The Queen v Drover (No. 2) - [2022] NTSC 13

CITATION:The Queen v Drover (No. 2) [2022] NTSC 13
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:  15 February 2022
HEARING DATE:  15 February 2022
JUDGMENT OF:  Hiley AJ

CATCHWORDS:
EVIDENCE – Admissibility and relevance - Tendency evidence - Tendency of complainant to initiate physical violence in the context of an argument or perceived slight while intoxicated - Tendency of complainant to readily anger and develop feelings of aggression in response to perceived slights or signs of disrespect while intoxicated - No evidence of a relevant defence such as defensive conduct - Tendency evidence vague and of little probative value - Tendency evidence would not have significant probative value
(cf s 97(1)(b) Evidence (National Uniform Legislation) Act 2011 (NT)) - Proposal to adduce the tendency evidence by cross-examining the complainant on his prior convictions - Any probative value substantially outweighed by the danger that it might be unfairly prejudicial to the Crown and might be misleading or confusing (cf s 135 Evidence (National Uniform Legislation) Act 2011 (NT)) - Application refused.
Evidence (National Uniform Legislation) Act 2011 (NT) ss 97, 135
DPP v Campbell (Ruling No 1) [2013] VSC 665; R v Smiler (No 2) [2017] NTSC 31; R v Nudgulu [2020] NTSC 54; R v Hulme (No 5) [2021] NSWSC 115 distinguished.

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:  Hil2202
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Drover (No.2) [2022] NTSC 13

No. 22112226

BETWEEN:

THE QUEEN

AND:

DONNA MARIE DROVER

CORAM: HILEY AJ
REASONS FOR RULING
(Delivered 15 February 2022)

By amended tendency notice dated 4 February 2022 the accused sought to lead evidence concerning two occasions which led to the complainant being convicted of an assault against a female – one in 2005, the other in 2018. Defence counsel would seek to adduce that evidence:
(a)during cross-examination of the complainant; and
(b)by tendering a “Précis” found on police files relating to the 2005 conviction; and a “Statement of alleged facts” relating to the 2018 conviction.
Counsel contends that some of the facts presented in those matters would support contentions on behalf of the accused that:
(a)the complainant initiated a physical altercation with the accused; and
(b)the accused was acting in self-defence when she applied force to the complainant with the chair and water.[1]
Counsel contends that that evidence may prove a tendency of the complainant to:
(a)act in a particular way, namely to initiate physical violence towards a person, particularly a female, in the context of an argument or perceived slight, with violence directed towards a person’s upper body (including the head) while he is intoxicated by alcohol; and
(b)have a particular state of mind, namely to readily anger and develop feelings of aggression in response to perceived slights or signs of disrespect, particularly in the context of having become intoxicated by alcohol.
The only evidence on the Crown brief that defence counsel pointed to in relation to the contentions in [2] above was the neighbour’s observation that the complainant “was standing up and grabbed [the accused] and was holding her by her shirt collar and head and he had her pushed up back against the verandah pole, jamming her so she couldn’t get away. She was hitting him in the head with a white plastic kettle that she held in her left hand.”[2] In my view, that occurred after the two charged acts occurred and after the complainant had said words like: “why did you do that”, “why are you trying to hurt me” and or “why are you trying to kill me?”
Otherwise there is no evidence in the Crown brief or otherwise that might suggest any relevant conduct on the part of the complainant prior to the accused assaulting him, either with the chair or with the boiling water. Unlike some cases, for example Campbell[3] and Hulme (No 5)[4], the accused did not participate in an interview with police and thus did not say anything that might give rise to a possible defence of defensive conduct.
The present case is readily distinguishable from the cases referred to by defence counsel, namely Campbell, Smiler,[5] Hulme (No 5) and Nudjulu,[6] all cases where an accused was permitted to adduce tendency evidence in support of a possible defence. In the present matter, the accused has not satisfied the evidentiary burden of showing some evidence that goes towards establishing defensive conduct on her part.
In relation to the two previous occasions relied upon by counsel, I can see a number of difficulties and uncertainties that would arise in the event that counsel was permitted to lead that evidence.
In short, I agree with the Crown’s contention that all that the proposed evidence could show is that the complainant has been convicted twice for assaulting a woman, in the 2005 case by punching her to the head and in the 2018 case by throwing a rock at her striking her in the head, in circumstances where he was intoxicated and may have felt annoyed because of something the victim had just done or said. There is nothing unusual about these kinds of circumstances. Indeed most assaults, particularly by intoxicated persons, occur in those kind of circumstances, following or during some altercation with the other party, sometimes physical and sometimes verbal.
I gather that the main way in which defence counsel would seek to adduce the tendency evidence would be during cross-examination of the complainant. This would involve counsel putting to the complainant that he had been convicted of the two offences and then attempting to obtain relevant concessions from the complainant about that earlier offending, and in particular the circumstances leading up to that offending.
In relation to both sets of offending, the complainant would be asked to remember details which he is very unlikely to recall. This is not only because he was intoxicated at the time of that offending, but also because for those details to be relevant to either of the two tendencies relied on, a jury would require considerably more detail than what is contained in the Précis and the Statement of alleged facts. For example, the 2018 offending is said to have occurred “because he thought [the victim] was being cheeky”. He would have to recall what he meant by “thought” and “being cheeky”, for example whether it was because of something the victim had said, because of something the victim had done, or even because of something that he had heard the victim had said or done on some other occasion.
It is highly likely that he would not recall any such detail. All that the jury would be left with would be knowledge of the two convictions. This would be so even if defence counsel was able to tender the two documents. I think it unlikely that defence counsel could improve on that problem, for example by calling the complainants in the 2005 and 2018 cases to testify so long after those events.
I do not consider that the evidence sought to be adduced is capable of proving either of the tendencies alleged. As I have noted, all that it does is show that the complainant has assaulted a female on two prior occasions while he was intoxicated.
Nor do I consider that any of that evidence, by itself or having regard to other evidence, would have “significant probative value”, as required by

s 97(1)(b).
Further, I consider that any probative value of the evidence sought to be adduced is substantially outweighed by the danger that it might be unfairly prejudicial to the Crown. If the complainant was cross-examined about his convictions and this tendency evidence was admitted, a primary focus of the jury’s attention when considering what the complainant said and did immediately before and at the time of him being assaulted by the accused, will be the fact of his two prior convictions for assaulting females while intoxicated. I do not consider that this prejudice to the Crown could be satisfactorily ameliorated by directions.
I also consider that the evidence might be misleading or confusing. I have already referred to the lack of relevant detail, for example as to what was meant by the words: “he thought she was being cheeky”. These vagaries could only be clarified if the complainants in those two matters could be located and interviewed, could remember the relevant details, and could be available to give evidence this week. I have strong doubts that those things could be achieved.
Accordingly I would exercise my discretion under s 135 to refuse to admit the evidence.
I refuse the application to adduce the tendency evidence
--------------------------

[1] Tendency Notice [3]

[2] [20]

[3] DPP v Campbell (Ruling No 1) [2013] VSC 665. The accused raised the defence of duress in his record of interview, and was permitted to lead tendency evidence of duress having been used by the same person on other occasions.

[4] R v Hulme (No 5) [2021] NSWSC 115. In his extensive interviews with police the accused claimed that the violence was initiated by the now deceased victim, and the parties agreed that this was the case. The tendency evidence was therefore relevant to the issues of intent and how the accused struck the victim.

[5] R v Smiler (No 2) [2017] NTSC 31. The Crown brief contained statements from a number of witnesses to the effect that the complainant had used violence to the accused before the accused assaulted him. Self-defence, and in particular the degree of violence used by the complainant, were always important parts of the case.

[6] R v Nudgulu [2020] NTSC 54. The Crown case included evidence of an argument and the trading of punches between the victim and the accused prior to the accused assaulting the victim with a knife. As in Smiler, an important part of the case concerned interactions between them prior to the assault.