KJS v The Queen

Case [2014] NSWCCA 27

Court of Criminal Appeal

New South Wales
Case Title: KJS v R
Medium Neutral Citation: [2014] NSWCCA 27
Hearing Date(s): 28.02.2014
Decision Date: 18 March 2014
Before: Hoeben CJ at CL at [1]
Adams J at [47]
R A Hulme J at [48]
Decision:

Appeal dismissed.
Catchwords: CRIMINAL LAW - conviction appeal - historical sexual offences - aggravated indecent assault and aggravated sexual intercourse without consent - admissibility of other uncharged sexual acts as context evidence - whether such evidence "tendency evidence" - whether probative value of evidence outweighed by its unfair prejudice - need for evidence to explain background to what otherwise would appear to be two isolated and unconnected offences - evidence necessary to explain failure of victim to complain at the time of the offending - reasonable assumption that jury would follow judicial directions - evidence of uncharged acts admissible as context evidence.
Legislation Cited: Criminal Appeal Act 1912 - s5(1)(a)
Evidence Act 1995 - ss97, 101 and 137
Cases Cited: DJV v R [2008] NSWCCA 272
Gilbert v R [2000] HCA 15; 109 A Crim R 580
Glennon v R [1992] HCA 16; 173 CLR 592
Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) [1987] HCA 56; 164 CLR 15
HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; 235 CLR 334
KJS v R [2013] NSWCCA 132
Category: Principal judgment
Parties: KJS - Appellant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
S Odgers SC - Appellant
H Wilson SC - Respondent Crown
- Solicitors: Solicitors:
SE O'Connor, Legal Aid NSW - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2009/59381
Decision Under Appeal
- Before: Murrell DCJ
- Date of Decision:  23 March 2013
- Court File Number(s): 2009/59381

JUDGMENT

  1. HOEBEN CJ at CL:

    Introduction
    The appellant, pursuant to s5(1)(a) of the Criminal Appeal Act 1912, appeals against his conviction with respect to two offences of which he was found guilty by a jury. Each of the offences alleges a sexual assault upon his natural daughter, ISS:

    (i) Aggravated indecent assault between 26 September 2003 and 25 September 2004.

    (ii) Aggravated sexual intercourse without consent between 1 January and 31 January 2008.

    The circumstance of aggravation in both counts was that the complainant was under the authority of the appellant.

  2. The trial was heard before Judge Murrell SC and a jury from 19 March to 23 March 2012. The jury retired to consider its verdict on the afternoon of 23 March 2012, returning the following afternoon with verdicts of guilty to both counts. On 17 August 2012 the appellant was sentenced to imprisonment with a non-parole period of 4 ½ years and a balance of term of 6 years which was partially accumulated on another sentence. No appeal has been brought in respect of sentence.

  3. The appellant had previously been convicted of murdering his wife. That matter was the subject of an unsuccessful appeal to this Court in KJS…

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AGLC
KJS v The Queen [2014] NSWCCA 27
Case
[2014] NSWCCA 27
Decision Date

CaseChat Overview and Summary

In the case of KJS v The Queen, the appellant, KJS, sought to appeal his conviction for multiple counts of historical sexual offences against his daughter, ISS. The appeal focused on the admissibility of evidence of uncharged sexual acts that were alleged to have occurred between the appellant and ISS. The Supreme Court of Victoria was tasked with determining whether this context evidence was properly admitted and, if so, whether its probative value outweighed any unfair prejudice it may have caused.

The central legal issue in this appeal was whether the trial judge erred in admitting evidence of uncharged sexual acts as context evidence. The appellant argued that this evidence should have been excluded because it was irrelevant to the charged offences and was overly prejudicial. The Crown, on the other hand, argued that the context evidence was necessary to demonstrate that the charged offences were part of a broader pattern of sexual abuse, which helped to explain why ISS did not complain about the assaults at the time they occurred. The court had to consider whether the evidence was admissible as context evidence under the Evidence Act 1995 and whether its probative value was sufficiently high to justify its admission despite any prejudicial effect.

The court found that the evidence of uncharged sexual acts was properly admitted as context evidence. The court reasoned that the context evidence was relevant to show a process of habituating ISS to physical contact with the appellant, which helped to explain the lack of outcry after the charged offences. The court held that the evidence was necessary to place the charged incidents in their proper context and to provide the jury with a full understanding of the background to the offences. The court concluded that the probative value of the context evidence outweighed any potential unfair prejudice, especially since the jury was directed to consider the evidence only for the limited purposes outlined by the Crown. Consequently, the court upheld the trial judge's decision to admit the context evidence.

As a result of the court's findings, the appeal was dismissed, and KJS's convictions were upheld. The court's decision underscored the importance of context evidence in cases involving historical sexual offences, particularly where the victim did not report the abuse at the time it occurred.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant advances a single ground of appeal:Her Honour erred in admitting into evidence the "relationship" or "context" evidence. The appellant submitted that the asserted "relationship evidence" relating to events before those in count 1 was so different to that conduct that the only context which it could provide was that the appellant had an inappropriate sexual interest in ISS. He submitted that the allegations regarding washing his daughter in the bath while naked suggested a level of inappropriateness but did not otherwise demonstrate attempts at sexual conduct. The appellant submitted that in relation to the pre-count 1 "relationship" evidence relied upon, none of it explained why ISS did not complain about the attempted sexual intercourse to her mother. He submitted that it followed that the evidence was not relevant for that purpose. The appellant submitted that the "relationship" evidence did not demonstrate some level of grooming. He submitted that there was a significant disconnect between the type of behaviour alleged to have occurred in the bath and shower and the very explicit and violent activity described in counts 1 and 2. The appellant submitted that it was difficult to identify the effect of such evidence and that it would always be available to some extent as context. He submitted that despite this, on the facts of this case, the impugned evidence was principally and in effect, evidence of his asserted inappropriate sexual interest in his daughter. In those circumstances, the appellant submitted that its admissibility should have been assessed in accordance with sections 97 and 101 of the Evidence Act 1995. The appellant relied upon the analysis of McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) in DJV v R [2008] NSWCCA 272. He submitted that even if that were not the case, its probative value was outweighed by its unfair prejudice and it should have been excluded pursuant to s137 of the Evidence Act. The appellant submitted that the evidence was so unfairly prejudicial that even though her Honour gave the appropriate directions, they would not have been sufficient to overcome that prejudice. In relation to uncharged events said to have occurred between counts 1 and 2, the appellant noted that these involved explicit acts like those involved in the two counts and the evidence was that they increased in regularity to the point that they occurred almost every night. The appellant submitted that these allegations lacked both specificity as to time and detail and in some cases, nothing in the bedroom in fact occurred. The appellant accepted that the uncharged acts which were closer in time to the events said to have occurred in count 2, had more indicia of context evidence. He submitted, however, that the suggestion that they were occurring almost every night, made them overwhelming in nature. He submitted that while they were in part capable of being used as context evidence, they were clearly also being used as evidence of a tendency on his part to sexually assault his daughter. He submitted that in those circumstances they should have been dealt with pursuant to ss97 and 101 of the Evidence Act.

Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The appellant submitted that in relation to those occasions when it was alleged he entered the room but did nothing because the complainant told him to leave in a loud voice, no real purpose was served with respect to the issues at trial. He submitted that their real function was as evidence of his inappropriate sexual interest and his tendency, if not thwarted, to attempt to sexually assault ISS.Consideration The appellant's submission should not be accepted. There are two sexual acts set out on the indictment. The Crown case was that these incidents were not isolated but occurred against a much more extensive background of sexualised touching, extending from when ISS was in year 6 at school and aged about 11, up to when she was aged 16 and the events in count 2 occurred. In that regard, the evidence led as to context evidence was relatively confined. It comprised touching while bathing, incidents of simulated intercourse, usually at night, which then escalated to actual intercourse. The temporal framework was quite clearly defined and could not have prejudiced the appellant in the conduct of his defence. The relevance and purposes for which the Crown sought to lead this evidence are clear:(i) To demonstrate that there was a process of habituating ISS to physical contact with the appellant so that such contact seemed unremarkable.(ii) To place count 1 in its proper context so that rather than appearing to be an extraordinary assault which had suddenly occurred, it could be seen as a result of a course of conduct in which sexual touching had been established between the appellant and ISS as a normal activity and had progressed to a more serious form of indecent touching.(iii) To provide a proper basis for the jury to make an assessment of the description by ISS of count 1 and more particularly her failure to resist the appellant, to cry out for help or to otherwise express surprise at what was, viewed in isolation, an almost unbelievable anomaly in the father/daughter relationship.(iv) To place count 2 in its proper context so that, rather than appearing to be another isolated and quite extraordinary sexual attack upon ISS, the offence was seen as the continuation and culmination of a consistent course of conduct over a period of years.(v) To provide some explanation for the failure of ISS to complain about her father's conduct. Without the evidence of what could readily be considered as a slow process of habituating ISS to sexual activity, the jury might well have found it incredible that after the occurrence of count 1 (and later count 2), ISS made no complaint. Viewed in that way, it matters not that at least initially the conduct (i.e. bathing and touching) was different to the acts reflected in counts 1 and 2. This is particularly so when the evidence was not being led as coincidence evidence or evidence of the appellant's tendency to act in a way similar or identical to that described in the charged incidents. There was no requirement for similarity of conduct between the acts led as context evidence and the acts led as charged counts.