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

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…

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 3)

Details

AGLC: R v Kisun (No 3) [2018] ACTSC 370
Case: [2018] ACTSC 370
Decision Date: 23 August 2018

CaseChat Overview and Summary

The case of R v Kisun (No 3) involved the Crown's application to the Supreme Court of Victoria for an order under section 31 of the Trans-Tasman Proceedings Act 2010 (Cth) to serve a subpoena on a witness in New Zealand. The Crown sought the testimony of this witness, whose evidence was deemed significant for tendency purposes and for providing context to the evidence of the complainant. The Crown argued that the evidence could not be obtained by other means without significantly greater expense and inconvenience to the persons named.

The legal issues before the court centred around the interpretation and application of sections 31 and 50 of the Trans-Tasman Proceedings Act 2010 (Cth). Specifically, the court had to determine whether the evidence of the witness could be obtained through the service of a subpoena in New Zealand and whether the taking of the evidence by audio-visual link from New Zealand was more convenient than having the witness travel to Australia.

The court held that the evidence of the witness would be significant for tendency purposes and for providing context to the evidence of the complainant. The court found that the evidence could not be obtained by other means without significantly greater expense and inconvenience to the persons named. Additionally, the court determined that the evidence was more conveniently taken from New Zealand. Consequently, the Crown's application was successful.

The court ordered that the subpoena be served on the witness in New Zealand and that the evidence be taken by audio-visual link from New Zealand. This decision was based on the significant weight of the evidence and the convenience of taking the evidence in New Zealand, as well as the unavailability of the evidence through alternative means without undue expense and inconvenience.

Orders

Orders of the court

See [12]

Background

Background to the litigation

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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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