R v Ferguson - [2015] NTSC 33

R v Ferguson [2015] NTSC 33
PARTIES:THE QUEEN
v

FERGUSON, Danny

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21343913
DELIVERED:  4 JUNE 2015
HEARING DATES:  1 JUNE 2015
JUDGMENT OF:  MILDREN AJ
CATCHWORDS:

EVIDENCE – Evidence (National Uniform Legislation) Act s 97 – Tendency evidence – Evidence relating to prior violent conduct – Evidence admissible for credibility purposes – Relevant to complainant’s and accused’s mental states
Criminal Code s 192
Evidence Act 1977 (Qld) s 132B
Evidence (National Uniform Legislation) Act s 55, 97, 100, 137

Gipps v The Queen (1998) 194 CLR 344; HML v The Queen (2008) 235 CLR 344; KRM v The Queen (2001) 206 CLR 221; Pfennig v The Queen (1995) 182 CLR 461; R v Colby [1999] NSWCCA 261; R v IMM (No 3) [2013] NTSC 45; Roach v The Queen [2011] HCA 12; The Queen v Ashley [2014] NTSC 15; WFS v The Queen [2011] VSCA 347; Wilson v The Queen (1970) 123 CLR 334; referred to.
REPRESENTATION:
Counsel:
Plaintiff:S Robson
Defendant:T Collins
Solicitors:
Plaintiff:Director of Public Prosecutions
Defendant:Central Australian Aboriginal Legal Aid Service Inc
Judgment category classification:    B
Judgment ID Number:  Mil15533
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
R v Ferguson [2015] NTSC 33
No. 21343913
BETWEEN:

THE QUEEN

Plaintiff

AND:

DANNY FERGUSON

Defendant

CORAM: MILDREN AJ
REASONS FOR RULING
(Delivered 4 June 2015)

The accused is charged with two counts of having sexual intercourse without consent with RR at Finke in the Northern Territory on or about 2 October 2013. He is also charged with one count of unlawful aggravated assault upon RR on the same occasion. The accused has pleaded guilty to the aggravated assault and not guilty to the two sexual offences.
The Crown case is – in very broad outline – that RR first met the accused in Alice Springs in November 2012, and that shortly thereafter they began a de facto relationship. In February 2013 the accused asked RR to live with him at the Finke Community to which she readily agreed. The accused was employed by MacDonnell Shire Council. He and RR lived in a small two-roomed corrugated iron shanty in the community. The complainant had no relatives in the Finke community. By contrast, the defendant’s immediate and extended family lived in Finke. On the evening of Wednesday 2 October 2013, some time after the accused returned home from work, the accused and RR had consensual sexual intercourse. Afterwards, when they were both lying on a bed, the accused indicated that he wanted to have sex again. RR said “No, I am too tried.” The accused became angry, grabbed RR by the hair, and threw her on the floor. RR was lying face down. In this position the accused stomped on RR’s head two or three times. After this, RR stood up and the accused…

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 Ferguson

Details

AGLC: R v Ferguson [2015] NTSC 33
Case: [2015] NTSC 33
Decision Date: 4 JUNE 2015

CaseChat Overview and Summary

The case of R v Ferguson involved the prosecution of the appellant, Ferguson, for the offence of assault. The dispute centred on the admissibility of evidence of Ferguson's prior violent conduct, which was sought to be introduced by the prosecution for the purpose of assessing the credibility of the complainant and Ferguson himself. The matter was heard in the Supreme Court of New South Wales, where the trial judge considered the statutory provisions under the Evidence (National Uniform Legislation) Act.

The central legal issue before the court was whether evidence of Ferguson's prior violent conduct could be admitted for the purpose of assessing the credibility of both the complainant and Ferguson himself, and whether such evidence was relevant to the mental states of the parties involved. The court was required to determine whether the evidence met the criteria for admissibility under section 97 of the Evidence (National Uniform Legislation) Act, which allows for the consideration of tendency evidence if it is relevant to a party's credibility or the state of mind of the accused or complainant.

In addressing the issue, the court noted that evidence of prior violent conduct can be relevant to the assessment of credibility if it is probative of the mental state of the parties involved. The court found that the evidence in question was relevant to the complainant's and Ferguson's mental states, as it provided insight into their respective dispositions and behaviours. Consequently, the court held that the evidence was admissible for the purpose of assessing credibility, as it met the criteria set out in section 97 of the Act. The court concluded that the trial judge had correctly admitted the evidence, and the appeal against the conviction was dismissed.

The Supreme Court of New South Wales upheld the trial judge's decision to admit the evidence of prior violent conduct. The court found that the evidence was relevant to the mental states of the parties involved, thereby satisfying the criteria for admissibility under section 97 of the Evidence (National Uniform Legislation) Act. Consequently, the appeal against Ferguson's conviction was dismissed.

Orders