Malbunka v Court - [2022] NTSC 65

CITATION:Malbunka v Court [2022] NTSC 65
PARTIES:MALBUNKA, Kielow

v
COURT, Michael

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 2 of 2021 (21759172)
DELIVERED:  16 August 2022
HEARING DATE:  18 May 2021
JUDGMENT OF:  Barr J

CATCHWORDS:
EVIDENCE – IDENTIFICATION – Appeal against conviction – driving whilst disqualified – reliability of identification evidence – ‘recognition evidence’ – whether Local Court judge failed to direct himself in accordance with s 116 and s 165 Evidence (National Uniform Legislation) Act (NT) – held s 116 and s 165 did not apply to judge-alone trials in the Local Court – appeal dismissed.
Evidence (National Uniform Legislation) Act 2011 (NT) s 116, s 165
Criminal Procedure Act 1986 (NSW) s 133(3)
Criminal Procedure Act 2004 (WA) s 120(2).
Davies and Cody v The King [1937] 57 CLR 170; Filippou v The Queen [2015] HCA 29; 256 CLR 47, referred to
Fleming v The Queen (1998) 197 CLR 250 at 263; AK v Western Australia [2008] HCA 8; 232 CLR 438, distinguished
REPRESENTATION:
Counsel:
Appellant:M J O Wall
Respondent:  S Lapinski
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bar2210
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Malbunka v Court [2022] NTSC 65

No. LCA 2 of 2021 (21759172)

BETWEEN:

KIELOW MALBUNKA

Appellant

AND:

MICHAEL COURT

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 16 August 2022)

The appellant appeared before the Local Court in Alice Springs on 13 January 2021, charged with (inter alia) driving disqualified on 27 October 2017. He entered a plea of not guilty. After a summary hearing, he was found guilty. He appeals the guilty finding on a number of grounds.
The prosecution case was as follows. At the material time, the appellant was disqualified from driving a motor vehicle. At approximately 8:20am on 27 October 2017, the appellant was driving a Holden Commodore around the north side of Alice Springs. Solomon George was seated in the front passenger seat of the Commodore, and Cameron Ross and Eli Rubuntja were seated in the rear passenger seats. A Police officer, Remote Sergeant Jason Canning (“Canning”) saw the Commodore approaching from the opposite direction. He activated his police vehicle’s emergency lights and sirens. He also extended his hand out of the driver’s window, with the palm raised, in a gesture directing the driver of the vehicle to stop.[1]
Although Canning had been looking for a person named ‘Kielow Malbunka’, who had been identified as the driver of a Holden Commodore involved in an earlier incident, he did not recognise the appellant as the driver of the approaching Commodore vehicle.
The driver of the Commodore vehicle did not stop, and drove past Canning’s police vehicle. As the vehicles passed, they were less than one metre apart. The driver’s window of Canning’s vehicle was…

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 Malbunka v Court

Details

AGLC: Malbunka v Court [2022] NTSC 65
Case: [2022] NTSC 65
Decision Date: 16 August 2022

CaseChat Overview and Summary

The appellant, Malbunka, appealed against his conviction for driving whilst disqualified. The case was heard in the Supreme Court of the Northern Territory. The primary issue before the court was whether the Local Court judge failed to direct himself appropriately regarding the reliability of identification evidence, in particular 'recognition evidence', under sections 116 and 165 of the Evidence (National Uniform Legislation) Act 2011 (NT). The appellant argued that the judge did not sufficiently consider the unreliability of identification evidence, particularly in-dock identification and recognition evidence. The court had to determine if the statutory provisions applied to judge-alone trials and whether the judge's failure to direct himself constituted a miscarriage of justice.

The court examined the applicability of sections 116 and 165 to judge-alone trials in the Local Court. Section 116 requires judges to inform juries about the special need for caution when accepting identification evidence, while section 165 mandates a warning about unreliable evidence if a jury is present and a party requests it. The court concluded that section 165 was inapplicable to judge-alone trials, as it explicitly refers to cases where a jury is present. Additionally, even if section 165 were applicable, the judge's obligation to warn is contingent upon a party's request, which did not occur in this case. The appellant's counsel did not request a general direction on the unreliability of identification evidence but specifically sought a direction on the unreliability of in-dock identification. The court found that the judge adequately addressed the concerns raised by the defence counsel regarding the reliability of recognition evidence.

In light of the above findings, the court held that the Local Court judge did not err in his directions on the unreliability of identification evidence. The appellant's submissions did not meet the threshold for a statutory direction, and the judge's response appropriately considered the reliability of the recognition evidence. Consequently, the appeal was dismissed, and the conviction for driving whilst disqualified was upheld.

The Supreme Court affirmed the conviction and dismissed the appeal, thereby maintaining the original decision of the Local Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I turn to consider ground 3: that the judge failed to direct himself as to the dangers of accepting identification evidence. Identification evidence – statutory provisions Counsel for the appellant refers to two statutory provisions: s 116 and s 165 Evidence (National Uniform Legislation) Act 2011. I set out below the section or those parts which may be relevant: 116Directions to jury(1)If identification evidence has been admitted, the judge is to inform the jury:(a)that there is a special need for caution before accepting identification evidence; and(b)of the reasons for that need for caution, both generally and in the circumstances of the case.(2)It is not necessary that a particular form of words be used in so informing the jury. 165Unreliable evidence(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:(a)not reproduced(b)identification evidence;(c) – (g) not reproduced(2)If there is a jury and a party so requests, the judge is to:(a)warn the jury that the evidence may be unreliable; and(b)inform the jury of matters that may cause it to be unreliable; and(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.(4)It is not necessary that a particular form of words be used in giving the warning or information. Counsel for the appellant submits that both s 116 and s 165 are relevant.[13] However, I doubt whether s 165 applies to judge-alone trials in the Local Court, because s 165(2) commences with the words, “If there is a jury …”, which suggests that the judge’s obligation to warn is engaged only if there is a jury. Moreover, even if s 165 applied to judge-alone trials, the judge’s obligation to warn is triggered by a request made by a party. On my reading of the submissions made by defence counsel in the Local Court, no request was made for the Judge to direct himself as to the dangers of accepting identification evidence generally. Defence counsel’s request was for the judge to direct himself “that in-dock identification is notoriously unreliable, especially in the absence of any other independent identification evidence”.[14] The response of the judge was as set out in [24] above. In my opinion, there was no requirement for the judge to give the direction sought. In any event, defence counsel then appeared to acknowledge that the evidence was not “in-dock identification evidence”, and made submissions as to the need for the judge to consider “the basis for that recognition evidence”. Defence counsel made this submission:[15] So, it perhaps does not actually meet that higher threshold of recognition evidence … and your Honour should take that into account in also considering that identification evidence, in general, not just in the dock, is unreliable. I am at a loss, your Honour, to give yourself a direction as to that.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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