EVIDENCE – Hearsay – Hearsay rule - Evidence (National Uniform Legislation) Act 2011 (NT), s 59, s 62, s 65, s 69 – unavailability of witnesses – business records – evidence admissible – evidence inadmissible
EVIDENCE – Admissibility – Tendency evidence – Evidence (National Uniform Legislation) Act 2011 (NT), s 97 – Whether tendency evidence of significant probative value – Whether evidence supports proof of the alleged tendency – Whether proof of tendency makes more likely the elements of the offences charged – Whether probative value of the evidence outweighs any potential prejudicial effect on the accused – evidence admissible – evidence inadmissible
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification: A
Judgment ID Number: Bur2305
Number of pages: 95
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
The King v Mayatjun [2023] NTSC 16
No. 22126152
BETWEEN:
THE KING
AND:
JOHN MAYATJUN
CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered 24 February 2023)
Introduction
The accused, John Mayatjun, is awaiting trial on one charge alleging that on 27 August 2021 he murdered Gwen Dhamarrandji.
There are 3 applications before the Court concerning evidence which the Crown proposes leading at the accused’s trial. The Crown has filed 2 notices pursuant to s 67 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA) stating that it intends to adduce hearsay evidence at the accused’s trial (the Hearsay Notices). The proposed evidence is evidence of statements made by the deceased and by another deceased person. The accused accepts that some of the proposed hearsay evidence is admissible but objects to other parts of the proposed evidence.
In addition, the Crown has served on the accused a notice pursuant to s 97(1) of the ENULA that it intends to lead tendency evidence at his trial (the Tendency Notice). The Crown also proposes leading the same evidence as…
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.
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AGLC
The King v Mayatjun [2023] NTSC 16
Case
[2023] NTSC 16
Decision Date
CaseChat Overview and Summary
The King v Mayatjun involved the defendant, Mayatjun, facing charges of assault and causing grievous bodily harm. The dispute centered around the admissibility of certain pieces of evidence, specifically whether they were hearsay and whether they had probative value. The case was heard in the Supreme Court of the Northern Territory.
The court was tasked with determining whether the hearsay rule, as outlined in the Evidence (National Uniform Legislation) Act 2011 (NT), applied to the evidence in question, and if not, whether the evidence was admissible under the exceptions to the hearsay rule. The court also needed to assess whether the tendency evidence was of significant probative value and whether it supported the proof of the alleged tendency. The court had to weigh the probative value of the evidence against any potential prejudicial effect on the accused.
The court ruled that some of the evidence was hearsay but admissible under the exception for business records as it was made by someone with personal knowledge of the facts. The court found that the hearsay rule did not apply to this evidence because the records were made in the course of a business and contained representations made by someone who had personal knowledge of the facts. The court also determined that the tendency evidence was of significant probative value and its probative value outweighed any prejudicial effect. The evidence was therefore deemed admissible.
The final orders of the court included the admission of the business records as evidence and the admission of the tendency evidence, subject to the conditions set by the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The hearsay applications are governed by the provisions of the ENULA, the relevant parts of which are as follows:EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 59The hearsay rule – exclusion of hearsay evidence(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.(2) Such a fact is in this Part referred to as an asserted fact.(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 62Restriction to “first-hand” hearsay(1) A reference in this Division (other than in subsection (2) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 65Exception – criminal proceedings if maker not available(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:(a)[Not applicable].(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or(c)was made in circumstances that make it highly probable that the representation is reliable; or(d)[Not applicable].EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 69Exception – business records(1) This section applies to a document that:(a)Either: i.is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; orii.at any time was or formed part of such a record; and(b)contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:(a)by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or(b)on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.(3) Subsection (2) does not apply if the representation:(a)was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or(b)was made in connection with an investigation relating or leading to a criminal proceeding.(4) [Not applicable].(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).