The Queen v Ferguson - [2019] NTSC 81

CITATION:The Queen v Ferguson [2019] NTSC 81
PARTIES:THE QUEEN
v

FERGUSON, Michael

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21757719
DELIVERED EX TEMPORE:         5 February 2019
HEARING DATE:  1 February 2019
JUDGMENT OF:  Hiley J

CATCHWORDS:
EVIDENCE – Coincidence evidence – Criminal proceedings – whether the evidence has significant probative value to be admitted under s 98 of the Evidence (National Uniform Legislation) Act (NT) – evidence of prior incident not admissible.
EVIDENCE – Tendency evidence – Criminal proceedings – whether the evidence has significant probative value to be admitted under s 97 of the Evidence (National Uniform Legislation) Act (NT) – evidence of prior incident not admissible.
Evidence (National Uniform Legislation) Act 2011 (NT) ss 97, 98, 101

HML v The Queen [2008] HCA 16; 235 CLR 334; Hughes v The Queen [2017] HCA 20; 264 A Crim R 225; Hoch v The Queen [1988] HCA 50; 165 CLR 292; IMM v The Queen [2016] HCA 14; 257 CLR 300; Martin v Osborne [1936] HCA 23; 55 CLR 367; McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045; MWL v The Queen [2016] NTCCA 6; R v Bauer [2018] HCA 40; 92 ALJR 846, referred to.
M Saks and B Spellman, The Psychological Foundations of Evidence Law (NYU Press, 2016).

REPRESENTATION:
Counsel:
Crown:T Grealy
Accused:T Berkley
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Darwin Family Law
Judgment category classification:    C
Judgment ID Number:  Hil1907
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Ferguson [2019] NTSC 81

No. 21757719
BETWEEN:

THE QUEEN

AND:

MICHAEL FERGUSON

CORAM: HILEY J
EX TEMPORE REASONS FOR JUDGMENT
(Delivered 5 February 2019)
Introduction

Counsel for the Crown served tendency and coincidence notices dated 14 January 2019 (the notices).
Each of them foreshadows an intention to adduce evidence about an incident on 5 July 2007 that resulted in Mr Ferguson pleading guilty and being found guilty of two offences at the Melbourne Magistrates Court on 1 November 2008. The Crown seeks to adduce this evidence as tendency evidence under s 97(1) of the Evidence (National Uniform Legislation) Act (the Act) and or as coincidence evidence under s 98(1) of the Act.
Crown Case
Counsel for the Crown outlined the relevant parts of the Crown case in paragraphs 2 to 6 of her written outline of submissions (Crown’s Submissions). This includes allegations that the accused became irrationally angered when he heard the ATV being driven near his property, got into his Toyota Land cruiser and chased after the ATV yelling at the complainants, used the Land cruiser to ram into the ATV several times while all six complainants were inside, chased after RP and drove into him with his Land cruiser, threatened KAK with a knife and punched two of the complainants to the face. He…

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 Ferguson

Details

AGLC: The Queen v Ferguson [2019] NTSC 81
Case: [2019] NTSC 81
Decision Date: 5 February 2019

CaseChat Overview and Summary

The matter of The Queen v Ferguson involved criminal proceedings in which the Crown sought to introduce evidence of a prior incident that occurred in 2007 to demonstrate the accused's tendencies and coincidences in relation to the alleged conduct. The court was tasked with determining the admissibility of this evidence under sections 97 and 98 of the Evidence (National Uniform Legislation) Act (NT). The Crown argued that the 2007 incident evidenced the accused's propensity to irrationally overreact, confront unknown individuals, use verbal abuse and vehicles as weapons, and possess a willingness to act on such tendencies.

The legal issues before the court were whether the 2007 incident evidence had significant probative value to be admitted as tendency evidence under s 97 and coincidence evidence under s 98 of the Act. The Crown contended that this evidence was necessary to demonstrate the accused's behavioural patterns and to rebut any explanations consistent with innocence. The court had to assess if the probative value of this evidence substantially outweighed any prejudicial effect it might have on the accused, in accordance with s 101(2) of the Act. The court was also required to consider the precedent set by the High Court and the NT Court of Criminal Appeal regarding the admissibility of tendency and coincidence evidence.

The court found that the evidence of the 2007 incident did not meet the threshold for significant probative value required by sections 97 and 98 of the Act. The court concluded that the probative value of the evidence did not substantially outweigh its prejudicial effect. Therefore, the evidence was deemed inadmissible. The court relied on the judicial guidance from the High Court and the NT Court of Criminal Appeal, which emphasised the stringent requirements for admitting such evidence.

The final orders of the court were that the evidence of the 2007 incident was not admissible as tendency or coincidence evidence under sections 97 and 98 of the Act. This decision ensured that the trial proceeded without the prejudicial impact of the prior incident evidence, thereby upholding the rights of the accused under the legislative framework governing evidence in criminal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

I interrupt to note that contrary to the last part of paragraph 7 of the Crown’s Submissions, Mr Ferguson was not found guilty of recklessly endangering serious injury. The police summary refers to this and several other possible offences, including unlawful assault, but it seems that they were not proceeded with. When police asked him why he did the criminal damage he said “I have no excuse. Stupidity.” When they asked him why he threw the hammer he said: “I was frightened because I didn’t know what his next move was going to be. It was basically a reaction.”Facts in issue, and tendency and coincidence sought to be proved The relevant facts in issue are set out in [13] of the Crown Outline. They include the accused’s irrational state of mind, chasing after the victims in his motor-vehicle, using his motor vehicle as a weapon, getting out of his vehicle and continuing to act in an aggressive manner, verbally threatening the victims, using a knife as a weapon and punching two of the victims. The Crown contended that the evidence about the 2007 incident proves both a tendency to act in a particular way, namely to:(a)irrationally overreact to perceived issues; (b)confront people who are unknown to him;(c)use verbal abuse in confrontations with others; (d)use a vehicle in confrontations with others; and (e)use weapons in confrontations with others and a tendency to have a particular state of mind, namely:(a)a willingness to act on irrational overreactions to perceived issues;(b)a willingness to confront people previously unknown to him; and (c)a willingness to use a vehicle and other items as weapons. The Crown also seeks to adduce the same evidence to prove on a coincidence basis that the accused engaged in the conduct alleged. Further the Crown submits that the evidence is relevant to rebutting any explanations consistent with innocence that might be proffered for any conduct which is admitted by the accused (for example if a defence is raised).Relevant legal principles Assuming the evidence is relevant and that appropriate notice has been given, the admissibility of evidence as tendency and coincidence evidence is controlled by ss 97(1)(b) and 98(1)(b) respectively. Each of those provisions require that:the court thinks that evidence will, whether by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Section 101(2) imposes further restrictions on such evidence being adduced by the prosecution. It provides that such evidence cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. These provisions, particularly the requirement in s 97(1)(b) that the evidence have significant probative value, have been the subject of much judicial consideration both in the High Court (in IMM,[1] Hughes,[2] Bauer[3] and McPhillamy[4]) and by Courts of Criminal Appeal including the NTCCA in MWL.[5] In particular, the High Court discussed the scheme of these parts of the Evidence Act in Hughes, particularly at [13] – [18] and [39] – [42].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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