Kemp v The King

High Court of Australia|1951-07-01|Before: Webb JJ, Dixon J

High Court of Australia Dixon, Williams and Webb JJ. Kemp v The King [1951] HCA 39

The following judgment of the Court was delivered by: -

This is an appeal by special leave from an order of the Court of Criminal Appeal dismissing the prisoner's appeal from his conviction.

(1950) A.C. 458, at p. 479. 2. (1948) 77 C.L.R. 511, at pp. 518, 519.

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.

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.

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