The Queen v Do - [2021] NTSC 42

CITATION:The Queen v DO [2021] NTSC 42
PARTIES:THE QUEEN
v

DO

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction
FILE NO:22019243
DELIVERED:  18 May 2021
HEARING DATE:  14 May 2021
JUDGMENT OF:  Grant CJ
REPRESENTATION:
Counsel:
Crown:D Castor
Accused:A Abayasekara
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:  GRA2107
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v DO [2021] NTSC 42

No 22019243
BETWEEN:

THE QUEEN

AND:

DO

CORAM: GRANT CJ
EDITED REASONS FOR JUDGMENT
(Delivered ex tempore on 18 May 2021)

The accused is charged with one count of aggravated robbery contrary to s 211 of the Criminal Code 1983 (NT).
Two matters require determination as preliminary issues in advance of the trial. The first is whether tendency evidence sought to be adduced by the Crown is admissible. The second is whether identification evidence sought to be adduced by the Crown should be excluded in the exercise of the general discretion. The defence contends that both categories of evidence are inadmissible.

Tendency evidence

I will deal first with the tendency evidence. The principles which govern the admissibility of tendency evidence are now relatively well-settled. Section 97 of the Evidence (National Uniform Legislation) Act 2011 (“the ENULA”) provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value.
The Dictionary in the ENULA defines “probative value” of evidence to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The evidence will have “significant probative value” if it could rationally affect the assessment of the probability of the existence of one or more of the facts in issue in some important fashion. The assessment is a two-step process.
In the first step, the assessment is whether the evidence concerning the previous conduct would be probative in establishing the tendencies alleged by the Crown.
If it is accepted that an inference of tendency could be sustained, the second question is whether that tendency makes it more probable that, on this occasion, it was the accused who engaged in the conduct alleged in the indictment.
In this particular case, the fact to which the tendency evidence is said to relate is whether the person who committed the robbery was the accused. In other words, the issue in the proceeding to which the tendency evidence is directed, and in fact the sole issue in dispute in the proceeding, is the identity of the perpetrator. The parties are in agreement on that matter.
In the ordinary course, the existence of a “striking similarity” or “underlying unity” between the conduct charged and the incidents described in the evidence sought to be adduced for tendency purposes is not a necessary requirement for admissibility under the statute. However, the requirement for striking similarity or underlying unity…

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 Do

Details

AGLC: The Queen v Do [2021] NTSC 42
Case: [2021] NTSC 42
Decision Date: 18 May 2021

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the Crown prosecuted the accused, Do, for one count of aggravated robbery. The court was required to decide whether tendency evidence and identification evidence proposed by the Crown would be admitted in the trial. The accused argued that both categories of evidence should be excluded. Regarding tendency evidence, the court considered that the previous offences were not sufficiently similar to the present offence to have significant probative value in establishing the accused's identity as the perpetrator. The court ruled that the tendency evidence sought to be adduced by the Crown was inadmissible in the trial. Regarding identification evidence, the court considered that the initial identification from a Facebook photograph was not contaminated by suggestion and projection, and that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused. The court ruled that both categories of identification evidence were admissible in the trial.

The court's final orders were that the tendency evidence sought to be adduced by the Crown was inadmissible, and that both categories of identification evidence were admissible in the trial.

Orders