The King v Dixon (No 2)
[2023] NTSC 101
•5 December 2023
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 SPRINGSThe 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 adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
The parties are agreed that the statements in the video satisfy the conditions for admissibility in s 66(2); however the defence contends that the video should not be admitted because it falls within the exception in s 66(3).
The video begins with the police officers driving, looking for the location they have been directed to. When they arrive, they see the complainant who is bleeding from a wound on her nose. One of the police officers says to the complainant, “All good miss? Yeah. What’s happening?”
The other officer says, “Hey miss. Hey, hey, hey. You’re right. Just stay there for a second. Give us a look.”
The first officer says, “How you going?”
The complainant says, “Simon Gibson and Lance Dixon. Yeah, Lance Dixon. Two man been bash me up.”
The first officer says, “Two men bash you up. Yep. Are you happy to give a statement about that one miss?”
The complainant says, “Yes,” and the officer says, “OK yeah, Okay.” Defence counsel contended that this question by the police officer, combined with what is shown on the video, makes what follows a statement made for the purpose of indicating the evidence that the complainant would be able to give in court within the meaning of s 66(3). Defence counsel contended that the video shows the police officer reaching for a notebook and pencil at this point. However, careful viewing of the video shows no notebook or pencil being produced. Rather there is a crackling sound and the top half of what appears to be a packet (perhaps containing a dressing) and another voice saying, “(unclear) get St John’s in.”
The conversation continues with the complainant repeating, “Lance Dixon and, yeah, Simon Gibson.”
The first officer says, “Um, what I’m gonna do, Mrs, okay,” and the complainant interjects, “Help me out brother.”
Then the first officer continues, “Yeah. Can you stand here for me? Yeah. Alright. Stay there for me. Okay? Yep. Okay. So before I say anything, okay? Yeah. Anything I do say, can – Mrs, look at me? Anything I do say can be used as evidence in court.”
The conversation continues after that. The police officer asks the complainant her name, she gives her name and volunteers where she comes from. He asks for her date of birth and she gives it and then he asks, “So who are these men who have done this to you?” and she repeats, “Lance Dixon … and Simon Gibson.”
Asked how she knows the men the complainant says, “My husband is Simon Gibson, but he bashed me up and he was forcing me. Okay, Keep him (ie give him) good hiding.” Shortly after that she says, “They was double banking me.” She says that she was drinking and, “We was all together but them two was banking me.”
Asked how she is feeling she says she is in pain on the nose and mouth and repeats a number of times, “Two men been bash me up. … Lance Dixon and Simon Gibson.”
The police officer asks if she wants the men charged and she says she does. Then the police officer asks again, “And you happy to give us a statement about that one?” The complainant says, “Help me. I need your help,” and the police officer assures her that St John’s is coming.
She says again, “Two brother was double banking me. Look at my face.”
The complainant is seen drinking from a cup and the police officer establishes that she is drinking water.
Towards the end, the following exchange occurs:
COMPLAINANT: I want them two to locked up brother.
FIRST OFFICER: Mrs, so Mrs, all – all that I’ve recorded, you’ve told me, that can be used as evidence in court, okay?
COMPLAINANT: Them two even. He was forcing him to hit me.
FIRST OFFICER: If they’ve done the wrong thing Mrs, we’ll lock ‘em up okay? Yep.
COMPLAINANT: Them two, I want them two to get locked up.
FIRST OFFICER: So what we’re gonna do, we’ll get you to hospital. We’ll follow you there eh, and then we’ll get some stuff off you, okay?
COMPLAINANT: Thanks you very much. I need your help.
FIRST OFFICER: That’s all right Mrs. We’re here to help you eh? Ah, you’re all right at all?
OTHER OFFICER: So we got … get St John’s and they’ll come and have a look at you hey? And then we’ll take a statement.
COMPLAINANT: I need Simon to lock, to help you. I want him to year, yeah.
In fact police drove EC to the hospital and they took a written statement from her there.
Defence counsel contended that the following statements by police bring the statement in the video within the exception in s 66(3) rendering it inadmissible under the provisions of the ENULA.
(a)The first question, “Are you happy to give a statement about that one miss?”
(b)The statement by the officer almost immediately following that question, “Yeah. Can you stand here for me? Yeah. Alright. Stay there for me. Okay? Yep. Okay. So before I say anything, okay? Yeah. Anything I do say, can – Mrs, look at me? Anything I do say can be used as evidence in court.”
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.”
As to the significance of the words, “Are you happy to give a statement about that one miss?” almost immediately before that strange statement by the police officer, its potential significance is reduced by the fact that they are repeated later in the recording and by the fact that another officer says, at the end of the video, “So we got … get St John’s and they’ll come and have a look at you hey. And then we’ll take a statement.” It seems from that, that the reference to making a statement was intended to refer to something to be done in the future, not something being done during the recording of the video.
Finally, even if one were to accept that the words spoken by the police officer could and did change the purpose of the representations made by the complainant (which I do not), the first words she uttered, “Simon Dixon (or Gibson) and Lance Dixon. Two men been bash me up,” were said before the police officer said those words and at least that part of the video would be admissible under ENULA s 66(2).
In my view, the whole of the video is admissible under ENULA s 66(2).
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[1] It appears from evidence given during the trial by the police officer that counsel was probably right about the subjective intentions of the police officer.
[2] [2004] TASSC 95 at [60]
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