The King v Lantjin - [2023] NTSC 66

CITATION:The King v Lantjin & Ors [2023] NTSC 66
PARTIES:THE KING
v

LANTJIN, Tom

AND

KURAWAL, Thaddeus

AND

WARNIR, Anthony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22035713, 22035815 and 22035863
DELIVERED:  31 July 2023
HEARING DATES:  5, 8 and 9 May 2023
JUDGMENT OF:  Barr J
CATCHWORDS:

CRIMINAL LAW EVIDENCE – Criminal trial – Judicial discretion to admit or exclude evidence – Identification evidence – Relevance – Evidence inherently incredible, fanciful or preposterous – Excluded under s 55 ENULA – Alternatively excluded under s 137 ENULA – Low probative value – Danger of unfair prejudice to the accused.
Evidence (National Uniform Legislation) Act 2011 (NT) s 55, s 137
IMM v The Queen (2016) 257 CLR 300 , Moreno v The King [2023] VSCA 98.
REPRESENTATION:
Counsel:
Applicant:I Rowbottam
First Respondent:   J Bourke
Second Respondent:                    P Crean with C Larkin
Third Respondent:   J Henderson
Solicitors:
Applicant:Director of Public Prosecutions
First Respondent:   North Australian Aboriginal Justice Agency
Second Respondent:                    North Australian Aboriginal Justice Agency
Third Respondent:   Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Bar2308
Number of pages:  11

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The King v Lantjin & Ors [2023] NTSC 66
No. 22035713, 22035815 and 22035863

BETWEEN:

THE KING
Applicant

v
TOM LANTJIN
First Respondent

AND:
THADDEUS KURAWAL
Second Respondent

AND:
ANTHONY WARNIR
Third Respondent

CORAM: BARR J

REASONS FOR DECISION ON VOIR DIRE

(Delivered 31 July 2023)

On 9 May 2023, I made an order to exclude identification evidence proposed to be led by the Crown. I gave ex tempore reasons, and now publish reasons as settled.
The three accused were charged with arson: that on 31 October 2020, at Wadeye, they caused damage to a building by using fire.
The Crown alleged that on the date of the alleged offence, the accused were actively participating in general community unrest, which resulted from family feuding and problems between different factions in the Wadeye community.
The Crown case was that all three were standing in the yard of a duplex house at Lot 323, and that they were incited by onlookers to set fire to the house.
The Crown alleged that Tom Lantjin retrieved a large cardboard box which was lying in the yard of Lot 323 and tore it into three pieces. He then used a cigarette lighter to set fire to the pieces of cardboard. He and co-accuseds Anthony Warnir and Thaddeus Kurawal went inside Unit 2 of Lot 323 where they held the burning cardboard to the plywood ceiling, causing it to ignite in flame. The fire then took hold and spread.
The Crown alleged that the three accused then went outside and stood there, watching the fire.
The fire spread rapidly from the ceiling into the roof cavity where the wooden roof trusses caught fire and gutted the entire inside roof. The fire caused significant damage to the house structure. The…

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 Lantjin

Details

AGLC: The King v Lantjin [2023] NTSC 66
Case: [2023] NTSC 66
Decision Date: 31 July 2023

CaseChat Overview and Summary

In the case of The King v Lantjin, the defendants faced criminal charges related to an arson incident. The trial court was tasked with determining the admissibility of identification evidence provided by four witnesses, MG, HW, DD, and PK, as well as statements allegedly made by two of the accused. The accused sought to exclude the evidence on the grounds of relevance, and alternatively, under s 137 of the Evidence (National Uniform Legislation) Act 2011. The court had to consider whether the evidence met the threshold of relevance and whether its probative value was outweighed by the danger of unfair prejudice to the accused.

The court addressed the admissibility of the identification evidence by examining the circumstances under which the witnesses claimed to have observed and identified the accused. The witnesses were positioned approximately 87 metres away from the house, facing the setting sun, which created significant shading and obstructed visibility. Additionally, the interior of the house was unlit due to disconnected electricity, and a large group of rioters was between the witnesses and the house, creating a noisy and chaotic environment. The court found that these circumstances rendered the identification evidence inherently incredible, fanciful or preposterous, and thus it did not meet the criterion of relevance. If the evidence had satisfied the relevance requirement, the court would have considered whether its low probative value was outweighed by the danger of unfair prejudice to the accused, as required by s 137.

The court concluded that the identification evidence was inherently incredible due to the significant obstacles to accurate observation and identification. The evidence was excluded on the ground of relevance, and the court also noted that even if the evidence had met the relevance requirement, it would have been excluded under s 137 due to its very low probative value and the potential for unfair prejudice. The court's decision was based on a detailed analysis of the circumstances and the inherent limitations of the identification evidence.

The court ordered that the identification evidence provided by the witnesses MG, HW, DD, and PK, as well as the statements allegedly made by two of the accused, be excluded from the trial. The exclusion was based on the determination that the evidence did not meet the criterion of relevance due to its inherently incredible nature, and alternatively, that its low probative value was outweighed by the danger of unfair prejudice to the accused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The fire spread rapidly from the ceiling into the roof cavity where the wooden roof trusses caught fire and gutted the entire inside roof. The fire caused significant damage to the house structure. The building had to be demolished.Application to exclude evidence The accused sought exclusion of the evidence proposed to be given at trial by the witnesses MG, HW, DD and PK. With the exception of DD, those witnesses all purported to have identified the three accuseds as the persons who were responsible for starting the fire. DD did not identify the accused Anthony Warnir. The evidence of the four witnesses was ‘recognition evidence’, that is, identification of the accused men on the basis that they were previously known to the witnesses. The accused also sought the exclusion of statements allegedly made by two of the accused in the hearing of one or more witnesses. The application was made on the basis of relevance,[1] and in the event that the evidence were not excluded on that basis, pursuant to s 137 Evidence (National Uniform Legislation) Act 2011, which requires the Court to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. In IMM v The Queen,[2] it was held that the tests in relation to the admissibility of evidence under the Northern Territory Evidence (National Uniform Legislation) Act 2011 acknowledge the limitation that, at least in a practical sense, a trial judge's ability to assess the place and weight of the evidence in question when ruling on its admissibility will usually be limited.[3] The plurality then observed: [4] Determining the probative value of evidence requires the purpose for which the evidence is led to be identified, and then a consideration of the relevance of the evidence, that is, the extent to which it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.In considering the capacity of the evidence to do that, a trial judge should assume that the jury will accept the evidence. As was made clear, “this assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor would it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact”. The plurality further held that “it could not be intended that a trial judge undertake an assessment of the actual probative value of the evidence at the point of admissibility”.[5] Further, “once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise”.[6] Notwithstanding these clear statements of principle, the plurality acknowledged an exception, a “limiting case”, in which the evidence is “so inherently incredible, fanciful or preposterous that it could not be accepted by rational jury”.[7] In such a case, the effect of such evidence on the probability of the existence of a fact in issue would be ‘nil’ and it would not meet the ‘criterion of relevance’ (at [39] or the ‘threshold requirement of relevance’ (at [58]). Counsel for the accused rely on that statement in support of their application that the evidence be excluded as not passing the test of relevance under s 55 Evidence (National Uniform Legislation) Act 2011.

Decision

Reasons for decision

With the assistance of submissions from counsel, and with the benefit of body worn camera footage obtained by Detective Sgt Brunton, I was able to identify a number of relevant circumstances and make findings as follows:1. All of the identification witnesses were at points 87 metres or thereabouts from the persons they purported to identify (and hear).[13]2. As the witnesses looked towards the house at Lot 323, they were looking towards the late afternoon or setting sun.3. There was a verandah over the south-east corner of the house at Lot 323, where the entry door was located, and the verandah extended ‘around the corner’ to the eastern side of the house, co-extensive with the lounge/dining area and the banks of louvres on the eastern side. It was impossible (from a distance of more than 80 m) to see into those parts of the building underneath the veranda overhang or inside the building because of the shading effect of the verandah overhang, and the fact that the windows were louvre bays with mesh screens.4. Electricity had been disconnected to unit 2 prior to the fire. The interior of the lounge/dining area of unit 2 at Lot 323 had no artificial lighting. Nor did it receive any light from the western side.5. In the middle foreground between the witnesses and the house at Lot 323, but closer to the house than to the witnesses, was a group of more than 100 community members. The prosecutor acknowledges that the people were engaged in noisy rioting: fighting, running at one another, screaming and shouting.Conclusion Having regard to the circumstances I have just summarised, I was satisfied that the evidence of all four witnesses came within the concept of “so inherently incredible, fanciful or preposterous to the extent that it could not be accepted by a rational jury”[14]. It therefore followed, on the High Court's analysis, that the evidence did not meet the criterion of relevance. I refer specifically to the evidence of observations made by the witnesses, their respective identifications of the accused, and the things which some of them claim to have heard. That evidence was excluded on the ground of relevance. If I were in error in relation to my characterisation of the evidence, such that (contrary to my finding) the evidence did satisfy the threshold requirement of relevance, then I would have excluded the evidence pursuant to s 137. I assessed the probative value of the evidence as very low and I considered that such low probative value was outweighed by the material danger of unfair prejudice to the accused. Although the evidence, carefully broken down and analysed, was weak in the sense of “simply unconvincing”, the prejudice arose from the fact (acknowledged by the prosecutor) that the number of witnesses providing the identification evidence could have given weight to the identifications common to all of the witnesses. -------------------

Ratio Decidendi

Legal Principle Established

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