The Queen v Aitken - [2021] NTSC 93

CITATION:The Queen v Aitken [2021] NTSC 93
PARTIES:THE QUEEN
v

AITKEN, Jack

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22030981
DELIVERED:  26 November 2021
HEARING DATE:  17 November 2021
JUDGMENT OF:  Brownhill J

CATCHWORDS:
Green (a Pseudonym) v The Queen [2015] VSCA 279; Lithgow City Council v Jackson (2011) 244 CLR 352, distinguished.
Britt v Britt (2017) 56 Fam LR 526; Director of Public Prosecutions v Paulino (2017) 54 VR 109; Director of Public Prosecutions v Wise [2016] VSCA 173; Evans v The Queen (2007) 235 CLR 521; Festa v The Queen (2001) 208 CLR 593; Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424; IMM v The Queen (2016) 257 CLR 300; R v Cakovski (2004) 149 A Crim R 21; R v Lockyer (1996) 89 A Crim R 457; R v White [2012] NSWSC 467; The Queen v Ali [2015] NSWCCA 72; The Queen v Bauer (2018) 92 ALJR 846; The Queen v Shamouil (2006) 66 NSWLR 228; Washer v Western Australia (2007) 234 CLR 492, referred to.

Criminal Code Act 1987 (NT) ss 192(1), 192(2), 192(3).
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 56(2), 135, 137.
Australian Law Reform Commission, Evidence (Interim) (Report, No 26, June 1984).
S Odgers, Uniform Evidence Law (Lawbook, 15^th ed, 2019).
REPRESENTATION:
Counsel:
Crown:V Engel
Accused:M Chalmers SC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Darwin Family Law
Judgment category classification:    C
Judgment ID Number:  Bro2118
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Aitken [2021] NTSC 93

No. 22030981

BETWEEN:

THE QUEEN

AND:

JACK AITKEN

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 26 November 2021)

The issue raised in this matter is whether text messages originating from the complainant’s phone on the night the Crown says she could not have consented to sexual intercourse with the accused due to her intoxication are irrelevant and inadmissible, or should be excluded in the exercise of the Court’s discretion, because, in the absence of the complainant’s recollection of the night and the Texts, they require the jury to speculate about who sent them, what they mean, and why and when they were sent.
The accused is charged with having sexual intercourse with the complainant without her consent and knowing about or being reckless as to her lack of consent, contrary to s 192(3) of the Criminal Code Act 1987 (NT) (‘Criminal Code’).
The Crown’s case is that the accused and the complainant both lived and worked at the Royal Australian Air Force (‘RAAF’) base in Katherine. They were known to each other through their mutual employment within the RAAF. On 14 June 2020, the complainant went to a party at a house on the base. She drank alcohol to the point of severe intoxication. After around 11.00pm, she became ‘black out drunk’ and does not recall any part of the night or morning thereafter until she woke at around 7.00am the next morning. At around 2.00am, the complainant left the party with three other people and the accused to walk to their respective residences. After a short time, the other people left the complainant and the accused to continue walking together. Starting at 2.30am and ending at 2.28am, the complainant sent the following text messages to one of her friends (‘Texts’):
Dude come to come
ADAP
YELP
JACK IS BEING CREEPY AT LWA
PLS BEEFVOY
agelpopooo
Gelpppo
Needs you at mine pis
HELPM
PLEASSAASSEEEEE
HELP
The complainant does not recall sending the Texts. She does not know what some of the Texts mean (such as ‘ADAP’, ‘BEEFVOY’). She cannot remember why she sent the Text about the accused being ‘creepy’ or anything about it.
The Crown’s case is that the accused and the complainant went inside the complainant’s residence in the Live In Accommodation (known as ‘LIA’), became naked and had penile/vaginal intercourse and engaged in fellatio. Around 7.00am that morning, the complainant awoke in her bed, naked and with the accused naked and asleep beside her. The complainant has no recollection of sexual activity with the accused, but found what she believed to be semen in her vagina when she went to the bathroom. After showering, the complainant complained about the incident to various people including a neighbour, her friends and her parents. She also reported that she had been sexually assaulted at the Katherine Hospital and participated in a Sexual Assault Investigation Kit examination. That examination revealed redness to her labia minora, labia majora and perineum, an abrasion to her posterior fourchette, bruises to her upper inner elbows on both sides and bruises to her lower back. Two days later, she provided an audio-visual statement to Police about the matter. The following day, the accused (apparently unaware of the complainant’s complaint) told a friend that he had had sexual intercourse with the complainant.
The defence accepts that sexual intercourse took place. The defence position must be that the complainant consented to the sexual intercourse within s 192(1) of the Criminal Code and was not so affected by alcohol as to be incapable of consenting within s 192(2)(c).
The Crown intends to adduce into evidence the Texts in documentary form. The Crown argued that the Texts confirm the complainant’s evidence that she was ‘black out drunk’ during the period in which sexual intercourse occurred, and would be received in the context of evidence from other witnesses who observed the complainant’s level of intoxication whilst at the party and during the walk home.
Relevance
The defence objected to the admissibility of the Texts on the ground of relevance and argued that the Crown had not established their relevance. The Crown argued that the Texts are relevant to: (a) the complainant’s level of intoxication contemporaneous to the sexual intercourse and her capacity to consent to it; (b) the accused’s knowledge or recklessness as to the complainant’s lack of consent given the complainant’s level of intoxication; and (c) the complainant’s state of mind regarding the accused contemporaneous to the sexual intercourse, which goes to whether she did consent to the sexual intercourse, as must be argued by the defence.
Section 56(2) of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’) provides that evidence that is not relevant in a proceeding is not admissible. Evidence is ‘relevant’ where, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55).
The words ‘if it were accepted’ require that relevance is to be assessed on the assumption that the jury will accept the evidence, which necessarily denies to the trial judge any consideration as to whether the evidence is credible or reliable, except where the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury.[1]
The word ‘could’ refers to the capability of the evidence to affect the assessment of the probability of a fact in issue.[2] Circumstantial evidence (ie evidence tending to prove the existence of a fact that is not in issue (a ‘circumstance’), but from which an inference regarding the existence of a fact in issue is sought to be drawn) can comprise relevant evidence where the inference to be drawn to a fact in issue from the circumstance is rationally open, and the mere existence of other possible inferences will not mean that the evidence ceases to be relevant, since a rational jury ‘could’ find that the evidence affects the probability of the existence of that fact in issue.[3]
The words ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ require an exercise in logic, that is, for evidence to be relevant, it must render a fact in issue more probable (or less probable) than it would be without the evidence.[4] What is required is an analysis of the facts in issue and the circumstances which bear upon the question of probability, as well as a process of reasoning by which the evidence in question could affect the jury’s assessment of the probability of the existence of a fact in issue.[5] Whether such a rational or logical connection exists is an objective test grounded in human experience, on the application of which minds may differ.[6]
The relevance of the evidence does not depend on its capacity by itself to prove anything. Rather, the assessment of the probabilities must be made in the context of other evidence either admitted at the time or subsequently to be admitted.[7]
The Australian Law Reform Commission explained[8] the provision as requiring ‘a minimal logical connection between the evidence and the fact in issue’.
The defence argued that, in the absence of the complainant’s recollection about sending the Texts, why she sent them and what she meant by them, and no evidence about their proximity to the time of sexual intercourse, the Texts call for speculation on the part of the jury to such a degree that there is no available rational basis on which to conclude that they affect the assessment of the probabilities of the existence of facts of the level of the complainant’s intoxication and her state of mind about the sexual intercourse with the accused.
Reliance was placed on the decision of the High Court in Lithgow City Council v Jackson[9] (‘Lithgow City Council’). In that case, the fact in issue was whether a person had fallen over a vertical wall rather than adjoining side walls. Ambulance officers’ records relating to the injured person contained the words: ‘Fall from 1.5 metres onto concrete’. The High Court observed (at [25]-[26]) that, because a fall from one of the non-vertical sides meant a vertical fall of the same distance as a fall from the vertical face, the evidence ‘was so ambiguous that it could not rationally affect the assessment of the probability of a fall from the vertical head wall’.
Reliance was also placed on the decision of the Victorian Court of Appeal in Green (a Pseudonym) v The Queen[10] (‘Green’). In that case, there was evidence that the 16 year old complainant in a child sexual abuse case had written a letter in what was said to be a ‘tone’ inconsistent with her allegations. The accused wished to tender the letter, meaning the threshold for relevance was ‘quite low’ because the evidence need only be capable of rationally affecting the probability of the existence of a fact in issue by raising a doubt in respect of it.[11] The Court observed (at [38]) that the accused sought to invite the jury to draw a conclusion, not from the contents of the letter, but from its tone, as to the state of mind of the complainant when she wrote it, and to invite the jury to consider that that tone was in some way inconsistent with the tone which might be adopted by a 16 year old who had been subjected to the sexual abuse alleged by the complainant. The Court held (at [39]) that, expressed in that way, the argument was based on ‘a considerable degree of conjecture’, inviting the jury to speculate from the tone of the letter both as to the frame of mind of the complainant when she wrote the letter and as to how a 16 year old might be expected to have expressed herself in writing such a letter, if she had been subjected to the sexual abuse of the type alleged by the complainant. The Court held (at [40]) that the degree of speculation involved is such that it could not be said that the ‘tone’ or ‘lightness’ of the letter could rationally affect (whether directly or indirectly) the assessment by the jury of the probability of the allegations by the complainant as to the offending.
The defence argued that the Texts similarly call for ‘an impermissible level of speculation’ as to the surrounding facts about them, namely whether the complainant or someone else sent them; whether they were inadvertently sent, eg by ‘pocket texting’ or a voice controlled application on the phone; whether they were serious or a joke; what they meant; where the complainant was when they were sent; whether they were written that way because the complainant was drunk or because she was in a dark or confined place or was walking or running at the time; when, in relation to the sexual intercourse, they were sent; and what, if anything, occurred during the period between the Texts being sent and the sexual intercourse (such as the complainant changing her mind about the accused). It was said that, given the complainant’s lack of memory, there is no evidence to explain these matters, with the consequence that there is no available rational basis upon which the Texts could affect the assessment of the probability of the facts in issue.
I do not accept that argument. The Texts themselves provide evidence, and there is also other evidence and ordinary human experience within which to consider their contents, enabling the jury to logically reason to findings that the complainant was significantly intoxicated at the time of sexual intercourse and/or that she did not consent to the sexual intercourse.
It is a matter of ordinary human experience that people who are very intoxicated may have difficulty with tasks involving fine motor skills such as writing and sending text messages on a mobile phone.
The phone from which the texts were sent was the complainant’s phone. The jury could rationally infer from that fact that the texts were sent by the complainant. The texts, all sent within the space of eight minutes, include Texts which are comprehensible, including two relatively clear sentences, one of which names the accused and contains what is an accepted reference to the complainant’s residence location (the LIA). The jury could rationally infer from this that the Texts were not inadvertently sent by a means such as ‘pocket texting’ or a voice controlled application. The Texts have an increasing level of urgency or desperation. The jury could rationally infer from this that the Texts were not sent for a joke, but in seriousness.
Some of the Texts comprise or include nonsensical words (‘ADAP’, ‘YELP’, ‘BEEFVOY’, ‘agelpopooo’, ‘Gelpppo’). However, letters in at least some of those words are, on a phone’s keypad, next to other letters which, if substituted, render those words comprehensible and consistent with other words in the Texts. For example, ‘ADAP’ can be substituted for ‘ASAP’ and ‘YELP’ can be substituted for ‘HELP’. Even ‘agelpopooo’ and ‘Gelpppo’ could be read as attempts to write ‘Helpppppp’ (the ‘a’ key being next to the ‘Shift key’) and ‘Helpppp’. The jury could rationally infer from the location of the keys on the keypad of the phone what those nonsensical words were intended to mean. As to the word ‘creepy’, the jury can draw on its human experience as to the intended meaning of the word.
The fourth Text sent states that something was happening ‘AT [LIA]’ and the eighth Text sent states that the complainant needed the recipient ‘at mine’. There is evidence that the others who left the party with the complainant and the accused left the complainant and the accused walking to their respective accommodation at the LIA. The Texts were all sent within a period of eight minutes. The jury could rationally infer from these facts that the complainant was at her residence in the LIA when she sent the Texts.
It is a matter of ordinary human experience that mobile phones capable of sending text messages can be operated in the dark and texts can be sent in the dark because the phone screen illuminates allowing both the keypad and the screen to be seen. The jury could rationally infer from this that the content of the Texts are not a consequence of the complainant texting in the dark. On the basis of the inference that the complainant was at her residence when the Texts were sent, the jury could rationally infer that the content of the Texts are not a consequence of the complainant walking or running while she sent them. Having done so, the jury could rationally infer that the content of the Texts is a consequence of the complainant’s level of intoxication.
There was a relatively short space of time between the separation from the recipient of the Texts on the walk home (which separation occurred during a phone call made by two others between 2.11am and 2.30am) and the Texts (the first of which was sent at 2.30am). The jury could rationally infer from this that the Texts were sent before the sexual intercourse at the complainant’s residence took place. The defence appeared to accept that in argument.
On the evidence, the sexual intercourse occurred between the time when the complainant and the accused could have arrived at the complainant’s residence after separating from the others and walking home (they separated sometime between 2.11am and 2.30am) and around 6.30am or 7.00am that morning when the complainant woke up. That is a period of around four and a half hours. This period of four and a half hours falls within the period of the complainant’s ‘black out drunk’ state, which she said began before she left the party. Consequently, the Texts are sufficiently proximate in time to the sexual intercourse to permit, as a matter of logic, the Texts to affect the probability of the facts of the complainant’s level of intoxication at the time of sexual intercourse and her state of mind about the sexual intercourse.
To my mind, the inferences referred to above are more likely than other inferences which may be available and which are consistent with the accused’s innocence (such as the Texts were not sent by the complainant, or were sent as a joke, or were the result of ‘pocket texting’, or the complainant being in the dark or walking or running while texting). Thus, the question as to whether circumstantial evidence will be relevant if a jury could not rationally regard the inference sought to be drawn to a fact in issue as more probable than other available inferences consistent with innocence[12] does not arise.
Consequently, the inferences referred to above about the Texts are not ‘impermissibly speculative’. They are rational and reasonable on the basis of both the content and timing of the Texts, other evidence and ordinary human experience.
Having drawn those inferences, there is a logical connection between the content of the Texts, particularly the misspelt or nonsensical words, which were sent within the same four and a half hour period as the complainant’s ‘black out drunk’ state and the sexual intercourse, and the probability that the complainant was significantly intoxicated at the time of sexual intercourse.
Similarly, having drawn those inferences, there is a logical connection between the content of the Texts, particularly the requests for the recipient to come and help her and the reference to the accused ‘being creepy’, and the probability that the complainant did not consent to the sexual intercourse.
The present situation is not like the situation in Lithgow City Council where the evidence was ‘ambiguous’ because it logically could not have resolved the fact in issue one way or the other. Nor is it like the situation in Green where the jury was asked to speculate about the fact of the complainant’s state of mind, not from the content of the letter but from its ‘tone’, and also to speculate, not from evidence in the case or ordinary human experience, but from their imagination, as to how a 16 year old who had been sexually abused might write a letter, in order to compare that to the complainant’s state of mind as inferred from the tone of the letter.
Even if the jury were not to draw all of the inferences referred to above about the Texts, the fact that there are other possibilities which might affect the assessment of the probability of the existence of the facts in issue does not, of itself, deny the capacity of the Texts to rationally, or logically, affect the assessment of that probability. The same point may be made about unanswered questions (such as whether the complainant changed her mind about the accused between sending the Texts and the sexual intercourse). Here, those other possibilities and unanswered questions are simply matters that the jury, as the tribunal of fact, will weigh in making their assessment of the evidence.

For the above reasons, the Texts are relevant and, subject to the matters considered below, admissible.
Exclusion under ss 135 and 137
The defence also submitted that the evidence should be excluded pursuant to ss 135 and/or 137 of the ENULA.
Section 135 of the ENULA confers a general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; (b) be misleading or confusing; or (c) cause or result in undue waste of time. The term ‘probative value’ is defined to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’ (s 3, Dictionary, Part 1).
Evidence is only unfairly prejudicial if it would deprive an accused of a fair trial. An accused will be deprived of a fair trial if there is a real risk that the evidence will be misused by the jury in some unfair way.[13]
Section 137 of the UEA 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’. Again, 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’.[14] In Festa v The Queen,[15] 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.
The defence argued that the Texts might be unfairly prejudicial to the accused or, alternatively, might be misleading or confusing.
Misleading or confusing
The defence argued that the misspelt words and ‘gibberish’ in the Texts might be misleading or confusing. The term ‘misleading’ connotes that the evidence might cause the jury to have the wrong idea or the wrong impression about what the evidence conveys. The term ‘confusing’ connotes that the evidence might be difficult for the jury to understand.
I do not accept this submission, essentially for the reasons in paragraphs [21] to [23] and [27] above regarding the inferences that may be drawn in relation to the content of the Texts.
Unfairly prejudicial
The defence argued that there is a real risk that the jury may use the Texts to impermissibly reason as to the complainant’s level of intoxication at the time of sexual intercourse and/or as to the complainant’s lack of consent to the sexual intercourse. This submission was based on a lack of probative value said to flow from the speculation called for by the lack of evidence regarding the Texts and the possibility that the jury would impermissibly reason to the accused’s guilt by using them to infer that the complainant was so intoxicated as to be incapable of consenting to the sexual intercourse. I have rejected the argument that the Texts call for speculation on the part of the jury and ruled that there is a rational link between them and the two facts in issue. In my view, the Texts have significant probative value. They comprise an objective indicator of the complainant’s level of intoxication at a time reasonably proximate to the sexual intercourse in a case where the complainant has no recollection of the sexual intercourse and there is no other direct evidence of her level of intoxication at that time. There would be nothing improper or unfair to the accused in the jury using the Texts to reason to the complainant’s level of intoxication at the time of sexual intercourse.
It was also argued that there was the possibility that the jury would impermissibly reason to the accused’s guilt, by using the Text referring to the accused ‘being creepy’ (which could connote his forcing the complainant to have sexual intercourse), to conclude that the complainant did not consent to the sexual intercourse when the Crown’s case was not founded on lack of consent ‘in the traditional sense’ but on her incapacity to consent due to intoxication. Given that the complainant’s consent ‘in the traditional sense’ must be in issue as part of the defence case, this appears to be a submission that the Texts give rise to prejudice because they strengthen the prosecution case. That is not ‘unfair prejudice’ within the meaning of ss 135 and 137.
Disposition
The evidence of the Texts is relevant within s 55 of the ENULA. Its probative value is not outweighed or substantially outweighed by the danger of unfair prejudice to the accused, or because they it might be misleading or confusing, within ss 135 and 137 of the ENULA.
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[1] IMM v The Queen (2016) 257 CLR 300 at [39] per French CJ, Kiefel, Bell and Keane JJ.

[2] Ibid at [38].

[3] S Odgers, Uniform Evidence Law (Lawbook, 15^th ed, 2019) 55.330. See also The Queen v Ali [2015] NSWCCA 72 at [43]-[44], [48]-[53] per Hoeben CJ at CL (Adams and R A Hulme JJ agreeing). This case was concerned with exclusion of evidence of DNA certificates under the equivalents of ss 135 and 137 of the ENULA, but in overruling the trial judge’s exclusion of the evidence, the Court clearly accepted its relevance.

[4] Director of Public Prosecutions v Paulino (2017) 54 VR 109 at [66] per Priest JA (Weinberg JA agreeing), citing Director of Public Prosecutions v Wise [2016] VSCA 173 at [68] per Warren CJ, Weinberg and Priest JJA.

[5] Washer v Western Australia (2007) 234 CLR 492 at [5] per Gleeson CJ, Heydon and Crennan JJ.

[6] Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424 at [11] per Lindgren J.

[7] Evans v The Queen (2007) 235 CLR 521 at [177] per Heydon J (Crennan J agreeing); Britt v Britt (2017) 56 Fam LR 526 at [34], [62].

[8] Australian Law Reform Commission, Evidence (Interim) (Report, No 26, June 1984) [641].

[9] (2011) 244 CLR 352.

[10] [2015] VSCA 279.

[11] Green at [34] per Redlich and Kaye JJA and Beale AJA, citing R v Lockyer (1996) 89 A Crim R 457 at 459-460; R v Cakovski (2004) 149 A Crim R 21 at [36]-[37]; R v White [2012] NSWSC 467 at [58].

[12] S Odgers, Uniform Evidence Law (Lawbook, 15^th ed, 2019) 55.330.

[13]See The Queen v Bauer (2018) 92 ALJR 846 at [73] per Edelman J.

[14]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).

[15] (2001) 208 CLR 593.