The Queen v Gibson
[2021] NTSC 28
•25 February 2021
CITATION:The Queen v Gibson [2021] NTSC 28
PARTIES:THE QUEEN
v
GIBSON, Jessiah
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory Jurisdiction
FILE NO:21928324
DELIVERED: 25 February 2021
HEARING DATE: 25 February 2021
JUDGMENT OF: Grant CJ
REPRESENTATION:
Counsel:
Crown:T Mcnamee
Accused:K Roussos
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification: C
Judgment ID Number: GRA2101
Number of pages: 10
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Gibson [2021] NTSC 28
No. 21928324
BETWEEN:
THE QUEEN
AND:
JESSIAH GIBSON
CORAM: GRANT CJ
EDITED REASONS FOR JUDGMENT
(Delivered ex tempore on 25 February 2021)
The accused is charged with three offences.
The first offence is unlawfully entering a building with the intent to commit an offence, with the aggravating circumstances that the offence intended to be committed was an indictable offence, namely, an act of gross indecency, and that the building was a dwelling house.
The second offence charged is that the accused committed an act of gross indecency on the complainant.
The third offence charged is that the accused unlawfully assaulted the complainant’s five-year old son with the aggravating circumstance that the child was under the age of 16 at the time and the accused was an adult.
The accused has indicated an intention to plead guilty to the first offence, but not to the aggravating circumstance that the offence intended to be committed upon entry to the building was an act of gross indecency. The accused has also indicated an intention to plead guilty to the third offence. The accused has indicated an intention to plead not guilty to the charge of committing an act of gross indecency.
Defence counsel had initially raised six issues for preliminary determination. They were:
(a)whether the evidence of the complainant’s five-year old son is admissible at trial in circumstances where the accused intends to plead guilty to the charge of unlawfully assaulting that child;
(b)whether a series of photographs depicting the complainant’s injuries are admissible;
(c)whether certain materials should be redacted from the complainant’s recorded statement which will constitute her evidence-in-chief at trial of the matter;
(d)whether the Crown is obliged to provide a proposed witness list;
(e)whether the Crown had adequately particularised the act relied upon in the charge of committing an act of gross indecency; and
(f)whether the Crown is required to provide a statement from the witness assistance officer who participated in a conference between the prosecutor and the complainant on 20 February 2020.
Prior to the conduct of the voir dire hearing the issues concerning the witness list and particulars of the offence were resolved between the parties. At the commencement of the voir dire hearing, defence counsel accepted that a statement from the witness assistance officer was unnecessary in circumstances where the issue sought to be ventilated at trial, which is the complainant’s failure prior to that conference on 20 February 2020 to make any reference to the accused touching her vagina, is apparent on the face of the complainant’s prior statements. That is a matter properly addressed in cross-examination of the complainant at trial, and a statement from the witness assistance officer is unnecessary for that purpose.
The admissibility of the recorded statement
I turn then to consider the objection to the admissibility of the recorded statement of the complainant’s five-year old son. The Crown’s case may be summarised very briefly as follows.
The complainant is a 38-year old woman who, at the material time, was employed with the local Aboriginal corporation and who lived with her son in a duplex in the Maningrida Community.
At 7:30 am on 28 July 2019, the complainant heard a noise which sounded like her back door being opened. She opened her eyes and saw the accused standing in the hallway of the duplex looking into her son’s bedroom. Her son was, at that time, sleeping in the bed with the complainant in her room.
The complainant challenged the accused. He turned around, yelled “Shut the fuck up” and started punching the complainant repeatedly in the face. In the course of a protracted struggle, the accused and the complainant ended up in the hallway of the duplex. The accused ripped open the complainant’s shirt and bra causing her breasts to be exposed. He then pushed the complainant to the ground and straddled or kneeled on her. He placed his hands around the complainant’s throat to stop her screaming and attempted to undo his pants with the other hand. He then put his other hand up into the complainant’s shorts and attempted to pull her underwear down, making contact with her vagina in the process. The complainant resisted by throwing punches at the accused and moving her body around to prevent him from pulling her clothes off.
At that point, the complainant’s son yelled for assistance from the bedroom window. After a further struggle during which the accused continued to punch the complainant, he then left the premises when neighbours approached. He was identified by a local resident as he left the premises.
Section 55 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA) defines evidence as relevant where, “if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. Section 56 of the ENULA makes evidence that is relevant in a proceeding admissible in the proceeding and evidence that is not relevant inadmissible in the proceeding.
The facts in issue are the facts that constitute the elements of the offence charged, together with such ancillary facts as are relevant to those ultimate facts. A fact in issue is not to be equated with a fact in dispute. Even where an accused does not dispute a material fact, the onus remains on the Crown to prove each element of the charge beyond reasonable doubt: see R v Burton [2013] 37 A Crim R 238 at [148]-[150].
The complainant’s son is a material witness to the events which form the basis of counts 1 and 2. However, the evidence of the child is obviously unnecessary for the proof of the third offence to which the accused intends to plead guilty without qualification.
The child’s evidence, by way of very broad summary, is that he woke up and saw the accused punching his mother. His description of the assault does not descend into any detail concerning an attempt by the accused to undo his pants or any attempt by the accused to remove the complainant’s pants. That is unsurprising given that this incident took place either in the hallway or partly in the hallway and partly in the child’s bedroom, at a time when the child remained in the complainant’s bedroom. The child’s description does not suggest the assault was attended by any particular indecency, but that is also unsurprising given the child’s location at the time and his very young age.
However, the evidence that he can give in relation to the matter is relevant because it might rationally affect the assessment of the existence of certain facts in issue. The child’s evidence has the ability to rationally affect the determination of the fact of a struggle between the complainant and the accused, during which it is alleged that the accused attempted to undo his pants and remove the complainant’s pants and underwear. The fact that the child’s evidence makes no reference to those last matters renders the evidence clearly relevant in and of itself.
Accepting that the evidence is relevant on the grounds that I have described, the defence contends that it should be excluded in the exercise of the general discretions under ss 135 and 137 of the ENULA.
The first provision confers a general discretion to refuse to admit evidence “if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time”. The term, “probative value” is defined 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 of the child is probative for the reasons have already described in the context of relevance, but not highly so.
So far as the balancing exercise is concerned, there is no basis on which to conclude that the receipt of that evidence might be misleading or confusing, or cause or result in an undue waste of time. So far as the question of prejudice is concerned, evidence is only unfairly prejudicial if it would deprive the accused of a fair trial. The accused will only be deprived of a fair trial if there is a real risk that the evidence will be misused by a jury in some unfair way.
Counsel for the accused submits that the risk in this case is that the jury’s sympathies might be unduly excited by seeing a five-year old child give evidence concerning a home invasion and an assault on his mother, including a re-enactment of the nature of that assault. The same contention is made in relation to the operation of s 137 of the ENULA and the balancing exercise to be undertaken there. Section 137 is restricted in its operation to criminal proceedings and requires a court to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Again, in order for there to be a danger of unfair prejudice to the accused there must be a real risk that the evidence will be misused by the jury in some way, and that the risk will exist notwithstanding the proper directions which it should be assumed the court will give: see R v Shamouil [2006] 66 NSWLR 228 per Spigelman CJ.
The test as enunciated by McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51] is in the following terms:
It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may influence the jury or divert the jurors from their task.
There is no basis on which to conclude that the jury would give the evidence more weight than it deserves or that it would divert the jury from its proper task. It is also unlikely that the child’s evidence will cause any particular or additional prejudice to the accused. The complainant’s evidence will already be that the accused assaulted her in the presence of her five year old son. The accused will already have pleaded guilty to the unlawful assault of the child in the presence of the jury. These matters all form part of the context in which the first and second offences are alleged to have taken place, and the child’s evidence will not give rise to any particular revulsion or incite any particular emotion in the jury over and above that which might be excited by those contextual facts.
To the extent that it does, that is a matter which can be cured by direction. The risk that a jury may be emotionally affected or may use evidence improperly was addressed by Gleeson CJ and Gummow J in Gilbert v R [1999] 201 CLR 414 at [13] as follows:
The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand and follow the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
The directions in this case will include that the jury must decide the matter without sympathy, emotion or prejudice. For these reasons I refuse to exercise the discretion to exclude the evidence of the child’s recorded statement in pursuance of ss 135 and 137 of the ENULA.
The photographs of the complainant’s injuries
I turn then to consider the objection in relation to the admission of photographs of the complainant’s injuries. In particular, the photos show injuries to the complainant’s face and neck and bruising and lacerations to the complainant’s breasts. The same provisions of the ENULA are implicated by this objection.
The facts which the Crown will seek to prove include that the accused attacked the complainant and that they engaged in a protracted struggle, that the accused made forceful contact with the complainant’s chest area, and that the accused choked the complainant to stop her screaming while he attempted to remove her pants. The photographs depicting the complainant’s injuries are relevant to the determination of whether those acts were committed by the accused and relevant to the question of the accused’s state of mind in the context of count 2.
As the courts have previously observed, photographs are able to make clear to the jury what no amount of oral description can make clear. The photographs are clearly relevant in both contextual terms and in the determination of the nature and location of the force applied by the accused. So far as the question of prejudice is concerned, as the New South Wales Court of Criminal Appeal has observed in the context of photographs, “the sensitivity of jurors to photographs can be too easily overstated”: see Zammit v R [1999] 107 A Crim R 489 at [156]. For these reasons I decline to exercise the discretion to exclude the photographs depicting the complainant’s injuries.
The redaction of the complainant’s recorded statement
I will hear the parties in relation to the redaction of the complainant’s recorded statement at 10 am on 5 March 2021.
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