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…
Continue reading The King v Wasaga
Sign in free to access the full text
- AGLC
- The King v Wasaga [2024] NTSC 89
- Case
- [2024] NTSC 89
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
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.