The King v Roberts

Case [2024] NTSC 81

CITATION:The King v Roberts [2024] NTSC 81

PARTIES:THE KING

v

ROBERTS, Gregory

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction

FILE NO:22233873

DELIVERED:  8 October 2024

HEARING DATE:  4 October 2024

JUDGMENT OF:  Grant CJ

REPRESENTATION:

Counsel:

Crown:  D Payne

Accused:I McGuiness

Solicitors:

Crown:Office of the Director of Public Prosecutions

Accused:  Northern Territory Legal Aid Commission

Judgment category classification:     C

Judgment ID Number:  Gra2413

Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

The King v Roberts [2024] NTSC 81

No.  22233873

BETWEEN:

THE KING

AND:

GREGORY ROBERTS

CORAM:    GRANT CJ

REASONS FOR DECISION

(Delivered on 8 October 2024)

  1. The accused is charged by indictment dated 20 November 2023 with one count of sexual intercourse without consent, two counts of aggravated assault and one count of choking, strangling or suffocating in a domestic relationship.  All four offences are alleged to have been committed against the same complainant.  The matter is listed for trial commencing on 18 November 2024.

    The Crown case

  2. The Crown case may be summarised as follows.  At the time of the alleged offending the accused and the complainant were married and living together in the Charles Creek town camp.  On the afternoon of 31 October 2022, the accused and complainant were drinking together and became intoxicated.  They then engaged in consensual penile-vaginal sexual intercourse.  Later that evening the complainant told the accused that she wanted to return to her home community in Western Australia.  The accused became upset and they began arguing.

  3. During the course of that argument the accused pinned the complainant down and bit her on the face on a number of occasions.  That conduct constitutes the offence charged in count 1. 

  4. The accused then told the complainant he wanted to have sex with her.  The complainant said no, but the accused pulled the complainant onto his lap and forcibly inserted his fingers into her vagina.  That conduct constitutes the offence charged in count 2. 

  5. On the following morning the accused and the complainant resumed their argument, during which the accused pulled off the T-shirt the complainant was wearing and threw the complainant’s belongings out of the tent in which they were then living.  The accused then ran away towards the creek beside the town camp with the complainant chasing him.  The complainant hit the accused once, whereupon the accused repeatedly punched and kicked the complainant, including as she lay on the ground, and bit her on the face and head.  The accused was wearing steel capped boots at the time.  That conduct constitutes the offence charged in count 3.

  6. As the complainant lay on the ground, the accused began strangling her and holding his hand over her mouth in an attempt to suffocate her.  As he was doing so he was shouting that he was going to kill her.  The accused then grabbed sand and began stuffing it into the complainant’s mouth in a continued attempt to suffocate…

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The King v Roberts [2024] NTSC 81
Case
[2024] NTSC 81
Decision Date

CaseChat Overview and Summary

The King v Roberts involved a dispute between the Crown and the accused, Roberts, concerning allegations of assault and false reporting to police. The case was heard in the Supreme Court of the Northern Territory. The accused, who was arrested and denied the allegations under caution, sought to introduce tendency evidence to suggest that the complainant had a history of assaulting her domestic partners and subsequently providing false accounts to police. The evidence sought included incidents from the same charges, an incident in Kalgoorlie where the complainant allegedly assaulted her domestic partner, and another incident where she breached bail conditions by assaulting her partner.

The central legal issue was whether the tendency evidence proposed by the defence met the criteria for admissibility under section 97 of the Evidence (National Uniform Legislation) Act 2011 (NT). The defence argued that the evidence had significant probative value in establishing a reasonable possibility consistent with the accused's innocence. The court needed to evaluate if the proposed evidence could rationally affect the assessment of the probability of the existence of the facts in issue, particularly whether the complainant had assaulted the accused and then lied to police. Given the distinction in approach when the evidence is proposed by the defence, the court had to determine if the tendency evidence was sufficiently probative to support a reasonable possibility of the accused’s innocence.

The court found that the proposed tendency evidence did not meet the threshold for significant probative value. The court held that the evidence did not sufficiently support a reasonable possibility of a state of facts consistent with the accused’s innocence. The court reasoned that the hypothetical jury would not likely consider the evidence important in determining the facts in issue. Consequently, the defence’s application to admit the tendency evidence was dismissed.

The court ordered that the defence’s application for the admissibility of tendency evidence was refused. The tendency evidence proposed by the defence was deemed not to have significant probative value under section 97 of the ENULA.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The accused was located by police later that day and arrested. While under caution, the accused denied the offending and told police he had been out bush and had just returned from Mount Allan. The accused also told police that the complainant had fabricated her account because she was jealous of his relationship with another woman.Tendency evidence Section 97 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘the ENULA’) provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value. By notice dated 20 September 2024, the defence has indicated its intention to adduce tendency evidence to prove that the complainant has a tendency to commit assaults on her domestic partners and then provide a false account to police. That tendency is said to be relevant in determining whether on this occasion the complainant committed an assault on the accused and then gave a false account to police. The evidence sought to be relied upon for that purpose is:(a)evidence from the witness and attending police that during the course of the incidents from which these particular charges arise the complainant pursued the accused into a nearby creek and assaulted him;(b)evidence of an incident which is said to have taken place in Kalgoorlie on 25 July 2024 in which the complainant assaulted her domestic partner by punching him to the face, pulling his hair and kicking him in the face, and told the attending police that she was defending herself;(c)evidence of an incident which is said to have taken place in Kalgoorlie on 30 July 2024 in which the complainant breached her bail conditions by approaching her domestic partner, grabbing his hair and pulling him to the ground, and told the attending police she was trying to get away.The assessment of significant probative value The Dictionary in the ENULA defines the ‘probative value’ of evidence to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. As already described, the relevant fact in issue in this case is said by the defence to be whether the complainant committed an attack on the accused and then lied to police about what he had done. The test of ‘significant probative value’ requires something more than mere relevance.[1] The evidence will have ‘significant probative value’ if it could rationally affect the assessment of the probability of the existence of one or more of the facts in issue in some important fashion.[2] This resolves to a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the facts in issue.[3] However, there is a distinction to be drawn in that process of evaluation where the evidence of tendency is sought to be deployed by the defence rather than by the prosecution. That distinction was described in DPP v Campbell & Ors (Ruling No 1) in the following terms:The approach to the question of admissibility of tendency evidence, sought to be adduced on behalf of the accused, must, of necessity, be different to the approach taken by the court to tendency evidence which is sought to be adduced on behalf of the prosecution. In a criminal trial, the accused does not bear any legal onus of proof. Rather, on particular issues, the accused may bear an evidentiary onus of adducing evidence, from which an inference arises that a reasonable possibility, consistent with innocence, exists. Thus, in determining whether tendency evidence, sought to be adduced by an accused, is admissible under s 97(1), it must be borne in mind that that evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.[4]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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