R v JSK - [2013] ACTSC 147

R v JSK
[2013] ACTSC 147 (2 August 2013)

CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown Application to adduce – whether proposed tendency evidence of significant probative value – whether proposed tendency evidence too ambiguous to be of significant probative value – whether proposed tendency evidence admissible for another purpose – application granted in part

Evidence Act2011 (ACT), ss 56, 97, 101

REASONS FOR DECISION

No. SCC 64 of 2012

Judge: Burns J
Supreme Court of the ACT

Date: 2 August 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 64 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

R
v
JSK

REASONS FOR DECISION

Judge:  Burns J
Date:  2 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

The accused’s application for a separate trial on Count 9 is formally granted.

The Crown’s application to lead evidence relevant to each of the Counts 1-8 as tendency evidence with respect to each of the other Counts in the first trial of the accused is granted.

With respect to the admissibility of incidents alleging uncharged acts on the Amended Notice of Intention to Adduce Tendency Evidence in the first trial of the accused:

a) Incidents 5 and 13 are not admissible, either as tendency evidence or on any other basis.

b) Incidents 6 and 14 are admissible as tendency evidence.

c) Incident 8 is not admissible as tendency evidence or on any other basis.

d) Incident 12 is not admissible as tendency evidence, but is admissible as relationship evidence.

The Crown is entitled to lead as tendency evidence those images of adolescent girls which form part of the material the subject of Count 9 in the trial of the accused on Counts 1-8.

The accused is awaiting trial on the following charges on an Indictment dated 28 November 2012:
THAT between 1 September 2011 and
23 October 2011 at Canberra in the Australian Capital Territory JSK committed an act of indecency on a person under the age of 16 years, namely JF.
SECOND COUNT AND FURTHER THAT on 14 October 2011 or 15 October 2011 at Canberra aforesaid JSK committed an act of indecency in the presence of a person under the age of 16 years, namely JF.

THIRD COUNT AND FURTHER THAT between 1 February 2011 and 23 October 2011 at Canberra aforesaid JSK committed an act of indecency in the presence of a person under the age of 16 years, namely JF.

FOURTH COUNT AND FURTHER THAT between 12 April 2011 and 24 July 2011 at Canberra aforesaid JSK committed an act of indecency on a person under the age of 16 years, namely CS.

FIFTH COUNT AND FURTHER THAT between 1 February 2011 and 23 October 2011 at Canberra aforesaid JSK committed an act of indecency on a person under the age of 16 years, namely CS.

SIXTH COUNT AND FURTHER THAT between 1 February 2011 and 23 October 2011 at Canberra aforesaid JSK committed an act of indecency in the presence of a person under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JSK

Details

AGLC: R v JSK [2013] ACTSC 147
Case: [2013] ACTSC 147
Decision Date: 2 August 2013

CaseChat Overview and Summary

In the case of R v JSK, the defendant faced a series of criminal charges, including possession of child exploitation material, possession of an indecent image of a child, and making child exploitation material. The defendant sought a separate trial for one of the charges, while the Crown sought to introduce certain evidence in relation to the other charges. The matter was heard in the Supreme Court of Victoria.

The central legal issues before the court were the admissibility of certain evidence under the tendency evidence provisions. The Crown sought to introduce evidence of uncharged acts by the defendant, as well as images of adolescent girls, to prove the defendant's propensity to commit the charged offences. The court had to determine whether the proposed evidence had sufficient probative value to outweigh any prejudicial effect, and whether it was too ambiguous to be of significant probative value. Additionally, the court had to consider whether the evidence could be admitted for another purpose, such as proving relationship between the parties.

The court found that while some of the proposed evidence was too ambiguous to be of significant probative value, other incidents and images were admissible. The court granted the Crown's application to lead certain evidence as tendency evidence, but excluded other incidents on the basis that they were either too ambiguous or not relevant to the charges. The court also granted the defendant's application for a separate trial on one of the charges.

The court's orders reflected its findings on the admissibility of the evidence. The court granted the defendant's application for a separate trial on Count 9, while allowing the Crown to introduce certain evidence as tendency evidence in relation to the other charges. The court excluded certain incidents and images from the evidence, finding them either too ambiguous or not relevant to the charges. Finally, the court allowed the Crown to introduce certain images of adolescent girls as tendency evidence in relation to the trial on Counts 1-8.

Orders

Orders of the court

1. The accused’s application for a separate trial on Count 9 is formally granted.

2. The Crown’s application to lead evidence relevant to each of the Counts 1-8 as tendency evidence with respect to each of the other Counts in the first trial of the accused is granted.

3. With respect to the admissibility of incidents alleging uncharged acts on the Amended Notice of Intention to Adduce Tendency Evidence in the first trial of the accused:

a) Incidents 5 and 13 are not admissible, either as tendency evidence or on any other basis.

b) Incidents 6 and 14 are admissible as tendency evidence.

c) Incident 8 is not admissible as tendency evidence or on any other basis.

d) Incident 12 is not admissible as tendency evidence, but is admissible as relationship evidence.

4. The Crown is entitled to lead as tendency evidence those images of adolescent girls which form part of the material the subject of Count 9 in the trial of the accused on Counts 1-8.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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