The King v Wasaga

Case [2024] NTSC 89

CITATION:The King v Wasaga [2024] NTSC 89

PARTIES:THE KING

v

WASAGA, Eliasoa Thomas

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:22211644

DELIVERED:  25 October 2024

HEARING DATE:  21 October 2024

JUDGMENT OF:  Brownhill J

CATCHWORDS:

EVIDENCE – Criminal law – Murder trial – Hearsay – Exceptions to the hearsay rule – Crown application to adduce evidence of representations made by the deceased as context/relationship evidence – Representations by the deceased (an unavailable witness) to family and friends about conduct of the accused – Application of exceptions contained within ss 65(2)(b) and 65(2)(c) – Whether representations were made when or shortly after the asserted facts occurred and in circumstances making fabrication unlikely – Whether representations were made in circumstances making reliability highly probable – Meaning of ‘circumstances’ within the application of s 65(2) – ‘Broad view’ of ‘circumstances’ must be applied.

EVIDENCE – Criminal law – Exceptions to the hearsay rule – Application of exception contained within s 66A – Whether contemporaneous representations are about the feelings and state of mind of deceased – Broad interpretation of s 66A should not be applied – Such a representation must contain more than a narrative about the occurrence of an event.

EVIDENCE – Criminal law – Danger of unfair prejudice – Balancing exercise as to whether the probative value of the evidence is outweighed by any prejudicial effect it may have – Dominant consideration is whether the accused is deprived, by prejudice, of a fair trial – Some risks of unfair prejudice can be remedied by directions in the circumstances of this case – Evidence that tends to invite the jury to engage in tendency or rank propensity reasoning cannot be remedied by directions in this case and is not admissible. 

EVIDENCE – Criminal law – Crown application to adduce evidence of lie made by the accused as consciousness of guilt evidence – Evidence sought to be admitted in accordance with the principles in Edwards v The Queen (1993) 178 CLR 193 – Lie contained within a statutory declaration attested to by the accused – Lie also contained in body worn footage of the statement being taken – Whether the statutory declaration was obtained improperly or in consequence of an impropriety within the meaning of s 138 – Police officer treating a suspect as a witness when taking a statement – Accused was not provided the opportunity to obtain legal advice or engage in a formal record of interview – Statutory declaration was obtained in consequence of an impropriety – Desirability of admitting the statutory declaration does not outweigh the undesirability of admitting it – Statutory declaration to be excluded – Body worn footage is admissible up to the point where the accused informed the police officer that he had been cautioned.

EVIDENCE – Criminal law – Crown application to adduce evidence of the accused’s state of mind at a period of hours after the alleged offence – Whether evidence should be excluded…

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The King v Wasaga [2024] NTSC 89
Case
[2024] NTSC 89
Decision Date

CaseChat Overview and Summary

The case of The King v Wasaga was heard in the Supreme Court of Queensland. The dispute involved the admissibility of a statutory declaration made by the accused, Wasaga, in which he provided his version of events regarding the death of a deceased person. The court was tasked with determining whether the statutory declaration was obtained in consequence of an impropriety and whether its admission would be desirable despite such impropriety.

The legal issues before the court were whether the statutory declaration was obtained in consequence of an impropriety under s 138(1) of the Evidence (National Uniform Legislation) Act 2008 (ENULA) and whether the desirability of admitting the statutory declaration outweighed the undesirability of admitting it under s 138(3) of the ENULA. The court had to consider whether the accused's right to silence and legal advice was properly upheld during the process of obtaining the statutory declaration.

The court found that the statutory declaration was indeed obtained in consequence of an impropriety. The accused had been cautioned, indicating he was a suspect, but the statutory declaration process continued without informing him of his right to legal advice. This was inconsistent with the minimum standards expected of law enforcement. The court held that the probative value of the statutory declaration was reasonably high, particularly as it contained a lie that could be evidence of consciousness of guilt. However, the importance of the statutory declaration was deemed low because the court could consider the body-worn footage of the statutory declaration process, which captured the accused's statements. Weighing these factors, the court concluded that the desirability of admitting the statutory declaration did not outweigh the undesirability of admitting it in light of the impropriety.

The final order of the court was that the statutory declaration would not be admitted as evidence in the trial. This decision underscored the importance of adhering to legal standards and procedures in the questioning of suspects to ensure the integrity of the justice system.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence referred to in the hearsay notice is as follows (‘the representations’):(a)Statement of James Montgomery dated 22 April 2022:[13] [The deceased] told me he wanted them out of there, so he could go back to Queensland and go back home, he told me they wouldn’t go.[14] [The deceased] told me he told family to ask [the accused] to leave, but [the deceased] would always stop family from telling them because I think he was frightened of repercussions.(together, item 1, Table A, Crown’s hearsay notice)(b)Statement of Ngrupai Jimmy Luta dated 13 April 2022:[4] [The deceased] use to complain to me and tell me that he wanted [the accused] and [AL] to leave his unit. [The deceased] liked his own company and all of a sudden [the accused] and [AL] were camping for a bit and then they had all their clothes in the unit. I use to tell [the deceased] to call the Police and get them two removed, but he never did. He sounded upset about those two staying in his unit, but he never did anything about it.(item 2, Table A, Crown’s hearsay notice)(c)Statement of Joseph Wasaga Jnr dated 11 April 2022:[8]* [The deceased] told me, every day I saw him, ‘I gotta kick them out’, he was talking about [AL] and [the accused]. I don’t know why they stay there, but [the deceased] told me they didn’t pay rent & [the deceased] always did the shop for food. [The deceased] told me that he don’t like them. Sometimes they would do a shop but they would only cook for themselves, not everybody.[*second occurring][10] [The deceased] didn’t tell me anything else about [the accused] and [AL] except that they didn’t pay rent & he didn’t want them staying there.(together, item 3, Table A, Crown’s hearsay notice)(d)Statement of Kara Eileen Asera dated 21 April 2022:[18] [The deceased] told me about two people who had moved into his house, he called their names, [the accused], I know [the accused] is our cousin, our mums are sisters, we grew up together.[19] [The deceased] said [the accused’s] wife was there as well [AL] I think her name was.[20] [The deceased] always told them to leave, he couldn’t make them move, he said they always drink and ask for shouting, he didn’t talk about fighting. [The deceased] told me they kicked him out of his bed and he slept in the lounge, other people would come and drink and stay too.(together, item 4, Table A, Crown’s hearsay notice)(e)Statement of Karni Wigness dated 11 April 2022:[7] ...[A]bout three to four years ago [the deceased] told me that [the accused] had hit him. He told me at John Stokes Square where he use to have a unit, I can’t remember the number. I saw [the deceased] had a split upper lip and this made me feel really angry and upset. [The deceased] didn’t really say how [the accused] had hit him and didn’t really show any emotion because he always had a poker face on.(item 5, Table A, Crown’s hearsay notice)(f)Statement of McFarlane Stephen Paul Wasiu dated 9 April 2022:[4] About a month ago, [the deceased] told me that he was having problems with [the accused]. He told me on about three or four occasions that [the accused] was bashing him up, getting jealous and accusing him of being with his wife [AL]. He told me on one occasion that [the accused] used his fists on him, [the deceased] didn’t provide any further description of where he was hit or how many times. (item 6, Table A, Crown’s hearsay notice, together with italicised passage from [5] below)[4] [The deceased] explained to me that [the accused] and [AL] had taken over the unit and that he wanted them out. I told [the deceased] that he should speak to the Housing Security Officers and ask for their help to have them removed. I don’t think he ever spoke to the Housing Officers.[5] I think [the deceased] was scared of [the accused], on those few occasions that [the deceased] told me that he was getting ‘beltings’ from [the accused], he would just say he wanted them out of his unit. I had never seen any injuries on him when he told me about his problems with [the accused]. ...[6] I would often see [the deceased] walking around in the Smith Street Mall at 2 or 3am in the morning looking for bumpers. I often sleep in the mall. I come across him and asked him why he was out walking around. [The deceased] told me that he was stressing out about [the accused] and [AL], again because they were taking over his unit and he was scared of [the accused], he is too bossy. [The deceased] was always really stressed out about [the accused].(together but excluding italicised passage from [5], item 7, Table A, Crown’s hearsay notice)(g)Statement of Sem Tom dated 1 June 2022:[9] [The deceased] told me he was going to Cairns, talking about it all the time, he said he couldn’t go because [the accused] and [AL] were staying there.(item 8, Table A, Crown’s hearsay notice)[10] When [the accused] moved in, he kicked [the deceased] out of his room and slept in it. [The deceased] was in the lounge sleeping.(item 9, Table A, Crown’s hearsay notice)[12] [The deceased] told me he wanted [the accused] out. I gave him advice to go to Housing & Police to get them out.(item 10, Table A, Crown’s hearsay notice)(h)Statement of Stella Paul dated 14 April 2022:[18] [The deceased] has told me that [the accused] has hurt him more than one time, I don’t know how many times, a couple of times. [The deceased], he won’t say much, he was scared.(item 11, Table A, Crown’s hearsay notice)[19] One time [the deceased] came to me, he had a black eye and a cut on his forehead near his eye. I asked him what happened and he told me he walked into the door. I told [him] he wasn’t fooling me, and asked him what really happened. He turned around and said ‘[the accused] whacked me’. I told him [the accused] was gonna get a hiding when his sons heard about this. He didn’t say anything else about it. He was scared, he didn’t want to tell me all the truth. He would let it out when he was drinking. I was his pillow to lean on when he needed it. [The deceased] never told me why [the accused] whacked him, but I think most of the trouble was from jealousing. This time that I saw his black eye and the cut was sometime last year, before Christmas.(item 12, Table A, Crown’s hearsay notice)[22] One time, in his own flat, I saw [the accused] give [the deceased] a hot slap. This time was before Poppa Jimmy, Jimmy Sherbert, moved out from next door to [the deceased] at [the unit complex].[23] A ‘hot slap’ is when someone really big hits someone really small, like a knock out. [The deceased] was small like me and [the accused] is really massive.(together, item 13, Table A, Crown’s hearsay notice)[26] [The deceased] used to tell me ‘I hate these two’, talking about [the accused] and [AL]. He used to ask me where I could. [The deceased] has been saying things like this or that he wanted them two to leave for the last year, but the trouble there started when [the accused] and [AL] moved in. [The deceased] would complain to me every time I bumped into him.(item 14, Table A, Crown’s hearsay notice)[38] The only thing [the deceased] told me about anyone was that he wanted them two, [the accused] and [AL] to fuck off out of his unit.(item 15, Table A, Crown’s hearsay notice)(i)Statement of Tammy Wasaga dated 27 July 2022:[5] I used to speak to [the deceased] all the time, he used to tell me he was sick of [the accused] and [AL], [the accused] was jealous him for his wife, and was violent to [the deceased] ... [The deceased] said [the accused] took over the flat and the main bedroom, [the accused] would invite people to the unit to drink.[7] [The deceased] always wanted [the accused] to leave and had a plan to go back to Cairns and leave the unit, he didn’t like [the accused] and [AL] living there.(item 16, Table A, Crown’s hearsay notice)Context/relationship evidence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Crown argued that the statutory declaration was not obtained in consequence of an impropriety when the accused had made clear to Detective Russell that he was aware of his right to silence, understood it, and waived it and wished to provide the statutory declaration because he had done nothing wrong.Was the statutory declaration obtained in consequence of an impropriety? The Defence argued that the proper course was that once Detective Russell was told by the accused he had been cautioned, he should have ceased the statutory declaration process, spoken to Sergeant Dunne about the reason for the caution, whereupon he would have been told the accused had been cautioned because he was a suspect, and the accused should then have been asked if he wished to participate in a formal electronic record of interview, which would have involved him being told that, in addition to his right to silence, he also had the right to speak to a lawyer and to have a support person present. I accept that proceeding with the statutory declaration process and having the accused sign the statutory declaration after Detective Russell was aware that the accused had been cautioned and was, therefore, a suspect or at least a person of interest in relation to the incident, and not a witness, was clearly and significantly inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. The rights of people suspected of criminal activity and the procedures for questioning them are well-established, legislatively entrenched,[53] and strenuously guarded by the law. While the accused was aware of and understood his right to silence and nevertheless wished to provide his version of events to Police, he had not been told of his right to receive legal advice, which he would have been if he had engaged in a formal electronically recorded interview. The receipt of legal advice may have caused the accused to decide not to provide his version of events to Police. Consequently, I am satisfied that the statutory declaration was obtained in consequence of an impropriety within s 138(1) of the ENULA.The balancing exercise: s 138(3) I turn now to whether the desirability of admitting the statutory declaration outweighs the undesirability of admitting it, taking into account the relevant matters in s 138(3) of the ENULA. The probative value of the statutory declaration is reasonably high. In addition to other lies relied upon by the Crown as credibility evidence, it contains the Edwards lie relied on as evidence of consciousness of guilt. To have lied to Police about when the deceased arrived home, telling them that the deceased was out of unit 10 at the time when the assault upon him is alleged to have occurred, is quite strong consciousness of guilt evidence. This factor points in favour of the desirability of admitting the statutory declaration. The importance of the statutory declaration is low, because the Crown intends to play Detective Russell’s body worn footage of the process of taking the statutory declaration. That footage clearly depicts (with both vision and audio) the accused telling Detective Russell that the deceased came home at 4am and the other things written by Detective Russell in the statutory declaration. This factor points strongly against the desirability of admitting the statutory declaration.