R v Kisun

[2016] ACTSC 212

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
McIntosh v The Queen [2015] NSWCCA 184
R v Costa (No 1) [2015] ACTSC 63
R v O’Keefe [2009] NSWCCA 121

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, 12^th 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

1. 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).

1. Pursuant to s 97(1) of the Evidence Act 2011 (ACT) (the Evidence Act), the prosecution seeks to adduce tendency evidence.

1. The accused objects to the proposed tendency evidence.

The prosecution case

1. 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.

1. The prosecution relies on three charges, which are said to be representative of sexual misconduct by the accused towards the complainant.

1. 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.

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…