R v Kirkham

[2020] NSWDC 658

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v MK [2020] NSWDC 658

Hearing dates:

1 October 2020

Date of orders:

6 October 2020

Decision date:

06 October 2020

Jurisdiction:

Criminal

Before:

McLennan SC DCJ

Decision:

Decline to admit the evidence

Catchwords:

TENDENCY – Section 66EA - tendency to have a sexual interest in young children- tendency to act on sexual interest in young children by maintaining unlawful sexual relationships

EXPERT EVIDENCE – expertise to give opinion – Literature review – children’s evidence – reasons for delay in complainant - relevance

Legislation Cited:

Evidence Act

Criminal Code (Qld)

Criminal Procedure Act

Cases Cited:

Hughes v The Queen [2017] HCA 20

McPhillamy v The Queen [2018] HCA 52

The Queen v Bauer [2018] HCA 40

R v Davies [1985] 3 NSWLR 276

Bellemore v Tasmania (2006) 170 A Crim R 1

Hoyle v The Queen at [2018] ACTCA 42

MA v The Queen (2013) 226 A Crim R 575

Suresh v The Queen [1998] HCA 23

M v The Queen (1994) 181 CLR 487

Category:

Procedural rulings

Parties:

Regina (Crown)
MK (Accused)

Representation:

Counsel:
Mr. J Hanna for the Crown
Mr. M Maarroaui for the Accused
Solicitors:
Ms. K. Biffin (DPP)
Mr. C. Hope

File Number(s):

2018/280458

INTRODUCTION

1. The accused has pleaded not guilty to a 27 count indictment alleging sexual offences against three brothers during the period May 2017 to September 2018. The complainants will be identified as MLD, MSD and JD respectively. MLD and MSD are twins who were 11 years old at the time. Their other brother JD was 12. The accused was in a domestic relationship with the complainants' mother at the time.

2. The Crown seeks admission into evidence allegations made by IB and KB concerning events said to have occurred in 2012 in Queensland at a time when they were students in the accused’s primary school class. KB was aged nine to ten years of age, IB was eight to nine years of age. The justification for the admission into evidence of these allegations is said to be that it evidences the following tendencies which if proved make it more likely that the accused offended against MLD, MSD and JD. Those tendencies are:

(1) the tendency to have a sexual interest in young children;

(2) a tendency to act on his sexual interest in young children by maintaining unlawful sexual relationships;

(3) a tendency to act on his sexual interest in young male children by committing sexual acts with or towards young male children, including in circumstances where the accused acted opportunistically and/or where there was a risk of detection.

3. The accused objects to the admission of that evidence. The principal objections (set out at point 3 of the defence written submissions MFI 2) are that the evidence has no significant probative value and that it is otherwise highly prejudicial. The defence objections highlight the fact that:

(1) the Queensland allegations predate the New South Wales allegations by a period of approximately five…