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R v Kisun (No 2)

R v Kisun (No 2)

Case [2018] ACTSC 85 5 April 2018

Admissibility of Evidence

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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 Hughes v The Queen [2017] HCA 20; 92 ALJR 52 Hughes v R [2015] NSWCCA 330; 93 NSWLR 474 IMM v The Queen [2016] HCA 14; 257 CLR 300 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 R v GG [2017] ACTSC 12 R v Hughes R v PWD [2010] NSWCCA 209; 205 A Crim R 75 R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 RHB v The Queen [2011] VSCA 295 Ross v R [2012] NSWCCA 207 Semaan v The Queen [2013] VSCA 134; 39 VR 503 Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 Patel v The Queen [2012] HCA 29; 247 CLR 531 Tully v The Queen [2016] ACTCA 4
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…

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 Kisun (No 2)

Details

AGLC: R v Kisun (No 2) [2018] ACTSC 85
Case: [2018] ACTSC 85
Decision Date: 5 April 2018

CaseChat Overview and Summary

The case of R v Kisun (No 2) involves an application by the accused, who is awaiting trial on six counts of indecent assault on a male. The central issue in this matter was the admissibility of certain evidence that the Crown sought to present as tendency evidence. The application was heard in the court, which had to determine whether the evidence had significant probative value and whether the risk of unfair prejudice could be mitigated. The court was tasked with examining the probative value and prejudicial effect of the evidence regarding incidents 1 to 6 and 8 to 13, as well as the unique circumstances of incident 7.

The court deliberated on the principles outlined in the relevant case law, particularly concerning the admissibility of tendency evidence. It considered the balance between the probative value of the evidence and the risk of unfair prejudice to the accused. In doing so, the court recognised that the passage of time holds less significance in cases of alleged sexual attraction to children. It further examined the significant similarities between the incidents in question, which played a pivotal role in the determination of admissibility. Ultimately, the court concluded that the evidence related to incidents 1 to 6 and 8 to 13 was strongly probative and could be admitted as tendency evidence, while the same could not be said for incident 7.

The court issued its decision, allowing the Crown to present the evidence regarding incidents 1 to 6 and 8 to 13 as tendency evidence, but excluding the evidence related to incident 7. This decision was based on the court's assessment of the probative value and prejudicial effect of the evidence, as well as the significant similarities between the incidents in question. The court's ruling ensures that the trial will proceed with the appropriate evidence, while also safeguarding the accused's rights and the fairness of the proceedings.

Orders

Orders of the court

See [42]

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Kisun (No 2) [2018] ACTSC 85

Most Recent Citation

R v Kisun (No 3) [2018] ACTSC 370

Cases citing this decision · 2 of 2 shown

R v Cattle
[2020] ACTSC 8 Para 1

…t I do not think three or four years is such a large gap as to affect the probative value of the evidence. As observed by Burns J in R v Kisun (No 2) [2018] ACTSC 85, “the passage of time is of less significance in cases of allegation of sexual attraction to children…”.…
R v Kisun (No 3)
[2018] ACTSC 370 Para 1

…teacher at Marist College in New Zealand. On 5 April 2018, the Court ruled that the Crown was permitted to lead the tendency evidence: see R v Kisun [2018] ACTSC 85.…

View all 2 citing cases →

Cases cited in this decision · 22 of 22 shown

Hughes v The Queen
[2017] HCA 20 Para 1

…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”:…
R v Zhang
[2017] SASCFC 5

…t 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.…
R v GG
[2017] ACTSC 12 Para 1

…tion 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:…
R v CX
[2016] ACTSC 106 Para 1

…s 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]:…
IMM v The Queen
[2016] HCA 14 Para 1

…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]:…
Tully v The Queen
[2016] ACTCA 4 Para 1

…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]:…
Hughes v R
[2015] NSWCCA 330 Para 1

…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 depe…
Sokolowskyj v R
[2014] NSWCCA 55 Para 1

…t 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 h…
Semaan v The Queen
[2013] VSCA 134 Para 1

…vant 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 thos…
Ross v The Queen
[2012] NSWCCA 207 Para 1

…ondent 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 cap…
Hughes v R
[2012] NZCA 388 Para 1

…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…
Patel v The Queen
[2012] HCA 29 Para 1

…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.…
BJS v R
[2011] NSWCCA 239 Para 1

…ion 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, ci…
RHB v The Queen
[2011] VSCA 295 Para 1

…ual 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 e…
BP v R; R v BP
[2010] NSWCCA 303 Para 1

…ct 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…
R v PWD
[2010] NSWCCA 209 Para 1

…een [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…
R v Ford
[2009] NSWCCA 306 Para 1

…uced 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…
R v Watkins
[2005] NSWCCA 164 Para 1

…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 all…
Townsend v Townsend
[2001] NSWCA 136 Para 78

…od 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 hav…
Gilbert v The Queen
[2000] HCA 15 Para 1

…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 direct…
Pfennig v the Queen
[1995] HCA 7

…bative 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…
De Jesus v The Queen
[1986] HCA 65 Para 1

…l 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]:…

Legislation cited in this decision · 1

Evidence Act 2011 (ACT)
101, 97 3 mentions (from Para 1)