The Queen v Drover
[2022] NTSC 12
•14 February 2022
CITATION:The Queen v Drover [2022] NTSC 12
PARTIES:THE QUEEN
v
DROVER, Donna
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22112226
DELIVERED: 14 February 2022
HEARING DATE: 14 February 2022
JUDGMENT OF: Hiley AJ
CATCHWORDS:
CRIMINAL PROCEDURE – EVIDENCE – Recorded statements - Vulnerable witness - Application to admit recorded statement of complainant pursuant to s 21B of the Evidence Act 1939 (NT) - Whether a person whose relationship with the accused was brief and ended in 1985 “is in a domestic relationship with” the accused within the meaning of s 21AB(d) of the Evidence Act 1939 (NT) - Broad definitions of “domestic relationship” in s 9 of the Domestic and Family Violence Act 2007 (NT) - Complainant had a “family relationship” as defined in s 10 because there was a child of the relationship – Also an “intimate personal relationship” as defined in s 11(2) - No good reason not to admit the recorded statement under s 21B - Recorded statement admitted.
REPRESENTATION:
Counsel:
Crown:S Ozolins
Accused:J Blackley
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: Hil2201
Number of pages: 5
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Drover [2022] NTSC 12
No. 22112226
BETWEEN:
THE QUEEN
AND:
DONNA MARIE DROVER
CORAM: HILEY AJ
REASONS FOR RULING
(Delivered 14 February 2022)
The prosecutor requested the Court to admit a recorded statement of the complainant into evidence, pursuant to s 21B of the Evidence Act 1939 (NT) (the Act). The statement was recorded by police on 16 April 2021 when they interviewed him in hospital the morning after the accused is said to have assaulted him. This would mean that the Crown could show the jury the video record of the interview as part of its evidence in chief.
The request is based upon the contention that the complainant is “a complainant in a domestic violence offence proceeding” and is therefore a “vulnerable witness” within the meaning of s 21AB(d) of the Act. The complainant appears to be an able bodied man in his 50s. He and the accused had a child in 1985 but he has never seen the child.
There are 2 relevant preconditions under s 21B:
(a)that the proceedings are for a sexual offence or a serious violence offence[1] (s 21B(1)); and
(b)that the complainant is a “vulnerable witness” (s 21B(2)).
Once those preconditions are satisfied, the Court is required to admit the recorded statement in evidence “unless there is good reason for not doing so” (s 21B(3)).
In my opinion the complainant is a vulnerable witness, within the meaning of s 21AB(d) of the Act. He is a “complainant” in a “domestic violence offence proceeding” for a “domestic violence offence”, terms defined in
s 21G of the Act. Section 21G also defines “domestic violence” by reference to s 5 of the Domestic and Family Violence Act 2007 (the DFVA) which in turn refers to “conduct causing harm” to a person “with whom the person is in a domestic relationship”.
Section 9 of the DFVA states that “a person is in a domestic relationship with another person if the person:
(a)“is or has been in a family relationship with the other person” – s 9(a);
(b)“is or has been in a family relationship with a child of the other person” – s 9(e);
(c)“is or has been in an intimate personal relationship with the other person” – s 9(f).
Section 10(1) provides that a “person is in a family relationship with another person if the person”:
(a)is the spouse or de facto partner of the other person; or
(b)is otherwise a relative of the other person.
Section 11(2) provides that an intimate personal relationship exists between two persons “if the persons date each other”. In deciding whether that kind of intimate personal relationship exists, a court may take into account the level of intimacy between the persons and the length of time the relationship has existed.
Notwithstanding the Act’s use of the present tense in s 21AB of the Act – “is in a domestic relationship” - the legislation clearly includes relationships that are no longer current. I have concluded that the complainant “is in a domestic relationship with” the accused as that term is defined in s 9(e), and probably s 9(a) and s 9(f) of the DFVA. That definition is obviously intended to encompass historic relationships, indeed relationships going back to about 1985 when the complainant and the accused had some kind of relationship that included the conception of their child. Those circumstances clearly bring the complainant within the scope of having had a “family relationship” as defined in s 10(1)(b) of the DFVA.
Counsel for the accused asserted that the accused and complainant only had a “one night stand”. However, in his recorded statement, the complainant deposed that he and the accused had had a relationship for a period of about eight months. He told the prosecutor that the relationship ended some four months or so prior to the birth of the child. It is likely that such circumstances would fall within the scope of s 10(1)(a) and s 11(2), and thus ss 9(a) and 9(f) respectively.
Clearly the intention of those provisions in the DFVA is to give considerable breadth to the scope of the protections and other provisions contained in the DFVA, and their incorporation into the Evidence Act, including ss 21AB(d) and 21G, extends the definition of vulnerable witness to cover such a wide range of circumstances.
Having found that the complainant is a vulnerable witness as defined in
s 21AB, I am required to admit his recorded statement “unless there is good reason for not doing so”. Counsel for the accused pointed to some uncertainty on the part of the complainant as to the accuracy about what he said to the police when his statement was recorded. Such uncertainty became more apparent during his cross-examination at the committal in September 2021, and perhaps during proofing carried out by the prosecutor over the last day or so. Counsel contended that the complainant’s evidence in the course of the recorded statement was therefore unreliable and this would constitute good reason for the Court not to admit his recorded statement into evidence.
I disagree. Counsel for the accused can cross-examine the complainant to make this point and to urge the jury to reject that evidence as being unreliable. Ultimately that is very much a matter for cross-examination, address and jury deliberation, not a good reason for the Court not to admit the evidence. To the contrary, the evidence is likely to carry significant weight as it was recorded very shortly after the relevant events.
--------------------------
[1] These proceedings are proceeding for a “serious violence offence” as defined in s 21AA of the Act.
0
0
0