R v Klobucar

Case [2016] ACTSC 23

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Klobucar

Citation:

[2016] ACTSC 23

Hearing Dates:

20 and 21 May 2015

DecisionDate:

19 February 2016

Before:

Refshauge J

Decision:

1.    Evidence of the following incidents referred to in the Notice of Intention to Adduce Tendency Evidence dated 29 April 2015 (the Tendency Notice) may be adduced to prove the following stated tendencies:

     (a)    Incidents 1 to 7 inclusive may be adduced in support of the asserted tendency of Danny Andrew Klobucar to have an obsession about paedophiles;

(b)     Incidents 1, 2, 3 and 4 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to perceive certain males who are older than him as paedophiles;

(c)     Incidents 5, 6 and 7 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to perceive certain males who are older than him as paedophiles if evidence of, in the case of Incident 5, the age of Mr Stephen Kitanovic as older than Mr Klobucar, and, in the case of Incident 6, the age of Sergeant Wesley Herold as older than Mr Klobucar, and in the case of Incident 7, the age of the patient with whom Mr Klobucar had the relevant conversation and as older than Mr Klobucar, is adduced;  and

(d)     Incidents 1, 3, 5, 6 and 7 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to be violent and aggressive towards people he perceives to be paedophiles.

2.   The Incidents in the Tendency Notice may not otherwise be adduced as tendency evidence;

3.   Incident 1 in the Notice of Intention to Adduce Coincidence Evidence dated 30 April 2015 may not be adduced as coincidence evidence.

Catchwords:

CRIMINAL LAW – EVIDENCE – Tendency evidence – coincidence evidence – approach in NSW – R v Shamouil (2006) 66 NSWLR 228 – Christie discretion – replacement of common law – no assessment of credibility – jury function – R v XY (2013) 84 NSWLR 363 – capacity of evidence to advance prosecution case – approach in Victoria – Dupas v The Queen (2012) 40 VR 182 – evaluation of reliability and quality of evidence – prejudicial effect of evidence – risk of unfair prejudice – probative value

EVIDENCE – Tendency evidence – application supported by both parties – tendency to have a particular state of mind – tendency to act in a particular way – obsession with paedophiles – perceive older males as paedophiles – violence and aggression towards perceived paedophiles – pattern of behaviour and thought – evidence relevant to fact in issue – clear proof of age required

EVIDENCE – Coincidence evidence – particular state of mind – general similarities – differences in evidence – state of mind may not have been voluntary or intentional

STATUTES – INTERPRETATION – Uniform Evidence Legislation – Evidence Act 2011 (ACT) – Evidence Act 1995 (NSW) – Evidence Act 2008 (Vic) – s 137 – tendency evidence – coincidence…

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AGLC
R v Klobucar [2016] ACTSC 23
Case
[2016] ACTSC 23
Decision Date

CaseChat Overview and Summary

In the case of R v Klobucar, the defendant, Danny Andrew Klobucar, was on trial for various offences, and the prosecution sought to introduce both tendency and coincidence evidence relating to his previous incidents. The court had to determine whether this evidence was admissible under the provisions of the relevant Evidence Acts. The case was heard in the Supreme Court of the Australian Capital Territory.

The central legal issues revolved around the admissibility of the evidence under s 137 of the Evidence Act 2011 (ACT). This section mandates that evidence with probative value is admissible, but may be excluded if its prejudicial effect on the defendant substantially outweighs its probative value. The court needed to decide whether the evidence of the defendant's previous incidents was relevant to proving any fact in issue and whether it could be admitted as tendency or coincidence evidence. The court also needed to consider the discretion of the judge to exclude evidence under the Christie principle and how this interacts with the statutory provisions.

The court examined the statutory framework and the relevant jurisprudence, including R v Shamouil and Dupas v The Queen, to determine the appropriate approach to the admissibility of the evidence. It concluded that the Christie discretion had been replaced by the statutory provisions, but this did not prevent the court from considering the reliability and quality of the evidence. The court found that the evidence of the defendant's obsession with paedophiles, his tendency to perceive older males as paedophiles, and his violent and aggressive behaviour towards perceived paedophiles was relevant and had probative value. However, the court held that the evidence could not be used to prove the defendant's state of mind at the time of the alleged offences, as this would require an evaluation of the reliability and quality of the evidence, which is not required by the statutory provisions.

The court made orders that certain incidents could be adduced as tendency evidence to prove the defendant's obsession with paedophiles and his tendency to perceive older males as paedophiles and to be violent and aggressive towards them. However, other incidents could not be adduced as tendency evidence, and one incident could not be adduced as coincidence evidence. The court also ordered that the evidence could not be used to prove the defendant's state of mind at the time of the alleged offences.

Orders

Orders of the court

1. Evidence of the following incidents referred to in the Notice of Intention to Adduce Tendency Evidence dated 29 April 2015 (the Tendency Notice) may be adduced to prove the following stated tendencies:

(a) Incidents 1 to 7 inclusive may be adduced in support of the asserted tendency of Danny Andrew Klobucar to have an obsession about paedophiles;

(b) Incidents 1, 2, 3 and 4 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to perceive certain males who are older than him as paedophiles;

(c) Incidents 5, 6 and 7 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to perceive certain males who are older than him as paedophiles if evidence of, in the case of Incident 5, the age of Mr Stephen Kitanovic as older than Mr Klobucar, and, in the case of Incident 6, the age of Sergeant Wesley Herold as older than Mr Klobucar, and in the case of Incident 7, the age of the patient with whom Mr Klobucar had the relevant conversation and as older than Mr Klobucar, is adduced; and

(d) Incidents 1, 3, 5, 6 and 7 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to be violent and aggressive towards people he perceives to be paedophiles.

2. The Incidents in the Tendency Notice may not otherwise be adduced as tendency evidence;

3. Incident 1 in the Notice of Intention to Adduce Coincidence Evidence dated 30 April 2015 may not be adduced as coincidence evidence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In R v Shamouil (2006) 66 NSWLR 228, the New South Wales Court of Criminal Appeal considered the approach a court should take to s 137 of the Evidence Act 1995 (NSW) (the NSW Evidence Act), which is in identical terms to those of s 137 of the ACT Evidence Act. The judgment of the Court was delivered by Spigelman CJ, with whom Simpson and Adams JJ agreed. His Honour held that the section replaced the common law discretion to exclude prejudicial evidence that had been the subject of formulation in R v Christie [1914] AC 545 generally, and helpfully, known as “the Christie discretion”. His Honour said at 236; [49]: His Honour quoted from what Hunt CJ at CL, with whom Newman and Ireland JJ agreed, had said in R v Carusi (1997) 92 A Crim R 52 at 65, as follows: His Honour noted that decisions, such as R v Singh-Bal (1997) 92 A Crim R 397 at 403, after the commencement of the legislation, took the same view. His Honour accepted that, in the words of Simpson J in R v Cook [2004] NSWCCA 52 at [43], it is not the case that Indeed, it was this latter point that was important for his Honour, namely the careful preservation of the fundamental relationship between the judge and jury in a criminal trial and that the test should not be used as a “basis for enlarging the powers of a trial judge at the expense of the traditional jury function”. This has been the approach taken in New South Wales since then. It is also the approach that has been taken by Courts of Appeal in most other jurisdictions that have adopted the provision of the Uniform Evidence Legislation: Tasmania (KMJ v Tasmania (2011) 20 Tas R 425 at 436-7; [23]) and the Northern Territory (IMM v The Queen [2014] NTCCA 20 at [47]-[50]). In this jurisdiction, it has been followed in R v Fairbairn (2011) 250 FLR 277 at 289-90; [77]-[78] and R v Johnston (2012) 6 ACTLR 297 at 310; [49]. It has not, however, been followed in Victoria, where the Victorian Court of Appeal criticised the approach of R v Shamouil in robust terms and rejected it in Dupas v The Queen (2012) 40 VR 182. There, a court of five judges, convened for the purpose, addressed the issued and unanimously held that the Victorian courts should not follow the New South Wales approach. The Court referred to the Christie discretion and traced the history of its subsequent application at common law in both England and Australia. The exercise of the discretion as so developed, the court held at 199; [74], “rests upon the duty of the judge to ensure that every accused person has a fair trial”. This requirement, the court held at 200; [75], was “not only independent but intrinsic and inherent in our system of criminal justice”. Their Honours concluded of the application of the Christie discretion that it did require an evaluation of the reliability and quality of the evidence and this did not involve a usurpation by the judge of the jury’s function. Thus, their Honours said at 200-1; [78]: Their Honours identified the prejudicial effect of the evidence in a number of ways at 200; [77]:

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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