The Queen v Jennings - [2020] NTSC 71

CITATION:The Queen v Jennings [2020] NTSC 71
PARTIES:THE QUEEN

v
JENNINGS, Kyle

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY exercising Territory jurisdiction
FILE NO:22001963
DELIVERED:  11 November 2020
HEARING DATE:  2 November 2020
JUDGMENT OF:  Grant CJ
CATCHWORDS:

EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings – Improperly or illegally obtained evidence
Whether evidence of admissions allegedly made to police inadmissible – Whether evidence accused had been using cannabis and methamphetamine prior to incident inadmissible – Whether evidence accused intended to enter into drug rehabilitation inadmissible – Whether defence should be granted leave to cross-examine complainant for credibility purposes – whether Crown should be granted leave to cross-examine accused for credibility purposes – Rulings on admissibility made.

Evidence (National Uniform Legislation) Act (NT) s 65, s 66, s 85, s 90, s 135, s 137, s 138, s 142
Police Administration Act 1978 (NT) s 142
Bullock [2005] NSWSC 825, Em v R (2007) 232 CLR 67, Festa v The Queen (2001) 208 CLR 593, McDonald v The Queen [2014] VSCA 80, Parker v Comptroller-General of Customs (2009) 83 ALJR 494, R v El-Azzi [2004] NSWCCA 455, R v Esposito (1998) 45 NSWLR 442, R v Horton (1998) 45 NSWLR 426, R v Karui [2016] NTSC 13, R v McGoldrick (Supreme Court of New South Wales Court of Criminal Appeal, Studdert, James and Hidden JJ, 28 April 1998), R v RPS (Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt and Hidden JJ, 13 August 1997), R v Shamouil (2006) 66 NSWLR 228, R v Swaffield (1998) 192 CLR 159, R v Yirrawala [2015] NTSC 37, Robinson v Woolworths Ltd (2005) 158 A Crim R 546, The Queen v Tipiloura [2019] NTSC 92, referred to.
REPRESENTATION:
Counsel:
Crown:H Riley
Accused:C Voumard
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  GRA2011
Number of pages:  24

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Jennings [2020] NTSC 71

No. 22001963

BETWEEN:
THE QUEEN

AND:
KYLE JENNINGS

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 11 November 2020)

The accused is charged with one count of aggravated unlawful entry contrary to s 213 of the Criminal Code 1993 (NT), and one count of aggravated assault contrary to s 188 of the Criminal Code.
On the morning of the first day of trial the parties sought to have the following issues of admissibility determined:
(a)whether evidence sought to be led by the Crown of an admission allegedly made to a police officer by the accused while he was in custody is inadmissible by operation of ss 85, 90, 135 and/or 137 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA); and/or by operation of s 142 of the Police Administration Act 1978 (NT);
(b)whether evidence sought to be led by the Crown of an admission allegedly made to a police officer by the accused while he was in hospital in the aftermath of the incident from which the charges arose is inadmissible by operation of ss 85, 90, 135 and/or 137 of the ENULA; and/or by operation of s 142 of the Police Administration Act 1978 (NT);
(c)whether evidence sought to be led by the Crown from the accused’s then girlfriend that the accused had been smoking cannabis and injecting methamphetamine shortly prior to the incident from which the charges arose is inadmissible by operation of ss 56, 135 and/or 137 of the ENULA;
(d)whether evidence sought to be led by the Crown from the accused’s then girlfriend that prior to the incident from which the charges arose the accused had formed the intention to enter drug rehabilitation the following day is inadmissible by operation of ss 56, 135 and/or 137 of the ENULA;
(e)whether evidence sought to be led by the Crown of a statement by the accused in the aftermath of the incident from which the charges arose that he intended to enter drug rehabilitation is inadmissible by operation of ss 56, 135 and/or 137 of the ENULA;
(f)whether the defence should be granted leave pursuant to s 103 of the ENULA to cross-examine the complainant for credibility purposes in relation to offences committed by the complainant in 2001 and 2014; and
(g)whether the Crown should be granted leave pursuant to s 104 of the ENULA to cross-examine the accused for credibility purposes in relation to offences committed by the accused on 12 April 2018, 5 June 2018 and 10 October 2018.
Given the imminence of the trial, I made ex tempore rulings on those issues with reasons to be published at a later time.
The admission in custody
The police officer to whom the admission was allegedly made by the accused while he was in custody was called to give evidence during the voir dire hearing. So far as is relevant for these purposes, that evidence may be summarised as follows. The accused was arrested at the Palmerston Hospital in the early hours of 14 January 2020 and conveyed to the Palmerston watch house. At the time of his arrest he was administered a caution pursuant to s 140 of the Police Administration Act. At approximately 10:30 am on 14 January 2020 the police officer attended at the Palmerston watch house to speak with the accused and provide him with an opportunity to participate in an electronically recorded interview. The accused advised that he wished to participate in an interview, but wished to speak to a lawyer first. The police officer did not ask any further questions of the accused, but the accused then volunteered the following information as recorded in the officer’s notebook at the time the statements were made:
… he went to the house, didn’t know the occupant. Got dragged in, hit with a broomstick then occupant pulled out a knife and he attacked the occupant. Fight ensued, he ran, hid on an oval.
The police officer stated that although he did not record the accused’s words verbatim, the accused had used the words “didn’t know” the complainant and “got dragged in” to the residence. Those statements were not electronically recorded or otherwise adopted by the accused. After speaking with the accused the police officer informed watch house staff of the accused’s request to speak with a lawyer prior to any formal interview. As matters transpired, the accused did not subsequently participate in an electronically recorded interview.
An “admission” is defined in the Dictionary to the ENULA in the following terms:
admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) adverse to the person's interest in the outcome of the proceeding.
An outright confession made to police is the most obvious example of a representation which would constitute an admission in criminal proceedings. However, under the terms of the definition any acknowledgment of some relevant fact which tends to establish guilt is an admission: R v Horton (1998) 45 NSWLR 426; R v Esposito (1998) 45 NSWLR 442. The representations made by the accused on this occasion are adverse to his interest in the outcome of the proceeding because:
(a)the representation that the accused did not know the complainant corroborated the complainant’s account;
(b)the representation that the accused did not know the complainant was inconsistent with representations made by the accused to police while at the Palmerston hospital, and on which the accused sought to rely at trial, that he had attended at the complainant’s residence to purchase cannabis and had done so on previous occasions;
(c)the representation that the accused was “dragged in” to the complainant’s residence was inconsistent with the representation that he had attended at the complainant’s residence to purchase cannabis; and
(d)the representation that the complainant “pulled out a knife”, and the implied representation that it was the complainant’s knife, was inconsistent with his girlfriend’s evidence that the accused owned the knife, and arguably inconsistent with the forensic evidence.
There can be no doubt that these representations constitute “admissions” within the meaning of the ENULA, and that they are relevant evidence. The case is, in essence, an “oath on oath” case, and the admissions are clearly relevant to an assessment of the relative credibility of the accused and the complainant. They are also relevant for rebuttal purposes to the extent that they are inconsistent with other recorded representations made by the accused to police while at the Palmerston hospital, and on which the accused sought to rely at trial: McDonald v The Queen [2014] VSCA 80 at [28]-[29].
The accused’s first contention is that evidence of those admissions is not admissible because the circumstances in which they were made were not such as to make it unlikely that the truth of the admission was adversely affected within the meaning of s 85(2) of the ENULA. That provision has application to evidence of an admission made by an accused to a police officer performing functions in connection with the investigation of an offence. Defence counsel’s attack on the admissibility of this evidence would seem to be predicated on three matters. First, the accused had recently suffered injury and had only recently woken at the time he spoke with a police officer. Secondly, no sufficient attempt was made to arrange for the accused to speak with a legal representative before the admissions were made. Finally, it is unclear what the precise words spoken by the accused were at that time.
Section 85 of the ENULA is not directly concerned with impropriety, illegality or general considerations of fairness. Those matters fall for consideration under other provisions of the ENULA. The representations were not made in response to questioning by the police officer. They were volunteered. The accused did not give evidence at the voir dire hearing to the effect that his ability was impaired at the time of his conversation with the police officer, and nor is there any objective evidence suggesting that it was. Some of the representations made by the accused may be patently false, and the Crown asserts positively that some of them are, but there is nothing in the circumstances in which those representations were made which might have adversely affected their veracity.
The accused’s second contention is that it would be “unfair” to admit the evidence. Section 90 of the ENULA provides that the court may refuse to admit evidence of an admission if having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The accused bears the onus of establishing the facts giving rise to unfairness on the balance of probabilities: see ENULA, s 142(1).
In Em v R (2007) 232 CLR 67 at [107], Gummow and Hayne JJ (at [107]) made the point that the focus of the enquiry is not upon whether the circumstances in which the admission was made were fair or unfair. Rather, it is on whether having regard to those circumstances it would be unfair to an accused to use the evidence at trial. Moreover, the consequences which follow from illegal or improper conduct by investigating authorities fall to be dealt with under s 138 of the ENULA, and are not to be dealt with under s 90.
It is not possible to mark out the full extent of the meaning of “fairness” in this context. The unfairness discretion is capable of operating in relation to procedural rights and forensic disadvantages. In R v Swaffield (1998) 192 CLR 159 at [77] the plurality identified a number of circumstances which might give rise to unfairness in the nature of forensic disadvantage, including the admission of a statement made by an accused to another person if that person is not called as a witness; and where the manner in which the accused was questioned has led to apparent inconsistencies which might be used to impair his credit as a witness.
The evidence is not unfair simply because it has potentially inculpatory effect, the admissions are brief and contemporaneously recorded, there is nothing in the nature which suggests they might be taken out of context or relevantly misconstrued, and the evidence is susceptible to challenge by the defence during cross-examination: see The Queen v Tipiloura [2019] NTSC 92 at [23], [24], [32]. Accordingly, there is no relevant unfairness in using the evidence at trial. Assuming there is otherwise no relevant unfairness, the defence contention that some of the admissions may be subject to different interpretations is one properly determined by the jury: see R v Yirrawala [2015] NTSC 37 at [8].
Prior to the hearing of this application defence counsel had foreshadowed that objection would also be made in reliance on s 138 of the ENULA. That ground was not apparently pursued during the course of argument, but I will deal with it briefly lest I am wrong in that understanding. Section 138 of the ENULA provides in essence that evidence obtained improperly or in 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. Again, the burden is on the party seeking exclusion of the evidence to establish that it was improperly obtained: see Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28] per French CJ.
There is no relevant contravention of the law asserted in this case. The ENULA contains no general or specific definition of "impropriety". In this context, the method or conduct will only be “improper” in the relevant sense if it is clearly inconsistent with the minimum standards which society should expect and require of law enforcement officers: see Robinson v Woolworths Ltd (2005) 158 A Crim R 546 at [23]. Having regard to the evidence in relation to the circumstances in which the admissions were made, it cannot be concluded that the admissions were “obtained improperly” within the meaning of s 138 of the ENULA, and should therefore be excluded on that basis.
I turn then to consider whether evidence of the admissions 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 would have significant probative value for the purposes I have described.
So far as the balancing exercise is concerned, there is no basis on which to conclude that the receipt of the evidence might be misleading or confusing, or cause or result in undue waste of time. Evidence is only unfairly prejudicial if it would deprive an accused of a fair trial. An accused will be deprived of a fair trial if there is a real risk that the evidence will be misused by the jury in some unfair way. I do not consider that any such risk presents in relation to this evidence, and any risk which does present may be ameliorated by appropriate directions to the jury.
Section 137 of the ENULA is restricted in its operation to criminal proceedings, and requires the court to refuse to admit evidence adduced by the Crown “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 “[t]here must be a real risk that the evidence will be misused by the jury in some way that the risk will exist notwithstanding the proper directions which it should be assumed the Court will give”: R v Shamouil (2006) 66 NSWLR 228 at [72]. The test 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 the 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 inflame the jury or divert the jurors from their task.
The evidence of the admissions is not weak for the purpose for which it would be adduced. While there may be some dispute as to the meaning properly attributed to those admissions, they are contestable matters which will ultimately fall to the jury to determine. There is no real danger that the jury would give the evidence more weight than it deserves, or that it would distract the jury from its proper task. Rather, the significance properly attributed to those admissions will form part of its proper task.
For those reasons, I refuse to exclude the evidence in the exercise of the discretions conferred by ss 135 and 137 of the ENULA.
Finally, the accused asserts that the admissions are inadmissible by operation of s 142 of the Police Administration Act. It provides, so far as is relevant for these purposes:
Electronic recording of confessions and admissions
(1) Subject to section 143, evidence of a confession or admission made to a member of the Police Force by a person suspected of having committed a relevant offence is not admissible as part of the prosecution case in proceedings for a relevant offence unless:
(a) where the confession or admission was made before the commencement of questioning, the substance of the confession or admission was confirmed by the person and the confirmation was electronically recorded; or
(b) where the confession or admission was made during questioning, the questioning and anything said by the person was electronically recorded,
and the electronic recording is available to be tendered in evidence.
There is no doubt that the accused was held in lawful custody at the time the admission is said to have been made. It was accepted by the accused that the s 140 warning had been administered at the time of his arrest. There is also no doubt that the admission was made to a member of the police force at the time the accused was suspected of having committed a relevant offence. Unlike the ENULA, the Police Administration Act does not define the term “admission”. The Crown does not contend that the evidence in question it is not an “admission” for these purposes.
It is also common ground that the admission was not electronically recorded. However, the provision does not cast a positive obligation on attending police. It is not unlawful for a police officer not to make an electronic recording of an admission or confession. The provision operates only to make a confession or admission prima facie inadmissible in the absence of an electronic recording for the public interest purposes of certainty and transparency. That is subject to the qualification in s 143, which provides:
Certain evidence may be admitted
A court may admit evidence to which this Division applies even if the requirements of this Division have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
The Crown bears the onus of satisfying the court on the balance of probabilities that the admission of the evidence would not be contrary to the interests of justice having regard to the nature of the non-compliance and the reasons for it. The circumstances do not need to be “exceptional”. The evidence may be admitted if, having regard to the nature of and the reasons for the non-compliance, the court is satisfied that admission of the evidence would not be contrary to the interests of justice.

The statutory criterion “not contrary to the interests of justice” engages the common law discretions governing exclusion on the grounds of fairness and public policy. Again, the reception of an admission is not unfair because it has inculpatory effect. At common law, the content of the requirement of fairness is directed primarily to voluntariness. There is no suggestion the admission was made involuntarily. There is no suggestion that the failure to record it was due to some deliberate disregard of the provisions by police. Generally speaking, where an accused spontaneously makes an admission to police in circumstances where the admission is not elicited in response to official questioning, a court will not exclude an unrecorded admission: see, for example, Bullock [2005] NSWSC 825.
For these reasons, I am satisfied that the admission of the evidence would not be “contrary to the interests of justice” within the meaning of s 143 of the Police Administration Act.
The admission in hospital
The admission said to have been made in hospital by the accused was that, “I don’t know the fella [the complainant]”. It is in similar terms to one of the admissions made to the police officer at the Palmerston watch house approximately eight hours later, and potentially has the same probative value. However, the circumstances in which the first admission was allegedly made were quite different.
During the course of the incident giving rise to these charges the complainant suffered significant injuries, including a large and deep laceration to his right hand between his index finger and his thumb, and a laceration at the corner of his right eye. He was taken to the Palmerston hospital by his then girlfriend at some time between 1 am and 2 am on 14 January 2020, which was relatively shortly after he sustained those injuries. The police officer was with the accused from 2.20 am through to 4 am. The admission was allegedly made by the accused during the course of an extended conversation with his girlfriend during that period, to which the attending police officer was listening. The admission was apparently made while the accused was being treated for the injuries he had sustained, including the suturing of the lacerations.
The admission was not made directly to the police officer in circumstances where the accused might be expected to understand that it might be used at any subsequent trial. The admission formed part of a more extended conversation between the accused and his girlfriend, making it potentially difficult to test the context in which the admission was made and the other content of that conversation: see, for example, R v Karui [2016] NTSC 13 at [48]-[49]. The admission was allegedly made in the relatively immediate aftermath of a violent incident, and while the accused was receiving medical treatment for injuries sustained in that incident. Having regard to those circumstances, it would be unfair to the accused to allow the prosecution to adduce the evidence at trial.
The evidence of cannabis and methamphetamine use
The next category of evidence sought to be led by the Crown was from the accused’s then girlfriend that the accused had been smoking cannabis and injecting methamphetamine shortly prior to the incident from which the charges arose. That evidence was that they had shared a point of methamphetamine approximately one hour prior to the incident giving rise to these charges. They had then smoked cannabis. Defence counsel’s principal objection to this evidence is that it has no relevance, and that if it does it should be excluded on the basis that its prejudicial effect outweighs its probative value.
Section 55 of the ENULA effectively 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 evidence in this case is relevant because it forms part of the background against which the evidence of the complainant and the account given by the accused necessarily fall to be evaluated; it is closely related in time and circumstance to the conduct alleged in the charges; and it has probative value as to the accused’s state of mind at the time. These are not matters which require elucidation by expert evidence, and they are for the jury to determine. It is in that respect no different to evidence that an accused, or some other participant in an event, had been drinking alcohol in the lead up to the incident in question.
The probative value of the evidence is not outweighed by its prejudicial effect, as any potential there may be for the jury to misuse the evidence can be ameliorated by appropriate directions. Those directions would include: (a) that the jury cannot engage in prohibited reasoning that because the evidence shows the accused to be of bad character (if indeed they form that view), the accused is likely to be guilty of the crime; (b) that the purpose of the evidence is to put the offending in context and to give the full background against which the evidence must be evaluated; and (c) there is no evidence, expert or otherwise, that the accused’s use of drugs had some direct nexus to his conduct on the night.
The evidence concerning drug rehabilitation
The next two categories of evidence sought to be led by the Crown are: (a) a contemporaneous statement by the accused’s then girlfriend that prior to the incident from which the charges arose the accused had formed the intention to enter drug rehabilitation the following day; and (b) a statement made by the accused while at the Palmerston hospital that he intended to enter drug rehabilitation. The statement by the accused was made at the end of an account of events given spontaneously by him at the time of his arrest which was recorded by the police body worn video. It is that account which the accused seeks to rely on at trial for exculpatory purposes. The part to which objection taken is:
And then, you know, the fucken fear of fucken coppers mate. So I’ve been sitting in [the] dark, my head won’t stop fucking bleeding. I’m going to fucken rehab tomorrow.
Unlike the evidence of the accused’s drug use immediately prior to the incident in question, the evidence that the accused and his girlfriend intended to enter into a drug rehabilitation program is not closely related in time and circumstance to the conduct alleged in the charges. It does not have the requisite probative value to qualify as relevant.
Even if it did, the evidence has the potential to be misused by the jury in the sense of provoking some emotional response and prohibited reasoning based on assumptions concerning the accused’s character. It is one thing for a jury to receive evidence that prior to the incident in question an accused was engaging in recreational drug use with his girlfriend. It is quite another thing for the jury to receive evidence which suggests that an accused has an entrenched problem with the abuse or misuse of methamphetamine to a degree which requires clinical intervention.
Cross-examination of the complainant on credibility
The next question for determination is whether the defence should be granted leave pursuant to s 103 of the ENULA to cross-examine the complainant for credibility purposes in relation to offences committed by the complainant in 2001 and 2014.
Section 101A of the ENULA defines “credibility evidence”, so far as it bears on this issue, to mean “evidence relevant to the credibility of the witness … that … is relevant only because it affects the assessment of the credibility of the witness or person”. Section 102 of the ENULA goes on to provide, subject to exceptions, that “[c]redibility evidence about a witness is not admissible”. The relevant exception may be found in s 103 of the ENULA, which provides that “the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.”
Evidence will have the capacity to “substantially affect the assessment of the credibility of the witness” where it has the potential to have a “real bearing” on the witness’s credibility, with particular reference to the credibility of the evidence to be given at trial: see R v El-Azzi [2004] NSWCCA 455 at [183]. The requirement for substantiality is more onerous than the requirement of rationality which governs the assessment of the relevance under s 55 of the ENULA. As Hunt CJ observed in R v RPS (Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt and Hidden JJ, 13 August 1997) at 29-30:
The addition of the word “substantial” nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one.
The addition of the word “substantial” requires, first, that the testimony of the witness could be reasonably regarded as important to the outcome of the proceedings and, secondly, that the evidence would have “a real, persuasive bearing” on the reliability of the witness or some part of his or her testimony: see R v McGoldrick (Supreme Court of New South Wales Court of Criminal Appeal, Studdert, James and Hidden JJ, 28 April 1998).
Section 103(2)(a) of the ENULA provides that in determining whether evidence might “substantially” affect the assessment of credibility, the court must have regard to whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth. It is uncertain whether that reference to “an obligation to tell the truth” is restricted to a legal obligation, or whether it extends beyond that. It has been suggested, without authority, that the ambit of the provision may extend beyond legal obligations to moral obligations. However, the criterion is directed to evidence of conduct which is similar to testifying untruthfully and which took place in circumstances similar to those of testifying: see Australian Law Reform Commission [1985] ALRC 26 at [819].
Section 103(2)(b) of the ENULA provides that in determining whether evidence might “substantially” affect the assessment of credibility, the court must have regard to the period which has elapsed since the acts or offence to which the evidence relates were done or occurred. That criterion necessarily recognises that an event in the past may have little to say about a witness’s credibility at the time the evidence is being given.
It may be noted that s 103(2) is not, and does not purport to be, an exhaustive statement of the considerations properly taken into account in determining whether the evidence could substantially affect the assessment of the credibility of the witness. The matters typically subject to cross-examination for credit purposes include such things as recent convictions which bespeak dishonesty, the making of false representations, and out of court statements demonstrating a motive to be untruthful in relation to the matters in issue.
Defence counsel seeks to cross-examine the complainant on two matters. The first is a series of offences contrary to s 217 of the Social Security (Administration) Act 1999 (Cth) committed between June and October 2001. The substance of the offences was that the complainant either knowingly or recklessly made a false or misleading statement in connection with a claim for a social security payment. The nature of the false or misleading statement was to under-declare income during that period. The second matter relates to an offence committed by the complainant in June 2014 in which the complainant stole a cheque from business premises, forged a signature on the cheque, and cashed it at the bank to receive $1230.
The evidence to be given at trial by the complainant is essentially that he was confronted and attacked in his home by the accused without provocation. It is not evidence concerning any sort of financial transaction, and it is not evidence which gives rise to any particular nuance in the telling. In neither of the offences on which the accused seeks to cross-examine the complainant was the complainant’s conduct similar to testifying untruthfully, and nor did the conduct in either case take place in circumstances similar to those of testifying in court.
So far as the Social Security offences are concerned, it may be accepted that the complainant was under an obligation to tell the truth when making a claim for a social security payment. However, there is a paucity of information concerning the precise nature of the complainant’s conduct in that respect. It is unclear whether his statement was made falsely or recklessly. That lack of information is referable to, and draws attention to, the fact that the offences were committed almost 20 years ago.
So far as the offence involving the cheque is concerned, while it was an offence of dishonesty in the general sense, it is not of a character which might “substantially” affect the assessment of the complainant’s credibility concerning his evidence of the alleged assault. It is also an offence which was committed more than six years ago now.
For these reasons, leave to cross-examine the complainant on credibility is refused.
Cross-examination of the accused on credibility
The final matter for determination is whether the Crown should be granted leave pursuant to s 104 of the ENULA to cross-examine the accused for credibility purposes in relation to offences committed by the accused on 12 April 2018, 5 June 2018 and 10 October 2018. The Crown only sought leave to cross-examine in the event that the defence was given leave to adduce evidence directed to attacking the complainant’s credibility. Given the ruling made in that respect, there is no call to grant leave to cross-examine the accused on credibility.
Rulings
The following rulings are made:
1.The evidence of the admissions allegedly made to police while the accused was in custody at the Palmerston watch house is admissible.
2.The evidence of the admission allegedly made in the presence of police while the accused was at the Palmerston hospital is inadmissible.
3.The evidence of the accused’s girlfriend concerning the accused’s consumption of cannabis and methamphetamine prior to the alleged commission of the offences is admissible.
4.The evidence of the accused’s girlfriend concerning the accused’s intended entry to drug rehabilitation is inadmissible.
5.That portion of the body worn video recording of the account given by the accused to police while at the Palmerston hospital commencing with the words “And then you know” and concluding with the words “where we are” is inadmissible.
6.Leave is refused to cross-examine the complainant for credibility purposes pursuant to s 103 of the ENULA in relation to offences committed by the complainant in 2001 and June 2014.
7.Leave is refused to cross-examine the accused for credibility purposes pursuant to s 104 of the ENULA in relation to offences committed by the accused on 12 April 2018, 5 June 2018 and 10 October 2018.