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The Queen v Wojtowicz [2005] NTSC 53

PARTIES: THE QUEEN

WOJTOWICZ, EDWARD JUSTIN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: (20506394)

DELIVERED: 16 SEPTEMBER 2005

HEARING DATES: 2 & 3 AUGUST 2005

JUDGMENT OF: MARTIN (BR) CJ

CATCHWORDS:

EVIDENCE – Admissibility and relevance – recent complaint – personal diary entries – mother found and read diary entry by child victim – when asked if true victim replied “yes” – whether notes in diary admissible as exception to hearsay rule under rule under s 26E of the Evidence Act NT – operation of s 26E – “sufficient” probative value – response of victim to mother’s enquiry equates to complaint and admitted as spontaneous complaint – pages containing specific entries concerning the accused admissible – other pages admissible

Evidence Act (NT) s 26E, s 26F
Evidence Reform (Children and Sexual Offences) Act (NT) 2004

Papakosmas v The Queen (1999) 196 CLR 297, at 313–314, followed.
Roberts v The Queen [2001] WASCA 191; R v Joyce [2005] NTSC 21, applied.
R v Gallagher (1986) 31 SASR 73, considered; R v Lockyer (1996) 89 A Crim R 457 at 459, considered.

REPRESENTATION:

Counsel:
Crown: Ms E Armitage
Defendant: Mr I Rowbottam

Solicitors:
Crown: Office of Director of Public Prosecutor
Defendant: Withnalls

Judgment category classification: B
Judgment ID Number: Mar0516
Number of pages: 21

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

The Queen v Wotjtowicz [2005] NTSC 53
No. (20506394)

BETWEEN:

THE QUEEN
AND:

EDWARD JUSTIN WOJTOWICZ

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 16 September 2005)

Introduction

[1] This is an application to exclude evidence commonly known as evidence of recent complaint of a sexual assault.

[2] Edward Justin Wojtowicz is charged with unlawfully assaulting a 15 year old female person in circumstances of aggravation. The complainant was aged 15 years at the time of the alleged assault. It is the Crown case that the assault was accompanied by circumstances of indecency.

[3] According to the statement of the complainant, the assault occurred on or about 22 December 2004. She is not certain as to the precise day. In a statement signed on 28 February 2005, the complainant states that she received a diary for Christmas and wrote down what had occurred. The statement reads as follows:

“I got a diary for Christmas and wrote down what I went through with Justin and how I was feeling. A couple of weeks later my mum found my diary and read it. She asked me if it was true, I said, ‘Yes’. Mum and [Mum’s partner] kicked Justin off the property, he tried denying that he did anything.”

[4] In a subsequent statement dated 19 April 2005, the complainant states that she had been asked by an investigating officer to supply a further statement regarding the notes in her personal diary. The statement…

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 Wojtowicz

Details

AGLC: R v Wojtowicz [2005] NTSC 053
Case: [2005] NTSC 53
Decision Date: 16 September 2005

CaseChat Overview and Summary

The case before the Supreme Court of the Northern Territory involves a charge against Edward Justin Wojtowicz for the unlawful assault of a 15-year-old girl, accompanied by circumstances of indecency. The central issue is the admissibility of evidence derived from the victim's personal diary, specifically entries made shortly after the alleged assault. The Crown seeks to admit these diary entries, which were discovered by the victim's mother and confirmed by the victim as true, as well as the conversation that followed.

The court first examined whether the diary entries could be considered complaints under common law principles. It determined that the entries, confirmed by the victim as true, constituted complaints. The court further explored the applicability of s 26E of the Evidence Act NT, which allows for the admission of a child's statement to another person in sexual offence proceedings if it has sufficient probative value to justify its admission. The court found that the diary entries were indeed statements to another person and possessed sufficient probative value, considering their relevance and the context in which they were made. The court also concluded that the pages of the diary containing these entries should be admitted to provide context and assist in assessing the reliability of the statements.

In summary, the court ruled that the diary entries and the conversation between the victim and her mother are admissible under both common law and s 26E of the Evidence Act NT. The pages of the diary containing these entries will also be admitted, subject to appropriate jury directions to mitigate any prejudicial impact.

Orders