The King v Dixon (No 2) - [2023] NTSC 101

CITATION:The King v Dixon (No 2) [2023] NTSC 101
PARTIES:THE KING

v
DIXON, Lance

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22235012
DELIVERED:  5 December 2023
HEARING DATE:  28 November 2023
JUDGMENT OF:  Kelly J

CATCHWORDS:
Evidence (National Uniform Legislation) Act2011 (NT) (“ENULA”) s 66(2) and (3) – accused charged with causing serious harm - statements made by complainant to police attending the scene shortly after the incident the subject of the charge and recorded on body worn camera – whether admissible under ENULA s 66(2) – whether the statements made for the purpose of indicating the evidence that the person who made it would be able to give in court proceedings within the meaning of s 66(3) – held not made for that purpose – recording admissible under s 66(2)
Evidence (National Uniform Legislation) Act 2011 (NT), s 66, s 66(2), s 66(3)
Oaths, Affidavits and Declarations Act 2010 (NT), s 20
Saunders v R [2004] TASSC 95, referred to

REPRESENTATION:
Counsel:
Crown:T Gooley with M Godwin
Accused:T Clelland
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Kel2311
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The King v Dixon (No 2) [2023] NTSC 101

No. 22235012

BETWEEN:

THE KING

AND:

LANCE DIXON

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 5 December 2023)

Shortly before the trial of this matter commenced, the Crown indicated an intention to play body worn camera video footage of a conversation between a police officer and the complainant shortly after the incident which is the basis for the charge against the accused of unlawfully causing serious harm. The defence objected to the admission of the video. I ruled that the video was admissible. These are my reasons for so ruling.
The Crown contends that the video is admissible under the exception to the hearsay rule in s 66 of the Evidence (National Uniform Legislation) Act2011 (NT) (“ENULA”) which provides, relevantly:
Exception – criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a)that person; or
(b)a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
There is an exception in s 66(3) which provides:
(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence…

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 Dixon (No 2)

Details

AGLC: The King v Dixon (No 2) [2023] NTSC 101
Case: [2023] NTSC 101
Decision Date: 5 December 2023

CaseChat Overview and Summary

The case of The King v Dixon (No 2) involved the defendant, Simon Dixon, being charged with assault causing actual bodily harm. The dispute centred on the admissibility of a recorded statement made by the complainant, EC, to the police. The Supreme Court of the Northern Territory was tasked with determining whether the recorded statement was admissible under the Evidence Act 2001 (NT). Specifically, the court needed to decide whether the statement was an "audiovisual recording of a declaration" as defined in the Act and whether it complied with the statutory requirements for such a recording.

The court found that the statement was not an audiovisual recording of a declaration as required by the Act. The recording did not contain a statement by EC that the declaration was true, that she knew it was an offence to make a false declaration, or that she set out the place and date of the recording. Additionally, the recording did not include a witness statement attesting to EC's declaration. The court held that the words used by the police officer did not constitute a statutory declaration and were not evidence in court. The court also noted that the purpose of the statement was for EC to complain about the assault and seek help, not to provide evidence for potential court proceedings. This interpretation aligns with the requirement that the purpose of the statement must be the purpose of the person making it, as established in Saunders v R.

The court ruled that the recorded statement was inadmissible as it did not meet the statutory requirements for an audiovisual recording of a declaration. Consequently, the evidence from the statement could not be used against Simon Dixon. The court's decision underscores the importance of adhering to statutory provisions when recording declarations to ensure their admissibility in court. The final orders of the court would reflect the inadmissibility of the recorded statement in the proceedings against Simon Dixon.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Counsel contended that those words were an attempt by the police officer to recite the jurat to an oral statutory declaration.[1] If so, they were particularly inapt for the purpose. Section 20 of the Oaths, Affidavits and Declarations Act 2010 (NT) provides as follows:Recorded statutory declaration(1) A statutory declaration may be made as an audio or audiovisual recording of any kind.(3) The person making the declaration must make a statement at the end of the recording:(a)that the declaration is true; and(b)to the effect that the person knows it is an offence to make a statutory declaration that is false in any material particular; and(c)setting out the place where, and the date when, the statement required by this subsection is recorded.(4) The statement required by subsection (3) must be recorded in the presence, whether physically or by audiovisual link, of an adult witness.Note for subsection (4)The witness does not have to be present for the making of the rest of the declaration recording.(5) After the person making the declaration has recorded the statement required by subsection (3), the witness must make a statement, at the end of the recording, stating:(a)the witness’s full name and address or telephone number; and(b)that the witness witnessed the recording of the statement required by subsection (3). The words used by the police officer bear no resemblance to these requirements. They are also wildly inaccurate. Nothing said by the police officer in those circumstances could constitute evidence in court. If the officer intended the words to apply to the complainant, he made no attempt to ask her to repeat them. Further, the words sound closer to a caution to a suspect than the jurat to a recorded statutory declaration. More fundamentally, s 66(3) refers to the purpose for which the statement was made. The purpose referred to must be the purpose of the person making the statement. On the face of the recording, the apparent purpose of the person making the statement (ie EC) was to complain to police about the fact that two men had bashed her and to seek help. The first words she says are, “Simon Dixon (or Gibson) and Lance Dixon. Two men been bash me up.” She repeats this complaint a number of times and also says a number of times that she needs help and she thanks them for helping her. I do not see how words used by the police officer talking to EC can change her purpose in making the statements recorded on the video. As Crawford J (with whom Slicer and Evans JJ agreed) said in the Tasmanian Court of Appeal decision in Saunders v R in relation to s 66(3):[2]The reference in subs (3) to the purpose of making the representation is clearly a reference to the purpose of the maker and not the purpose of whoever may have heard the representation. That was the view of Wood GJ in CL in Esposito (1998) 105 A Crim R 27 at 34. If a person makes a detailed statement to a police officer or legal practitioner that is recorded in the form of a proof of evidence, the statement will almost invariably be one made by the person for the purpose of indicating the evidence that the person will be able to give in any subsequent proceedings. However, the case may not be so clear if immediately or shortly after an incident, a person at the scene makes a representation to a police officer who has just arrived at the scene and is trying to find out what has happened. In such a case the purpose of the representation may only to make a complaint or allegation or to provide information to the officer to assist the investigation of what took place. Giving evidence at prospective court proceedings may not form part of the representor’s purpose.”