R v Scotty

Case [2007] NTSC 43

R v Scotty [2007] NTSC 43

PARTIES:THE QUEEN

v

SCOTTY, HILDA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING ORIGINAL CRIMINAL JURISDICTION

FILE NO:20606296

DELIVERED:  23 August 2007

HEARING DATES:  14-18 & 21-22 May; 18-22 & 28 June 2007

JUDGMENT OF:  MILDREN J

CATCHWORDS:

EVIDENCE – Admissions – Aboriginal of low intelligence and brain damage – whether suspected of commission of an offence – whether caution required to be given – whether statement should have been required to be taped – whether admissible

EVIDENCE – admissions – Aboriginal of low intelligence and brain damage suspected of murder – formal record of interview conducted without prisoner’s friend – Anunga guidelines not complied with – record of interview conducted after suspect had previously exercised the right to remain silent – whether voluntary or should be excluded in the exercise of discretion

EVIDENCE – alleged lies – whether admissible as evidence of guilt

Statutes:

Criminal Code

Evidence Act, s 26L

Police Administration Act, s 142, s 142(1), s 143

Police Commissioner’s General Orders, General Order Q2, General Order Q2 3.1.8, General Order Q2 5

Summary Offences Act 1953 (SA), s 74C, s 74D, s 74D(1), s 74E, s 74E(1)

Citations

Followed:

Alexander v The Queen (1981) 145 CLR 395

R v Parker (1989) 19 NSWLR 177

R v Pfitzner (1996) 66 SASR 161

Sinclair vThe King (1946) 73 CLR 316

Referred to:

Duke v The Queen (1989) 180 CLR 508

Grimley v The Queen (1995) 121 FLR 282

R v Azar (1991) 56 A Crim R 414

R v Dolan (1992) 58 SASR 501

R v Grimley (1994) 121 FLR 236

R v Harris (1995) 64 SASR 85

R v Joyce [2002] NTSC 70

R v Lee (1950) 82 CLR 133 at 134

R v Murphy (1996) 66 SASR 406

R v Nundhirribala (1994) 120 FLR 125

R v Stokes [2000] NTSC 12

R v Swaffield (1997) 192 CLR 159

R v Weiss (2004) 145 A Crim R 478

Rostron v The Queen (1991) 1 NTLR 191

Van de Meer v The Queen (1988) 62 ALJR 656

REPRESENTATION:

Counsel:

Crown:Dr N Rogers

Accused:R Davey & T Aickin

Solicitors:

Crown:Office of the Director of Public Prosecutions

Accused:Central Australian Aboriginal Legal Aid Service Inc

Judgment category classification:             B

Number of pages:  54

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Scotty [2007] NTSC 43

No. 20606296

BETWEEN:

THE QUEEN

Plaintiff

AND:

HILDA SCOTTY

Defendant

CORAM:     MILDREN J

REASONS FOR RULINGS

(Delivered 23 August 2007)

  1. The accused, Hilda Scotty, is charged with having murdered Russell Moonlight at Alice Springs on 7 August 2005.

  2. An application pursuant to s 26L of the Evidence Act was made by counsel for the accused who sought rulings on the admissibility of certain evidence proposed to be called by the Crown at the accused’s trial.

  3. At the conclusion of the hearing of that application on 22 June 2007, I reserved my decision.…

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Details
AGLC
R v Scotty [2007] NTSC 43
Case
[2007] NTSC 43
Decision Date

CaseChat Overview and Summary

The case of R v Scotty involved an appeal by the accused, Vera Scotty, against her conviction and sentence for the murder of a woman in the Todd River area near Alice Springs. Scotty, an Aboriginal woman with reported low intelligence and brain damage, was suspected of the crime and subsequently arrested. The primary issues for the court to decide were the admissibility of certain evidence, including DNA evidence, statements made by Scotty to the police, and an alleged conversation between Scotty and another individual. The court also had to consider whether the police complied with the appropriate procedures when conducting the interview with Scotty, particularly whether they followed the guidelines set out in Anunga v The Queen.

The court examined the admissibility of DNA evidence found on the victim's jacket, which the accused denied any knowledge of. The court found that although the DNA evidence on its own proved very little, it had probative value as circumstantial evidence, and its prejudicial effect did not outweigh its probative value. The court also considered the admissibility of statements made by the accused during the police interview, taking into account her intellectual disability and brain damage. The court concluded that the formal record of the interview was not voluntary and should have been excluded in the exercise of the court's discretion, as it was conducted without Scotty's friend present and did not comply with the Anunga guidelines. Furthermore, the court found that the evidence of an alleged conversation between Scotty and another individual was inadmissible as it was based on an unsatisfactorily conducted identification by one of the police officers involved.

The court concluded that the DNA evidence should be admitted, while the evidence of the alleged conversation and the police interview were excluded due to procedural errors and unreliability. The court did not exclude the evidence of the accused's presence in the Todd River area near the time of the murder, as it found it to be of some probative value.

ORDERS:
1. Evidence admissible.

Orders

Orders of the court

1. Evidence admissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In my opinion, the DNA evidence in this case does have evidentiary value, particularly in the light of the evidence that the accused denied any knowledge of the jacket. In those circumstances it is a piece of circumstantial evidence which, together with other evidence, might lead a jury to draw a conclusion adverse to the accused. Although the evidence by itself proves very little, it has probative value as a piece of circumstantial evidence and in my opinion its prejudicial effect does not outweigh its probative value and it therefore should be admitted and I so ruled.The evidence of conversations allegedly between the accused and Daryl Muir and Constable Ray Wilson Mr Muir was at the relevant time a constable in the Northern Territory police and in the early hours of the morning of 8 August 2005 he and Constable Wilson were tasked to patrol the Todd River to identify persons who were camping in that area and “obtain their bona fides”. Amongst the persons that they spoke to were a group of Aboriginal people camped in the river near the John Blakeman Bridge. Amongst the persons to whom they spoke was a female Aboriginal who gave the name of Vera Scotty, 31 years of age from Docker River, who arrived the previous day or the day before that on a bush bus with a number of other people. This conversation occurred in the early hours of the morning and details were recorded by Mr Muir. Constable Wilson assisted by holding a torch. The evidence was that all of the persons spoken to (and there were a number of others) were examined for anything suspicious on their hands, clothing and general appearance, but nothing of a suspicious nature was detected. Constable Wilson recalled the person who gave the name of Vera Scotty as seeming to be “a little edgy” about their enquiries, but nothing else of significance came from these witnesses. The submission of the Crown was there was evidence from which the jury might infer the person who gave the name Vera Scotty was the accused. Having regard to the fact that the accused is an Aboriginal person who does not speak English as a first language, it is not improbable that the police misheard the name Vera for the name Hilda. There is also evidence from the accused in her statement to the police (Exhibit P17) that she was in the company of a number of Aboriginal people from Docker River and went to sleep in the river near the bridge on the town side of Old Timers Camp that night. The evidence helps to place the accused in the Todd River relatively close to the scene of the murder within a few hours after the body had been discovered. The evidence is of some probative value and I see no reason to exclude it in the exercise of my discretion. So far as the subsequent identification by Constable Wilson is concerned of the person who identified herself as Vera Scotty, that identification came as a result of Constable Wilson viewing a photo of the accused kept on the police computer system. This occurred on 6 April 2006 and came about as a result of a request from Detective Cummins to view the photo in the PROMIS system. At that stage the accused had already been arrested and was in remand at the Alice Springs Correctional Centre. No attempt was made to arrange a line up or a proper photo board for the purposes of this identification. Clearly the identification is so unsatisfactory that it ought to be excluded and I ruled accordingly: see Alexander v The Queen (1981) 145 CLR 395.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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