The Queen v Manager - [2006] NTSC 85

The Queen v Manager [2006] NTSC 85
PARTIES:THE QUEEN

v
MANAGER, Cameron Luke

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20606571
DELIVERED:  7 November 2006
HEARING DATES:  26 October 2006
JUDGMENT OF:  MILDREN J

CATCHWORDS:

EVIDENCE – Criminal Law – admissibility of complaints in sexual offence – whether admissible under s 26E of Evidence Act (NT) – mother’s statement no probative value – evidence inadmissible
Legislation:
Evidence Act, s 26E, s 26E(1)
Justices Act
Evidence Reform (Children and Sexual Offences) Act 2004
Citations:
Followed:
R v Joyce (2005) 15 NTLR 134
R v Wojtowicz (2005) 148 NTR 24

REPRESENTATION:

Counsel:
Plaintiff:E Armitage
Defendant:P Maley

Solicitors:
Plaintiff:Office of the Director Public Prosecutions
Defendant:Maley’s Barristers & Solicitors
Judgment category classification: B
Number of pages: 11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Manager [2006] NTSC 85

No. 20606571
BETWEEN:

THE QUEEN

Plaintiff

AND:

CAMERON LUKE MANAGER

Defendant

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 7 November 2006)

The accused stands charged with one count of having sexual intercourse, namely digital penetration, with CW without her consent and with a further count of having an unlawfully indecently dealt with SW. CW and SW are sisters respectively aged six and five years.
It is the Crown case that on the evening of 19 February 2006, after the children’s parents had gone to sleep, the accused went into the girls’ bedroom and committed the offences therein. Whilst this was happening, the accused’s brother, Brendon, and sister, Karmani, were watching television in the lounge room. In his record of interview, the accused admitted leaving the lounge room where he had been watching television as well, in order to go to the toilet. He claimed to have diarrhoea and that he left the lounge room to go to the toilet on three occasions that evening. The accused denied going into the bedroom and committing any offences on the two children.
The Crown sought to tender as evidence in this case statements made by the elder child CW to the accused’s sister Karmani and subsequently to the child’s mother, TR. It is not disputed that the evidence is admissible as evidence of complaint. However, the Crown sought to have the evidence admitted pursuant to s 26E of the Evidence Act which is in the following terms:
“26E. Exception to rule against hearsay evidence
(1)In a proceeding in relation to a sexual offence, as an exception to the rule against hearsay evidence, the Court may admit evidence of a child’s statement to another person as evidence of the facts in issue if the Court considers the evidence is of sufficient probative value as to justify its admission.
(2)In a preliminary examination under Part V, Division 1 of the Justices Act, the child whose evidence is admitted under subsection (1) cannot be cross-examined in relation to the statement.
(3)An accused person cannot be convicted solely on the…

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 Manager

Details

AGLC: The Queen v Manager [2006] NTSC 85
Case: [2006] NTSC 85
Decision Date: 7 November 2006

CaseChat Overview and Summary

The case of The Queen v Manager involved the admissibility of statements made by a child in relation to a sexual offence. The Crown sought to use statements made by the child, CW, to her mother, TR, as evidence in the case. The primary legal issue was whether these statements were admissible under section 26E of the Evidence Act (NT), which allows for the admission of a child's statement to another person as evidence in a sexual offence proceeding if the court considers it to have sufficient probative value. The court had to determine whether the statements made by CW to her mother had sufficient probative value to justify their admission under section 26E of the Evidence Act.

The court examined the requirements of section 26E(1) and concluded that while the statements were relevant and related to a sexual offence, they did not possess sufficient probative value to be admitted as evidence of the facts in issue. The court found that the section did not specify what constitutes "sufficient probative value," but it was clear that the evidence had to be more than mere hearsay. The court noted that the provision was intended to reduce trauma for child witnesses and improve the quality of evidence, but the statements in question did not meet this threshold. The court referenced previous cases, R v Joyce and R v Wojtowicz, to support its reasoning.

Ultimately, the court ruled that neither of the complaints made to the mother was admissible as it did not have sufficient probative value to justify its admission as evidence of the truth of the facts contained therein. The court's decision was based on the lack of sufficient probative value, aligning with the statutory criteria under section 26E. The final orders of the court ensured that the statements made by the child to her mother were excluded from the evidence presented in the case.

Orders

Orders of the court

... neither complaint to the mother is admissible as it does not have sufficient probative value to justify its admission as being evidence of the truth of the facts contained therein

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Crown sought to tender as evidence in this case statements made by the elder child CW to the accused’s sister Karmani and subsequently to the child’s mother, TR. It is not disputed that the evidence is admissible as evidence of complaint. However, the Crown sought to have the evidence admitted pursuant to s 26E of the Evidence Act which is in the following terms:“26E. Exception to rule against hearsay evidence (1)In a proceeding in relation to a sexual offence, as an exception to the rule against hearsay evidence, the Court may admit evidence of a child’s statement to another person as evidence of the facts in issue if the Court considers the evidence is of sufficient probative value as to justify its admission.(2)In a preliminary examination under Part V, Division 1 of the Justices Act, the child whose evidence is admitted under subsection (1) cannot be cross-examined in relation to the statement. (3)An accused person cannot be convicted solely on the basis of hearsay evidence admitted under subsection (1).” After hearing submissions I declined to admit the evidence as evidence of the facts in issue. I said I would provide reasons at a later date. I now do so. Section 26E(1) applies only where: (a) a child (i.e. a person under 18) makes a statement to another person; (b) the statement is relevant to the facts in issue; (c) the evidence is proposed to be led in a proceeding in relation to a sexual offence; and (d) the Court considers the evidence is of sufficient probative value as to justify its admission. It is not a requirement of s 26E(1) that (a) the child is a witness in the proceeding; (b) the child is the alleged victim of a sexual offence; (c) that the evidence is evidence of complaint of a sexual offence; and (d) that the child is still a child at the time of trial so that if a child subsequently becomes an adult and gives evidence as an adult the statement is still potentially admissible under s 26E(1). The section provides no guidance as to what is meant by the expression “sufficient probative value as to justify its admission”, except that the section acknowledges that the evidence is hearsay and further, an accused cannot be convicted solely on the basis of that hearsay evidence. Consequently the “sufficient probative value” is apparently something rather less than would justify conviction solely on the basis of that evidence alone. It is not entirely clear what purpose s 26E was intended to serve. It was passed as part of a number of amendments to the Evidence Act and to the Justices Act by the Evidence Reform (Children and Sexual Offences) Act 2004. In the Minister’s second reading speech, the Minister said that the purpose of the Bill was to reduce the trauma experienced by child witnesses and other vulnerable witnesses such as adults with intellectual disabilities in criminal proceedings for sexual offences and improve the quality of evidence from those witnesses in criminal proceedings: see also R v Wojtowicz (2005) 148 NTR 24 at 28 para [24]. This provision does not appear to be relevant to the promotion of those purposes.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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