R v Kisun (No 3)
[2018] ACTSC 370
•23 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kisun (No 3) |
Citation: | [2018] ACTSC 370 |
Hearing Date: | 23 August 2018 |
DecisionDate: | 23 August 2018 |
Before: | Mossop J |
Decision: | See [12] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – subpoena – s 31 of the Trans-Tasman Proceedings Act 2010 (Cth) – service in New Zealand – evidence of witness would be significant for tendency purposes and providing context to the complaint evidence – evidence could not be obtained by other means without significantly greater expense and inconvenience to the persons named CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – taking of evidence by audio-visual link from New Zealand – s 50 of the Trans-Tasman Proceedings Act 2010 (Cth) – evidence more conveniently taken from New Zealand |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40 Trans‑Tasman Proceedings Act 2010 (Cth), Pt 5 Div 2, Pt 6 Div 2 Subdiv B, ss 29, 31, 31(3), 31(5), 50, 50(2) Trans‑Tasman Proceedings Regulation 2012 (Cth), ss 9, 13 |
Cases Cited: | R v Kisun [2018] ACTSC 85 |
Parties: | The Queen (Crown) David Kisun (Accused) |
Representation: | Counsel T Hickey (Crown) C Meers (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Stary Norton Halphen (Accused) | |
File Number: | SCC 98 of 2016 |
MOSSOP J:
Introduction
Mr Kisun was committed for trial in May 2016. The indictment alleged that he assaulted a student when he was a teacher with Marist College in Canberra in the early 1980s. At a trial in August 2017 he was acquitted of one charge and there was a hung jury on the remaining two charges. Further complainants came forward. In October 2017 the Crown filed an amended indictment charging the accused with a number of acts of indecency against three students, the original complainant and two additional complainants.
In March 2018 the Crown made an application to lead tendency evidence of the additional complainants, as well as two similar fact witnesses. Those two similar fact witnesses, who I will refer to as FC and UQ, would give evidence that the accused sexually interfered with them when he was a 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.
The Crown has made two applications. The first is for leave to serve subpoenas on four people who reside in New Zealand. The second is to permit the evidence of those persons to be taken by audio‑visual link from New Zealand. The evidence in support of the application is somewhat out of date having regard to the fact that it was anticipated that the matter would go to trial in April 2018, but is now anticipated to go to trial in October 2018.
Division 2 of Part 5 of the Trans‑Tasman Proceedings Act 2010 (Cth) relates to the service of Australian subpoenas in New Zealand. Section 29 provides that the division applies, inter alia, to a subpoena that is issued by a Territory court prescribed by regulations. Section 9 of the Trans‑Tasman Proceedings Regulation 2012 (Cth) prescribes the Supreme Court of the Australian Capital Territory as a Territory court for the purpose of s 29 of the Act. Section 31 provides that a subpoena may not be served in New Zealand without the leave of the court. Section 31(3) provides that:
Without limiting the matters that the court may take into account in deciding whether to grant leave …, the court must take into account:
(a) the significance of the evidence to be given, or the document or thing to be produced, by the person named; and
(b) whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience to the person named.
The court must impose a condition that the subpoena not be served after a specified day, and may impose other conditions. The court may not give leave if the person named is under the age of 18 years: see Trans‑Tasman Proceedings Act, s 31(5). Division 2 of Pt 6 of the Act relates to remote appearances from New Zealand in Australian proceedings. Subdivision B of that division applies to a Territory court prescribed by the regulations. Section 13 of the Trans‑Tasman Proceedings Regulation prescribes the Supreme Court of the Australian Capital Territory is a Territory court to which this subdivision applies.
Section 50 of the Act provides that an Australian court may give leave for the giving of evidence or the examination of a person giving evidence from New Zealand by remote appearance medium. The court may specify which remote appearance medium. Remote appearance medium means either an audio‑visual link or an audio link. Section 50(2) provides that:
The Australian court … must not give leave unless it is satisfied that:
(a) the evidence, examination or submission can more conveniently be given or made from New Zealand; and
(b) if the court or tribunal intends to specify a remote appearance medium—that remote appearance medium is, or can reasonably be made, available; and
(c) if the court or tribunal does not intend to specify a remote appearance medium—both remote appearance mediums are, or can reasonably be made, available; and
(d) it is appropriate to give the leave.
The four witnesses who the Crown wishes to subpoena and whose evidence the Crown wishes to call by audio‑visual link are FC, UQ, Peter Horide and Detective Sergeant Meline Warren. The evidence proposed to be called from FC and UQ relate to evidence that each was sexually assaulted by the accused while the accused was a teacher at a school in New Zealand. Mr Horide would give evidence and produce documents of complaint by FC made to the Catholic Church in the late 1990s about being sexually abused by the accused. Detective Sergeant Meline Warren, who is responsible for investigating the New Zealand allegations, will give evidence about some aspects of the complaints made to the New Zealand Police and police investigations.
In relation to the three non‑police witnesses, I am satisfied that the evidence they would give would be significant evidence used for tendency purposes. Leave to adduce that evidence was given by Burns J. So far as the police officer is concerned, I consider that the evidence, while of less significance, is likely to be of some importance in providing context to the complaint evidence. The evidence could not be obtained by other means without significantly greater expense and inconvenience to the persons named.
If the evidence is to be called at trial, it will require the person to attend court or give evidence remotely either voluntarily or under subpoena. Attendance pursuant to subpoena has the benefit that the persons will be entitled to their reasonable expenses. I am satisfied that each of the persons named is over the age of 18 years. I am therefore satisfied it is appropriate to give leave under section 31. I must impose a condition that the subpoena not be served after a specified day. Having regard to the trial date, the specified day will be 6 September 2018.
So far as the application to permit evidence to be given by audio‑visual link is concerned, I am satisfied that the evidence of each witness may be more conveniently taken from New Zealand. I propose to specify that the evidence be given by audio‑visual link. The evidence establishes that teleconference facilities can reasonably be made available at the Wellington District Court. Each of the witnesses and, as I understand it, the police officer lives in or around Wellington. It is plainly more convenient for the witness to give evidence by this means than by having to travel to Australia to do so. Finally, I am satisfied that it is appropriate to give leave. The accused did not submit that I should not give leave. As a consequence, I am satisfied of the matters of s 50(2).
Counsel for the Crown has brought to my attention that s 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) does not apply to complainants in relation to alleged offences committed in New Zealand. Accordingly, counsel for the Crown has sought a non‑publication order in relation to the two people identified as similar fact witnesses, namely FC and UQ. The legislature has seen fit to put in place prohibitions on the publication of the identity of complaints in sexual offence proceedings. In this matter evidence is to be given by persons who are complainants in relation to allegations of sexual offences committed in New Zealand. It appears to me to be appropriate by parity of reasoning that their names not be published, and I am satisfied that it is in the interests of the administration of justice that their names not be published. I will therefore make an order forbidding the publication of the names of the first two persons the subject of order 1 that I have made in these proceedings.
The orders of the Court are:
(1) Leave is granted to the Crown to serve subpoenas on the following witnesses in New Zealand: [FC], [UQ], Peter Horide, Meline Warren.
(2) Any subpoena must not be served after 6 September 2018.
(3) Leave is granted to the Crown to take the evidence of the following witnesses by audio‑visual link from New Zealand: [FC], [UQ], Peter Horide and Meline Warren.
(4) Publication of the names of the first two persons the subject of order 1 in these proceedings is prohibited.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 April 2019 |
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