The Queen v Edwards - [2021] NTSC 87

CITATION:The Queen v Edwards [2021] NTSC 87
PARTIES:THE QUEEN

v
EDWARDS, Samuel

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21946178
DELIVERED:  20 September 2021
HEARING DATE:  7 September 2021
JUDGMENT OF:  Kelly J

REPRESENTATION:
Counsel:
Crown:C Hollingworth
Accused:M Aust
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification:    C
Judgment ID Number:  Kel2120
Number of pages:  21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Edwards [2021] NTSC 87

21946178

BETWEEN:

THE QUEEN

AND:

SAMUEL EDWARDS

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered ex tempore on 20 September 2021)

The accused was charged with one count of unlawfully assaulting a person (CJ) who was taking action to prevent injury to a third person (Carol Armstrong), one count of the murder of Carol Armstrong, and one count of engaging in conduct that gave rise to a danger of serious harm to Marcia Bobby. He pleaded guilty to counts 1 and 3 and was found guilty of murder following a trial by jury on count 2. During the course of the proceeding a number of evidentiary issues arose and I made a number of rulings. These are the reasons for those rulings.
The Crown’s allegations against the accused are, in summary, that on Friday 13 December 2019, the accused and the deceased were drinking at a unit in Moulden. The accused was also smoking cannabis. The deceased was in the shower behind a locked door. The accused yelled at her to hurry up, then unlocked the bathroom door with a butter knife. He dragged the deceased from the shower and assaulted her including kicking her, slamming her head into a wall and hitting her several times with a hard suitcase. He yelled, “I don’t care if I go back to gaol, I’ll kill you.” The deceased pleaded with him to stop but he did not stop. He repeatedly slammed her head into the ground and hit her with a milk crate. He continued to punch her as she lay on the ground and threw a fry pan at her. Several people tried unsuccessfully to intervene. (This gave rise to the assault charge on count 1.) Finally, the accused stabbed the deceased five times with a kitchen knife – four times to the head and once to the left shoulder. He also stabbed Marcia Bobby once in the left shoulder from behind. Then he left the unit.
The Crown has given notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) of its intention to adduce tendency evidence. The Crown relied on some of the same evidence as relationship evidence.
Defence counsel objected to the tendency evidence, but conceded that some of the evidence was relevant as relationship evidence.
Tendency evidence
The amended tendency notice advised that the tendencies sought to be proved are the tendency of the accused:
(a)to have a particular state of mind, namely an angry and violent disposition towards people he has a personal relationship with, especially after consuming alcohol, and
(b)to act in a particular way namely resort to aggression and violence when angry or intoxicated and use weapons when angry or intoxicated.
The conduct about which evidence is sought to be adduced is set out in a table in the tendency notice. Essentially it is the conduct the subject of ten prior convictions for violent offences. In each case, the accused pleaded guilty. The victims were his stepfather (on two occasions), the deceased (on one occasion), his former domestic partner (on four occasions) and a number of other people.
The tendency evidence is said to be relevant to:
(a)whether the accused intended to cause death or serious harm to the deceased on the occasion in question;
(b)whether he intended to cause serious harm to Marcia Bobby on that occasion; and
(c)whether he assaulted CJ.
The defence objects to this evidence being adduced as tendency evidence. The defence also objects to the adequacy of the amended tendency notice, given the proximity of the trial which was to start on 20 September 2021.
Under UEA s 97, evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value.
Leaving aside the adequacy of the notice for the time being, the question for the purpose of s 97 is whether the evidence set out in the tendency notice has significant probative value in relation to the issues specified in the notice. Significance means something in between mere relevance, and a substantial degree of relevance.
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[1]
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. (citations omitted)
Assessing the probative value of proposed tendency evidence is therefore a

two stage process. As the plurality said in Hughes:[2]
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

Given that two part process, the first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to act in the way asserted in the notice, or to have the state of mind asserted in the notice. The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence. This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[3]
In my view, on the assumption that the jury accepts the evidence, the evidence set out in the tendency notice strongly supports proof of a tendency in the accused to have an angry and violent disposition and to resort to violence, including the use of weapons, when angry or intoxicated – as set out in the amended tendency notice. The evidence in the tendency notice consists of specific instances of such conduct. It plainly demonstrates the disposition asserted in the notice and is thus strongly probative of the existence of the specified tendencies.
I also agree that those tendencies significantly increase the likelihood that the accused assaulted CJ. However, it will not be necessary for the Crown to prove that because defence counsel has advised that the accused intends to plead guilty to count 1.
As a matter of logic, I cannot see how the tendencies set out in the tendency notice significantly increase the likelihood of the issues set out in the tendency notice – namely that the accused intended to cause death or serious harm to the deceased and that the accused intended to cause serious harm to Marcia Bobby.
Defence counsel has advised that the defence will not be contesting that the accused caused the death of the deceased and that he intends pleading guilty to reckless manslaughter and has indicated that the accused is prepared to admit to the facts set out in a draft set of agreed facts attached to the defence submissions. The Crown points out that the entirety of the conduct in the Crown case will not be admitted; that it will therefore still be necessary for the Crown to prove that the accused did the acts constituting the Crown case, and that the tendencies set out in the notice make it significantly more likely that the accused did those acts. That may be so, but the tendency notice does not state that the issues in the case to which the tendencies are relevant include whether the accused performed those acts. The notice states that “the issues in the case to which the tendency reasoning applies are:
(a)whether the accused intended to cause death or serious harm to the deceased on the occasion in question;
(b)whether he intended to cause serious harm to Marcia Bobby on that occasion; and
(c)whether he assaulted CJ.”
As a matter of logic the tendencies set out in the tendency notice are not significantly probative of the issues in (a) and (b), and the issue described in (c) is not an issue in the case. The evidence set out in the tendency notice does not pass the threshold test in UEA s 97. It is not, therefore, necessary to consider whether the evidence satisfies the requirements of UEA s 101(2).
A discussion occurred in which I indicated that I would not be inclined to admit the evidence as tendency evidence and the Crown withdrew its tendency notice and application.
Parts of the child forensic interview of witness CJ
The Crown objected to part of the evidence from the child forensic interview (“CFI”) of the accused’s niece, CJ (the complainant in relation to count 1) and a similar part of the pre-recorded evidence of CJ.
During the CFI the following exchange occurred.
CJ:It was after the fight – like he stabbded (sic) my mum after the fight I think.
Police officer: Did you see him stab your mum?
CJ:No.
Police officer: OK. Why do you think he stabbed your mum?
CJ:My mum tried to stop him – like good way but he didn’t listen to my mum. Then I think he just like, mistake, accidentally stabbed my mum and then maybe went to my aunty and then – yeah, started to stab her now.
In the pre-record, the following exchange occurred.
Q:Did you hear Marcia screaming and saying, “I’ve been hurt,” or “I’ve been stabbed”?
CJ:No.
Q:You told the police you thought that your uncle might have accidentally stabbed your mum. Do you remember telling the police that?
CJ:Yep.
Q:Did somebody else tell you how your mum got stabbed or did you see it yourself?
CJ:Somebody else. The police told me an (sic) ambulance.
Defence counsel contended that this evidence was relevant and admissible but was unable to clearly articulate how other than to place reliance on UEA s 66(1) and (2).
Defence counsel relied on the fact that in a recorded 000 call Marcia Bobby (CJ’s mum and the complainant in count 3) said she had been stabbed by mistake and contended that this will be relevant to an assessment of Ms Bobby’s reliability. That is as it may be, but it has no bearing on the admissibility of that portion of CJ’s evidence objected to.
CJ’s evidence about why she thinks her uncle stabbed her mum is opinion evidence and inadmissible as such. Her opinion is not relevant to any issue in the proceeding. Further, it appears that her opinion is based on the inadmissible hearsay opinions of police and ambulance officers.
UEA s 66 does not help the defence. It provides:
Exception – criminal proceedings if maker available
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a)that person; or
(b)a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A)In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:
(a)the nature of the event concerned; and
(b)the age and health of the person; and
(c)the period of time between the occurrence of the asserted fact and the making of the representation.
Note for subsection (2A)
Subsection (2A) is inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.
(3)If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
(4)A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Starting at the most basic level, CJ’s opinion about why her mum was stabbed is not a representation about an asserted fact: it is an opinion. Even if it had been a representation about an asserted fact, subsection (3) would seem to apply and the representation does not concern the identity of a person, place or thing.
Even if one could discern some way in which the child’s opinion about why her uncle stabbed her mum (an event she did not see) could be relevant to an issue in the proceeding, it would be excluded by s 76(1) which provides:
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
The exceptions in ss 78 and 79 do not assist. Section 79 does not apply: CJ is not an expert - ie a person who has specialised knowledge about the relevant subject matter based on training, study or experience - and her opinion is not wholly or substantially based on any such knowledge.
UEA s 78 does not assist either. It provides:
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
CJ’s opinion on why her uncle stabbed her mum was not based on what she saw, heard or otherwise perceived about the stabbing. She specifically said she didn’t see it.
For these reasons CJ’s opinion about why her uncle stabbed her mum was not admitted and relevant edits were made to the CFI and the pre-recorded evidence.
Body worn camera footage of the accused’s first interaction with the police after the killing
The Crown indicated an intention to adduce evidence of footage from the body worn cameras of two police officers who stopped the accused on the street about a half hour after the 000 call which alerted police to the stabbing and, a little while later, arrested him; and also footage from two body worn cameras which show the accused’s interactions with police at the Palmerston Watch House.
The accused does not object to the two clips from the Palmerston Watch House which show the accused standing, talking, walking and interacting with police at the Watch House for quite a lengthy period. Two forensic neuro-pharmacologists (one engaged by the Crown and one by the defence) were shown these clips and provided opinions on the accused’s state of intoxication/sobriety based in part on what they saw in these clips.
However, the accused does object to the two clips of body worn footage taken at the side of the road earlier.
The Crown wish to adduce these two clips in evidence to show the jury the bodily movements of the accused and his verbal interactions with police “within minutes of the killing”. (Actually it was about a half hour after.)
The accused indicated an intention to plead guilty to counts 1 and 3 – the assault on CJ and the stabbing of Marcia Bobby. In relation to count 2 – the murder charge, he indicated his intention to plead not guilty to murder but guilty to reckless manslaughter.[4] Thus the only issue at the trial would be intent: has the Crown proved beyond reasonable doubt that the accused intended to kill the deceased or to cause her serious harm. The defence case at trial was foreshadowed to be that the accused was so heavily intoxicated at the time of the stabbing that he was significantly cognitively impaired as a result of which the jury must be bound to entertain a reasonable doubt about whether he had formed that intention.
The Crown contended that this video footage, taken at a point so close in time to the stabbing, was direct evidence from which the jury would be able to gain assistance in determining the accused’s state of intoxication at the time of the stabbing. It was submitted that the clips would have strong probative value in assisting the jury to assess the accused’s cognitive capacity at a time very close to the killing which would be relevant to his cognitive capacity at the time of the killing. I agree that the two clips would have strong probative value for that purpose.[5]
The accused submitted that the evidence should be excluded under UEA s 138 because it was obtained unlawfully. Section 138 provides:
Exclusion of improperly or illegally obtained evidence
(1)     Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)     Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)     Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note for subsection (3)(f)
The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986(Cth).

The accused contends that this evidence was obtained improperly or unlawfully within the meaning of s 138 because when police first stopped the accused they told him he was not under arrest, but they nevertheless detained him and required him to sit in the back of the caged police vehicle. A little later he was told he was under arrest but at that point he was not given any details about what he was to be charged with and who the victim or victims were. He was simply told, “At this stage you’re under arrest. You’re under arrest until we find out further what’s happened up the road there.”
Just before telling the accused that he was under arrest, the arresting officer said to him, “I’m gonna tell you, you don’t have to say anything but anything you do say or do can be given as evidence, all right?” The accused responded, “All right.”
Defence counsel complains that the caution was inadequate in that it did not follow the Anunga Guidelines (now set out in the Police General Orders) for a number of reasons including that he was not asked to repeat back the caution or give an independent indication of his understanding other than to say, “All right.”
Defence counsel complains further that the accused was not immediately advised that he could communicate or attempt to communicate with a friend or relative to inform the friend or relative of the person’s whereabouts. However, very shortly after the police officer informed the accused that he was under arrest, he asked the accused if he wanted anyone notified that he was under arrest and where he was and he asked them to tell his mum, Bonnie Brown.[6]
The Crown prosecutor contends that the arrest was not improper or unlawful. Under s 123 of the Police Administration Act (“PAA”), police can arrest a suspect without a warrant if they have a belief on reasonable grounds that the person has committed an offence. The Crown submits that, having seen the body of the deceased in the unit, and having been told that it was the accused who had killed her and stabbed Marcia Bobby, police clearly believed on reasonable grounds that the accused had committed an offence and this was communicated to the police officers who arrested the accused.
PAA s 127 provides:
Persons to be informed of reason for arrest
(1)     A member of the Police Force who arrests a person for an offence shall inform the person, at the time of the arrest or as soon as practicable thereafter, of the offence for which he is arrested.
(2)     A member who arrests a person for an offence shall be taken to have complied with subsection (1) if he informs the person of the substance of the offence for which he is arrested, and it is not necessary for him to do so in language of a precise or technical nature.
(3)     Subsection (1) does not apply to or in relation to the arrest of a person:
(a)if that person ought, by reason of the circumstances in which he is arrested, to know the substance of the offence for which he is arrested; or
(b)if the person arrested makes it impracticable by reason of his actions, for the member effecting the arrest to inform him of the offence for which he is arrested.
The Crown prosecutor relies on the words “as soon as practicable thereafter” and points out that the accused was told of the charge – murder – seven minutes after first being informed that he was under arrest. Further, he had been told, at the time of arrest that it concerned what had happened “up the road” where the accused knew he had just stabbed two women.
As far as the administration of the caution is concerned, the prosecutor submitted that it was adequate and that the accused knew his rights. As soon as he was told the nature of the charge he commented that he was going to need a lawyer.
In my view, defence counsel is right in saying that the accused was arrested when he was detained in the back of the police van and should not have been told at that point that he was not under arrest: he clearly was. “An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person.”[7] The accused was handcuffed and made to sit in the back of the police van.
However, having said that, the police did not in fact question him at all while they were waiting for a police sergeant to arrive. When the sergeant arrived, he told the accused that he was under arrest, administered a caution, and asked him if he wanted someone notified. He was not told until he was back at the Watch House that the deceased woman was dead and the charge was murder, but I agree with the submission of the Crown prosecutor that that was “as soon as practicable” after the arrest given the need to confirm with the paramedics that the deceased was dead and talk to those at the scene.
The comment made by the accused shortly after being told the nature of the charge – to the effect that he was going to need a lawyer - indicates some understanding of what was happening. (Given the accused’s extensive criminal history, I presume he had some familiarity with the process of being arrested and charged.) The accused was cautioned again at the Watch House.
I conclude that the video footage taken between the time when the accused was placed into the police van to the time he was formally told he was under arrest was taken at a time during which the accused was under arrest (despite being told that he was not) and the process set out in s 127 had not yet been followed.
The first part of the body worn footage taken at the side of the road, up to the point where the accused was told he is under arrest and cautioned, was obtained as a consequence of a contravention of an Australian law – namely PAA s 127. The second part of that footage was not.
It remains to be determined whether the second part of the footage was obtained as a consequence of an impropriety, the burden being on the party seeking exclusion of the evidence to establish that the evidence was improperly obtained.
The UEA contains no definition of “impropriety”. In Robinson v Woolworths Ltd Basten JA said:
[T]he identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards.[8]
This is consistent with the common law position that in order to warrant the exclusion of evidence on the basis that it was improperly obtained, the impugned conduct must be “inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Moreover, that conduct must be “clearly inconsistent” with those minimum standards.
Defence counsel contended that the impropriety consisted of the failure to administer the caution in accordance with the Anunga Guidelines enshrined in the Police General Orders, and the delay in telling the accused the nature of the charge on which he had been arrested. I do not accept that either of these matters amount to conduct which was clearly inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. I have already held that the delay of seven minutes in telling the accused the nature of the charge did not make the arrest unlawful. He was told the nature of the charge “as soon as practicable” after the arrest, given the need to confirm with the paramedics that the deceased was dead and talk to people at the scene. On the body worn footage from the Watch House, Sergeant Robson can be heard telling the accused that he had spoken to the paramedics and confirmed that the victim was dead.
So far as the caution is concerned, the accused appeared to be quite competent in the English language and to have understood the caution which was administered; and he demonstrated a knowledge of his rights by remarking that he needed a lawyer. In any case, no questioning related to the offence occurred until after the accused was informed of the nature of the charge and the caution administered again. The accused declined to take part in an electronically recorded interview with police, thus demonstrating his knowledge of his rights.
I should add that the body worn footage shows Sergeant Robson treating the accused with sensitivity and respect.
The first part of the body worn footage taken at the side of the road – up to the point the accused is told he is under arrest, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which that evidence was obtained. In my view the desirability of admitting the evidence does outweigh the undesirability of admitting evidence obtained in that way.
The contravention of the law involved was not contumelious but rather a procedural error on the part of the constables who came across the accused on the side of the road. They had been given some information about an offence or offences that had been committed and told that the accused was wanted in connection with those offences. They therefore had reasonable grounds to suspect that the accused had committed an offence and the power to arrest him had been enlivened. It was not a situation in which police detained the accused when they had no power in the circumstances to do so. Their error was in telling the accused he was not under arrest. They should have told him he was under arrest.
The evidence is very important and highly probative (one way or the other) in relation to the sole live issue in the case – whether the accused was suffering from cognitive impairment as a result of severe intoxication such as to cast doubt on his intention at the time of the stabbing.
Further, the evidence is unique. No verbal description of the accused’s demeanour and speech could give the jury the same direct evidence of how the accused moved and spoke and interacted with police at a time so close to the time of the stabbing.
For the same reasons, if, contrary to my finding, the second part of the body worn footage was obtained as a consequence of an impropriety, I also find that the desirability of admitting that evidence outweighs the undesirability of admitting evidence that was obtained in the way in which that evidence was obtained.
For these reasons I admitted the body worn footage obtained at the side of the road into evidence.
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[1][2017] HCA 20 (“Hughes”) at [16] per Kiefel CJ, Bell, Keane and Edelman JJ

[2]Hughes at [41]

[3] IMM v The Queen (2016) 257 CLR 300 at [38], [39] and [41]

[4] He carried out this intention at the trial. The Crown did not accept the guilty plea to count 2, the trial proceeded and the accused was found guilty of murder.

[5] R v Ladd [2009] 27 NTLR 1

[6] This was repeated back at the Watch House and it was explained to him that they had tried to contact his Mum and would try again.

[7]R v O’Donoghue (1988) 34 A Crim R 397 per Hunt J at 401

[8] [2005] 64 NSWLR 618 at [23]