R v Kisun (No 4)

[2018] ACTSC 293

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kisun (No 4)

Citation:

[2018] ACTSC 293

Hearing Date:

23 October 2018

DecisionDate:

23 October 2018

ReasonsDate:

11 April 2019

Before:

Mossop J

Decision:

Leave granted under s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross-examine the complainant, KC, in relation to his sexual activities.

Catchwords:

CRIMINAL LAW – EVIDENCE – application for leave to cross‑examine complainant in relation to sexual activities – prior inconsistent statement – relevant to fact in issue – leave granted

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 51, 53(3)

Parties:

The Queen (Crown)

David Kisun (Accused)

Representation:

Counsel

T Hickey (Crown)

G Casement (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Stary Norton Halphen (Accused)

File Number:

SCC 98 of 2016

MOSSOP J:

Leave to cross-examine complainant

1. The accused applied for leave under s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross-examine one of the complainants, KC, in relation to his sexual activities. On 23 October 2018 I granted such leave. Written reasons are required to be given by the Court if leave is granted. These are those reasons.

1. The evidence sought to be elicited in cross-examination was as follows:

(a)KC was a student in Year 7 at Marist College in 1985.  During that year his religion teacher was Brother Kostka Chute.

(b)Brother Kostka started playing with his penis almost straight away from the beginning of Year 7 and it continued right through to the end of Year 9.

(c)KC remembers early in Year 7 that he was in Brother Kostka’s classroom.  He was sitting at his desk and Brother Kostka came up behind him and placed his chin on the top of his head and then put his hands down the front of KC’s pants underneath his underpants.  Brother Kostka then touched and played with his penis for about five to 10 minutes.

(d)These acts occurred almost every time he was in Brother Kostka’s class.

(e)Details of further specific sexual acts occurred are detailed in a statement of KC of 29 October 2007.

1. The accused wishes to elicit this evidence in cross-examination and also cross‑examine KC on a statement recorded in a forensic psychiatrist’s report prepared for the purposes of civil proceedings arising out of Brother Kostka’s acts. The statement recorded in the forensic psychiatrist’s report is to the effect that he experienced no abuse from any other person during his childhood. That statement is inconsistent with the allegation in the present proceedings that KC was indecently assaulted by the accused. Cross‑examination on the statement to the forensic psychiatrist is therefore of substantial relevance to a fact in issue and a proper matter for cross‑examination about credit. So far as the latter is concerned, I am satisfied that the test in s 53(3) of the Evidence (Miscellaneous Provisions) Act is met, although I do not read the reference to “likely” as requiring that it be more probable than not.  There are no identified matters which would tell against the grant of leave.  The Crown made no submissions in opposition to the grant of leave.  I therefore granted leave to cross‑examine on the matters to which I have referred.

I certify that the preceding three [3] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 11 April 2019