The King v Choolum (No 2) - [2023] NTSC 9

CITATION:The King v Choolum (No 2) [2023] NTSC 9
PARTIES:THE KING
v

CHOOLUM, Jeremy

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22011417
DELIVERED:  13 February 2023
HEARING DATE:  13 February 2023
JUDGMENT OF:  Grant CJ
CATCHWORDS:

EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings
Whether the body worn video footage depicting the deceased’s wounds should be excluded on basis that prejudicial to accused and irrelevant to facts in issue – Facts in issue not to be equated with facts in dispute – Material has forensic value beyond photographs and pathologist's description of the injuries – Evidence admitted.
Evidence (National Uniform Legislation) Act 2011 (NT) s 137
Festa v The Queen (2001) 208 CLR 593, R v Ames [1965] NSWR 1489, R v Bowhay (No 3) [1998] NSWSC 660, R v Burton [2013] 37 A Crim R 238, R v Gibson [2002] NSWCCA 401, R v Jamieson (1992) 60 A Crim R 68, R v Shamouil (2006) 66 NSWLR 228, referred to.
REPRESENTATION:
Counsel:
Crown:D Dalrymple
Accused:I Read SC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification:    C
Judgment ID Number:  GRA2301
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The King v Choolum (No 2) [2023] NTSC 9

No. 22011417
BETWEEN:

THE KING

AND:

JEREMY CHOOLUM

CORAM: GRANT CJ
REASONS FOR DECISION
(Delivered ex tempore 13 February 2023)

The accused is charged with the crime of murder by indictment dated 30 September 2020. Section 156 of the Criminal Code (NT) relevantly provides that a person is guilty of the offence of murder if: (1) the person engages in conduct; and (2) that conduct causes the death of another person; and (3) the person intends to cause the death of, or serious harm to, that person by that conduct.
Under the terms of that section, the two physical elements of the offence of murder are: (1) to engage in conduct; and (2) that the conduct causes death.
In the application of s 43AM(1) of the Criminal Code, the fault element for the first physical element is intention: see Ladd v The Queen (2009) 27 NTLR 1 (Ladd) at [92]. A person has intention in relation to conduct if the person means to engage in that conduct: Criminal Code, s 43AI(1). It is not in dispute that that the accused stabbed the deceased 11 times as alleged by the Crown and intended to do so. Nor is the nature and location of the stab wounds in dispute.
There is also no dispute that the stabbing caused the death of the deceased. Section 156 of the Criminal Code which creates the offence of murder provides the fault element for that second physical element. In these circumstances, the fault element is that the accused intended to cause the death of, or serious harm to, the deceased in engaging in the conduct of stabbing the deceased: see Ladd at [96]. A person has intention in relation to the result ‘if the person means to bring it about or is aware that it will happen in the ordinary course of events’: Criminal Code, s 43AI(2). The defence has conceded that the Crown may properly put its case against the accused on the basis that the requisite intention in relation to the result may be satisfied by either of the means provided in s 43AI(2) of the Criminal Code, and without need for unanimity as to the means by which that element is satisfied.
The matter in dispute in this case is whether the Crown is able to establish to the requisite standard that the accused intended to cause serious harm to the deceased when he stabbed him. The Crown will be putting its case on the basis that the accused's intention to cause serious harm to the deceased may be inferred from the number of stab wounds inflicted, the significant nature of at least four of them, the location of a number of them on the deceased's head and torso, and admissions made by the accused following his arrest to the effect that he had 'murdered' the deceased. As part of that case, the Crown intends to adduce the body worn video footage from the camera of the first responding police officer. That footage depicts the deceased being attended to by police and ambulance officers prior to death.
The defence has made objection to the admissibility of the body worn video footage pursuant to s 137 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA). The nub of the objection is that the evidence is acutely distressing and therefore prejudicial to the accused, and has no relevance to the facts in issue. The defence submission is, in essence, that those parts of the footage which show the deceased in extremis are unnecessary and should be excluded, and that any aspect of the body worn video footage that may be necessary for the chronology or narrative of events can be readily dealt with by agreed facts or led from a witness.
The Crown's response is that the nature of the injuries depicted in the video footage has probative value because of the inference the Crown will be seeking the jury to draw concerning the accused's intention, and that probative value goes above and beyond the mortuary photographs, the forensic pathologist's evidence and any oral evidence the first responding officer might give. The Crown also submits that the video footage allows the jury to see the temporal proximity between the stabbing of the accused and the arrest of the deceased. This is said to support a conclusion that at the time he made various submissions about ‘murdering’ the deceased, the accused had no time to construct an artificial explanation and was giving the unvarnished truth about his intention, or at least what he knew would happen in the ordinary course of events as a result of stabbing the deceased in the manner he did.
I have viewed the footage for the purpose of determining the objection. In its early parts, it depicts the deceased lying on a concrete slab at the front of the door to a unit. It depicts stab wounds to the deceased's back, leg, chest and face, and bleeding from those wounds. During the course of the footage the deceased can be heard repeatedly saying, 'I can't breathe'. The footage also depicts the arrival of other police and ambulance officers. At one point in the footage the deceased says in response to a question from one of the ambulance officers that his breathing is easier when he is on his side. Following that early part, at time counter approximately 14:35:00, the police become aware of the accused's presence in the vicinity. In its later parts, the footage depicts the arrest of the accused. The footage does not depict the passing of the deceased.
Section 137 of the ENULA is restricted in its operation to criminal proceedings, and requires the court to refuse to admit evidence sought to be adduced by the Crown ‘if its probative value is outweighed by the danger of unfair prejudice to the defendant’. The term ‘probative value’ is defined to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. The facts in issue are the facts which constitute the elements of the offences charged, together with such ancillary facts as are relevant to those ultimate facts. A fact in issue is not to be equated with a fact in dispute. Even where an accused indicates as part of the pre-trial processes that he or she does not dispute a material fact, the accused is not bound by pleadings and the onus remains on the Crown to prove each element of the charge beyond reasonable doubt: see R v Burton [2013] 37 A Crim R 238 at [148]-[150]. For the reasons given by the Crown in its submissions, the body worn video footage has clear probative value.
In order for there to be a danger of unfair prejudice to the accused ‘[t]here must be a real risk that the evidence will be misused by the jury in some way that the risk will exist notwithstanding the proper directions which it should be assumed the Court will give’: see R v Shamouil (2006) 66 NSWLR 228 at [72]. The test enunciated by McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51] is in the following terms;
It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from the task.
The defence submission is that the jury will experience a powerful emotional reaction against the accused if it sees graphic and distressing footage of this nature. There is no doubt that the exclusionary provision will be implicated where the prosecution seeks to tender gruesome material in a murder trial where there is little forensic assistance to be derived from that material beyond a pathologist's description of the injuries: see R v Ames [1965] NSWR 1489; R v Jamieson (1992) 60 A Crim R 68. However, evidence of that nature will have a higher probative value in circumstances where it goes to the accused's state of mind at the time of the relevant event: see R v Bowhay (No 3) [1998] NSWSC 660. The courts are also cognisant of the fact that the many depictions of violence in movies and television in contemporary times have to a degree desensitised the public to any affront to which graphic material of that sort might give rise.
This is not a matter in which the Crown seeks to adduce the material for its emotional effect or prejudicial value. A mere description of the wounds, and even mortuary photographs, would not convey in the same way as the video footage the nature of the injuries in aid of the inferences which the Crown would seek the jury to draw. It is also the case that judicial direction will be adequate to reduce or cure the danger of any unfair prejudice which might potentially arise: see R v Gibson [2002] NSWCCA 401 at [73]-[74]. Having regard to those matters, I do not consider that the admission of the body worn video footage will cause the jury to give the evidence more weight than it deserves, or that it would divert the jury from its proper task.
For the reasons described, the ruling is that the entirety of the body worn video footage from Senior Constable Donaldson is ruled admissible.

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