R v Kandola - [2016] ACTSC 395

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kandola
Citation:	[2016] ACTSC 395
Hearing Date:	24 October 2016
DecisionDate:	24 October 2016
Before:	Murrell CJ
Decision:	Evidence of each charged act is admissible as tendency and coincidence evidence.
Catchwords:	CRIMINAL LAW – Evidence – Admissibility of tendency evidence – admissibility of coincidence evidence – relevant considerations for assessment of tendency and coincidence evidence – whether probative value of evidence substantially outweighs its prejudicial effect – evidence admissible
Legislation Cited:	Crimes Act 1900 (ACT) s 65 Criminal Code (Cth) s 474.19 Evidence Act 2011 (ACT) ss 55, 97, 98, 101
Cases Cited:	R v Donnelly [2016] ACTSC 80 R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 R v Klobucar [2016] ACTSC 23; 305 FLR 445
Parties:	The Queen (Crown) Ashvindardeep Kandola (Accused)
Representation:	Counsel Ms K Musgrove (Crown) Ms H Hayunga (Accused)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 125 of 2016

MURRELL CJ:

The accused is charged with three counts of using a carriage service to transmit child pornography contrary to s 474.19(1) of the Criminal Code (Cth) and three associated counts of possessing child exploitation material contrary to s 65 of the Crimes Act1900 (ACT).

The transmission charges and the related possession charges concern the dates of 7–9 November 2014, 10–11 June 2015 and 18 October 2015, i.e. three episodes of offending. The trial is listed for callover in November and is expected to be allocated a trial date in 2017. Issues at the trial may include whether in relation to each charge the prosecution has proved that it was the accused as opposed to someone else who possessed and transmitted the child pornography material and whether, if it was the accused, he acted intentionally.

Under ss 97 and 98 of the Evidence Act2011 (ACT) (‘Evidence Act’), the prosecution applies to adduce evidence of each charged incident as coincidence and tendency evidence supporting each other charged incident. The prosecution says that at the time of each other charge, the accused had a relevant tendency and that the similarities between the incidents are such that it is most improbable that two different people coincidentally involved themselves in such similar conduct. The incidents can be summarised as follows.

Incident one

The prosecution alleges that on 7–9 November 2014, a mobile telephone number registered to an address associated with the accused and used by the accused in the preceding period in 2014 was used to transmit child pornography to a Mr Harper, being homosexual images including images of adult male/boy sexual intercourse. The transmission was unsolicited and the accused was previously unknown to Mr Harper.

Incident two

The prosecution alleges that on 10–11 June 2015, a different mobile telephone number which was registered to the Nicholls address of the accused’s mother (and admittedly used by the accused later in June 2015) was used to transmit child pornography to a…

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 Kandola

Details

AGLC: R v Kandola [2016] ACTSC 395
Case: [2016] ACTSC 395
Decision Date: 24 October 2016

CaseChat Overview and Summary

The case of R v Kandola involved a criminal prosecution where the appellant, Mr. Kandola, faced charges of indecent assault and related offences. The dispute centred on the admissibility of evidence related to previous acts of indecent assault by the appellant, which were similar to the charges he faced. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the evidence of the previous acts of indecent assault was admissible as tendency evidence and coincidence evidence under the provisions of the Evidence Act 1995 (NSW). The court was required to determine if the probative value of the evidence substantially outweighed its prejudicial effect, as mandated by the legislation. Additionally, the court needed to consider the relevance of the evidence in proving the appellant's propensity to commit such acts and in establishing the coincidence of the charged incidents.

In reaching its decision, the court examined the principles set out in the Evidence Act and relevant case law. It determined that the evidence of the previous acts was relevant in showing the appellant's propensity to commit similar offences and in establishing the coincidence of the charged incidents. The court concluded that the probative value of the evidence substantially outweighed its prejudicial effect, and thus, the evidence was admissible under the relevant provisions of the Evidence Act. The court emphasised the importance of considering the specific circumstances of each case, including the similarity of the previous acts to the charged offences, the time elapsed between the acts, and the need to ensure a fair trial for the accused.

The court ordered that evidence of each charged act be admitted as both tendency and coincidence evidence. This decision allows the prosecution to present the previous acts as evidence to support the charges against the appellant, subject to the protections and requirements set out in the Evidence Act.

Orders

Orders of the court

Evidence of each charged act is admissible as tendency and coincidence evidence.

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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