The Queen v Hoffmann (No 2)

[2021] NTSC 84

CITATION:The Queen v Hoffmann (No 2) [2021] NTSC 84

PARTIES:THE QUEEN

v

HOFFMANN, Benjamin

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction

FILE NO:21922564

DELIVERED:  24 August 2021

HEARING DATE:  24 August 2021

JUDGMENT OF:  Grant CJ

REPRESENTATION:

Counsel:

Crown:  L Babb SC with T Grealy

Accused:J Tippett QC with C Voumard

Solicitors:

Crown:Office of the Director of Public Prosecutions

Accused:  Northern Territory Legal Aid Commission

Judgment category classification:     C

Judgment ID Number:  Gra2113

Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Hoffman (No 2) [2021] NTSC 84

No 21922564

BETWEEN:

THE QUEEN

AND:

BENJAMIN HOFFMANN

CORAM:    GRANT CJ

REASONS FOR DECISION

(Delivered 24 August 2021)

[1]The Crown has sought to have the following matters determined as preliminary issues in advance of the trial:

(a)applications for certain witnesses to be declared as vulnerable witnesses within the meaning of s 21AB of the Evidence Act 1939 (NT) so that they may give their evidence at trial from the vulnerable witness room or in the court room with a screen placed so that the witness’s view of the defendant is obscured;

(b)applications for leave for certain witnesses to give their evidence at trial by audiovisual link;

(c)applications that the evidence of two witnesses be received by way of statement pursuant to s 65 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘the ENULA’); and

(d)an application for the conduct of a view pursuant to s 53 of the ENULA.

The Crown case

[2]The charges against the accused and the nature of the Crown case are described in The Queen v Hoffmann [2021] NTSC 31.

Vulnerable witnesses

[3]The Crown has applied for the 14 witnesses listed in the Schedule at Annexure 1 to these Reasons to be declared as vulnerable witnesses within the meaning of s 21AB of the Evidence Act so that they may give their evidence at trial from the vulnerable witness room or in the court room with a screen placed so that the witness’s view of the defendant is obscured.

[4]When the Crown application was first made, no objection was taken to the application in relation to the witnesses numbered 1, 2, 3, 8, 10, 11, 12 and 13.  However, objection was initially notified to the application in relation to the other witnesses listed in the Schedule on the grounds of relevance (witness 4), or that the witness did not qualify as ‘vulnerable’ (witnesses 5, 6, 7, 9 and 14).

[5]Section 21AB of the Evidence Act provides:

Meaning of vulnerable witness

A "vulnerable witness"means a witness in proceedings:

(a)   who is a child; or

(b)   who has a cognitive impairment or an intellectual disability; or

(c)   who is the alleged victim of a sexual offence to which the proceedings relate; or

(d)   who is a complainant in a domestic violence offence proceeding; or

(e)   whom a court considers to be vulnerable.

[6]Categories (a) to (d) are prescriptive and lend themselves to determination on purely objective grounds. Category (e) affords the court a discretion. There would not appear to be any decision of this Court or the Court of Criminal Appeal which considers the meaning of "vulnerable" in this context. However, there is no doubt that the purpose of these protective provisions were directed to the trauma of court proceedings – both for the protection of the witness and to maintain the integrity of the evidence. Section 21A(1) of the Evidence Act provides:

In considering whether a witness is a vulnerable witness, the court may have regard to the following matters:

(a)   any relevant condition or characteristic of the witness, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality;

(b)   any mental or physical disability to which the witness is, or appears to be, subject;

(c)   any relationship between the witness and the defendant to the proceedings;

(d)   any other matter the court considers relevant.

[7]The definition of "vulnerable witness" in s 41(4) of the ENULA is also a useful reference point.  It provides:

For the purposes of subsection (2), a witness is a vulnerable witness if the witness:

….

(c)   is a witness whom the court considers to be vulnerable having regard to:

(i) any relevant condition or characteristic of the witness of which the court is, or is made aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and

(ii) any mental or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and

(iii) the context in which the question is put, including:

(A) the nature of the proceeding; and

(B) in a criminal proceeding – the nature of the offence to which the proceeding relates; and

(C) the relationship (if any) between the witness and any other party to the proceeding.

[8]Although that definition is for a different purpose and mechanism, the considerations set out in paragraph (c)(iii) are also relevant considerations in the exercise of the discretion under s 21AB(e) of the Evidence Act.

[9]Section 21A(2) of the Evidence Act provides that a vulnerable witness ‘is to give evidence at a place outside the courtroom using an audiovisual link, unless … the witness chooses to give evidence in the courtroom’. In that event, s 21A(2AB) of the Evidence Act provides that if a vulnerable witness is giving evidence in the court room, ‘a screen, partition or one-way glass must be placed so that the witness’s view of the defendant is obscured. Section 21A(2AC) of the Evidence Act provides that the witness is entitled to dispense with the use of the screen; but that is a matter for election by the witness. Section 21A(2AD) of the Evidence Act provides that in addition to those arrangements, a vulnerable witness is also entitled when giving evidence to be accompanied by ‘any other person requested by the vulnerable witness and whom the court considers is in the circumstances appropriate to accompany the vulnerable witness’. Finally, for present purposes, s 21A(2A) of the Evidence Act provides that the court may make an order that the vulnerable witness is not to give evidence using a screen or accompanied by another person if satisfied that it is not in the interests of justice for the witness’s evidence to be given using that arrangement.  The focus of that determination is on the need to minimise the harm that could be caused to the vulnerable witness, and the need for the vulnerable witness to be able to give evidence effectively.

[10]When the preliminary issue came on for hearing, counsel for the accused advised that the accused no longer opposed the declaration of the witnesses as vulnerable witnesses, but consented only to the receipt of their evidence by audiovisual link from the vulnerable witness room rather than by use of the screen, as some of those witnesses had indicated their election (no objection was taken to the election by some of the witnesses to be accompanied by a Witness Assistance Service officer while giving evidence).  The basis for the objection was essentially logistical in nature.  It was submitted that erecting and removing the screen between witnesses is an unwieldy process, and unnecessary in that those witnesses could just as easily give evidence by way of audiovisual link.  However, as the Crown submitted, the election is one for the witness to make, and there are some substantive differences between giving evidence in the courtroom using a screen and giving evidence by way of audiovisual link; including whether the accused is able to observe the witness while he or she is giving evidence.  The logistical issue identified by counsel for the accused does not ground any finding that it would be not in the interests of justice for each witness’s evidence to be given using the arrangement which that witness has elected to use.

[11]During the course of submissions, the Crown advised that witness 5 no longer wished to use a screen, and the application was not pressed in relation to that witness.  That then leaves the objection to relevance taken in relation to witness 4, and negotiations between the Crown and defence concerning the receipt of some of this evidence by way of agreed facts.  As stated, the defence objects to witness 4 on the basis that the witness’s evidence is not relevant.  The Crown submits that the evidence is relevant to the timing of the accused’s alleged interaction with one of the victims.  Negotiations are continuing in relation to the scope of that witness’s evidence, and the question of relevance can be revisited in the event that agreement is not reached. 

[12]The parties remain in negotiation concerning the agreement of facts in relation to witness 8.  Facts have been agreed and signed in relation to witness 10.  The defence is open to agreeing facts in relation to witness 11, but at this stage the Crown intends to call that witness to give evidence in person.  The orders will accommodate the evidence of those witnesses being given either by the elected mechanism or by agreed facts if and when agreement is reached in that respect.

Evidence by audiovisual link

[13]The Crown has applied for the witnesses numbered 25 to 36 listed in the ‘AVL witness list’ in the Schedule at Annexure 1 to these Reasons to give evidence by way of audiovisual link.  Leave was granted by consent on 8 March 2021 for the witnesses numbered 1 to 20 and 22 to 24 on that list to give evidence by way of audiovisual link.  Leave was granted by consent on 16 March 2021 for the witness numbered 21 to give evidence by way of audiovisual link.

[14]Sections 49E and 49P of the Evidence Act empower the court to order that a witness give evidence by audiovisual link, including from outside the Territory.  Under those provisions, the court must be satisfied that the necessary facilities are available and that the evidence can more conveniently be given from that place.  In making that latter determination, the court must have regard to whether a direction for the giving of evidence by audiovisual link would be unfair to any person.  In this case, the only person who might be prejudiced in the matter is the accused in the proceedings.  Counsel for the accused has indicated that the defence consents to the evidence of those witnesses being given by audiovisual link.

[15]In those circumstances, the orders are properly made having regard to the travel and accommodation expenses associated with bringing the witness to court to give evidence; the logistical difficulties which present with travel from interstate at the present time (and particularly from New South Wales and Victoria); and the fact that receiving that evidence by audiovisual link does not give rise to any questions of practicability concerning documents and objects which have been identified by the parties.  The grant of leave will be subject to the Crown making provision for the availability of appropriate facilities to ensure that the evidence that is proposed to be received by audiovisual link is of an acceptable visual and audio quality.

Previous representation – maker not available

[16]By Notices dated 11 August 2021, the Crown has notified its intention to adduce hearsay evidence of statements made to police by Owen Morris and Frank Palazzolo on 5 June 2019, which was the day of the events in question.  Owen Morris died in Indonesia on 21 April 2021.  Expert evidence received on the application is to the effect that Frank Palazzolo suffers from a range of psychiatric conditions which would be adversely affected if it was required to give evidence in person.  Owen Morris was present at a club at which one of the murders is alleged to have taken place.  The statement indicates that the witness heard and saw various dealings and events which are relevant to the matters in issue.  Frank Palazzolo is a long-term friend of the accused whose evidence relates to the accused’s conduct in movements immediately prior to the events in question.

[17]The Crown has given notice pursuant to s 67 of the ENULA that it intends to adduce hearsay evidence of representations made by those witnesses in the form of statutory declarations made to police on 5 June 2019, the notes and statements of the police officers who took those statements concerning the circumstances in which the representations were made, and the transcript of a call made by Frank Palazzolo to police concerning the accused’s condition on the evening of 4 June 2019. The Crown invokes ss 65(2)(a), (b) and (c) of the ENULA, which provide:

The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a)   was made under a duty to make that representation or to make representations of that kind; or

(b)   was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c)   was made in circumstances that make it highly probable that the representation is reliable; 

[18]In each case, the witness said to have made the previous representations is identified with sufficient particularity. Owen Morris is inarguably unavailable to give evidence about the matters contained in the representations. The defence does not suggest that Frank Palazzolo is practically available to give evidence having regard to his mental state. In each case, in taking the statutory declaration from the witness, the police officer both saw and heard the representations being made. Assuming that at least one the conditions in s 65(2) of the ENULA is satisfied, evidence may be adduced by the police officer reading onto the record what was said (R v Suteski (No 4) (2002) 128 A Crim R 275); or by tendering the statutory declaration through the police officer (Conway v R (2000) 98 FCR 204 at [154]).

[19]There is some doubt attending the question whether these representations may be characterised as made when the witnesses were under a duty to make them, or to make representations of that kind. The scope of s 65(2)(a) of the ENULA is not settled.  While the representations were not made by the witness in the course of a legal duty to observe and record them, the provision is not obviously or expressly limited to representations made in discharge of a legal duty.  In each case, the witness heard and saw things in the lead up to the events in question, police attended on him for the purpose of taking a statement from him in relation to the matters he saw and heard, and the witness made a solemn declaration pursuant to legislation that the representations contained in the statutory declaration made to police in that context were true in every particular.  In those circumstances, I conclude that each witness was, in a relevant sense, under a duty to make those statements.  However, if I am wrong in that conclusion, it is not the sole basis on which an exception to the hearsay rule may be made out.

[20]As extracted above, ss 65(2)(b) and (c) of the ENULA also provide exceptions for representations made shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; and representations made in circumstances that make it highly probable that the representation is reliable. 

[21]Given that the statutory declaration in each case was made on the day of the events in question, they may properly be characterised as made “shortly after” the asserted fact: see R v Mankotia [1998] NSWSC 295; Conway v R (2000) 98 FCR 204; Williams v R (2000) 119 A Crim R 490; Harris v R (2005) 158 A Crim R 454 at [39]; R v Gover (2000) 118 A Crim R 8 at [33]; R v Ryan (2013) 33 NTLR 123 at 131-132 at [27]; The Queen v Smiler (No 1) [2017] NTSC 28. I consider it highly unlikely in the circumstances that the representations made by the witnesses were fabricated.

[22]Turning then to s 65(2)(c) of the ENULA, the relevant question under that provision is whether the representations were made in circumstances making it highly probable they are reliable. Although the test in s 65(2)(c) imposes a higher threshold of admissibility, it is not contingent on the representations being made “shortly after”. There is nothing improbable about the account given by each witness. There is no suggestion of confusion at the time the statements were made. The representations were made while the witness was giving a formal statement to police, and subject to the legal and moral obligations that entailed. The representations concerned events of the most grave nature, which is not something the witness would likely be mistaken about or not remember accurately. Finally, at least so far as Owen Morris is concerned, the witness had no personal interest in the subject matter of his statement, the participants in the transaction, or the outcome of any police investigation or subsequent criminal proceedings. For these reasons, I find that the representations were made in circumstances making it highly probable they were reliable.

[23]The probative value of this evidence is neither outweighed by the danger of unfair prejudice to the accused, nor substantially outweighed, by the danger that the evidence might be unfairly prejudicial to the accused.  No doubt for that reason, counsel for the accused does not make any objection to the Crown adducing the evidence described in the notices dated 11 August 2021.

View

[24]The Crown has made application for the conduct of a view pursuant to s 53 of the ENULA, in accordance with the itinerary contained at Annexure 2 to these Reasons. That section relevantly provides:

Views

(1)   A judge may, on application, order that a demonstration, experiment or inspection be held.

(2)   A judge is not to make an order unless he or she is satisfied that:

(a) the parties will be given a reasonable opportunity to be present; and

(b) the judge and, if there is a jury, the jury will be present.

(3)   Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present;

(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;

(d) in the case of a demonstration – the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;

(e) in the case of an inspection – the extent to which the place or thing to be inspected has materially altered.

[25]The defence does not object to the conduct of a view.  It is likely in the circumstances of this case that a view will assist the court in both resolving issues of fact and understanding the evidence.  There is no suggestion of unfair prejudice.  Arrangements will be put in place to otherwise satisfy the requirements of that provision.  Although arrangements can be made for the accused to attend at that view, the defence has advised that the accused has elected not to attend any view which is conducted, although his legal representatives will be in attendance.

[26]The trial is scheduled to commence on Tuesday, 21 September 2021.  The parties are in agreement that the view should be conducted commencing at 9 AM on Thursday, 23 September 2021 to allow sufficient time for the ventilation and determination of any residual preliminary issues, the empanelment of the jury, the Crown opening and any defence response to that opening.  It is necessary for any order made in this respect to nominate a time to allow the necessary arrangements to be made, however that timing will always be subject to any exigencies which arise during the conduct of the trial.

Rulings

[27]The rulings on the matters for preliminary determinations are:-

(a)With the exception of witness 5, the 14 witnesses listed in the ‘Vulnerable witness list’ in the Schedule at Annexure 1 to these Reasons are declared as vulnerable witnesses within the meaning of s 21AB of the Evidence Act 1939 (NT) and their evidence at trial may be given in the manner recorded in that Schedule, or by way of agreed facts.

(b)Leave is granted for the witnesses numbered 25 to 36 listed in the ‘AVL witness list’ in the Schedule at Annexure 1 to these Reasons to give evidence by way of audiovisual link, subject to the Crown making provision for the availability of appropriate facilities to ensure that the evidence that is proposed to be received by audiovisual link is of an acceptable visual and audio quality.

(c)A view is to be conducted in accordance with the itinerary at Annexure 2 to these reasons, with that view to be conducted commencing at 9 AM on Thursday, 23 September 2021 following the empanelment of the jury, the Crown opening and any defence response.

(d)The representations made by Owen Morris and Frank Palazzolo described in the Notices dated 11 August 2021 are admissible pursuant to s 65 of the ENULA.

-------------------------------------

Annexure 1

Vulnerable witness list

No	Name	Notes
1.	Cameron EHLING	Victim count 7.  Application to use a screen in Court and have a WAS officer in the witness box.
2.	Damita JEROME	Victim count 6.  Application to give evidence in the AVL room.
3.	Laynee JOHNSTON	Youth.  Application to use a screen in Court.
4.	Ronnie ARAGON	Application to use a screen in Court.  Suffers from a speech impediment.
5.	Anthony CLARK	Application to use a screen in Court.
6.	Chu-Chen (Harrison) PAN	Application to use a screen in Court.
7.	Mihalis MAKRYLOS	Application to give evidence in the AVL room.
8.	Georgios VAZANELLIS	Application to use a screen in Court.
9.	Carol ROBINSON	Application to use a screen in Court.  Suffering from panic attacks.
10.	Leon McGUANE	Suffering a serious medical condition, has no voice box and is writing everything down.  Still undergoing treatment.  Need to confirm that facts can be agreed in relation to the evidence.
11.	Sharon NINHAM	Direct eye witness to assault at Buff Club. Application to use a screen in Court.
12.	Kelly COLLINS	Was in intimate relationship with the accused.  Application to give evidence in the AVL room.
13.	Henry MAY	Application to give evidence from the AVL room, with a WAS officer and a service animal.
14.	Natasha NASCIVERA	Application to have a WAS officer sit next to her in the Court room while giving evidence.

AVL witness list

Witness	Location	Date leave granted
1.	Jasmine KIELLY	Interstate – Queensland	8 March 2021
2.	Brandon OZANNE	Interstate – Queensland	8 March 2021
3.	Wahyu SANTOSA	Interstate – South Australia	8 March 2021
4.	Mary CARAAN	Interstate – Victoria	8 March 2021
5.	Richard WELLS	Interstate – Western Australia	8 March 2021
6.	Tom McCONWAY	International – England	8 March 2021
7.	Judith WILKINS	Interstate – Queensland	8 March 2021
8.	Casey GARTNER	Interstate – South Australia	8 March 2021
9.	Craig MATTHEWS	Interstate – Queensland	8 March 2021
10.	Laurence GIBSON	Interstate – Western Australia	8 March 2021
11.	Dr Ross DRYDEN	Interstate – Queensland	8 March 2021
12.	Detective Sergeant Andrew BEDWELL	Interstate – Western Australia	8 March 2021
13.	Senior Constable Joanne KOLODZIEJ	Interstate – New South Wales	8 March 2021
14.	Gregory Cleary	Interstate – Victoria	8 March 2021
15.	Operator 21	Interstate – Queensland	8 March 2021
16.	Domenic RANERI	Interstate – New South Wales	8 March 2021
17.	Dimitri GEROSTAMOULOS	Interstate – Victoria	8 March 2021
18.	Kym FRIESE	Interstate – Queensland	8 March 2021
19.	Hayley BUNKER	Interstate – Victoria	8 March 2021
20.	Dr Anthony MIACH	Interstate – Tasmania	8 March 2021
21.	Sophie SMITH	Interstate – Queensland	16 March 2021
22.	Rohan WILLIAMS	Interstate – Queensland	8 March 2021 (from ACT)
23.	Mark MACKENZIE	Interstate – Queensland	8 March 2021 (from PNG)
24.	Catherine BURNS	Interstate – ACT (possibly Queensland)	8 March 2021 (from ACT)
25.	Dr Angela SUNGAILA	Interstate – Victoria	Leave sought
26.	Professor David GREENBERG	Interstate – New South Wales	Leave sought *
27.	Detective Senior Sergeant Edward SCHEY	Interstate – New South Wales	Leave sought
28.	Asanka MUTHUMALA	Intrastate – Alice Springs	Leave sought
29.	Brianna McLARTY	Interstate – Queensland	Leave sought
30.	Julie KAY	Interstate – New South Wales	Leave sought
31.	Dr Damien Harris	Interstate – South Australia	Leave sought
32.	Kellie HOURIGAN	Interstate – Queensland	Leave sought
33.	Detective Senior Constable Jan-Paul ANTEMES	Interstate – Victoria	Leave sought
34.	Detective Senior Constable Andrew BRAVOS	Interstate – ACT	Leave sought
35.	Detective Senior Constable First Class Andrew NICHOLSON	Intrastate – Alice Springs	Leave sought
36.	Dr Francois OOSTHUIZEN	Interstate – Western Australia	Leave sought

*   Leave is sought on the basis that COVID restrictions may prevent travel.  In the event restrictions are lifted, the Crown expects to have the witness in person.

Annexure 2

Itinerary for View

Activity	Distance	Time estimate
Board bus at Supreme Court Travel Supreme Court to Palms Motel  Location 100 McMinn Street, Darwin CBD	2.4 km	5 - 10 minutes (900am – 910am)
View Palms Motel – Reception and Caretakers rooms; alleged path of the accused inside the Palms Motel; Room 15 and its surrounds	1 hour (910am – 1010am)
Board bus at Palms Motel Travel Palms Motel to 18 Gardens Hill Crescent  Location 18 Gardens Hill, Crescent	550 m	5 - 10 minutes (1010am – 1020am)
View Unit complex at 18 Gardens Hill Crescent; inside of Unit 1 and 2.	30 minutes (1020am – 1050am)
Board bus at 18 Gardens Hill Crescent Travel  18 Gardens Hill Crescent to The Buff Club Location 57 Stuart Highway, Stuart Park	650 m	5 - 10 minutes (1050am – 1100am)
View rear carpark to The Buff Club	20 minutes (1100am – 1120am)
Board bus at The Buff Club Travel  The Buff Club to Darwin Recycling & 11 Jolly Street Location 9-11 Jolly Street, Woolner	2.4 km	10 – 15 minutes (1120am – 1135am)
View various rooms and locations inside 9 &11 Jolly Street (the two locations are attached with accommodation being on 11 Jolly Street, and the business being on 9 Jolly Street)	30 minutes (1135am – 1205pm)
Board bus at 9 -11 Jolly Street, Woolner Travel  9 -11 Jolly Street, Woolner to Darwin Supreme Court Location Darwin Supreme Court, State Square	4.5km	15 minutes (1205pm – 1220pm)
Total	Approximately 3 hours, 15 minutes