The Queen v AW - [2017] NTSC 3

The Queen v AW [2017] NTSC 3
PARTIES:THE QUEEN

v
AW

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21554748
DELIVERED:  13 January 2017
PUBLISHED:  18 January 2017
HEARING DATES:  24 & 25 October 2016 and 9 January 2017
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

EVIDENCE – Sexual intercourse without consent – admissibility of photo board identification evidence – whether the evidence of the complainant’s photo board identification evidence is admissible under s 137 of the Evidence (National Uniform Legislation) Act 2013 – where the photograph of the accused is the only image on the photo board that encompassed the primary descriptors given by the complainant – where the complainant selected the photograph of the accused because she recognised him –probative value of the photo board identification is not outweighed by the danger of any unfair prejudice – evidence relevant and admissible – Evidence (National Uniform Legislation) Act 2013 (NT) s 137
Criminal Code (NT) s 192, s 192(3)
Evidence (National Uniform Legislation) Act 2013 (NT) s 137
R v Blick [2000] NSWCCA 61; R v Fisher [2001] NSWCCA 380; Knight v Brown (2004) 183 FLR 135, referred to.
REPRESENTATION:
Counsel:
The Queen:T McNamee
AW:M Aust
Solicitors:
The Queen:Office of the Director of Public Prosecutions
AW:North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Sou1702
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v AW [2017] NTSC 3

No. 21554748
BETWEEN:

THE QUEEN

AND:

AW

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Published 18 January 2017)
Introduction

The complainant complains that at about 5.00 am on 5 November 2015 she was sexually assaulted while staying at the house of Mr Charles Sapi. At 12.27 pm on 6 November 2015 she made a photo board identification of the accused. Before being shown the photo board, the complainant was told that the person who assaulted her may or may not be amongst the photographs on the board. The recording of the photo board identification shows the complainant took about 20 seconds to identify the accused and she appears to have briefly looked at the whole of the board prior to doing so. The complainant then said, “Yeah, number 2. That one. That is number 2. I think it is number 2. Yeah, number 2.” Photograph number 2 on the photo board is a photograph of the accused.
Under s 137 of the Evidence (National Uniform Legislation) Act 2013 (NT), the defence has asked the Court to refuse to admit the evidence of the complainant’s photo board identification of the accused because it is submitted that the probative value of that evidence is outweighed by the danger of unfair prejudice.
Counsel for the defence initially put the defence case on the following two grounds.
First, the probative value is lessened where the witness, who gave the identification evidence, believes, or may believe, the accused person has been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v AW

Details

AGLC: The Queen v AW [2017] NTSC 3
Case: [2017] NTSC 3
Decision Date: 13 January 2017

CaseChat Overview and Summary

The appeal concerns a conviction for sexual intercourse without consent and involved the admissibility of photo board identification evidence. The respondent, who was the complainant in the original trial, alleged that the appellant, AW, engaged in sexual intercourse without her consent. The trial court admitted the complainant's photo board identification evidence, which led to the conviction of the appellant. The appellant appealed on the basis that the trial judge erred in admitting the complainant's photo board identification evidence. The central legal issue was whether the complainant's photo board identification evidence was admissible under section 137 of the Evidence (National Uniform Legislation) Act 2013.

The court considered the criteria under section 137, which requires that the evidence must be relevant and its probative value must not be substantially outweighed by the danger of unfair prejudice to the accused. The court found that the complainant's identification of the appellant from the photo board was based on her recognition of him and not because he was the only person in the photo board who fit her primary descriptors. The court further held that the probative value of the photo board identification was not outweighed by any danger of unfair prejudice. Therefore, the evidence was relevant and admissible.

Consequently, the appeal was dismissed, and the conviction was upheld. The court held that the trial judge did not err in admitting the complainant's photo board identification evidence. The appeal was dismissed and the conviction was upheld.

Orders