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R v Weston & Williams [2005] NTSC 49

PARTIES: THE QUEEN

CLINTON WESTON
and
ADRIAN WILLIAMS

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: 20413375, 20413376

DELIVERED: 7 September 2005

HEARING DATES: 16 – 20, 23 – 25 May 2005

JUDGMENT OF: THOMAS J

CATCHWORDS:
EVIDENCE – CONFESSIONS AND ADMISSION – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ARREST AND INTERVIEW – JUVENILE SUSPECTS

REPRESENTATION:

Counsel:
Appellant: K Ratcliffe
1st Respondent: K Kilvington
2nd Respondent: R Goldflam
Solicitors:
Appellant: Office of the Director of Public Prosecutions
1st Respondent: Central Australian Aboriginal Legal Aid Service
2nd Respondent: Northern Territory Legal Aid Commission

Judgment category classification: C
Judgment ID Number: tho200505
Number of pages: 67

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

R v Weston & Williams [2005] NTSC 49
20413375, 20413376

BETWEEN:

THE QUEEN

AND:

CLINTON JOHN WESTON

and

ADRIAN WILLIAMS

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 7 September 2005)

[1] Clinton Weston and Adrian Williams have each pleaded not guilty to two counts on indictment that:
“Count 1
On 18 March 2003 at Tennant Creek in the Northern Territory of Australia, had sexual intercourse with [SH] without her consent
Section 192(3) of the Criminal Code.
AND FURTHER
Count 2
At a time subsequent to Count 1, on 18 March 2003 at Tennant Creek in the Northern Territory of Australia, had sexual intercourse with [SH] without her consent
Section 192(3) of the Criminal Code.”

[2] This is an application on behalf of Clinton Weston and Adrian Williams pursuant to s 26L of the Evidence Act for a ruling as to the admissibility of records of interview conducted with each of the defendants. Adrian Williams also challenges the admissibility of forensic evidence obtained from his clothing and from a buccal swab.

[3] The background to the charges is as follows:

[4] On the night of 18 March 2003, police at Tennant Creek Police Station received a complaint from SH. Constable Peter Dash interviewed SH at the hospital prior to midnight on 18 March 2003 (Exhibit D2). On 19 March 2003, Constable Dash obtained a statement from SH (Exhibit D3). SH stated that on the night of 18 March 2003, she had been drinking with a group of friends at Tennant Creek. She decided to return to her home at Village Camp. She was walking down the laneway at the back of the garage which is opposite the chicken shop on the main street of Tennant Creek. In her statement, she says that two boys walked up to her and started asking her for sex. She described them as being aboriginal and described what each of the boys were wearing. In her interview with Constable Dash, she described them as being young, like 20 years old. She states that they asked her for sex and when she said no, one of the two…

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 Weston and Williams

Details

AGLC: R v Weston and Williams [2005] NTSC 049
Case: [2005] NTSC 49
Decision Date: 07 September 2005

CaseChat Overview and Summary

Clinton Weston and Adrian Williams were arrested for sexual offences against SH. The defendants were separately represented at the hearing. They had different reasons for challenging the admissibility of their respective records of interview, and the forensic evidence obtained from the clothing of Adrian Williams. For this reason, the court dealt with their applications separately. In relation to Clinton Weston, the court found that his arrest was unlawful. The police had no reasonable belief that he had committed an offence. He was therefore not in lawful custody at the time of his record of interview. The court found that the presence of a prisoner's friend did not meet the requirements of the Police General Orders. The court found that there was a failure to contact Aboriginal Legal Aid and that this was a serious omission. The court found that the record of interview made by Clinton Weston on 7 June 2004 was not admissible on his trial. In relation to Adrian Williams, the court found that the seizure of his jeans was lawful. The court found that the failure to have a person present at the time of the removal of the clothing, was not a serious contravention or failure. The court found that the results of the forensic tests made on the clothing of Adrian Williams that were seized on or about 18 March 2003, were admissible on his trial. The court found that the taking of the buccal swab was in the presence, and with the consent, of a guardian, being Hannah Williams. It was done with the authorisation of a superintendent. The court found that the evidence obtained from the buccal swab could substantially benefit the public interest, in that DNA evidence from the accused is a vital part of the investigation. The court found that the failure to contact Aboriginal Legal Aid was a serious omission. The court found that the police did not conduct an interview pursuant to s 140 of the Police Administration Act with Adrian Williams. The court found that Hannah Williams was not an appropriate person to sit with Adrian Williams as a prisoner's friend during the record of interview. The court found that the second record of interview contained leading questions and questions from Acting Sgt Butcher that amounted to cross examination. The court found that both records of interview made by Adrian Williams on 7 June 2004, were not admissible on his trial.

Orders