R v Ryan - [2013] NTSC 54

R v Ryan [2013] NTSC 54
PARTIES:The Queen

v
RYAN, Kirk

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21225038
DELIVERED:  23 AUGUST 2013
HEARING DATE:  29 JULY 2013
JUDGMENT OF:  KELLY J
CATCHWORDS:

EVIDENCE—Admissibility—Statements of deceased witness identifying accused—Statements made four and five days following incident—Whether made in circumstances that make it highly probable that the representations are reliable—Statements admitted
EVIDENCE—Admissibility—Statements of deceased witness identifying accused—Statements made four and five days following incident—Whether statements made “shortly after” the incident—Held that the ordinary usage of the phrase “shortly after” not inconsistent with time elapsed—Held that identification of own cousin likely to be clear after five days—Statements admitted
Evidence (National Uniform Legislation Act) 2013 (NT) s 65(2)(b), s 65(2)(c), s 137
Williams v The Queen (2000) 119 A Crim R 490; Harris v The Queen (2000) 158 A Crim R 454; Conway v The Queen (2000) 98 FCR 204, applied

REPRESENTATION:
Counsel:
Plaintiff:D Dalrymple
Defendant:J Hunyor
Solicitors:
Plaintiff:Office of the Director of Public Prosecutions
Defendant:North Australian Aboriginal Justice Association
Judgment category classification:    B
Judgment ID Number:  KEL13010
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Kirk [2013] NTSC 54
No. 21225038
BETWEEN:

THE QUEEN

Plaintiff

AND:

KIRK RYAN

Defendant

CORAM: KELLY J
REASONS FOR RULING
(Delivered 23 August 2013)

The accused, Kirk Ryan has been charged with attempting to have sexual intercourse with SA without her consent, knowing about that lack of consent. He has been found not fit to stand trial and a special hearing is to be held before a jury. The evidence is that SA was sexually assaulted in a park in Katherine on the night of 1 July 2012. A major issue in the special hearing will be whether the man who assaulted her was in fact Kirk Ryan.
SA identified Kirk Ryan to police as her attacker shortly after the assault occurred. He was previously unknown to her.
Ms Sophia Weston, Mr Ryan’s cousin made a statement to police on 6 July 2012, in which she said that she had witnessed the assault on SA and recognised the attacker as her cousin Kirk Ryan. She had made an oral statement to the same effect to a police officer the day before. Ms Weston died in a car accident in May this year, and the crown is seeking to have her two statements admitted into evidence under s 65(2)(b) and/or (c) of the Uniform Evidence Act.
The first statement was made by Ms Weston to a police officer, Ms Hollingsworth who came to the unit where she was staying, on 5 July 2012. Ms Hollingsworth’s evidence was that she went to the unit to arrange to take a statement from Ms Rose Braun who she had been told had been a witness to the assault. Ms Weston, who was Ms Braun’s sister in law, was staying at the unit. When she heard what Ms Hollingsworth…

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 Ryan

Details

AGLC: R v Ryan [2013] NTSC 54
Case: [2013] NTSC 54
Decision Date: 23 AUGUST 2013

CaseChat Overview and Summary

The matter of R v Ryan was heard in the Supreme Court of Australia. The appellant, Ryan, was charged with an offence and the key evidence against him was a series of statements made by a deceased witness identifying Ryan as the perpetrator. The statements were made four and five days after the incident in question. The primary issue before the Court was whether these statements were admissible as evidence, specifically whether they were made “shortly after” the incident and under circumstances that made it highly probable that the representations were reliable.

The Court was required to determine whether the ordinary usage of the phrase “shortly after” could be interpreted to include a period of four to five days post-incident. Additionally, the Court needed to consider the reliability of the identification, particularly given the relationship between the witness and the accused as cousins. The Court examined whether the identification of a cousin by a witness was likely to be clear after such a period.

The Court concluded that the phrase “shortly after” was not strictly limited to an immediate timeframe and could encompass a period of up to five days following the incident. Furthermore, the Court held that the identification of a cousin by a witness was likely to be clear even after a five-day interval. Therefore, the statements were deemed admissible as they were made in circumstances that rendered it highly probable that the representations were reliable. The Court admitted the statements into evidence.

The Court did not make any further orders in the matter, leaving the trial to proceed with the admitted evidence.

Orders