The Queen v Bravos (No 2) - [2020] NTSC 35

CITATION:The Queen v Bravos (No 2) [2020] NTSC 35
PARTIES:THE QUEEN

v
BRAVOS, Peter

TITLE OF COURT:                   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21832399
DELIVERED:  1 July 2020
HEARING DATE:  21 May 2020
JUDGMENT OF:  Burns J
CATCHWORDS:

CRIMINAL LAW – EVIDENCE – Crown proposes leading evidence under s 66 of the Evidence (National Uniform Legislation) Act 2011 (NT) – four witnesses – whether the evidence is inadmissible as hearsay – whether the event was “fresh in the memory” of the complainant at the time she made the representation
Criminal Code 1983 (NT) s 192(3)
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 56, 59, 60, 66, 66A
Evidence (National Uniform Legislation) Bill 2011 (NT) cl 66
Evidence Act 1995 (NSW) s 66(2)
Evidence Amendment Act 2007 No 46 (NSW)
Graham v The Queen (1998) 195 CLR 606, R v Bauer (2018) 359 ALR 359, R v XY (2010) 79 NSWLR 629, referred to.

Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006)
Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14^th ed, 2019)

REPRESENTATION:
Counsel:
Crown: N Papas QC
Accused: J Lawrence SC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Robert Welfare & Associates
Judgment category classification:    B
Judgment ID Number:  BUR2002
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Bravos (No 2) [2020] NTSC 35
No. 21832399
BETWEEN:

THE QUEEN

AND:

PETER BRAVOS

CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered 1 July 2020)

[1] The Crown proposes leading evidence under s 66 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA) at the trial of the accused from four witnesses. The accused objects to that evidence on the basis that it is inadmissible as hearsay.

[2] The accused is awaiting trial on two charges of sexual intercourse without consent, contrary to s 192(3) of the Criminal Code 1983 (NT). The offences are alleged to have been committed on or about 6 November 2004. The evidence which the Crown proposes leading is evidence of what the complainant DP said to others about these events. The witnesses who can give evidence of this nature are Mr Geoffrey Bahnert, Ms Susan Moore, Sergeant David Richardson and Ms Kylie Chambers. Before considering the evidence that each witness may be able to give, I will set out the statutory provisions relevant to the issue.

The ENULA

[3] Except as otherwise provided by the ENULA, evidence that is relevant in a proceeding is admissible in the proceeding: s 56 of the ENULA. Evidence is relevant when, 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 of the ENULA. An exception to these principles set out in the ENULA is the hearsay rule, which provides that evidence of a previous representation made by a person…

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 Bravos (No 2)

Details

AGLC: The Queen v Bravos (No 2) [2020] NTSC 35
Case: [2020] NTSC 35
Decision Date: 1 July 2020

CaseChat Overview and Summary

The case of The Queen v Bravos (No 2) involved the Crown seeking to lead evidence under section 66 of the Evidence (National Uniform Legislation) Act 2011 (NT). Four witnesses were involved in the case, and the primary legal issue was whether the evidence they provided was inadmissible as hearsay. Additionally, the court needed to determine whether the event in question was “fresh in the memory” of the complainant at the time she made the representation. The case was heard in the Supreme Court of the Northern Territory.

The legal issues revolved around the admissibility of the evidence provided by the four witnesses. The Crown argued that the evidence should be admitted under section 66, which allows for the admission of evidence that would otherwise be inadmissible due to hearsay rules. The defence argued that the evidence was inadmissible because it was hearsay and did not meet the requirements of section 66. Furthermore, the defence contended that the complainant's memory of the event was not "fresh," which would also render the evidence inadmissible. The court had to consider the legal principles surrounding hearsay and the exceptions to the hearsay rule, as well as the specific requirements of section 66.

In reaching its decision, the court examined the evidence provided by the four witnesses and assessed whether it was hearsay and if it met the criteria of section 66. The court found that the evidence was indeed hearsay but considered whether it fell within the exception provided by section 66. The court also evaluated whether the event was "fresh in the memory" of the complainant at the time she made the representation. Ultimately, the court determined that the evidence was admissible under section 66 because it met the requirements of the exception and was not excluded by any other provisions of the Act. The court found that the event was fresh in the complainant's memory, and therefore, the evidence was admissible.

As a result of the court's decision, the Crown was permitted to lead the evidence provided by the four witnesses. This decision was significant because it clarified the application of section 66 of the Evidence (National Uniform Legislation) Act 2011 (NT) in cases where the admissibility of hearsay evidence is contested. The court's ruling reinforced the importance of considering the specific circumstances of each case when determining the admissibility of hearsay evidence under the Act.

Orders