, Interaction of Statutory Provisions
Criminal Law Burglary Breach of Restraining Order Onus of Proof Consent Directing the Jury Defences Interaction of Statutory Provisions

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Parties

Rodney Nathan King

Applicant

The Queen

Respondent

Procedural Posture

Criminal / Special Leave to Appeal to the High Court From the Court of Criminal Appeal of Western Australia

Legal Issues

  1. 1 Whether the trial judge erred in directing the jury regarding the onus of proof in respect of consent in the context of s 401(2) Criminal Code (WA) and s 62 Restraining Orders Act 1997 (WA)
  2. 2 Whether the Court of Criminal Appeal erred in applying the proviso under s 689(1) Criminal Code (WA) and dismissing the appeal despite the error identified

Ratio Decidendi

Where an offence under s 61 Restraining Orders Act 1997 (WA) is a subsidiary offence to a charge under s 401(2) Criminal Code (WA), the prosecution bears the onus to prove absence of consent throughout. The defence of consent in s 62 does not require the accused to bear an onus in such a context. Accordingly, the trial judge did not err in their directions, or, if there was any error, it did not result in a substantial miscarriage of justice given the factual findings of the jury. Special leave to appeal granted but appeal dismissed.

Court Disposition

Special leave granted; appeal dismissed

Orders

  • Special leave to appeal granted
  • Appeal dismissed