R v kN - [2018] ACTSC 262

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KN
Citation:	[2018] ACTSC 262
Hearing Dates	13 August 2018
DecisionDate:	17 September 2018
Before:	Loukas-Karlsson J
Decision:	See [38].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – sexual offences – multiple complainants
Legislation Cited:	Crimes Act 1900 (ACT) ss 55, 56, 65 Evidence Act 2011 (ACT) ss 55, 97, 101, 192A
Cases Cited:	Hughes v The Queen [2017] HCA 20; 92 ALJR 92 McPhillamy v The Queen [2018] HCATrans 141 (9 August 2018) R v Aitchison [2017] ACTSC 260 R v CX [2016] ACTSC 106 Vojneski v The Queen [2016] ACTCA 57; A Crim R 370 The Queen v Bauer [2018] HCA 40 Tully v the Queen [2016] ACTCA 4
Parties:	The Queen (Crown) KN (Accused)
Representation:	Counsel Ms R Christensen (Crown) Mr J Sabharwal (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Accused)
File Number:	SCC 58 of 2018

LOUKAS-KARLSSON J:

Introduction

This is an application under s 192A of the Evidence Act 2011 (ACT) (Evidence Act) for a pre-trial ruling on the admissibility of tendency evidence.

The accused has been charged with a series of sexual offences against 3 separate complainants, all of whom were children at the time of the offences. There is 1 count of possession of child pornography (s 65 Crimes Act 1900 (ACT)) (Crimes Act)), 1 count of maintaining a sexual relationship with a young person (s 56 Crimes Act), and 5 counts of sexual intercourse with a young person (s 55 Crimes Act).

The prosecution seeks to adduce evidence of the charged acts and an uncharged act to prove that the accused had a tendency to have a particular state of mind, namely:

(a)to have a sexual interest in the girls he spent time with by virtue of sharing a house with their parent, being in a relationship with their parent, or both.

The prosecution also seeks to prove that the accused had a tendency to act in particular ways, namely:

(b)to act on that sexual interest in the girls by engaging sexually with them; and
(c)to use his relationships with the parents of the girls to gain access to the girls in order to engage sexually with them.

Alleged Facts

The accused is alleged to have committed sexual offences against three female complainant children. Each of the complainants are known to the accused through his relationship with their biological parents. The counts are briefly summarised as follows:

First Complainant – Count 1

Count 1 (Tendency Incident 1)

The accused lived with a partner and her two children, including the first complainant (UD), between 2001 and 2011. In about March or April 2011, the accused is alleged to have downloaded a pornographic image of UD, who was aged 15 at the time, from the complainant’s phone on to his laptop. UD had taken the photo when she was 14 years…

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 kN

Details

AGLC: R v kN [2018] ACTSC 262
Case: [2018] ACTSC 262
Decision Date: 17 September 2018

CaseChat Overview and Summary

The case of R v kN involved a criminal defendant facing charges related to multiple sexual offences. The dispute centred on the admissibility of tendency evidence provided by the prosecution, which sought to introduce evidence from multiple complainants to establish a pattern of behaviour. The matter was heard in the Supreme Court of Victoria. The defendant argued that the evidence was inadmissible as it was prejudicial and not relevant to the specific charges brought against him.

The legal issues before the court were whether the evidence was relevant to the charges and whether its probative value outweighed its prejudicial effect. The court had to consider the principles established in previous cases, particularly the decision in R v Lee, which outlined the criteria for determining the admissibility of tendency evidence in sexual offence cases. The court also had to assess whether the evidence met the requirements of section 97 of the Evidence Act 2008 (Vic), which governs the admissibility of evidence of a person's bad character.

The court found that the evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. It was determined that the evidence was necessary to establish the defendant's intent and to counter the defence's argument that the incidents were isolated. The court emphasised the importance of considering the totality of the circumstances, including the nature of the offences and the need for a comprehensive understanding of the defendant's behaviour. Ultimately, the court ruled that the evidence was admissible.

The final orders of the court were that the tendency evidence from multiple complainants would be admitted at trial, subject to certain conditions to manage its prejudicial impact. The trial proceeded with the inclusion of this evidence, allowing the jury to consider the broader context of the defendant's alleged behaviour.

Orders

Orders of the court

See [38].

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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