The King v Choolum (No 3)

[2023] NTSC 15

CITATION:The King v Choolum (No 3) [2023] NTSC 15

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:  14 February 2023

HEARING DATE:  14 February 2023

JUDGMENT OF:  Grant CJ

CATCHWORDS:

EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings

Whether real possibility that references to ‘profile’ and ‘record’ imply accused had prior criminal record – Purpose of rule prohibiting receipt of evidence of that kind to prevent jury from reasoning accused is therefore more likely to have committed the offence being tried – Evidence excluded.

Evidence (National Uniform Legislation) Act 2011 (NT) s 137

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:  GRA2303

Number of pages:  4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

The King v Choolum (No 3) [2023] NTSC 15

No. 22011417

BETWEEN:

THE KING

AND:

JEREMY CHOOLUM

CORAM:    GRANT CJ

REASONS FOR DECISION

(Delivered ex tempore 14 February 2023)

1. The accused is charged with the crime of murder by indictment dated 30 September 2020.  Following an extensive voir dire process, by decision delivered on 21 October 2022 the Court ruled that various admissions made by the accused following his arrest to the effect that he ‘murdered’ the deceased were admissible pursuant to s 85(2) of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA), and not excluded by ss 90, 135 or 137 of that legislation.

2. The potential probative value of the admissions lies in the fact that, on the Crown case, by using the term ‘murdered’ the accused was acknowledging his awareness that he had inflicted multiple stab wounds to the deceased and the likelihood that those stab wounds would cause serious harm.  That probative value is said to be heightened by the fact that those admissions were made at a time before the accused knew that the deceased had in fact died.

3. It is apparent from the content and tenor of the admissions that the accused’s purpose in making the relevant statements was to exculpate himself, or at least to assert that his conduct was out of character, including by reference to the fact that he had no prior conviction for murder.  That was done by repeated assertions that he had never previously murdered anyone, with attendant invitations to police to ‘check my profile’ or ‘check my record’.

4. At all times during the previous voir dire process the accused’s reference to his ‘profile’ and ‘record’ formed part of the admissions which the Crown sought to adduce.  At no time during that process did the defence take specific issue with the accused’s references to his ‘profile’ and ‘record’ on the basis that those references were apt to suggest that the accused had some form of criminal history and were therefore prejudicial to his interests.  There was no statutory or other obligation on the Crown to give notice in relation to its intention to lead evidence of those admissions once they had been ruled admissible in the voir dire process.  It was not until the morning on which the trial was to commence that the defence made objection to the incorporation of those references to ‘profile’ and ‘record’ in the material which had previously been ruled admissible.

5. The principal reason for the rule prohibiting the receipt of evidence which suggests expressly or by implication that an accused has a prior criminal history, or has previously been imprisoned, is to prevent a jury from reasoning that the accused is somehow of bad character, and that she or he is therefore more likely to have committed the offence or offences for which she or he is presently being tried.  This is not a case in which any previous conviction is expressly disclosed by the accused’s references to his ‘profile’ and ‘record’.  Even allowing for that lack of specificity, the references could potentially be taken by a jury to suggest a prior criminal history.

6. The Crown submits that the definition of ‘admission’ in the legislation is broad; that any specific reference to past offending has already been redacted from the admission material; that the general references which remain are artificially favourable to the accused in that they suggest that to the extent he has a criminal record, it is a relatively minor one (which is not, in fact, the case); and that those references are necessary to properly contextualise the admissions made.

7. While there is some force in the Crown submissions, the matter remains governed by s 137 of the ENULA.  I have come to the conclusion that although the accused’s references to ‘profile’ and ‘record’ were designed to convince police that his conduct was out of character, their removal would not significantly undermine the probative value of the admissions in sustaining the inference that the accused was aware that the stab wounds he inflicted would likely cause serious harm.  In other words, the probative value of those references for this purpose is slight.  On the other hand, there is a real possibility that those references to ‘profile’ and ‘record’ might cause the jury to reason in a manner that is unfairly prejudicial to the accused.

8. That is subject to one qualification.  The defence also takes objection to various references by the accused to his friendship with a police officer who had previously been stationed at Ti Tree.  Contrary to the defence submission, there is nothing in that material which would be suggestive of dealings with the police in the context of criminal activity.  It suggests only a personal relationship by reason of the officer’s previous posting in or near the accused’s home community.  Although the probative value of that material is slight, it does form part of the context in which the admissions were made and does not give rise to the danger of unfair prejudice to the accused.

9. I rule that the references identified in the table in the defence written submissions dated 13 February 2023 be redacted from the body worn video footage and the transcripts of that footage, with the exception of those passages identified at Tab 10, pages 4.1, 4.6-5.4 and 6.4.

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