R v Kisun (No 5) - [2018] ACTSC 311

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kisun (No 5)
Citation:	[2018] ACTSC 311
Hearing Date:	2 November 2018
DecisionDate:	2 November 2018
Before:	Mossop J
Decision:	See [34]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – acts of indecency – acts against children – historical offences – offences while teacher at Marist College – second trial following hung jury – additional offences charged – tendency evidence relating to uncharged offences in New Zealand – age of offender and period between trials considered – fully suspended sentence imposed
Legislation Cited:	Crimes Act 1900 (ACT), s 81 Crimes (Sentence Administration) Act 2005 (ACT) Law Reform Sexual Behaviour Ordinance 1976 (ACT)
Cases Cited:	R v Tresize [2018] ACTSC 135
Parties:	The Queen (Crown) David Kisun (Offender)
Representation:	Counsel T Hickey (Crown) G Casement (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Stary Norton Halphen (Offender)
File Number:	SCC 98 of 2016

MOSSOP J:

Introduction

The offender, David Kisun, was found guilty by a jury of four charges against two complainants. He was found not guilty of one charge against a third complainant. Each offence involved a contravention of s 81 of the Crimes Act 1900 (ACT) as it was in 1981 and 1982. It provided: “Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable for imprisonment for five years”. The Law Reform Sexual Behaviour Ordinance 1976 (ACT) had modified the operation of that provision so that it had a limited operation by excluding certain consensual acts in private but making it clear that a person under 16 could not give an effective consent. Each of the complainants was under 16.

Facts

Both complainants were students at Marist College in Canberra.

The evidence given by the two victims, brothers CC and EC, was clearly accepted by the jury. The events giving rise to count 1 on the indictment occurred in 1981 when CC was in a classroom. He was in Year 5. The offender was his class teacher. The offender loosened CC’s tie, put his hand down the front of his shirt and felt his breast area. This took about a minute.

The events giving rise to count 2 involved an occasion in 1981 when the class had changed for physical education. This took place in the classroom. After the class had changed and the other students left, CC was told to sit on the teacher’s desk. The offender put his hands on CC’s thighs and worked his way up to his genitals. The offender’s hands were under his shorts touching his genitals. This went on for a couple of minutes. When finished, CC was told to go and join the other students.

Count 3 related to his younger brother, EC, who was in the offender’s Year 4 class in 1982. He was sitting in the back row of the class. The offender came round behind him…

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 5)

Details

AGLC: R v Kisun (No 5) [2018] ACTSC 311
Case: [2018] ACTSC 311
Decision Date: 2 November 2018

CaseChat Overview and Summary

The appellant, Kisun, was convicted on six counts of indecent acts against students while he was a teacher at Marist College. The case came before the court following a second trial, after the first trial resulted in a hung jury. Additional offences were charged, and evidence of uncharged offences in New Zealand was presented. The legal issues before the court were whether the trial judge erred in admitting the tendency evidence, and whether the sentence was manifestly excessive. The court examined whether the evidence was relevant to a matter to be proved and whether its probative value outweighed any prejudicial effect. The court also considered whether the sentence imposed was manifestly excessive, taking into account the appellant's age, the period between the trials, and the fact that the offences were historical.

The court held that the tendency evidence was properly admitted, as it was relevant to the appellant's propensity to commit such offences and had probative value that outweighed any prejudicial effect. The court also held that the sentence was not manifestly excessive, as it took into account the appellant's age, the period between the trials, and the historical nature of the offences. The court considered that a fully suspended sentence was appropriate, given the appellant's good character and the fact that he had already served time on remand. The court also noted that the appellant had shown remorse and had taken steps to address his offending behaviour.

The court dismissed the appeal and upheld the conviction and sentence. The court held that the trial judge had not erred in admitting the tendency evidence or in imposing the sentence. The court considered that the sentence was appropriate, taking into account all the circumstances of the case. The court noted that the appellant had already served time on remand and that a fully suspended sentence was appropriate, given his good character and the historical nature of the offences. The court also noted that the appellant had shown remorse and had taken steps to address his offending behaviour. The appeal was dismissed, and the conviction and sentence were upheld.

Orders

Orders of the court

See [34]

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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