R v Kisun
[2016] ACTSC 212
•10 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kisun |
Citation: | [2016] ACTSC 212 |
Hearing Date: | 8 August 2016 |
DecisionDate: | 10 August 2016 |
Reasons Date: | 10 August 2016 |
Before: | Murrell CJ |
Decision: | The prosecution is permitted to adduce tendency evidence from A regarding tendency incidents 1 and 2. The prosecution is permitted to cross-tender tendency evidence from the complainant regarding tendency incidents 3 – 5. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency evidence – whether tendency incidents relating to complainant’s brother can be led – where tendency incidents and charged acts similar – where contamination or concoction alleged – cross-admissibility of tendency evidence |
Legislation Cited: | Crimes Act 1900 (ACT) s 81 Evidence Act 2011 (ACT) ss 55, 56, 97, 100, 101 |
Cases Cited: | Festa v The Queen (2001) 208 CLR 593 IMM v The Queen (2016) 90 ALJR 529 Tully v The Queen [2016] ACTCA 4 |
Texts Cited: | Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) |
Parties: | The Queen (Crown) David Kisun (Accused) |
Representation: | Counsel Mr T Hickey (Crown) Mr A J Bellanto QC (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Australian Criminal Law Specialists (Accused) | |
File Number: | SCC 98 of 2016 |
MURRELL CJ:
The tendency application
The accused is charged that between 1 January and 31 December 1982 at Canberra he committed three acts of indecent assault on a male, contrary to s 81 of the Crimes Act 1900 (ACT).
Pursuant to s 97(1) of the Evidence Act 2011 (ACT) (the Evidence Act), the prosecution seeks to adduce tendency evidence.
The accused objects to the proposed tendency evidence.
The prosecution case
The accused was a primary school teacher at Marist College Canberra. In 1982, he taught the complainant’s Year 4 class. During that year, the complainant was nine or 10 years old.
The prosecution relies on three charges, which are said to be representative of sexual misconduct by the accused towards the complainant.
The prosecution alleges that, in about February 1982, during class, the accused told students to remove their ties and undo their top shirt buttons. While they were working, the accused wandered around the classroom. He stood behind the complainant, who was seated at the back of the classroom. He slid his hand underneath the complainant’s shirt and rubbed his chest and nipples for a few minutes. This conduct is the subject of Count 1.
The prosecution alleges that, in early 1982, the complainant participated in a talent quest in which he sang the John Denver song, “Grandma’s featherbed”. At about this time, the accused used to ask the complainant to stay behind at recess and lunch breaks. On one such occasion, the accused directed the complainant to sit on the corner of his desk facing him and “played with [the complainant]’s knee, and then thigh, and then worked his hand up under the front of [the complainant]’s shorts to his groin and penis area”. The conduct lasted five to 10 minutes. It is the subject of Count 2.
It is alleged that, on another occasion during 1982, the accused directed the complainant to stand at the back of the classroom during lessons. While other students were doing a reading and writing exercise, the accused reached his hands around the front of the complainant and rubbed his hand up and down the complainant’s torso. The accused then put his hand down the front of the complainant’s shorts and inside his underwear, and rubbed the complainant’s groin and penis for several minutes. This conduct is the subject of Count 3 in the indictment.
The defence case
The accused denies all allegations. When interviewed, the accused told police that he could not recall the complainant. He said that the configuration of the classroom meant there was full visibility into the classrooms; inferentially, the degree of visibility would have been a strong deterrent to abuse, making the allegations improbable.
The tendencies
The prosecution seeks to lead evidence of “tendency incidents” to support alleged tendencies on the part of the accused:
(a)to have a sexual interest in boy students in his classroom;
(b)to have a sexual interest in his student, the complainant;
(c)to touch in sexual ways boy students in his classroom; and
(d)to touch his student, the complainant, in sexual ways.
In support of tendencies (a) and (c), the prosecution proposes to lead evidence of tendency incidents 1 and 2 from the complainant’s older brother, A.
If A’s evidence in support of tendencies (a) and (c) is admitted, the prosecution wishes to cross-tender the complainant’s evidence concerning each of the three charged acts as evidence supporting those tendencies. If not, the prosecution wishes to rely upon the complainant’s evidence concerning each of the three charged acts as evidence supporting tendencies (b) and (d).
The tendency evidence
Tendency Incident 1
During 1981, A was a student in the accused’s Year 5 class. A can give evidence that the accused directed scholastically gifted students, such as himself, to sit in the back row of the classroom. On many occasions in 1981, the accused approached students sitting in the back row, loosened their ties, undid their top shirt buttons, ran his hand down their open shirts and felt their chests, playing with their nipples. The accused behaved in this way towards A. “Out of the corner of [his] eye” A saw the accused behave in this way towards other students. A named some of the other scholastically gifted students who sat in the back row.
Tendency Incident 2
A can say that, when it was time for physical education class, the accused would ask A (or another gifted student) to stay behind for a chat. He would direct A to sit on his desk and face the accused, who would sit facing A on a smaller chair. The accused would run his hand up the inside and outside of A’s thighs and touch A’s genitals, either underneath or over the top of A’s underpants. These incidents lasted a few minutes.
Tendency Incident 3
Count 1 is tendency incident 3.
Tendency Incident 4
Count 2 is tendency incident 4.
Tendency Incident 5
Count 3 is tendency incident 5.
According to A’s police statement (made in 2015), he had “forgotten”, “almost forgotten” or suppressed his memory of the accused’s misconduct until an occasion between 1992 and 1996 when, during a discussion when the complainant’s girlfriend was present, the complainant mentioned the accused’s misconduct. The mention caused A to “have flashbacks” and memories came “flooding back”. That night, or very soon thereafter, the complainant and A disclosed the events to their parents.
The complainant will say that incidents like the charged incidents occurred quite often, on 30 or 40 occasions.
In his police statement at Q120, the complainant said that, if he was undertaking work at his desk, he would:
be able to see out of the corner of my eye on the side that he was – that he’d have his hand down the front of other people’s shirts or rubbing the front of them over the shirt or whatever. And other kids would be put up behind that back row as well.
The prosecution will not seek to lead this evidence as tendency evidence.
The tendency rule
Relevance and s 55
Section 55 of the Evidence Act provides:
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
If evidence is relevant, it is admissible pursuant to s 56 of the Evidence Act unless another provision of the Evidence Act renders it inadmissible.
Tendency evidence is circumstantial evidence. In criminal proceedings, the prosecution may rely on an inference that the accused had a behavioural tendency to support an argument that it is more likely that the accused committed the alleged offence because the offence behaviour conformed with the accused’s tendency to behave in that way.
When deciding whether evidence of a tendency incident is “relevant” under s 55, the court should assume that the fact-finder will accept the evidence; relevant evidence is evidence that “if it were accepted” could rationally affect the outcome: IMM v The Queen (2016) 90 ALJR 529 (IMM) per French CJ, Kiefel, Bell and Keane JJ at [39].
Significant probative value and s 97
Sections 97 and 101 restrict the admissibility of tendency evidence that would otherwise be admissible under ss 55 and 56.
Section 97 provides:
97. The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
...
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
...
(emphasis added)
“Probative value” is defined in the Dictionary to the Evidence Act as follows:
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The expression “significant probative value” is not defined in the Evidence Act. In IMM at [46], the majority explained that:
The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
(emphasis added)
It has been said that evidence is of “significant” probative value if it is “important” or “of consequence” to proving or disproving the fact in issue, although the capacity of the evidence to prove or disprove the fact in issue need not be “substantial”: IMM per Gageler J at [103].
In R v O’Keefe [2009] NSWCCA 121 at [6], Howie J (with whom McColl JA and Grove J agreed) observed:
As Simpson J noted in R v Nassif [2004] NSWCCA 433 at [51] “the more numerous the claims of tendency evidence, and the more specific, the stronger the probative value. And thus the more likely the admission of the evidence.”
In Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) (Odgers) at EA.97.120, the author identified the following matters that may be useful when determining the strength of tendency evidence:
(a)the number of occasions of particular conduct relied upon;
(b)the time gaps between them;
(c)the degree of specificity/generality of the conduct/alleged tendency;
(d)the degree of similarity between the conduct on the various occasions (including the conduct sought to be proved); and
(e)the degree of similarity of the circumstances in which the conduct took place (particularly if it is possible to establish a pattern of behaviour or even a modus operandi).
See also R v Costa (No 1) [2015] ACTSC 63 at [41] (R v Costa).
IMM has settled a debate between the Victorian and New South Wales intermediate appellate courts: it is the capacity of tendency evidence (if accepted by the jury) to inform a fact in issue that determines whether the evidence has “significant probative value”. At the admission stage, the court does not consider whether a tendency witness is credible. The witness’s evidence must be taken “at its highest”: per the majority in IMM at [50].
On the other hand, the circumstances surrounding the evidence “may indicate that its highest level is not very high at all”: per the majority in IMM at [50]. If evidence is inherently weak or “simply unconvincing” (as in the case of inherently weak identification evidence), then it may be excluded as lacking significant probative value.
It is not always easy to draw the line between examining the credibility of a tendency witness (an unacceptable exercise) and examining the witness’s evidence in its context for the purpose of deciding whether it is inherently weak or “unconvincing” (an acceptable exercise). This difficulty may arise where, as in the present case, it is alleged that the evidence of the tendency witness has, at least, been contaminated by the witness’s relationship with the complainant and the circumstances in which the witness first recalled the tendency incidents.
In Tully v The Queen [2016] ACTCA 4 at [47]–[54], the Court referred to the approaches taken by different courts to an allegation that tendency evidence had been concocted.
In McIntosh v The Queen [2015] NSWCCA 184 at [47] (a case that preceded IMM) Basten JA said:
Whilst, in determining probative value as a question of capability to affect the assessment of a fact in issue, the court is not required to disregard inherent implausibility, on the other hand, contestable questions of credibility and reliability are not for the trial judge, but for the jury. Accordingly, the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted.
But in IMM at [59] the plurality said:
The premise for the appellant's submission – that it is "well-established" that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch v The Queen – should not be accepted. Section 101(2) places a further restriction on the admission of tendency and coincidence evidence. That restriction does not import the "rational view ... inconsistent with the guilt of the accused" test found in Hoch v The Queen. The significance of the risk of joint concoction to the application of the s 101(2) test should be left to an occasion when it is raised in a concrete factual setting.
(Citations omitted emphasis added)
It will almost always be the case that issues of tendency witness concoction and contamination should be left to the jury. They are issues about the reliability of the witness, and the assessment of witness reliability is a matter for the jury. At the trial, a tendency witness can be cross-examined at length about issues affecting reliability and the jury can make a fully informed decision about whether the witness is reliable. Why should the assessment of tendency witness reliability be approached differently from the assessment of other witness reliability? There is nothing about the factual setting of the present case that causes me to take a different approach in this case.
Section 101: whether probative value substantially outweighs prejudicial effect
Section 101(2) of the Evidence Act provides:
101 Further restrictions on tendency evidence presented by prosecution
...
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(emphasis added)
Evidence that an accused has engaged in uncharged criminal conduct is always prejudicial; it raises bad character and may suggest a propensity to criminal behaviour.
However, the s 101 reference to prejudicial effect is a reference to unfair prejudice. There may be an unfair prejudicial effect if the jury may misuse evidence by relying upon the evidence to reason in an improper way (e.g., by reasoning that, because the accused is a person of bad character, it is more likely that he committed the offence). Alternatively, the jury may become diverted by the inflammatory content of evidence. In either case it is relevant to ask whether the risk can be adequately addressed by direction: Festa v The Queen (2001) 208 CLR 593 per McHugh J at [51]; R v Costa at [64].
Under s 101, the court is required to balance the probative weight of the evidence against the unfair prejudicial effect of the evidence. This is an evaluative exercise in relation to which minds may legitimately differ. The exercise is undertaken in the context that juries are assumed to be intelligent and focused bodies that will heed directions about the proper approach to tendency evidence.
In summary, on a tendency application a court must consider the following questions:
(a)Has the tendering party identified a s 97 tendency (a tendency to think or act in a “particular” way)?
(b)Are the tendency incidents (individually or in combination) capable of establishing the asserted tendency?
(c)What is the relevant “fact in issue” in the proceedings?
(d)If the jury accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
(e)Does the tendency evidence have significant probative value; could it be influential in the context of fact-finding/ important or of consequence in proving or disproving the existence of the fact in issue?
(f)What unfair prejudice attaches to the tendency evidence?
(g)Does the probative value of the tendency evidence substantially outweigh any prejudicial effect, taking into account the impact of jury directions?
The accused’s submissions about probative value and prejudice
The accused submitted that A’s evidence was inherently unreliable and lacked significant probative value because the following circumstances indicated a high risk of concoction or contamination:
(a)According to A, his memory was engaged more than 10 years after the tendency incidents and only after the complainant mentioned the charged events to him.
(b)The events that A recalled and the manner in which he described them were suspiciously similar to the events recalled and described by the complainant. For example, both the complainant and A refer to observing the accused molesting other students from the “corner of [the] eye”.
The accused submitted that A may have been motivated to concoct evidence in order to support the complainant. The brothers would have had ample opportunity to concoct their evidence before the complainant approached the police. Alternatively, A’s evidence may be the result of witness contamination; he said that he had “forgotten” or “suppressed” the tendency incidents and only recalled them when the complainant described what had happened to him.
Further, the accused submitted that, in so far as A’s evidence of each tendency incident referred to the accused molesting students other than A, the evidence lacked significant probative value because A’s vision was very limited; he saw the events from the “corner of the eye”.
The accused submitted that A’s evidence was very prejudicial and there was a real risk that the jury would give A’s evidence more weight than it deserved because:
(a)Evidence of criminal propensity is inherently very prejudicial. A’s evidence referred to numerous serious but uncharged acts.
(b)The publicity surrounding the ongoing Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) (including abuse by Marist Brothers schoolteachers) was likely to provoke an emotional response from jurors to the allegations of extensive misconduct by the accused against his students.
(c)There was a real risk that A’s evidence was concocted or contaminated.
The accused did not raise any particular matters concerning the probative value or prejudicial effect flowing from cross-admission of the complainant’s evidence about the three charges.
Consideration
Has the prosecution identified a s 97 tendency/s to behave in a “particular” way)?
The mental and behavioural tendencies articulated by the prosecution are tendencies to think or behave in a “particular” way. They are relatively specific.
Is the evidence capable of showing the alleged tendency/s?
If it is accepted as true, there is little doubt that tendency incident 1 shows that, as at 1981, the accused had a mental tendency to have a sexual interest in boys students in his classroom and a behavioural tendency to touch them in sexual ways.
What is the relevant fact in issue?
The relevant facts in issue are whether the complainant was telling the truth when he said that, in 1982, the accused touched him in sexual ways.
If the fact finder accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
The asserted tendencies do inform the facts in issue. If, in 1981, the accused had a sexual interest in boy students and tended to touch them in sexual ways then it can readily be inferred that the tendencies continued into 1982 and may well have manifested themselves in relation to the complainant, as he was one of the accused’s boy students in 1982.
Does the tendency evidence have significant probative value; is it influential in the context of fact-finding/ important or of consequence in proving or disproving the existence of a fact in issue?
The asserted tendencies are potentially important circumstantial evidence to be taken into account when the jury is deciding whether the complainant is telling the truth about the charged acts.
Most of the factors identified by Odgers as helpful in determining the strength of tendency evidence are present in this case. A says that the conduct occurred on many occasions during 1981 (both towards himself and towards other back row students). There is an obvious temporal continuity between 1981 and 1982, when the charged events allegedly occurred. A described many very similar events in 1981. Both the conduct and the circumstances surrounding the 1981 tendency events were very similar to the 1982 events described by the complainant; the “back row” molestation described by A was very similar to the behaviour alleged in Count 1 and the “stay back” molestation described by A was very similar to the behaviour alleged in Count 2.
The fact that A observed behaviour towards other students from “the corner of [his] eye” means that A’s observations were not as detailed or accurate as would have been the case if he had gazed directly at the incidents, but it does not necessarily mean that his more limited observations were unreliable. The issue of unreliability is a matter for the jury.
Given the circumstances in which A “remembered” the accused’s 1981 misconduct, there is a live issue about witness contamination, if not concoction. However, as with other issues of witness unreliability, these issues should be determined by the jury. Taken “at its highest” the probative value of A’s evidence is very high.
What unfair prejudice is attached to the tendency evidence?
A’s evidence has the prejudicial effect of raising bad character and propensity to paedophilia. However, these undoubted prejudices arise inevitably from the strong probative value of the evidence; they are not separate unfair prejudices.
Any prejudice associated with current publicity about institutional abuse, including abuse in Catholic schools such as Marist Brothers schools, is a matter that can be significantly ameliorated by appropriate directions.
As part of the Royal Commission, an empirical study was undertaken to examine jury reasoning: Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) (the study). The study found that, although conviction rates were higher in trials where tendency evidence was led, “none of the juries in the tendency evidence trial ... engaged in impermissible tendency reasoning”: at 136. Furthermore, the study also found “no evidence of emotional or illogical reasoning in any of the trials in which tendency evidence had been admitted” at 114. These findings support the view that juries are unlikely to misuse tendency evidence.
Does the probative value of the tendency evidence substantially outweigh any prejudicial affect?
If A’s evidence is accepted, its probative value is extremely high. Any unfair prejudice associated with the evidence can be adequately addressed by jury directions. The probative value of the evidence substantially outweighs any prejudicial effect.
Orders
10 August 2017
At the hearing of the tendency application on 8 August 2016, the prosecution refined the terms of the tendencies upon which it sought to rely. If dispensation with notice requirements is required under s 100 of the Evidence Act, it is given.
Pursuant to s 97 of the Evidence Act, the prosecution is permitted to lead evidence from A of tendency incidents 1 and 2.
26 July 2017
On 26 July 2017, the parties came before the Court to finalise the issue of cross-admissibility of the complainant’s evidence (see above [12]). The defence objected to the cross-admission, but advanced no further grounds in support of that objection. Accordingly, the prosecution is permitted to rely upon the complainant’s evidence in relation to one of the tendency incidents in 3, 4 and 5 (the charged acts) as tendency evidence in relation to the other incidents in 3, 4, and 5, subject to the usual constraints that apply to the use of tendency evidence.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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