The King v Vigar - [2022] NTSC 86

CITATION:The King v Vigar [2022] NTSC 86
PARTIES:THE KING
v

VIGAR, Raymond

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22103469
DELIVERED:  6 December 2022
HEARING DATES:  11, 16 November 2022
JUDGMENT OF:  Brownhill J
CATCHWORDS:

EVIDENCE – Hearsay – Crown application to adduce statutory declaration of deceased witness as complaint evidence – Crown argued s 65 exception to hearsay rule applied – No elements of s 65(2) satisfied – Even if the s 65 exception was made out, the evidence would have been excluded under s 137 due to the danger of unfair prejudice to the accused – Evidence inadmissible.

EVIDENCE – Exclusion of evidence of finding of fact in an Australian proceeding – Defence sought to adduce evidence to establish that the complainant was an unreliable witness – Crown objected pursuant to ss 91 and 135 – Application of s 91 considered in relation to evidence before a horseracing Stewards inquiry – Only those parts of the complainant’s evidence which were not elicited to prove, in these proceedings, the existence of facts in issue in those proceedings are inadmissible.

Ainsworth v Burden [2005] NSWCA 174; Attorney-General (NSW) v Martin [2015] NSWSC 1372; CA v The Queen [2017] NSWCCA 324; Conway vThe Queen (2000) 98 FCR 204; Festa v The Queen (2001) 208 CLR 593; HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Munro v The Queen [2014] ACTCA 11; The Queen v Afu; The Queen v Caleo (No 15) [2018] NSWSC 245; The Queen v Ambrosoli (2002) 55 NSWLR 603; The Queen v AW [2018] NTSC 29; The Queen v Doolan [2019] NTSC 53; The Queen v Grant (2016) 262 A Crim R 348; The Queen v Hoffman [2021] NTSC 31; The Queen v Hoffman (No 2) [2021] NTSC 84; The Queen v Jennings [2020] NTSC 71; The Queen v Mrish (unreported, NSWSC, 4 Oct 1996); The Queen v O’Meally [1952] VLR 499; The Queen v Parker (No 2) [2018] NSWSC 1122; The Queen v Ryan [2013] NTSC 54; The Queen v Shamouil (2006) 66 NSWLR 228; The Queen v Suteski (No 4) (2002) 128 A Crim R 275, Sio v The Queen (2016) 259 CLR 47; Williams v The Queen (2000) 119 A Crim R 490, referred to.
Criminal Code Act 1983 (NT) ss 188, 192(3), 241(1), 210(1), 196(1).
Evidence Act 1939 (NT) ss 21AB, 21B(2).

Evidence (National Uniform Legislation) Act 2011 (NT) ss 62, 65(2), 66, 67, 91, 108, 135, 137.
Racing and Betting Act 1983 (NT) ss 4, 42, 43, 44, 145D, 145F, 145Y, 145Z.
REPRESENTATION:
Counsel:
Crown:D Mandie
Accused:J Tippett KC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Darwin Family Law

Judgment category classification:    B
Judgment ID Number:  Bro2214
Number of pages:  37

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Vigar [2022] NTSC 86

No. 22103469
BETWEEN:

THE KING

AND:

RAYMOND VIGAR

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered on 6 December 2022)
Introduction

By an indictment dated 8 November 2022, the accused was charged with 15 counts alleged to have occurred between around 17 June 2018 and 31 August 2019, comprising 11 counts of aggravated assault of the complainant, contrary to s 188(1) and (2) of the Criminal Code, 1 count of sexual intercourse with the complainant without her consent, contrary to s 192(3) of the Criminal Code, 1 count of damaging the complainant’s property, contrary to s 241(1) of the Criminal Code, 1 count of stealing the complainant’s property, contrary to s 210(1) of the Criminal Code and 1 count of depriving the complainant of her liberty, contrary to s 196(1) of the Criminal Code.
The Crown case against the accused was essentially that he and the complainant were in a relationship from 2017 to 2019 which included stages when they were boyfriend and girlfriend, stages when they were ‘on again off again’ and stages when they were in a sexual relationship only. During the course of that relationship, the accused was possessive, jealous and controlling, and mentally and physically abusive to the complainant, and he committed the 15 alleged offences against her.
The complainant was a ‘vulnerable witness’ within s 21AB(c) and (d) of the Evidence Act 1939 (NT). For the trial, her evidence comprised the audio-visual recording of her examination at a special sitting on 7 to 9 November 2022 pursuant to s 21B(2)(b). During the trial, a further special sitting was held on 17 November 2022. The complainant’s initial statements to police were in written form and had not been recorded audio-visually, so they could not be admitted as her evidence-in-chief under s 21B(2)(a). Ultimately, all of her evidence was given in the special sittings and played to the jury at the trial.
The trial began on 14 November 2022, but the jury was discharged on 22 November 2022.
Following legal argument on 11 November 2022, on 14 November 2022 I made a ruling about the admissibility of parts of a statement made to police by GC, ruling that evidence inadmissible. On 16 November 2022, I made a ruling about some questions asked of the complainant about findings made in a Stewards inquiry and an appeal therefrom, ruling that evidence inadmissible. I indicated I would deliver reasons subsequently. These are my reasons.
Previous representation – maker unavailable
On 11 November 2022, the Crown made an application to adduce hearsay evidence of parts of a statement made to police by GC (‘the witness’) on 18 January 2021. The witness was the complainant’s boyfriend from early 2020, around March or April. The Crown sought to rely on parts of his statement, largely as evidence of complaints made by the complainant to the witness about her relationship with the accused and, to a lesser extent, as context evidence. The witness was unavailable to testify because he died on 22 November 2021.
The Crown gave notice pursuant to s 67 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’) that it intended to adduce hearsay evidence of some of the witness’s representations in the form of a statutory declaration made to police on 9 June 2019. The Crown intended to do that by calling the police officer who witnessed the representations in the statutory declaration being made to read the representations onto the record or by tendering the statutory declaration through that police officer.
The Crown invoked s 65(2)(a), (b) and (c) of the ENULA, which provide that 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)was made under a duty to make that representation or to make representations of that kind; or
(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.
The relevant passages of the witness’s statutory declaration may be summarised briefly as follows (‘the representations’):
(a)He met the complainant eight months before they began a relationship and had been living together since November 2020.
(b)Since they had been together, the complainant had told the witness a lot about her relationship with the accused. When they first started dating, she was scared to be alone. It took the witness a while, maybe a couple of months, to reassure her and prove that he was not going to hurt her before she started to open up to him. She started to tell him bits and pieces about the violence she suffered while she was with the accused. Eventually, she opened up more. He told her she should talk to a professional and encouraged her to report the accused to the police, but she said she wasn’t ready. In 2020, she said she was ready.
(c)Some of the things she spoke of were how possessive the accused was, that he was verbally abusive to her and physically assaulted her many times. He was tracking her phone all the time and had to know where she was at all times. When she would get home or he went to her home, he would go through her phone to see who she had spoken to and what photos were on her phone. She was not allowed to speak to males or have any male contacts in her phone. If he saw that she had spoken to a male on the phone, he would ‘smack her up’.
(d)The accused had broken into her apartment and ‘smacked her up’ there, had crashed into her car and, one time, had driven her to an Aboriginal camp and told her to get out and walk home.
(e)Once, after she was at the Darwin show with her mother, when she got home he demanded to know who she had been with. He pinned her to the ground and hit her mouth, which cut the inside of her mouth because she had braces.
(f)Any clothes she had that were valuable or her property, he damaged it.
(g)He often made her sit on the ground in front of him when he was abusing her and would spit on her and talk over her in a demeaning way. Sometimes he would grab her by the hair and shove her face into the mirror and say ‘Look at yourself. You’re disgusting’.
(h)If she did not answer her phone, he would track her. When she would get home, even if she had been at work, he would bash her.
(i)He accused her of ‘shagging’ her father and would say things like: ‘What’s it like rooting your Dad?’.
(j)Once, when he turned up at her apartment and she refused to let him in, he climbed up the drain pipes to her apartment, then got inside.
(k)He accused her of sleeping with other men ‘and belt her up’.
(l)Police once attended the accused’s house after neighbours had called them, and the accused made her stay quiet, told them nothing happened and he was home alone, and when they left he ‘flogged’ her.
(m)Every time he ‘flogged’ her and she was bleeding, he would make her have sex with him. She would be covered in blood and tell him ‘no’ but he forced himself on her.
(n)When she had her period, he would demand that she squat and take a photo of herself to prove it.
(o)Once he ‘bashed’ her ‘pretty bad’ and she needed to go to hospital, but he would not let her leave. He sat on her back and held her by the hair and bashed her face into the tiles. She was covered in blood and he left her on the ground with her head swollen.
(p)Once he held a knife to her vagina and said he was going to shove it inside her so she could not sleep with anyone else.
(q)If she was bruised, she was not allowed to go to work and he would block her car in the driveway so she could not get out.
(r)The accused had all her passwords for her phone and still had one of her phones.
(s)In October 2020, the complainant decided to seek a domestic violence order preventing the accused from contacting her as he had caused her mental anguish and told her if she remained in the racing industry, he would kill her.
(t)The accused had been following the witness and the complainant around for months. He would turn up at various places where they were. When he did that, the complainant’s demeanour would change from carefree and happy to quiet, timid and she would want to leave.
The witness is identified with particularity and is inarguably unavailable to give evidence about the matters in the representations. In taking the statutory declaration from the witness, the police officer both saw and heard the representations being made. Subject to one matter, assuming that at least one of the conditions in s 65(2) of the ENULA is satisfied, evidence may be adduced by the police officer reading onto the record what was said or, in circumstances where the police officer observed the document being produced, by tendering the statutory declaration through the police officer.[1]
The qualification just referred to is that s 62 of the ENULA provides that a reference in (relevantly) s 65 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, and a person has personal knowledge of the asserted fact if his 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. By this means, s 65 is confined to ‘first-hand’ hearsay.
Most of the representations relate to what the witness was told by the complainant. However, that does not mean they necessarily fall foul of s 62. The asserted fact about which the witness had personal knowledge is not the fact that the things described happened, but the fact that the complainant told the witness those things happened.
The Crown argued that, if the witness were not deceased, the evidence would be admissible as complaint evidence under s 66. So much may be accepted, but I do not see how that overcomes the limitation by s 62 of the effect of s 65 to first hand hearsay. The Crown did not point to any authority establishing that complaint evidence by an unavailable witness is admissible under s 65 to establish the truth of the facts asserted by the complaints.
Elicited for the purpose of establishing the asserted fact that the complainant told the witness these things (rather than the truth of them), the representations could be admissible as prior consistent statements of the complainant, which would be admissible as credibility evidence (with leave of the court) under s 108(3)(b) of the ENULA.
Consequently, s 62 is not a barrier to the admissibility of those representations relating to what the complainant told the witness.
Under a duty: s 65(2)(a)
In The Queen v Hoffman [2021] NTSC 31 (‘Hoffman’), Grant CJ observed (at [54]) there is some doubt attending the question whether representations made by a deceased witness in that case in a statutory declaration given to police were made when the witness was under a duty to make them, or to make representations of that kind. His Honour said the scope of s 65(2)(a) was not settled, but the provision is not obviously or expressly limited to representations made in discharge of a legal duty.[2] In the circumstances of that case, his Honour concluded that the witness was, in a relevant sense, under a duty to make those statements. There were other bases in that case on which his Honour held that the representations in that case fell within s 65. His Honour made similar observations in The Queen v Hoffman (No 2) [2021] NTSC 84 (at [21]) and held that the evidence of two other witnesses who had seen and heard things in the lead up to the events in question, were attended on by police for the purpose of taking a statement about the matters seen and heard, and had made statutory declarations was admissible within s 65(2)(a), as well as for other reasons under s 65(2).
As regards the meaning of the word ‘duty’ in s 65(2)(a) of the ENULA, the Defence argued that it is confined to a legal duty and the witness was not under a legal duty to make the representations to police in the statutory declaration.
The word ‘duty’ is not defined in the ENULA. There does not appear to be any other authority dealing with the meaning of the word in s 65(2)(a) of the ENULA. The word ‘duty’ is defined by the Encyclopaedic Australian Legal Dictionary to mean a legal obligation owed by one person to another.[3] The word’s ordinary meaning includes what a person is expected to do by moral obligation.[4]
The meaning of the word ‘duty’ in s 65(2)(a) may be informed by other uses of the word in other provisions of the ENULA.[5] The word ‘duty’ or its derivatives appears infrequently in the ENULA. Where it does appear, those uses suggest that what is intended is to refer to a legal duty.[6]
The provision derives from the common law exception to the hearsay rule for statements by a person now deceased made in the course of a legal duty to observe and record, and the common law required that there be no motive for the deceased to state other than the truth.[7] Successful invocation of the provision by the prosecution has serious consequences for the accused, as they will have no opportunity to cross-examine the maker of the statement with a view to undermining any inculpatory representation.[8] These matters seem to me to make it unlikely that s 65(2)(a) was intended to capture anything other than a legal duty.
In any event, there was no evidence in this case as to the circumstances in which the witness came to make the statutory declaration. Unlike the statutory declaration considered in Hoffman, there is no evidence establishing, for example, that this statutory declaration was made about events at the witness’s workplace and after he was asked by police to make a statement. It is unknown whether the witness was asked to make a statement, or volunteered to do so.[9] All that is known about the circumstances here is that the witness was, when he signed the statutory declaration, under a legal duty to tell the truth.[10] That is not sufficient to establish that the representations were made ‘under a duty to make’ them ‘or to make representations of that kind’.
Section 65(2)(a) of the ENULA is not satisfied.
Shortly after: s 65(2)(b)
I adopt, without repeating, the analysis of Kelly J of s 65(2)(b) in The Queen v Ryan (2013) 33 NTLR 123 at [27].[11] The Full Federal Court has observed that it would be an unusual case in which a representation made five days after an event might be regarded as having been made ‘shortly after’ it.[12] In Hoffman, Grant CJ held (at [57]) that a statement made five days after the event could not fairly be characterised as one made ‘under the proximate pressure of the asserted fact’,[13] notwithstanding that his Honour considered it highly unlikely that the representations were a fabrication and that the memory of the events was likely to be clear in the witness’s mind.
In this case, the complainant’s relationship with the witness commenced around March or April 2020. From November 2020, she lived with him at his family’s residence and they were in that relationship for most of 2021, up to the witness’s death in November 2021. There is no direct evidence as to when the complainant told the witness the specific things the subject of the representations. In the statutory declaration, the witness said the complainant told him ‘little bits and pieces’ about her relationship with the accused around a couple of months after they started dating, and ‘eventually’ she opened up more. The complainant gave evidence that she told the witness bits and pieces throughout the relationship. The statutory declaration was made on 18 January 2021.
The reasonable inference is that the complainant began to tell the witness ‘little bits and pieces’ in around May or June 2020 (two months after the relationship began), and told the witness all of what he knew over the course of the next few months or so. On 11 July 2020, the witness assaulted the accused in the car park outside Silks at the Darwin Turf Club. It is a reasonable inference that the witness did so because of what he was told by the complainant. Even if that inference is not made, it is a reasonable inference that, by around September or so of 2020 (if not before), the complainant had told him the matters the subject of the representations. The other matters the subject of the representations (the accused following the complainant and the witness to various locations) occurred in February and October 2020, which was also months before the statutory declaration was made.
Notwithstanding that what the complainant told the witness may have been fresh in the witness’s memory, representations made some months after the witness heard the complainant say these things, or observed the accused’s actions, cannot fairly be characterised as made ‘under the proximate pressure of the asserted fact’ of the complainant’s statements or the accused’s actions. Consequently, the statutory declaration was not made ‘shortly after’ the asserted facts.

Section 65(2)(b) of the ENULA is not satisfied.
Highly probable it is reliable: s 65(2)(c)
The test in s 65(2)(c), ‘in circumstances making it highly probable the representations are reliable’, imposes a higher threshold for admissibility, which has been described as ‘an onerous burden’.[14] The test is not whether, in all the circumstances, there is a high probability of reliability, but whether the circumstances in which the representation was made determine that there is such a probability.[15] The court may consider other available relevant evidence as to all the circumstances in which the statement was made, including the consistency of what was said with other material in the Crown case.[16] The court may also consider other representations made by the representor which form part of the context in which the relevant representation was made and whether they are demonstrably or inherently incredible, fanciful or preposterous.[17]
It has been held that there is a real question whether the making of a statement to a police officer, even in circumstances where the maker of the statement acknowledges an obligation to tell the truth to the best of their knowledge and belief and a risk of prosecution if they do not do so, is sufficient to satisfy the test in s 65(2)(c).[18] This was on the bases that evidence that of its nature is recognised as unreliable does not become more reliable because it is given to a police officer by a person who acknowledges an obligation to tell the truth on pain of prosecution, and where the reliability of evidence depends on a person’s inclination to tell the truth (rather than their capacity to give an accurate account), the fact that it is given on pain of prosecution if it is false may make the person more likely to give reliable evidence, but generally only if there are no countervailing incentives to try to hide the truth.[19]
The Crown emphasised that some of the representations were consistent with the complainant’s evidence. For example, those in paragraphs [9](c), (e), (o) and (p) are closely consistent with evidence given by the complainant or (in relation to (e)) her mother. However, the complainant did not give any evidence about some of the representations, such as those in paragraphs [9](g) (other than the accused verbally abusing her), (i), (m) and (q). Further, some of the representations were somewhat consistent with the complainant’s evidence and somewhat inconsistent. For example, the complainant’s evidence was partly consistent with the representation in paragraph [9](d), but omitted the threat to leave her to be ‘bashed or killed by the blackfellas’; the complainant’s evidence was partly consistent with the representation in paragraph [9](j), but she said the accused did not come inside her apartment; the complainant’s evidence was partly consistent with the representation in paragraph [9](l), but omitted that the accused ‘flogged her’ when police left; the complainant’s evidence was partly consistent with the representation in paragraph [9](m), but omitted any reference to her bleeding at the time; the complainant’s evidence was partly consistent with the representation in paragraph [9](n), save that she did not say this happened more than once and her evidence was that the accused took a photo of her whilst she had her period and threatened to post it on social media or send it to her father; the complainant’s evidence was partly consistent with the representation in paragraph [9](o), but omitted that she was left bleeding; the complainant’s evidence was partly consistent with the representation in paragraph [9](s), but omitted that the accused had said he would kill her if she remained in the racing industry.
The degree of consistency between the complainant’s evidence and the witness’s representations, such as it is, is undermined by the facts that: (a) prior to the making of the statutory declaration, the witness had been disciplined by the Stewards of the Darwin Turf Club for assaulting the accused outside Silks, being suspended from the racetrack for 18 months; (b) his defence of self-defence, which the complainant had supported him in, had been rejected by the Stewards; (c) the witness had also been criminally charged for that assault; (d) the complainant did not complain to anyone else (other than the witness) about the alleged assaults and other charged acts until after the Stewards inquiry; and (e) shortly after the Stewards inquiry, she sought a domestic violence order against the accused (something she had not done either during or at the end of their relationship, despite working at the same location after the relationship ended) which resulted in the accused being prohibited from engaging in his work as a jockey at the Darwin racecourse. The Defence case was that the complainant’s allegations against the accused were a fabrication made in retaliation for the consequences for the witness of the assault and/or to discredit the accused and have the witness’s suspension overturned. That case necessarily included that the complainant had concocted her allegations, with the witness’s collusion.
Whilst the complainant denied that she had fabricated the allegations, the Defence case was open on the facts referred to above, which came largely from the complainant’s evidence.
On the basis of these matters, there was arguably a countervailing incentive for the witness not to tell the truth, which substantially reduces the weight to be given to the fact that the statutory declaration was made on pain of prosecution if it is false.
Taking into account all of these matters, the circumstances do not make it highly probable that the representations were reliable.
Section 62(2)(c) is not satisfied.
Danger of unfair prejudice: s 137
The above conclusions make it strictly unnecessary to consider whether the evidence should be excluded under s 137. I address the question briefly in case I am found to be wrong about my conclusion in relation to s 62.
Section 137 of the ENULA is restricted in its operation to criminal proceedings, and requires the court to refuse to admit evidence adduced by the Crown ‘if its probative value is outweighed by the danger of unfair prejudice to the defendant’. In order for there to be a danger of unfair prejudice to the accused ‘[t]here must be a real risk that the evidence will be misused by the jury in some way that the risk will exist notwithstanding the proper directions which it should be assumed the Court will give’.[20] In Festa v The Queen,[21] McHugh J described (at [51]) the test as follows:
It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
This involves a balancing exercise of assessing and weighing the probative value of the evidence against any prejudicial effect it may have. When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[22]
The ‘probative value’ of evidence refers to the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (Dictionary, ENULA).
The probative value of the representations was significant, but not substantial, given that they were essentially complaint evidence tendered for the purpose of re-establishing the complainant’s credibility, they contained inconsistencies with the complainant’s evidence which were significant both in number and content, and the period of time which had elapsed between when the witness was told the things by the complainant and when he made the representations. Further, while it was the most extensive of the complaint evidence, it was not the only complaint evidence to be led at the trial. Other complaint evidence was to be led from the complainant’s mother, her best friend, her best friend’s mother, her work colleague and the witness’s father, and there were text messages between the complainant and her mother and best friend which contained complaint evidence as well.
The notion of prejudice in this general context ‘… means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.’[23] In other words, evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted.[24] Something more is required, such as the possibility that the challenged evidence may be misused by the jury in some respect.[25] For example, the jury may be influenced to convict as punishment for conduct other than that charged, may overestimate the probative value of the challenged evidence and give it disproportionate weight, or may be distracted from the central issues in the trial, say, by an emotional or irrational response to the evidence.
In The Queen v Ryan,[26] Kelly J observed (at [34]) that the prejudice to the Defence in being unable to cross-examine a witness when evidence is received under s 65 of the ENULA cannot be determinative, as that will always be the case when statements are let in under s 65, but her Honour recognised that in some cases it may be sufficient for exclusion under s 137. In The Queen v Doolan,[27] Graham AJ observed (at [8]) that the principle that an accused should generally be given the opportunity to test contrary evidence in cross-examination has particular force in a case where there are no independent witnesses to the alleged incidents and the case largely rests on assessment of the two conflicting versions of what occurred. Further, his Honour noted that the various inconsistencies in the prior representations sought to be adduced under s 65 would have provided fodder for a cross-examiner. His Honour also noted that it was important that a jury have the opportunity to observe the demeanour of witnesses. Those observations apply equally in this case.
Given the Defence case as outlined above and the importance of the witness’s credibility to that case, this is a matter in which the prejudice from an inability to cross-examine the witness is sufficient to outweigh the probative value of the representations.
Had I determined that the representations were admissible under s 65, I would have excluded them under s 137.
Exclusion of evidence – findings of Stewards inquiry and Racing Appeals Tribunal
During the special sitting for the complainant’s evidence, on 9 November 2022, the complainant gave the following evidence in cross-examination:
You’ve told stories about knives in the past … that are not true, haven’t you?---What are you referring to?
Well, do you remember your appearance before the stewards in July of 2020?---Yes.
And you talked about a knife there, didn’t you?---That’s not my case. It had nothing to do with me.
No. No, you talked about a knife, didn’t you?---Yes.
You talked about a knife as a witness for your boyfriend - - -?---Yes.
Is that right?---Yep.
Because your boyfriend had quite viciously assaulted [the accused], hadn’t he?---Yes.
And the stewards had held an inquiry into the fact that [the accused] had been attacked in the car park at Silks by [GC], your boyfriend, is that right?---Yes.
It turned out in the end that the stewards had some extraordinary CCTV footage of what actually occurred. You’re aware of that, aren’t you?---Yes. As far as I was aware, yes.
And you and Mr – your boyfriend, [GC], he put forward a defence before the stewards. He said that [the accused] – he had defend [sic] himself from [the accused], is that right?--- …Yes---
…
And you were living with [GC] at that time, weren’t you?---Yes, I was, yep.
Before he went in on 14 July 2020 before the stewards, you knew what he was going to say, didn’t you?---No, we were not allowed – we hadn’t discussed it, no.
You hadn’t discussed his defence?---No.
Is that true; is that really true?---Yes.
You were called as a witness to the event by the stewards, weren’t you?---Yes.
You suggested to the stewards that you had heard [the accused] say that he had a knife, didn’t you?---I don’t think I suggested that, no.
…
You were called to the stewards room of the Darwin Turf Club on the afternoon of Tuesday 14 July 2020?---Yes, I – I’m not sure on the dates but sounds about right, yes.
And on that day, your boyfriend, [GC], also attended. Is that right?---Possibly. I thought he had attended the day before me.
And you were aware that [GC] was putting forward a defence before the stewards for hitting [the accused] and knocking him clean out of self-defence, weren’t you?---Yes.
And his self-defence that he alleged, that is your boyfriend [GC] alleged, you knew was that [the accused] had a knife. Is that correct?---Yes.
You gave evidence to the effect that you had heard [the accused] say something about a knife as your boyfriend walked towards him, is that right?---Yes.
And you know that that was found to be untrue, don’t you?---I’m not sure if the question found it was untrue.
And it was untrue, wasn’t it?---Well, that’s just what I had heard; something about a knife. I didn’t know whether it was true or not.
…
Now, what … I’m putting to you is this: that you gave evidence in support of your boyfriend’s case that [the accused] had a knife, didn’t you?---Yes.
Yes?---Yes.
And in order to support his case that [the accused] had a knife, you gave the following evidence, I suggest to you.
[GC] just went over to talk to [the accused] and address it to him. Then he just started talking to him. I walked over. I saw [the accused]. I heard [the accused] say something about a knife. And [GC] – or when I walked and got through the cars, I saw [GC] pick up [the accused], then he just walked off.
Now, you gave that evidence to the stewards, didn’t you?---Yes.
You gave that evidence in support of the fact that your boyfriend was falsely accusing [the accused] of having a knife. Isn’t that true?---No.
In fact, [the accused] had never said anything about a knife, had he?---Yes.
…
You know this, I’m just asking you … You gave evidence in support of your boyfriend that Mr – that you heard [the accused] say something about a knife; is that right?---Yes.
But you didn’t hear that, did you?---Yes, I did.
You know that the stewards found on the video that in fact nothing of the event that you described took place, is that right?---Not that I was aware of.
And in fact, your boyfriend, [GC], was found guilty of the allegations made against him, correct?---Yes.
And he was warned off course for 18 months. Is that right?---Yes.
That meant that he could not work on racecourse[s] anywhere, certainly in the Northern Territory, for 18 months, is that right?---Yes.
…
Do you know the steward Mr Hensler?---Yes.
And Mr Hensler said “What reference, you said you heard the knife reference, what did you mean by that? What did you actually hear?” He asked a question along those lines, didn’t he?---I can’t remember exactly.
Now I suggest to you – I’ll put the material to you and I suggest to you, you said:
It sounded like he just said, ‘I have got a knife’ or ‘I have not’ or something like that?---Um, yeah, I couldn’t quite pick up exactly what he was saying but that was what I picked up from it anyway’.
‘But you didn’t actually see anyone strike anyone?---No.’
…
Is that your evidence?---Yes.
Yes. … And you were the only witness all [sic] before the stewards to support [GC’s] allegations – I withdraw that – [GC’s] position that he had knocked [the accused] out in the Silks car park in self-defence, is that right?---Yes.
And you know the stewards threw that defence out, don’t you?---No, I didn’t know that.
Didn’t you that? You didn’t know that [GC], your boyfriend’s allegation of self-defence was found to be completely without substance in any way by the stewards, is that right?---I’m not sure what you mean, sorry.
I’m asking you this. You say, suggesting to me that you did not know that the stewards had concluded that your boyfriend, [GC’s] suggestion that he was acting in self-defence was without any substance at all, is that correct?---Yes.
And so [GC], he was an angry man about the outcome?---He was – yes.
…
And you knew that [GC] then appealed that decision at one point, didn’t he?---Yes.
And again, his position is found to be without substance, isn’t that right?---Yes.
And you, I suggest to you, you were prepared to lie on behalf of your boyfriend before the stewards, weren’t you?---No.
The following day, the Crown objected to the admissibility of the italicised portions of the complainant’s evidence and sought that they be excluded from the recording of the complainant’s evidence which would be played to the jury. The bases of the objection were ss 91 and 135 of the ENULA. I ruled that only the underlined portions of the complainant’s evidence were inadmissible. My reasons for doing so follow.
Section 91
Section 91(1) provides that evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. Section 91(2) provides that evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Australian court
The term ‘Australian or overseas proceeding’ is defined to mean a proceeding (however described) in an Australian court or a foreign court (Dictionary). The term ‘Australian court’ is defined to mean (relevantly): a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence (Dictionary). ‘Australian law’ means a law of the Commonwealth, a State or Territory (Dictionary).
The Stewards inquiry on 14 July 2020 to which the complainant’s evidence referred was an inquiry by the Stewards of Thoroughbred Racing Northern Territory (‘TRNT’). On 14 July 2020, the Stewards delivered a report about their inquiry which noted that they had interviewed the accused, GC and the complainant and viewed CCTV footage of the incident, and that GC pleaded guilty to engaging in improper conduct by physically assaulting the accused by striking him in the head with his right hand in the car park of the Silk’s Club at the Darwin Turf Club on 11 July 2020. The report noted the penalty imposed of disqualification for 18 months.
On 16 December 2020, the Northern Territory Racing Appeals Tribunal (‘NTRAT’) dismissed an appeal by GC against the decision of the Stewards. In doing so, NTRAT reported as follows:
Mr Hensler asked [GC] ‘…do you want to tell us your version of what happened?’. What followed was a lengthy explanation of a previous relationship between [the accused] and [the complainant], she now being the partner of [GC]. The thrust of his evidence was to give a version supporting his claim to have acted in self-defence. [The complainant] was called to support his claim.
The assault was captured on two CCTV feeds. It is clear the stewards rejected the claim of self-defence and in doing so the evidence of [GC] and [the complainant]. The CCTV footage contradicts their testimony on every point of importance and supports [the accused’s] version entirely.
TRNT is an association appointed as a principal club under s 42(a) of the Racing and Betting Act 1983 (NT) (‘RBA’). The functions of a principal club are set out in s 43(1) of the RBA, including to control, supervise, regulate and promote horse racing in respect of which the principal club has jurisdiction for the purposes of the RBA and the Rules of Racing. The powers of a principal club include to make, amend or repeal the Rules of Racing that are the local rules of racing of that club (s 44(2)(a)), to register or licence (relevantly) trainers, jockeys and key employees or other persons associated with racing (s 44(2)(e)), and to supervise the activities of persons licensed by it and all other persons engaged in or associated with racing in its locality (s 44(2)(f)). The term ‘Rules of Racing’ is defined as the rules for the time being governing and relating to horse racing under the control of principal clubs, being in relation to each principal club an amalgamation of the Australian Rules of Racing as adopted by that club and the local rules of racing of that club (s 4(1)).

The Local Rules of Racing of TRNT (‘LR’) defines ‘the Rules’ to mean and include the Australian Rules of Racing and the Local Rules of Racing incorporated as one set of rules, read, construed and interpreted as one.
The Australian Rules of Racing (‘AR’) provide that any person who takes part in any matter or race meeting coming within the AR agrees with Racing Australia and each Principal Racing Authority (‘PRA’ – TRNT is defined as a PRA: AR 2) to be bound by and comply with the AR (AR 3). A PRA has the power to investigate, inquire into and deal with (relevantly) any matter relating to racing, and to refer and/or delegate any such matter to the Stewards for investigation, inquiry, report and/or for hearing and determination (AR 15(a)). Stewards have the powers to regulate and control, investigate, inquire into, hear and determine matters relating to the conduct of all officials, licensed persons or registered persons, persons connected with a horse, persons attending a racecourse, and any other person connected with racing (AR 20(a)), to hear and make a determination in relation to any matter in connection with racing (AR 22(1)(b)). A person to whom a decision of the Stewards relates may appeal to a PRA in respect of (relevantly) a penalty imposed by the Stewards (AR 280(1)(a)).
Neither the LR or the AR specifically refer to a power to hear, receive and examine evidence, but the references to ‘inquiry’ and ‘hearing and determination’ indicate a power to do so. This is confirmed by AR 232, which describes misconduct by failure to observe official processes and directions to include to refuse or fail to attend to give evidence at an interview, investigation, inquiry, hearing or appeal when directed or requested to do so by a PRA, the Stewards or a person authorised by them (AR 232(h)) and to give any evidence at them which is false or misleading (AR 232(i)).
It follows that the Stewards are a body authorised by the consent of the parties to hear, receive and examine evidence, and consequently are an ‘Australian court’ for the purposes of s 91 of the ENULA.
The NTRAT is a body established by s 145F of the RBA. The right of appeal from a decision of a Steward is contained in s 145D(1)(b). The appellant, Steward, club and others may be present at the hearing of an appeal and, where the NTRAT thinks fit, may be heard or call evidence (s 145Y). On the hearing of an appeal, the NTRAT must not consider any other evidence than that adduced at the hearing in respect of the decision appealed against, unless satisfied that the other evidence is relevant and there is good reason why it was not adduced at the hearing (s 145Z(1)), and evidence is to be given orally except with leave of the NTRAT (s 145Z(3)).
It follows that the NTRAT is a body authorised by an Australian law to hear, receive and examine evidence, and consequently is an ‘Australian court’ for the purposes of s 91 of the ENULA.
Existence of a fact that was in issue in the other proceeding
The Crown argued that the italicised portions of the complainant’s evidence were adverse findings of an Australian court directed to proving the complainant’s lack of credibility falling within s 91 of the ENULA.
The Defence argued that those portions of the complainant’s evidence were not within s 91 because: (a) s 91 is only directed to the decision or ultimate finding in an Australian or overseas proceeding and the portions related only to the complainant’s credibility, which was simply a ‘stepping stone’ to the ultimate finding that GC committed the conduct as charged; or (b) an adverse finding about the complainant’s credibility was not a finding of fact, let alone a finding that was in issue in that proceeding.
The parties referred to the decision of Simpson J in Attorney-General (NSW) v Martin.[28] The case concerned an application for the defendant to be declared a vexatious litigant, which turned on the court’s satisfaction that the defendant has frequently instituted or conducted vexatious proceedings in Australia. A ‘vexatious proceeding’ was defined by the statute to include proceedings that are an abuse of process, and proceedings instituted or pursued without reasonable ground. The Attorney-General relied on a number of prior decisions in which the defendant was involved in proof of the fact that the defendant had frequently instituted or conducted vexatious proceedings. Her Honour held (at [13]) as follows:
Whether s 91 operates to exclude the use of any of the decisions and judgments will depend upon an analysis of three things: (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the Attorney-General seeks to put those judgments – that is, what facts she seeks to prove by their use.
Her Honour held that a number of the decisions relied upon by the Attorney-General were ones in which the facts in issue were whether the proceedings were frivolous or vexatious, did not disclose any reasonable cause of action, or were an abuse of process, because the court had made findings to that effect and those findings were inadmissible to prove, before her Honour, that those earlier proceedings were vexatious. For example, (at [38]-[39]) her Honour held that the Attorney-General sought to rely upon the factual findings of the decision maker that the proceedings disclosed no reasonable cause of action, or were an abuse of process, which were the very facts the Attorney-General sought to prove to establish that the proceedings were vexatious within the meaning of the provision. Her Honour held that s 91 precluded reliance on those findings of fact for that purpose.[29] By contrast, her Honour admitted (at [45]) decisions in which the court dismissed the arguments on the merits because there was no finding of any fact in issue in that proceeding contained in the decision upon which the Attorney-General relied for the purposes of establishing that those proceedings were vexatious, so the decisions were admissible as evidence from which inferences could be drawn concerning the defendant’s institution or conduct of the litigation.[30]
This decision establishes that s 91 captures not only the ultimate fact in issue in the other proceeding, but ancillary facts in issue in the other proceeding. It is consistent with the language of s 91, which is not confined to the ultimate fact in issue, and refers to ‘a finding of fact’ and ‘a fact that was in issue in that proceeding’. It has been suggested that the better view is that s 91 applies broadly to encompass any ‘finding of fact’ made in another proceeding.[31]
The Defence placed much reliance on the decision of the New South Wales Court of Appeal in Ainsworth v Burden.[32] That was a defamation case. The defendant was a former police officer and expert with the Licensing Investigation Unit who had previously prepared objections to the grant of gaming licences to the plaintiff’s company. After the defendant retired, he wrote to the Minister repeating the allegations made in his objections, imputing that the plaintiff was not a fit and proper person to hold such licences. The plaintiff claimed the defendant’s letter was defamatory. At trial, the plaintiff sought to tender five judgments of the Licensing Court which had accepted that the plaintiff was a fit and proper person. The defendant raised the defence of qualified privilege. The plaintiff’s response to that defence was that the letter was published with malice, relying on the defendant’s persistent assertions about the plaintiff’s unfitness notwithstanding their constant rejection after investigation by the Licensing Court. The plaintiff needed to establish that the defendant was aware of the judgments and his persistence with his allegations notwithstanding the Licensing Court’s rejection of them, that is, the defendant’s state of mind and conduct. The Court (Hunt AJA with Handley and McColl JJA agreeing) held (at [49]) that the plaintiff was entitled to place the contents of the judgments from the Licensing Court before the jury to prove the relevant state of mind and conduct of the defendant. At trial, cognisant of s 91, counsel for the plaintiff had tendered only ‘coversheets’ of the judgments rather than the judgments themselves. Those coversheets set out that a company associated with the plaintiff had applied for a gaming licence, the police had objected, the grounds of objection, the rejection of the objection and the grant of the licence. The Court held (at [110]) that the trial judge’s decision not to admit the judgments was erroneous. The Court held (at [109]) as follows:
It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose – as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false [and thus evidenced malice] – they may not then be used to prove the existence of those facts… In any event, the facts which the coversheets would have established were [as set out above]. None of those facts was ‘a fact that was in issue’ in the Licensing Court proceedings, and s 91 did not exclude the coversheets stating those facts.
In the present case, the challenged evidence is not a copy of the decision or the reasons for decision. Section 91 is not limited to such evidence. In its terms it extends to evidence of the decision or of a finding of fact. That language is broad enough to capture oral evidence by a witness about a decision or a finding of fact.
The complainant’s evidence was that she gave evidence to the Stewards that she heard the accused say something about a knife, it was put to her that the Stewards found, based on the CCTV, that nothing occurred as she described it, GC’s case of self-defence was rejected by the Stewards, and on appeal to the NTRAT his case was found to be without substance. The complainant’s reliability as a witness to the assault of the accused was a fact in issue in the proceedings before the Stewards and the NTRAT. The rejection of the complainant’s evidence by the Stewards and the NTRAT was a finding of fact that she was an unreliable witness. I do not see any relevant distinction between that fact in issue and facts found by the Stewards and the NTRAT on the one hand, and the facts in issue and found as identified in Martin, namely that proceedings did not disclose a reasonable cause of action or comprised an abuse of process.
The purpose of eliciting the evidence from the complainant was to establish, in this case, that the complainant was an unreliable witness. The fact that the complainant is an unreliable witness (one who is prepared to lie in circumstances where she is obliged to tell the truth) was the finding made by the Stewards and the NTRAT and is the very fact the Defence sought to prove in the present case. Section 91 precluded reliance on that finding of fact for that purpose. The coincidence between the fact in issue and found in the Stewards and NTRAT proceedings and the fact sought to be established in the present proceeding distinguishes this case from the situation in Ainsworth.
I ruled that only the underlined portions of the italicised portions of the complainant’s evidence set out above fell within s 91 and were inadmissible because the portions not underlined were not elicited to prove, in these proceedings, the existence of facts in issue in those proceedings. For example, that GC was warned off course and could not work on a racecourse for 18 months was not a fact in issue before the Stewards or the NTRAT. That GC was found guilty, was angry about the outcome or appealed were similarly not facts in issue before the Stewards or the NTRAT.
The Crown submitted that, if not excluded by s 91, I should exercise my general discretion under s 135 to exclude the italicised portions on the grounds that the evidence is irrelevant, distracting and unfairly prejudicial; it is misleading to place those decisions before the jury as they may lead to speculation and confusion; and to be able to put matters fairly would result in an undue waste of time. Noting my decision to exclude the underlined portions, I considered that the remainder of the complainant’s evidence had high probative value which was not substantially outweighed by the dangers put by the Crown.
At that stage, I also gave a preliminary ruling that the CCTV footage of the incident in the Silks car park was inadmissible, essentially because I understood that the Defence intended to ask the jury to determine what actually happened on the night in question, in particular whether the complainant actually heard the accused say he had a knife. Because the CCTV did not have an audio feed, and would not establish what, if anything, had been said by the accused, I considered the probative value of the CCTV footage to be substantially outweighed by the danger that it might cause or result in undue waste of time, essentially because it would divert the jury from their task in this case.
After the Defence applied for the complainant to be recalled to be cross-examined further about what she told Police about the incident at Silks, what she told the Stewards about the incident at Silks, and I watched the CCTV footage, I allowed that application and revoked my preliminary ruling that the CCTV footage was inadmissible. I considered that the complainant’s evidence, with the CCTV footage, was highly probative of her credibility.
Disposition
For the above reasons, I made the following rulings:
1. GC’s statutory declaration dated 18 January 2021 is inadmissible.
2.The underlined italicised portions of the complainant’s evidence set out in paragraph [45] above are inadmissible and are to be removed from the pre-recording of the complainant’s evidence before it is played to the jury.

----------------------------

[1] The Queen v Hoffman [2021] NTSC 31 at [53] per Grant CJ, citing The Queen v Suteski (No 4) (2002) 128 A Crim R 275, Conway v The Queen (2000) 98 FCR 204 at [154] and The Queen v Mrish (unreported, NSWSC, 4 Oct 1996).

[2] The same point is made in S Odgers, Uniform Evidence Law (Lawbook Co, 16^th ed, 2021) [EA.65.120].

[3] Encyclopaedic Australian Legal Dictionary (LexisNexis Australia).

[4] Macquarie Dictionary (8^th ed, 2020).

[5] D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9^th ed, 2019) [4.6]-[4.10].

[6] In the Dictionary to the ENULA, the definition of ‘function’ includes ‘power, authority and duty’ and the definition of ‘exercise’ in relation to a function includes performance of a duty. The prohibition against leading questions in examination-in-chief and re-examination in s 37(1) does not apply (in civil proceedings) to a question relating to an investigation, inspection or report made in the course of carrying out public or official duties (s 37(2)). Section 41(7) refers to the power of the court in s 41(1) to disallow improper questions in cross-examination or tell the witness they need not answer as ‘the duty imposed by the court by this section’.

[7] See S Odgers, Uniform Evidence Law (Lawbook Co, 16^th ed, 2021) [EA.65.120], citing The Queen v O’Meally [1952] VLR 499.

[8] See Sio v The Queen (2016) 259 CLR 47 at [60] per the Court.

[9] While the Crown’s written submissions made reference to a statement from the officer in charge of the investigation that she was told that the witness was a ‘witness of first complaint’ and she took a statement from him, the officer in charge’s statement was not put in evidence and, in any event, what the Crown reports does not establish that the officer in charge approached the witness and asked him to make a statement.

[10] See s 119, Criminal Code.

[11] Adopted by Grant CJ in Hoffman at [56].

[12] Williams v The Queen (2000) 119 A Crim R 490 at [49] per Whitlam, Madgwick and Weinberg JJ.

[13] Citing Williams v The Queen (2000) 119 A Crim R 490 at [48] per Whitlam, Madgwick and Weinberg JJ.

[14] Conway v The Queen (2000) 98 FCR 204 at 244 per Miles, von Doussa and Weinberg JJ.

[15] Williams v The Queen (2000) 119 A Crim R 490 at [54] per Whitlam, Madgwick and Weinberg JJ; The Queen v Ambrosoli (2002) 55 NSWLR 603 at [28]-[29] per Mason P (Hulme and Simpson JJ agreeing), cited with approval in Sio v The Queen (2016) 259 CLR 47 at [69]-[70].

[16] Williams v The Queen (2000) 119 A Crim R 490 at [54] per Whitlam, Madgwick and Weinberg JJ.

[17] Sio v The Queen (2016) 259 CLR 47 at [71].

[18] Munro v The Queen [2014] ACTCA 11 at [5]-[7] per Burns J (Refshauge ACJ and Penfold J agreeing), followed in The Queen v Afu; The Queen v Caleo (No 15) [2018] NSWSC 245 at [28], [30] per RA Hulme J and The Queen v Parker (No 2) [2018] NSWSC 1122 at [13] per Adamson J.

[19] Munro v The Queen [2014] ACTCA 11 at [9]-[11].

[20]The Queen v Jennings [2020] NTSC 71 at [20] per Grant CJ, citing The Queen v Shamouil (2006) 66 NSWLR 228 at [72] per Spigelman CJ (Simpson and Adams JJ agreeing).

[21] (2001) 208 CLR 593.

[22] The Queen v AW [2018] NTSC 29 at [30].

[23]HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.

[24]The Queen v Grant (2016) 262 A Crim R 348 at [61] per Grant CJ.

[25]See CA v The Queen [2017] NSWCCA 324 at [89].

[26][2013] NTSC 54.

[27][2019] NTSC 53.

[28][2015] NSWSC 1372.

[29]See also at [65]-[66], [102], [106], [112].

[30]See also at [54], [61], [79], [95], [98].

[31]S Odgers, Uniform Evidence Law (Lawbook Co, 16^th ed, 2021) [EA.91.60].

[32][2005] NSWCA 174.