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The King v Swan

The King v Swan

Case [2024] NTSC 82 3 October 2024

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CITATION:The King v Swan [2024] NTSC 82
PARTIES:THE KING
v

SWAN, Rebecca

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction
FILE NO:22037672
DELIVERED:  3 October 2024
HEARING DATE:  3 October 2024
JUDGMENT OF:  Grant CJ
REPRESENTATION:
Counsel:
Crown:  A Lonergan
Accused:C Voumard with D Gorry
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:  Northern Territory Legal Aid Commission
Judgment category classification:     C
Judgment ID Number:  Gra2414
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The King v Swan [2024] NTSC 82
No. 22037672

BETWEEN:

THE KING

AND:

REBECCA SWAN

CORAM: GRANT CJ
EDITED REASONS FOR DECISION
(Delivered ex tempore on 3 October 2024)

This matter was first listed for trial at the criminal call over on 29 March 2023. At no time in any of the subsequent pre-trial hearings or iterations of the Schedule 2 certifications has the defence identified any issue required to be dealt with by way of preliminary determination or advance ruling. Now, three working days out from trial, the defence has raised a number of issues which it says require determination in advance of trial. Although two of those issues relate to the admissibility of evidence which is the subject of continuing discussions between the Crown and defence and may fall away, the other two issues require determination in advance of the trial and prior to the empanelment of the jury.
The charges and Crown case
The accused is charged by indictment dated 15 March 2023 with one count of property damage, one count of unlawfully causing serious harm to the female complainant and one count of aggravated assault of the male complainant. They are counts 1, 2 and 3 on the indictment respectively. The Crown case in relation to those charges may be summarised briefly as follows.
The accused and the male complainant were married at the time of the alleged offending. The male and female complainants were old family friends. The accused suspected that the male complainant was engaged in a sexual liaison with the female complainant and was jealous as a result of that suspicion, and sexually jealous in a more general sense.
On the evening of 7 November 2020, the male complainant was drinking with the female complainant and other friends at a local club. Later that evening, the female complainant drove the male complainant and his cousin to a different licensed venue. After a short time there, the female complainant drove the male complainant back to his cousin’s house where he was apparently staying. The male complainant got out of the vehicle, walked to his cousin’s house, knocked on the bedroom window and was let into the house by his cousin.
As that was happening, the accused drove along the street in another vehicle and pulled up in front of the female complainant’s car. It is alleged that the accused got out of the vehicle holding a wooden bat approximately one metre in…

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 Swan

Details

AGLC: The King v Swan [2024] NTSC 82
Case: [2024] NTSC 82
Decision Date: 3 October 2024

CaseChat Overview and Summary

The King v Swan was a case heard in the Supreme Court of the Northern Territory, where Rebecca Swan faced charges of property damage, unlawfully causing serious harm, and aggravated assault. The court was required to decide on two primary legal issues raised by the defense: whether the charges should be severed and tried separately, and whether a Basha inquiry should be conducted to explore the existence of an earlier statement by the male complainant.

In relation to the severance of charges, the court examined whether the charges formed a series of offences of the same or similar character, as required by section 309 of the Criminal Code 1983 (NT). The court concluded that the offences were sufficiently connected by the accused's motive of sexual jealousy, the relationship between the accused and the complainants, and the similarity in the nature of the offences, weapon used, location, and temporal proximity. The court further found that although the evidence may not be mutually admissible for tendency purposes, it was mutually admissible for context, relationship, and disposition purposes. The court ultimately decided that the joint trial of the counts was permissible under section 309 and that the risk of prejudice could be managed through appropriate jury directions. Consequently, the application for severance was dismissed.

Regarding the Basha inquiry, the court assessed whether there was a serious risk that the trial would be unfair if the inquiry was not conducted. The court found that the assumptions underlying the defence's application were speculative and that the purpose of a Basha inquiry was not to allow the defence to test out lines of cross-examination. The court held that the application for a Basha inquiry was not warranted as there was no serious risk of an unfair trial, and the defence could still achieve its forensic purposes through ordinary cross-examination. Therefore, the application for a Basha inquiry was dismissed.

Orders