R v Kisun (No 2)
[2018] ACTSC 85
•5 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kisun (No 2) |
Citation: | [2018] ACTSC 85 |
Hearing Date: | 5 March 2018 |
DecisionDate: | 5 April 2018 |
Before: | Burns J |
Decision: | See [42] |
Catchwords: | CRIMINAL LAW – Pre-Trial Application – Tendency - Awaiting trial on six counts of indecent assault on a male - the “fact in issue” at the accused’s trial will be whether he did those acts as alleged by the Crown – whether the events alleged have significant probative value – whether the risk of unfair prejudice may be ameliorated - evidence which the Crown seeks to lead as tendency evidence with regard to incidents 1 to 6 and 8 to 13 are strongly probative – same cannot be said with respect to incident 7 - passage of time is of less significance in cases of allegation of sexual attraction to children than in other cases – significant similarities |
Legislation Cited: | Evidence Act 2011 (ACT) s 97, 101 |
Cases Cited: | BJS v R [2011] NSWCCA 239 BP v The Queen [2010] NSWCCA 303 De Jesus v R [1986] HCA 65; 61 ALJR 1 Gilbert v R [2000] HCA 15 R v CX [2016] ACTSC 106 R v Basha (1989) 39 A Crim R 337 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 |
Parties: | The Queen (Applicant) David Kisun (Respondent) |
Representation: | Counsel Mr T Hickey (Applicant) Mr S Schaudin (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) McAneny Lawyers (Respondent) | |
File Number: | SCC 98 of 2016 |
BURNS J:
The respondent is awaiting trial on six counts of indecent assault on a male, said to have occurred between 1 January 1981 and 31 December 1982. Two of the alleged offences are said to have been committed against CC, a further two offences are said to have been committed against EC, and the remaining two offences are said to have been committed against KC. CC and EC are brothers. KC is not related to the other complainants. It is alleged that these offences were committed by the respondent whilst he was a teacher at Marist College Canberra, and that the complainants were students at that school. The trial of the accused is scheduled to commence in the week beginning 30 April 2018. This is a retrial, with the accused previously having been tried with regard to a number of counts of committing acts of indecency against one of his students. He was acquitted of one charge, but the jury were unable to reach verdicts on the remaining counts. Since that first trial, the Crown says that it has become aware of other former students of the respondent who have disclosed sexual misconduct by him while he was a teacher. The present indictment alleges that the respondent committed a number of acts of indecency against three students.
By an application dated 21 December 2017 the Crown has sought orders permitting it to adduce evidence in relation to incidents 1 to 13 in a Further Notice to Adduce Tendency Evidence (the Notice) to prove that the respondent had a tendency to have a sexual interest in boy students attending his school class or attending activities through the school where he taught and to use that position to obtain access to boy students to engage in sexual activities with them.
The application came before me on 5 March 2018. After hearing the application, there remained a question whether the respondent would seek leave to question one or more of the complainants prior to the trial in order to support a submission that there may have been collusion between the complainants with regard to the complaints they have made against him. I indicated to the parties that I would not give a ruling on the Crown’s application for a period of 14 days after 5 March 2018, to enable the respondent to make an application to cross-examine one or more of the complainants prior to trial should he wish to do so. No such application was filed within that period, and accordingly I will now proceed to give a ruling on the Crown’s application.
The Notice
Incident 1 relates to an “uncharged” act, in that it alleges conduct on the part of the respondent which does not form part of any of the charges which he is currently facing. In this incident, it is alleged that in about 1967 or 1968 the respondent was a teacher at a school in New Zealand when, at a time when he was alone with a student, UQ, then 9 or 10 years old, he told UQ to bend over and put his hands on the desk. It is alleged that the respondent then approached UQ from behind and wrapped his arms around him and played with his penis. It is alleged that the respondent then began rubbing his penis against UQ before sliding his penis between UQ’s legs underneath his buttocks. It is alleged that the respondent then moved backwards and forwards with his penis.
Incident 2 also relates to an uncharged act. In this incident, it is alleged that in about 1967 or 1968 in New Zealand the respondent had UQ lie down on his stomach in a classroom when no one else was around. It is alleged that the respondent pulled down UQ’s trousers and underpants, before lying on top of UQ. It is alleged that the respondent then rubbed his penis between UQ’s legs and against his penis and bottom.
Incident 3 also relates to an uncharged act. In this incident, it is alleged that on another occasion in about 1967 or 1968 the respondent told UQ to lie down on his back in a classroom when no one else was around. The respondent again pulled down UQ’s trousers and underpants and told him to cover his eyes. It is alleged that the respondent then performed oral sex on UQ.
Incident 4 again relates to an uncharged act. In this incident, it is alleged that in about 1970, while still teaching at the school in New Zealand where UQ was a student, the respondent asked another student, FC, then 9 or 10 years old, to come to the front of the class and sit next to his desk. It is alleged that the respondent gave FC a comic to read or some lollies before putting his hand down FC’s shorts and underneath his underpants. It is alleged that the respondent fondled FC’s penis and testicles.
Incident 5 also relates to an uncharged act. In this incident it is alleged that on another occasion in about 1970, the respondent asked FC to stay back after school had finished. The respondent and FC went to a different classroom and the respondent asked FC to sit in the corner of the room. It is alleged that the respondent gave FC a comic to read before kneeling and pulling FC’s shorts down. It is alleged that the respondent then performed oral sex on FC.
Incident 6 also relates to an uncharged act. In this incident it is alleged that on another occasion in about 1970 the respondent asked FC to stay back after class. The respondent pulled FC’s shorts down and asked him to turn around so that FC was on his stomach. It is alleged that the respondent laid on top of FC and put his penis between FC’s legs. It is alleged that the respondent ejaculated between FC’s legs, before cleaning him with tissues.
Incident 7 again relates to an uncharged act. In this incident it is alleged that in about 1980 the respondent was a teacher at Marist College in Canberra. He also coached one of the school’s cricket teams. It is alleged that on one occasion at about that time the respondent had one of his student cricket players, CD, then about 15 years old, accompany him to his house in Queanbeyan, New South Wales. While at the house CD consumed 4 or more cans of beer and afterwards got into bed to go to sleep. He was wearing only underpants at the time. At some point, it is alleged that the respondent got into bed with CD and snuggled up behind him, putting his leg over CD’s leg. CD felt the accused’s erect penis against his buttock. It is alleged that the respondent rubbed his hand over CD’s penis for a brief moment and then ran his hand on the outside of CD’s underwear. After about five minutes, the respondent snuggled up behind CD in a “spooning fashion” with his pelvic area touching CD’s buttocks and the respondent again lifted his leg over CD’s leg.
Incident 8 relates to count 1 on the indictment. It is alleged that on numerous occasions in 1981 while teaching at Marist College Canberra, the respondent went up to one of his students, CC, then about 10 or 11 years old, who was seated at his desk in the back of the class. It is said that the respondent loosened CC’s tie, undid his top shirt buttons, and ran his hand down CC’s open shirt and felt his chest.
Incident 9 relates to count 2 on the indictment. It is alleged that on other occasions in 1981, when it was time for physical education class, the respondent would ask CC to stay behind for a chat. On those occasions the accused made CC sit on his desk facing the respondent while the respondent ran his hand up the inside of CC’s pants and touched his genitals underneath, or over the top of, his underpants. It is alleged that these incidents lasted a few minutes.
Incident 10 relates to count 3 on the indictment. It is alleged that on an occasion in about February 1982 while still teaching at Marist College Canberra, the respondent had the students remove their ties and undo their top shirt buttons. While the students were seated at their desks and occupied with work, it is alleged that the respondent walked around the classroom and stood behind EC, then 9 or 10 years old, at the back of the class and slid his hand underneath the front of EC’s shirt and rubbed his chest and nipples. It is alleged that this lasted for a few minutes.
Incident 11 relates to count 4 on the indictment. It is alleged that on another occasion early in 1982 the respondent made EC stay behind alone at recess or lunch breaks to talk to him. It is alleged that the respondent made EC sit on the corner of a desk facing him where he played with EC’s knee, and then thigh, and then worked his hand up under the front of EC’s shorts to his groin and penis area. This is alleged to have lasted for between 5 and 10 minutes.
Incident 12 relates to count 5 on the indictment. It is alleged that on another occasion during the warmer months in 1982, while still teaching at Marist College Canberra, the respondent came up behind another student, KC, then 9 or 10 years old, who was seated at his desk in class and placed his hand down KC’s shirt before rubbing and playing with his chest.
Incident 13 relates to count 6 on the indictment. It is alleged that on another occasion in 1982, the respondent came up behind KC while he was seated at his desk. It is alleged that the respondent put his chin on KC’s head and rubbed his hand down the front of KC’s shirt before moving his hands to KC’s genitals and playing with KC’s genitals over the top of his pants.
Relevant legislation
The tendency rule is set out in s 97 of the Evidence Act 2011 (ACT):
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—
(a) the party seeking to present the evidence gave reasonable
notice in writing to each other party of the party’s intention to
present the evidence; and
(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.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made
by the court under section 100 (Court may dispense with notice
requirements); or
(b) the evidence is presented to explain or contradict tendency
evidence presented by another party.
Note The tendency rule is subject to specific exceptions about the character
of and expert opinion about accused people (s 110 and s 111). Other
provisions of this Act, or of other laws, may operate as further
exceptions.
A further limitation on the introduction of tendency evidence into criminal proceedings is found in s 101 of the Evidence Act 2011 (ACT):
101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1) This section applies only in a criminal proceeding and applies in
addition to section 97 (The tendency rule) and section 98 (The
coincidence rule).
(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.
(3) This section does not apply to tendency evidence that the
prosecution presents to explain or contradict tendency evidence
presented by the defendant.
(4) This section does not apply to coincidence evidence that the
prosecution presents to explain or contradict coincidence evidence
presented by the defendant.
Crown’s submissions
In a recorded interview with police and in evidence at his first trial, the Crown submitted, the respondent denied allegations of indecent acts towards children, and denied that he was sexually attracted to any of the boys in his class. He stated that the configuration of the classroom meant that there was full visibility into the classrooms, making the allegations improbable.
The Crown submitted that the proposed tendency evidence has significant probative value. It referred me to the decision in IMM v The Queen [2016] HCA 14; 257 CLR 300 at [46]:
Cross on Evidence suggests that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under section 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.
The Crown also referred me to the decision in Hughes v The Queen [2017] HCA 20; 92 ALJR 52 (Hughes v The Queen), where at [40] to [41] the majority addressed the assessment of “significant probative value”:
[40] In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes it significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
[41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
(Footnotes omitted)
The Crown further submitted that the reference to “prejudicial effect” in s 101 is a reference to unfair prejudice. In Tully v The Queen [2016] ACTCA 4, the Court stated at [33]:
The probative value of evidence goes to proof of an issue, whereas the prejudicial effect of evidence goes to the fairness of the trial: Pfennig v The Queen (1995) 182 CLR 461 (Pfennig) per McHugh J at 528. Evidence is prejudicial if there is a risk that the jury may misuse it, i.e. use it other than by way of considering its rational impact on the probability of a fact in issue. For example, evidence is prejudicial if it is inflammatory or it encourages unconscious prejudice: R v Zhang (2005) 227 ALR 311.
The Crown submitted that if the jury accepts that the incidents set out in the Notice occurred, this would strongly support a finding that the accused had a mental tendency to have a sexual interest in boy students in his classroom and a behavioural tendency to obtain sexual gratification from them. As no admissions have been made by the respondent, the Crown must proceed on the basis that everything is in issue. The Crown submitted that the evidence would support a finding that the respondent has had a long‑standing sexual interest in boy students and tended to touch them in sexual ways since the late 1960s, and into the 1970s and the early 1980s, despite being married. The Crown further submitted that a finding by the jury that the accused had the alleged tendency would be important circumstantial evidence allowing the jury to find that the accused had engaged in the conduct alleged by the complainants and that such conduct was indecent. The Crown noted that each of the complainants was a student at the school where the respondent was then teaching, each of the incidents (with the exception of incident 7) occurred in a classroom setting when no one else was present or when other students were present but were otherwise distracted, and that the complainants were of similar age when the conduct occurred (again, with the possible exception of incident 7).
The Crown accepted that tendency evidence is inherently prejudicial, but submitted that the jury are unlikely to misuse the evidence if provided with appropriate directions by the trial judge.
Respondent’s submissions
The respondent opposed the application by the Crown to lead tendency evidence, and also sought severance of counts 5 and 6 on the indictment. He accepted, however, that if the tendency application was successful, counts 5 and 6 should not be severed.
The respondent accepted that although features of similarity of conduct may increase the probative value of evidence (Hughes v R [2015] NSWCCA 330; 93 NSWLR 474 (Hughes v R) at [166] – [167], [188]; BP v The Queen [2010] NSWCCA 303 at [108]), evidence adduced for the purpose of establishing a tendency is not dependent on establishing similarities: R v PWD [2010] NSWCCA 209; 205 A Crim R 75; R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [38], [125]. The respondent acknowledged that all that is required is that there be a tendency to act in a particular way that is relevant to the conduct which is the subject of a charge: Hughes v R at [184]. A circumstance relevant to determining the probative value of potential tendency evidence, he submitted, is the period of time over which the conduct occurred.
With regard to the incidents referred to in the Notice as “uncharged” acts, the respondent submitted:
(i)Incidents 1, 2, and 3, are alleged to have occurred in 1967 in New Zealand;
(ii)Incidents 4, 5 and 6 are alleged to have occurred in 1970 in New Zealand;
(iii)Incident 7 relates to purported conduct which the Crown chose not to put before the jury at his first trial, and it should not now be permitted to change their case on the retrial. The evidence of the complainant CD is not “fresh evidence” and the Crown should be held to the decision which it made at the respondent’s first trial not to call evidence from CD;
(iv)CD is older than the other complainants, and the allegation is in relation to sexual activity, not in a classroom, but at the respondent’s home in Queanbeyan;
(v)the conduct alleged with regard to the uncharged acts is not identical with the conduct alleged in the charges against the respondent.
The respondent submitted the tendency alleged by the Crown in the Notice is “bland” and “amorphous”. The respondent referred me to Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 (Sokolowskyj), where the Crown had been permitted to lead evidence of prior sexual offending by the appellant in order to prove that he had a tendency “to have sexual urges and to act on them in public in circumstances where there was a reasonable likelihood of detection” (at [29]). Hoeben CJ at CL, with whom Adams and Hall JJ agreed, said at [40] – [41]:
[40] One of the difficulties for the Crown in establishing “significant probative value” was the high level of generality of the tendency relied upon. A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, ie to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly. Its generality was such as to attract the criticism made by Giles JA in Townsend v Townsend [2001] NSWCA 136 at [78] where his Honour said:
78. Assuming that the evidence was tendency evidence, it was admissible unless his Honour considered that it would not have significant probative value. His Honour considered that it did have significant probative value, although with a qualification which tended to cast doubt on that status. I am inclined to the view, still assuming that it was tendency evidence, that the evidence should have been rejected as not having significant probative value. So far as appeared, the circumstances of the respondent’s conduct towards Mrs Townsend were very different from the circumstances in which the incident between the appellant and the respondent took place; certainly the evidence was of such generality that little meaningful tendency was established.
[41] Another difficulty for the Crown in establishing significant probative value for the tendency evidence was the marked dissimilarity between the conduct relied upon to establish the tendency and the offence under consideration by the jury. On the Crown case, key elements of the offence were a prepubescent victim and no public exhibition. The appellant is said to have latched the door to the change room (inferentially to achieve privacy) and then to have assaulted the complainant. The actions on which the tendency evidence was based had as their hallmark a public display with no prepubescent element in the victim. There was no active assault, rather the appellant’s actions were “passive”. Far from seeking to conceal his actions, the gist or thrill of the offences was the fact that they could be seen and were intended to be seen.
The respondent submitted that there is a qualitative distinction between touching a complainant and exposing oneself to a complainant on the one hand and thrusting your erect penis between the legs of a complainant on the other. He further submitted that there is a real and significant difference between the conduct alleged in the uncharged acts and the counts on the indictment. He further submitted that the focus of the tendency evidence should be on a logical link to the elements of the offences charged, not generalised sexual activity.
With regard to s 101 of the Evidence Act 2011 (ACT), the respondent submitted that the prejudicial effect of alleged sexual offending other than with regard to charges before the Court is peculiarly likely to arouse prejudice, citing De Jesus v R [1986] HCA 65; 61 ALJR 1. He also referred to my statement in R v CX [2016] ACTSC 106 at [41]:
There is always a danger of unfair prejudice to an accused where separate complainants give evidence of alleged sexual offending against the accused in the course of a single trial. The predominate danger is that the jury will misuse the evidence by reasoning that the accused must be guilty if multiple complaints by multiple complainants are tried together.
The respondent acknowledged that the operation of the criminal law requires the assumption that juries follow directions: Gilbert v R [2000] HCA 15; Ross v R [2012] NSWCCA 207 at [42]; BJS v R [2011] NSWCCA 239 at [291]. The respondent, however, submitted that it should not simply be assumed that judicial directions are capable of remedying all prejudice, citing Sokolowskyj at [53] – [55] and the cases cited therein. The respondent submitted that the probative value of the proposed tendency evidence did not substantially outweigh its prejudicial effect and as such the test in s 101 was not satisfied.
With regard to the events which form the basis of counts 5 and 6 on the indictment, the respondent acknowledged that they fall within the same period as the alleged misconduct involved in counts 1 to 4 inclusive. He submitted, however, that the question whether the Crown should be permitted to lead tendency evidence involving KC should be deferred until trial as the respondent intended to issue subpoenas and undertake enquiries to determine whether there was a possibility of concoction or contamination of KC’s evidence by reason of contact with the other complainants. The respondent referred to a statement by myself in R v GG [2017] ACTSC 12 in support of this submission. At [20] I said:
Based upon the decision of the High Court in IMM v R I determined in R v CX that allegations of concoction or contamination are not relevant to determining the probative value of evidence for the purposes of s 97 of the Evidence Act. I noted, however, that the decision of IMM v R left open the question whether possible concoction or contamination of evidence, making the evidence unreliable, may be a factor taken into account in determining the prejudicial effect of evidence. The accused submitted that the possibility of concoction or contamination of the complainants’ allegations should be taken into account when determining the potential prejudicial effect of proposed tendency evidence… There may be cases where concoction or contamination is admitted, or must inevitably be inferred from the evidence, but the present case is not such a case at this time.
The respondent submitted that a decision with respect to counts 5 and 6 should be deferred until he has made his investigations, and has had an opportunity to seek a Basha inquiry (referring to the process referred to in R v Basha (1989) 39 A Crim R 337).
Consideration
This is not a case in which the Crown seeks to lead the tendency evidence to prove the identity of an offender. The Crown proposes leading the tendency evidence set out in the Notice to prove that the accused, who was a person known to the complainants, committed the offences alleged in the indictment. The “fact in issue” at the accused’s trial will be whether he did those acts as alleged by the Crown. There can be no doubt that the evidence which the Crown seeks to lead as tendency evidence with regard to incidents 1 to 6 and 8 to 13 are strongly probative of the respondent having a tendency to be sexually interested in boy students in his class and to using his position as a teacher to obtain access to male students to engage in sexual activities with them. The same cannot be said with respect to incident 7. The events which are alleged to have occurred with regard to incident 7 did not occur at school, or in the circumstance of the respondent being the teacher of the complainant CD. In addition, the complainant CD was approximately 15 years old at the time of the alleged events, placing him in a different category to the prepubescent complainants in the other incidents.
It must be acknowledged that the events alleged in incidents 1 to 6 occurred between 1967 and approximately 1970, whereas the events alleged in the charges against the respondent are said to have occurred in 1981 and 1982. The passage of time between events alleged to demonstrate a tendency and other events which form the basis of charges is relevant to determining whether the alleged tendency has significant probative value: R v Watkins [2005] NSWCCA 164; 153 A Crim R 434; Semaan v The Queen [2013] VSCA 134; 39 VR 503. In my opinion, however, the passage of time is of less significance in cases of allegation of sexual attraction to children, than in those cases where the tendency alleged is one of dishonesty, to drive dangerously or the like. In RHB v The Queen [2011] VSCA 295, the Court of Appeal of Victoria heard an application for leave to appeal against an interlocutory decision of a judge of the County Court to admit evidence of previous convictions as tendency evidence in the trial of the applicant, RHB. The applicant was charged with one offence of participating in an indecent act with or in the presence of a child under the age of 16. The complainant was his granddaughter. The offence was alleged to have occurred at his home between November 2003 and November 2005. The complainant at that time was between 10 and 11 years of age. The evidence which the Crown had successfully sought to lead as tendency evidence at the trial of the applicant was that on 28 June 2011 the applicant had pleaded guilty to three charges of indecent assault on two of his daughters between 1978 and 1985. In refusing the application, Nettle JA, with whom Harper JA agreed, said at [23] – [24]:
[23] I do not overlook the long period of time between the most recent offending against K and the offence with which the applicant is charged, nor do I overlook the decision of the New South Wales Court of Criminal Appeal in R v Watkins to which counsel for the applicant referred us, but I consider that despite the gap in time in this case, the applicant’s offences against his daughters would have significant probative value in the determine a nation [sic] of whether the applicant committed the charged offence against his granddaughter. Proof that the applicant committed the offences against his daughter would make it more likely that he committed the similar charged offence against his granddaughter and would also have a significant probative value in rebutting the applicant’s suggestion in his record of interview that any touching of his granddaughter’s vagina was accidental or innocent.
[24] The circumstances in this case are a long way from those which were considered in R v Watkins. There, the applicant was charged with fraud committed between 1999 and 2002 by fraudulently signing cheques, and the evidence sought to be adduced as tendency evidence was that the accused had been convicted of larceny almost 20 years before. Not surprisingly, Barr J concluded that there was no logical connection between the events of 1983 and 1984 and those of 1999 to 2002. The only way in which the jury could have used the putative tendency evidence was to reason that the appellant was a cheat and a fraud and was, therefore more likely to have cheated and defrauded his employer by committing the alleged offence. As Barr J observed, in effect that was just another way of saying that he was therefore more likely to be lying in his assertion about the arrangement he said was proposed to be made in that case. In contrast, here we are concerned with evidence which tends, if accepted, to establish a tendency to have a particular interest in female lineal descendants to the applicant which the applicant gratified by acting upon in particular circumstances in similar ways.
(footnotes omitted)
The evidence which the Crown proposes to lead of incidents 1 to 6, if accepted by the jury, reveals significant similarities between the events alleged in those incidents and the events alleged in the charges against the respondent. All of the events are alleged to have occurred in circumstances where the respondent was the teacher of the complainant. Each incident is said to have occurred in a classroom, and in circumstances where there was some risk of the respondent being observed. It is true that the nature of the sexual acts alleged to have been performed by the respondent vary from incident to incident, but in the present circumstances that is not particularly significant. If the evidence is accepted by the jury, the acts alleged in incidents 1 to 6 are unquestionably sexual, and if accepted by the jury would unquestionably establish a sexual attraction by the respondent to each of the complainants, who at that time were about 9 or 10 years of age. The age of the complainants with regard to incidents 8 to 13 was very similar to the age of the complainants in incidents 1 to 6. The tendency alleged by the Crown is not a tendency to do a particular act, but rather a tendency to have a particular state of mind and to act upon that state of mind.
If the jury accepts the evidence given by the complainants in incidents 1 to 6, it would be open to them to be satisfied that the accused had the tendency alleged by the Crown. Proof that the respondent had such a tendency is likely to have considerable probative value in establishing that the events alleged in incidents 8 to 13 occurred. A person who has a proven sexual attraction to boys aged between 9 and 11 years is much more likely to have committed the subject offences than if he had no such tendency. In his first trial, the respondent gave evidence that the offences with which he is charged occurred at a time when he was married. The purpose of this evidence was clearly to suggest that it was improbable that he would have committed these offences because he is sexually attracted to adult females. Submissions were made to the jury that the respondent was unlikely to have engaged in the acts alleged by the Crown in circumstances where he may have been observed. Evidence of incidents 1 to 6, if accepted by the jury, would support the credibility of the complainants in the charged events, and may make credible what might otherwise appear incredible.
I am satisfied that evidence of the events alleged in incidents 1 to 6 and in incidents 8 to 13 possess significant probative value to establish the tendency alleged by the Crown. I am further satisfied that proof of such a tendency would have significant probative value in establishing the fact in issue at the respondent’s trial, being whether he did those acts alleged by the Crown in counts 1 to 6 on the indictment.
The probative value of this tendency evidence is very high. I accept that there is a risk, as there always is, of unfair prejudice to the respondent in allowing the Crown to lead this evidence. The significant risk is that the jury will adopt impermissible reasoning regarding this evidence, in effect reasoning that the respondent is the sort of person who would molest children and, as such, is likely to be guilty of the charged offences. This risk may be significantly ameliorated by appropriate and strong judicial direction. This is not a case like Patel v The Queen [2012] HCA 29; 247 CLR 531, where the evidence of uncharged acts would be likely to overwhelm the jury.
I do not propose to accept the suggestion made by the respondent that determination of whether evidence of the events in incident 13, concerning the complainant KC, should be admissible as tendency evidence should be stood over to the trial for determination. There is presently nothing before the Court which would support any allegation of collusion or concoction with regard to this evidence. That may, of course, change during the course of the trial, but, if so, it is something that can be dealt with at that time by the trial judge. In particular, the trial judge may order a Basha inquiry to allow the respondent the opportunity to pursue any allegation of concoction or collusion.
It follows from what I have said above that the Crown should not be permitted to lead evidence of the events referred to in incident 7 as tendency evidence at the respondent’s retrial. The difference in age between CD and the other complainants, and the difference in the circumstances in which the alleged events occurred place the allegations with regard to CD into a different category.
The formal orders that I make with regard to the application of 21 December 2017 is that the Crown will be permitted to adduce evidence in relation to incidents 1 to 6 and incidents 8 to 13 outlined in the Further Notice to Adduce Tendency Evidence dated 21 December 2017 to prove that the accused had the tendency described in that notice, being a tendency to have a sexual interest in boy students attending his school class and to use his position as a teacher to obtain access to boy students to engage in sexual activities with them.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 5 April 2018 |
**************
Amendments
3 April 2019 Add “(No 2)” Paragraphs: Title
18
1