R v MB - [2009] NTSC 47

R v MB [2009] NTSC 47
PARTIES:THE QUEEN

v
MB

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20825784
DELIVERED:  16 September 2009
HEARING DATES:  15 September 2009
JUDGMENT OF:  KELLY J
CATCHWORDS:

CRIMINAL LAW – EVIDENCE – ADMISSIBILITY

Application under section 26L and 26E of the Evidence Act 1939 (NT) – admissibility of evidence at trial – hearsay evidence – contemporaneousness – sexual offence

Evidence Act 1939 (NT), s 26E, s 26 F, s 26L

R v Joyce (2005) 15 NTLR 134; R v Wojtowicz [2005] 148 NTR 24; The Queen v PW [2009] NTSC 08, followed

Osbourne [1905] 1 KB 55; Jonkers v Police [1996] 91 A Crim R 104; R v Manager [2006] NTSC 85; Suresh v The Queen (1998) 72 ALJR 769, considered
REPRESENTATION:
Counsel:
Plaintiff:E. Armitage
Defendant:J. Franz
Solicitors:
Plaintiff:Office of the Director of Public Prosecutions
Defendant:Northern Territory Legal Aid Commission
Judgment category classification:   B
Judgment ID Number:  KEL09002
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v MB [2009] NTSC 47
No. 20825784
BETWEEN:

THE QUEEN

AND:

MB

CORAM: KELLY J
REASONS FOR RULINGS
(Delivered 16 September 2009)

The accused is charged with one count of having sexual intercourse with CD without her consent, a charge to which he has pleaded not guilty and one count of indecent dealing with CD, a person under the age of 16 years, a charge to which he has pleaded guilty.
At the beginning of the trial a voir dire was conducted pursuant to section 26L of the Evidence Act concerning the admissibility of evidence from MH (an aunt of both the complainant CD and the accused) and evidence from CD.
The Crown seeks to call evidence from both MH and CD about statements made by CD to MH on the evening of 24 April and the morning of 25 April 2008.
Both MH and CD gave evidence on the voir dire. In addition extracts from the transcript of the oral committal proceeding were tendered along with a statutory declaration made by MH to police on 16 July 2009 and the transcript of the pre-recorded evidence of CD of 11 May 2009.
Although there are some discrepancies between the evidence of MH and CD, the substance of the evidence sought to be adduced by the Crown is that, on the night of 24 April 2008, when CD was visiting her mother and siblings who were living with MH, MH and CD went to the Palmerston Shops to buy groceries and walked back to MH’s unit. During this excursion they had a discussion. MH raised the topic of sex among other things. MH told CD that she wanted her to wait until she was at least 18 before becoming sexually active. CD didn’t want to speak about the topic. MH also raised with CD the fact that she had noticed a change in…

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 MB

Details

AGLC: R v MB [2009] NTSC 47
Case: [2009] NTSC 47
Decision Date: 16 September 2009

CaseChat Overview and Summary

The case of R v MB involves a criminal charge against the defendant, MB, and the admissibility of evidence in the trial. The case was heard in the Northern Territory Supreme Court, which was required to determine whether certain hearsay evidence could be admitted under the Evidence Act 1939 (NT). Specifically, the Crown sought to adduce evidence of conversations between the complainant, a child, and a third party, which occurred around the time of the alleged offence. The Crown argued that the evidence should be admitted under section 26E(1) of the Evidence Act, which provides an exception to the rule against hearsay evidence in cases involving serious offences, including sexual offences.

The primary legal issue before the court was whether the evidence of the conversations was of sufficient probative value to justify its admission, as required by section 26E(1) of the Evidence Act. The Crown argued that the evidence was relevant and should be admitted, while the defence contested its admissibility, arguing that the conversations were not made at the first reasonable opportunity and thus did not meet the criteria for admission as complaint evidence. The court needed to balance the probative value of the evidence against the potential prejudice it might cause and consider the context in which the statements were made.

The court considered the nature of the offence, the relationship between the parties, and the content of the conversations. It concluded that the evidence was of sufficient probative value to justify its admission. The court emphasised the importance of considering all the circumstances surrounding the case, including the context in which the statements were made. The court found that the evidence was relevant and could assist in understanding the facts of the case, and thus, it was admissible under section 26E(1) of the Evidence Act.

The court's decision allowed the Crown to adduce the evidence of the conversations between the complainant and the third party. The court ruled that the evidence was admissible and of sufficient probative value to justify its admission. This decision highlights the importance of considering the context and relevance of evidence in determining its admissibility, particularly in cases involving serious offences. The court's ruling also underscores the need for a flexible approach to the admission of evidence, taking into account the unique circumstances of each case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Crown seeks to adduce evidence of these conversations pursuant to section 26E(1) of the Evidence Act. Section 26E(1) provides as follows:“26E. Exception to rule against hearsay evidence(1)In a proceeding arising from a charge of a sexual offence or a serious violence offence, the Court may, despite the rule against hearsay evidence, admit evidence of a statement made by a child to another person as evidence of facts in issue if the Court considers the evidence of sufficient probative value to justify its admission.” The Crown seeks to adduce evidence of the whole of the conversations that occurred on the evening of 24 and the morning of 25 April. Ms Armitage has submitted that the entirety of the context is admissible. She points to section 26F of the Evidence Act which provides as follows:“26F. Weight to be attached to evidence(1)In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.” The Crown does not seek to lead evidence of these conversations as complaint evidence. Effectively, the Crown concedes that the complaint was not made at the first reasonable opportunity. However Ms Armitage contends, correctly, that the requirements for the admission of evidence as complaint evidence are different than the requirements of admission of evidence under section 26E(1). In R v Joyce (2005) 15 NTLR 134, Riley J said at p 140-141:“No guidance is provided within the section or the Act as to matters to be considered in determining whether evidence is of sufficient probative value to justify admission. The use of the adjective “sufficient” indicates that the conclusion that the evidence has probative value is, by itself, not enough. The requirement is that it have sufficient probative value to justify its admission as evidence of the facts in issue. In applying the provision the court is called upon to make a value judgment in circumstances where some, and possibly all, of the evidence in the particular matter is yet to be adduced.[20] It would not be helpful or wise to endeavour to further define the legislative requirement nor to exhaustively identify the matters which may be of assistance in addressing this issue. Much will depend upon the circumstances of the particular case and the nature of the statement sought to be admitted in the context of those circumstances as they are understood at the time. What is of assistance in one case may not be in another. It is necessary for the court to consider all of the known surrounding circumstances of the particular case in order to determine whether the evidence is of sufficient probative value as to justify its admission in the circumstances of that case.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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