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 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.
The application for exclusion of the evidence pursuant to s 137 is made in the alternative, that is, in the event that the evidence is not excluded on the grounds of relevance.
In IMM, the High Court emphasised that the enquiry required by s 137 (weighing the ‘probative value’ of the evidence against the danger of unfair prejudice to the defendant) must be approached on the assumption that the jury will accept the evidence (at [49]) “taken at its highest” (at [50]). However, that does not distort a finding as to “the real probative value of the evidence”. The plurality observed “the circumstances surrounding the evidence may indicate that its highest level is not very high at all”, before referring to the example of an identification made very briefly in foggy conditions and in bad light by a person who did not know the person identified. The correct approach required by the statute is to accept that it is an identification, but a weak one because it is “simply unconvincing”.[8]
As the Victorian Court of Appeal recently observed in Moreno v The King,[9] “it may not be easy to discern the demarcation between matters of reliability (which must be ignored) and the identification of circumstances surrounding the evidence that render it “simply unconvincing”.
The Court then referred to the particular difficulty in relation to identification evidence, before making the following statement: [10]
In our view, in considering the probative value of evidence, at least insofar as identification evidence is concerned, it is legitimate, and necessary, to take into account the quality of the evidence and that to do so does not breach the injunction in IMM that reliability and credibility must be put to one side.
The impugned evidence
MK, who was standing in the camping area near the electric pole at the top of the hill, looking down towards bottom camp and House 323, stated that he saw Anthony Mamby give a lighter to 2 young boys: Tom Lantjin and young Kurawal:[11]
... saw Anthony give the boys the lighter and tell them to go and burn my mother's house.
... saw them get paper and dry grass and put it in the doors of the house.
...saw Lantjin gave Kurawal petrol in a coke bottle.
... Kurawal went inside and sprinkled the petrol around.
Lantjin ... went in and put the grass and paper in the house.
Kurawal used the lighter to light the house on fire.
In relation to evidence of petrol being used as an accelerant, I note the fire investigation report states that a Volatile Organic Compound Detector was used to sample the fire debris but returned a zero reading in the areas tested.
HW was also up the hill. She states that she saw Tom Lantjin pick up a box outside the house at Lot 323. Then she saw the three accuseds rip up the box into smaller pieces which Thomas Lantjin then set on fire with a lighter. She stated, “Those three boys went into that house and put the burning box in the kitchen”. She stated that she could see “them three” putting the burning box into the ceiling space.
I note that HW gave evidence in committal proceedings on 13 October 2021. She stated that her eyes were not well, because of diabetes and that her eyes were blurry. She initially stated that she only saw her cousin, Tom Lantjin and, if I understand her evidence, no other men. However, she later said that she did not see Tom Lantjin “in my own eye”, that she was looking for him, but didn't see him at all. Her evidence was ultimately that she saw Tom Lantjin on the street with all the other people but she did not see him at the burning house.[12]
PK was also standing on top of the hill watching everyone fighting. She stated that she saw three boys from the community walk up to the green house (the house at Lot 323) with a big brown cardboard box. She identified the three accuseds, referring to Kurrawal as ‘Yukpa’. She said that Tom Lantjin then went into the house with the box while the other two stayed outside keeping a lookout. She stated that, through the fly wire, she saw Tom light that box with a cigarette lighter (STA par 7). She went on to state that Tom put the box in the middle of the room but near the window; further that it was right near a pile of clothes that the owner of the house had left there. Finally, she said that Tom Lantjin came out of the house as flames were rising up through the fly wire on the side of the house; that he then looked up at MK and said to him in language, “Look your mum's house is burning”. He appeared to be showing off, she said.
I finally refer to the evidence of DD. She also was up the top of the hill near the church watching the fighting. She identified both Thomas Lantjin and Thaddeus Kurawal. She stated that they went to a rubbish bin down the street and Thomas got a cardboard box. She saw Thomas walk into the house with the box and a lighter. She saw him light it and the little flame come out. She stated that Thaddeus used the lighter too, that is, the pair shared one lighter. She saw a big flame coming out of the window of the house near the kitchen and front veranda.
I have not set out the different descriptions of the accuseds given by the various witnesses, specifically, what they were wearing at the time of their alleged involvement in starting the fire. Those descriptions vary markedly. I should also mention that DD stated that Thomas Lantjin was wearing a Hawthorn Guernsey with black shorts and a white hat. She also did some investigation on Facebook and found a photo of Thomas wearing the same clothes. There is a possible risk of displacement effect, which I considered that I did not need to decide.
Circumstances surrounding the evidence
The circumstances surrounding the evidence are relevant in relation to both aspects of the application, s 55 and s 137 Evidence (National Uniform Legislation) Act 2011.
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.
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[1] Evidence (National Uniform Legislation ) Act 2011, s 55.

[2] IMM v The Queen (2016) 257 CLR 300.

[3]IMM v The Queen (2016) 257 CLR 300 at [36], per French CJ, Kiefel, Bell and Keane JJ.

[4]Ibid, [39].

[5] Ibid, [51].

[6] At [52].

[7] At [39].

[8] At [50].

[9] Moreno v The King [2023] VSCA 98 at [55].

[10] Ibid at [56].

[11] Police statement, pars 4, 7.

[12] Committal transcript, p 13.

[13] In terms of words allegedly heard, PK claims to have heard Tom Lantjin looking up and saying in language, “Look your mum's house is burning” as though he was showing off. MK claims that he saw Anthony Warnir give a lighter to “the boys” — the co-accuseds — and heard him tell them to go and burn the house. DD claims that, from her vantage on top of the hill near the church she heard Tom Lantjin “calling me a motherfucker in language”. HW claims that she heard PC “telling them other boys to burn the house”.

[14]IMM at [39].