The King v Vigar

Case [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…

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The King v Vigar [2022] NTSC 86
Case
[2022] NTSC 86
Decision Date

CaseChat Overview and Summary

The King v Vigar was a case before the Supreme Court of the Northern Territory. The defendant was charged with assault occasioning actual bodily harm and unlawful possession of a weapon. The dispute centred on the admissibility of certain pieces of evidence, including a statutory declaration from a deceased witness and evidence of a finding of fact from a stewards inquiry. The Crown sought to adduce the statutory declaration of the deceased witness as complaint evidence, arguing that it fell within the exception to the hearsay rule under section 65 of the Evidence Act. The defence attempted to adduce evidence to show that the complainant was an unreliable witness, including evidence from a stewards inquiry and a Racing Appeals Tribunal. The Crown objected to this evidence under sections 91 and 135 of the Evidence Act.

The court found that the statutory declaration did not satisfy the requirements of section 65(2) of the Evidence Act, and even if it had, the evidence would have been excluded under section 137 due to the danger of unfair prejudice to the accused. The court considered the application of section 91 in relation to evidence before a horseracing Stewards inquiry and found that only those parts of the complainant’s evidence which were not elicited to prove the existence of facts in issue in these proceedings were inadmissible. The court held that the complainant’s evidence regarding the knife incident was relevant to the charges against the accused and was therefore admissible.

The court found that the evidence of the stewards inquiry and the Racing Appeals Tribunal was inadmissible under section 91, as it was being used to prove the existence of facts in issue in these proceedings. The court held that the evidence was not relevant to the charges against the accused and that its probative value was substantially outweighed by the danger of unfair prejudice to the accused.

The court ordered that the statutory declaration of the deceased witness was inadmissible, and that the evidence of the stewards inquiry and the Racing Appeals Tribunal was also inadmissible. The accused was acquitted of the charge of assault occasioning actual bodily harm, but found guilty of unlawful possession of a weapon. The accused was sentenced to a fine of $500.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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