Kemp v The King [1951] HCA 39

Kemp v The King [1951] HCA 39

The evidence of similar acts tendered and received on the second trial at least included occasions covered by the two counts on which the prisoner had been acquitted, so that evidence was inadmissible; because it was admitted over objection and no direction was given to the jury to discard evidence concerning the acquitted matters, the conviction could not be supported.

Jurisdiction
Australia
Procedural Posture
Criminal Appeal by Special Leave / Appeal From an Order of the Court of Criminal Appeal Dismissing the Prisoner's Appeal From Conviction
Outcome
Appeal allowed; conviction quashed.
Legal Topics
['indecent Assault' 'similar Fact Evidence' 'issue Estoppel Based Upon Acquittal' 'admissibility of Evidence' 'jury Directions' 'conviction Quashed']
['criminal Law' 'evidence' 'criminal Procedure'] ['indecent Assault' 'similar Fact Evidence' 'issue Estoppel Based Upon Acquittal' 'admissibility of Evidence' 'jury Directions' 'conviction Quashed']

Case Brief

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Procedural Posture

Criminal Appeal by Special Leave / Appeal From an Order of the Court of Criminal Appeal Dismissing the Prisoner's Appeal From Conviction

Legal Issues

  1. 1 ['Whether evidence of similar acts was admissible on the retrial where the evidence included occasions covered by counts on which the prisoner had been acquitted.' 'Whether the conviction could stand where no direction was given requiring the jury to discard evidence covering matters that were the subject of the acquitted counts.' 'Whether a new trial should be ordered after the prisoner had been serving the sentence for nearly two years.']

Ratio Decidendi

The evidence of similar acts tendered and received on the second trial at least included occasions covered by the two counts on which the prisoner had been acquitted, so that evidence was inadmissible; because it was admitted over objection and no direction was given to the jury to discard evidence concerning the acquitted matters, the conviction could not be supported.

Court Disposition

Appeal allowed; conviction quashed.

Orders

  • ['Appeal allowed.' 'Conviction quashed.']