The King v Andrews - [2024] NTSC 77

CITATION:The King v Andrews [2024] NTSC 77
PARTIES:THE KING

v
ANDREWS, Andy

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22311805; 22335620
DELIVERED:  16 September 2024
HEARING DATE:  1 May 2024
JUDGMENT OF:  Burns J
CATCHWORDS:

CRIMINAL LAW – Evidence – Tendency evidence – Evidence (National Uniform Legislation) Act 2011 (NT) s 97, s 101 – Admissibility – Whether probative value of the evidence outweighs any potential prejudicial effect on the accused – To the extent that the suggested tendencies refer to “adult females” or to “women”, the tendencies are too broadly framed to have significant probative value – To the extent that the suggested tendencies are refined to allege tendencies against current or former domestic partners, the tendencies do have significant probative value – Any risk of prejudicial effect on the accused may adequately be addressed by appropriate judicial directions – Evidence admissible if alleged tendencies are amended such that they only allege tendencies relating to current or former domestic partners
Evidence (National Uniform Legislation) Act 2011 (NT) s 97, s 101
Hughes v The Queen [2017] HCA 20; TL v The King [2022] HCA 35, referred to.
REPRESENTATION:
Counsel:
Crown:R Everitt
Accused:P Crean
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Hubber Legal
Judgment category classification:    B
Judgment ID Number:  Bur2409
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Andrews [2024] NTSC 77

No. 22311805; 22335620
BETWEEN:

THE KING

Crown

AND:

ANDY ANDREWS

Accused

CORAM: BURNS J
REASONS FOR RULING
(Delivered 16 September 2024)
Introduction

The accused is awaiting trial on an indictment alleging the following three Counts:
·Count 1, a charge that on or about 30 December 2022 at Palmerston in the Northern Territory of Australia, the accused unlawfully caused serious harm to ST.
·Count 2, a charge that on or about 11 March 2023 at Palmerston in the Northern Territory of Australia, the accused unlawfully caused serious harm to ST.
·Count 3, in the alternative to Count 2, a charge that on or about 11 March 2023 at Palmerston in the Northern Territory of Australia, the accused unlawfully assaulted ST, and that the unlawful assault involved the following circumstances of aggravation, namely:
(i) that ST suffered harm;
(ii) that ST is a female and the accused is a male; and
(iii) that ST was threatened with an offensive weapon, namely, an umbrella.
The Crown has filed and served a notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) giving notice that it intends to adduce tendency evidence at the trial of the accused. The Crown alleges that the proposed tendency evidence is relevant to the following facts in issue in the proceedings against the accused:
(a)Whether the accused committed the offences charged in Counts 1 to 3 on the indictment.
(b)To rebut an innocent explanation for the complainant’s injuries, in particular that she fell over on 30 December 2022 or…

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 The King v Andrews

Details

AGLC: The King v Andrews [2024] NTSC 77
Case: [2024] NTSC 77
Decision Date: 16 September 2024

CaseChat Overview and Summary

The matter of The King v Andrews was before the Northern Territory Magistrates Court, where the primary issue was the admissibility of tendency evidence under the Evidence (National Uniform Legislation) Act 2011 (NT). The accused opposed the Crown's application to admit evidence of uncharged acts of violence against women as tendency evidence to prove the accused's propensity to commit violent acts against the complainant. The court was required to determine whether the probative value of the proposed tendency evidence outweighed any potential prejudicial effect on the accused. The accused argued that the proposed tendency evidence did not have significant probative value and that the danger of unfair prejudice exceeded the probative value of the evidence.

The court considered the legal principles governing the admissibility of tendency evidence under s 97 of the Evidence Act. The court noted that the evidence must have significant probative value, and the probative value must outweigh any danger of unfair prejudice. The court also considered the High Court's decision in TL v The King, which held that there is no general rule that requires close similarity between the conduct evidencing the tendency and the offence. The court found that the proposed tendency evidence had significant probative value to the extent that it alleged tendencies against current or former domestic partners. The court held that the risk of prejudicial effect on the accused could be adequately addressed by appropriate judicial directions.

The court held that the proposed tendency evidence was admissible if the alleged tendencies were amended to only allege tendencies relating to current or former domestic partners. The court made an order that the Crown could lead evidence of the following alleged tendencies: (a) that the accused has a tendency to assault current or former domestic partners by dragging, choking, and continuing to assault them when they are incapacitated, and (b) that the accused has a tendency to assault current or former domestic partners by punching or striking them to the face or head with a closed fist or fists, or kicking them to the face. The court also made an order that the Crown must give the accused reasonable notice in writing of its intention to adduce the evidence, and that the court would give appropriate judicial directions to address the risk of prejudicial effect on the accused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

An ambulance was requested to convey the complainant back to hospital due to fresh concerns regarding her head injury.The proposed tendency evidence It is alleged that the accused committed the offence in Count 1 on 30 December 2022, and the offences in Counts 2 or 3 on or about 11 March 2023. The Crown proposes leading evidence of each of these charged events as tendency evidence with regard to the charge or charges for the other event. In addition, the Crown proposes leading evidence of “uncharged acts” as tendency evidence relating to all charges on the indictment. The Crown proposes leading evidence of the following uncharged acts as tendency evidence:(a)Evidence that on 17 and 18 May 2019, the accused punched AA to the face with a closed fist. In addition, he assaulted MA by dragging her, punching her and choking her before striking her with a bottle of rum and continuing to assault and kick her when she was incapacitated. The Crown proposes leading evidence that on 1 October 2020, the accused entered pleas of guilty to charges arising out of this event. It is alleged that the victims, AA and MA, were known to the accused through family. The accused had been drinking rum with AA and others. As the accused began to be intoxicated he became angry, and was swearing and yelling. Without warning, the accused punched AA to the face with a closed fist. He later assaulted MA after arguing over the ownership of the bottle of rum.(b)Evidence that on 25 May 2018, the accused assaulted LL by dragging her, choking her and continuing to assault her when she was incapacitated. The Crown proposes leading evidence that on 1 July 2018, the accused entered a plea of guilty to a charge arising out of this event. The accused and the victim were former partners.(c)Evidence that on 30 September 2017, the accused assaulted LL by dragging her, choking her and continuing to assault her when she was incapacitated. The Crown proposes leading evidence that on 16 November 2017, the accused entered a plea of guilty to a charge arising out of this incident.(d)Evidence that on 19 August 2016, the accused assaulted FA by striking her to the head with both fists a number of times and kicking her to the face. The Crown proposes leading evidence that on 17 July 2017, the accused entered a plea of guilty to a charge arising from this event.The relevant legislation The tendency rule is found in s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT), and provides:(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The effect of these provisions is that tendency evidence is not admissible unless the Court thinks that the evidence will, either by itself or having regard to other evidence, be adduced by the party seeking to adduce the tendency evidence, have significant probative value and that the probative value of the evidence outweighs the danger of unfair prejudice to the accused.Consideration In the present case, it appears that the accused has asserted that the injuries observed on the body of the complainant after each of the alleged events was a consequence of an accident in which the complainant fell on stairs. It appears that the accused has denied any involvement in causing those injuries, and denies any offences involving the complainant on those occasions. The accused opposed the present application on the grounds that the proposed tendency evidence does not have significant probative value and that the danger of unfair prejudice to the accused exceeds the probative value of the evidence. The accused submitted that the proposed tendency evidence possesses insufficient similarity to the allegations relating to the charged events to possess significant probative value. In that regard, I note the recent decision of the High Court in TL v The King:[1]There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of "significant probative value". That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact or facts in issue. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning. Put in different terms, that is why tendency evidence must have significant probative value. Otherwise, s 97 is reduced to relevance, which is addressed in s 55.(Footnotes omitted) This is not a case where the Crown seeks to adduce tendency evidence to prove the identity of the accused as the offender. In cases where tendency evidence is adduced for such a purpose there will almost always be a requirement that the proposed tendency evidence bears a close similarity to the charged acts.[2] In the present case, the accused is well known to the complainant. The proposed tendency evidence is to be adduced to prove that the accused did the acts alleged by the complainant. In Hughes, the High Court said with regard to assessing probative value of evidence in a case such as the present, at [41]:The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.