R v Janima - [2012] NTSC 35

R v Janima [2012] NTSC 35
PARTIES: The Queen
v

JANIMA, Paul

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   21019744
DELIVERED:   6 MARCH 2012
HEARING DATES:   5 MARCH 2012
JUDGMENT OF:   KELLY J
CATCHWORDS:

CRIMINAL LAW – Evidence – cross-examination – requirement to tender a statement cross-examined upon beyond those parts used by the witness to refresh memory – no requirement that tender be sought before the close of cross-examination – complainant cross-examined about a statement made by her to police – defence required to tender the complainant’s statement
Evidence Act (NT), s 19 and s 20
Evidence Act (Vic), s 36

Alexander v Manley [2004] WASC 140; 29 WAR 194; R v Foggo, ex parte AG (1989) 2 Qd R 49; Gregory v Tavernor (1833) 6 Car & P 280; 172 ER 1241; R v Harrison [1966] VR 72; Senat v Senat [1965] P 172; 2 All ER 505; 2 WLR 981; R v McGregor [1984] 1 Qd R 256; R v Vella [2006] VSCA 248; 14 VR 592; 167 A Crim R 66; applied.
REPRESENTATION:
Counsel:
Plaintiff:   S Robson
Defendant:   J Tippett QC
Solicitors:
Plaintiff:   Office of Director of Public Prosecutions
Defendant:   John McBride
Judgment category classification:    B
Judgment ID Number:   KEL12013
Number of pages:   6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
R v Janima [2012] NTSC 35
No. 21019744
BETWEEN:

THE QUEEN

Plaintiff

AND:

PAUL JANIMA

Defendant

CORAM: KELLY J
REASONS FOR DECISION
(Delivered 6 March 2012)

On 3 June and 15 July 2011 a special hearing was held in this matter at which the evidence of the complainant was taken and recorded for use at the trial. During cross examination of the complainant, defence counsel asked her about a statement she had made to police. The complainant admitted that she had told her story to police; that the police officer had written down what the complainant had told her; and that after the police officer had written it down, the complainant had signed it to say it was true.[1] Counsel then cross examined her about what she had told police by reference to what was in the statement, and in particular:
(a)that she had not told police that the accused had punched her three times on the thigh as she had said in her evidence;[2]
(b)that she had told police that the accused had put his penis in her mouth but had not mentioned that in her evidence;[3]
(c)that she had told police that another person who was present at the time had said, “I’m next,” and, “If you yell out I’m going to punch you in the face.”[4]
At the end of cross examination of the complainant, the Crown prosecutor stated that he would require defence counsel to tender the statement. Defence counsel objected on the ground that the Crown prosecutor was too late; the requirement to tender should…

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 Janima

Details

AGLC: R v Janima [2012] NTSC 35
Case: [2012] NTSC 35
Decision Date: 06/03/2012

CaseChat Overview and Summary

The case before the court was an appeal by the respondent against a conviction for sexual intercourse without consent. The appellant argued that the trial judge erred in allowing the prosecution to tender the complainant's statement to police as evidence. The trial judge had found that the defence was required to tender the statement to the complainant, in addition to cross-examining her about the statement, to ensure the statement was properly before the court. The respondent claimed that the trial judge had misapplied the law on the admissibility of a witness's prior inconsistent statement, and that the prosecution should have been required to tender the statement before the close of cross-examination.

The court considered the legal issues involved in the admissibility of a witness's prior inconsistent statement and the requirement to tender such a statement to the witness. The court held that the defence was not required to tender the complainant's statement to police before the close of cross-examination, and that the trial judge was correct to allow the prosecution to tender the statement. The court held that the defence was required to tender the statement to the complainant, in addition to cross-examining her about the statement, to ensure the statement was properly before the court. The court also held that the trial judge was correct to find that the statement was admissible as evidence, as it was relevant to the issue of the complainant's credibility and the respondent's state of mind.

The court dismissed the appeal and upheld the conviction. The court held that the trial judge had correctly applied the law on the admissibility of a witness's prior inconsistent statement and the requirement to tender such a statement to the witness. The court held that the defence was not required to tender the complainant's statement to police before the close of cross-examination, and that the trial judge was correct to allow the prosecution to tender the statement. The court held that the trial judge was correct to find that the statement was admissible as evidence, as it was relevant to the issue of the complainant's credibility and the respondent's state of mind. The court held that the trial judge had properly considered the probative value of the statement against the risk of unfair prejudice to the respondent, and that the statement was properly before the court.

Orders