The Queen v Marawar - [2019] NTSC 84

CITATION:The Queen v Marawar [2019] NTSC 84
PARTIES:THE QUEEN
v

MARAWAR, Tomalic

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21903254
DELIVERED:  27 November 2019
HEARING DATE:  28 October 2019
JUDGMENT OF:  Kelly J

CATCHWORDS:

Evidence – Admissibility and relevance – Tendency – Whether evidence tends to establish that the accused had a tendency to act in the way asserted – Whether tendency makes the fact in issue more likely – Where alleged fact in issue is fact relied upon as raising self-defence – Alleged fact in issue potentially not in issue – Alleged fact in issue not within tendency – Alleged fact in issue insufficient to raise self-defence – Evidence inadmissible at this point in proceedings
Evidence (National Uniform Legislation) Act 2011 (NT) s 97

Hughes v The Queen (2017) 263 CLR 338; applied

Director of Public Prosecutions v Campbell (No 1) [2013] VSC 665;
R v Smiler (No 2) [2017] NTSC 31, referred to
REPRESENTATION:
Counsel:
Crown:M Seiler
Accused:G Chipkin
Solicitors:
Crown:Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification:    C
Judgment ID Number:  Kel1913
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Marawar [2019] NTSC 84

No. 21903254

BETWEEN:

THE QUEEN

AND:

TOMALIC MARAWAR

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 27 November 2019)

The defendant, Tomalic Marawar has been charged with one count of unlawfully causing serious harm to Zimeron Campion at Maningrida on 29 December 2018.
The defendant intends to rely at trial upon defensive conduct pursuant to s 29 of the Criminal Code.
The defendant has served a tendency notice upon the Crown alleging that the complainant has a tendency, when intoxicated with alcohol, to instigate and use physical violence towards a person in his immediate company, with the violence directed towards the person’s upper body (including the head).
The evidence by which the defence intends to prove this tendency is evidence of four convictions (following pleas of guilty) of violent assaults committed by the complainant against his domestic partner over a three year period; all committed while the complainant was intoxicated; two involving violence directed at her head alone, one involving biting her upper arm and one involving a shove to the chest and a blow to the face.
The defendant contends that this tendency is significantly probative of a fact in issue in the proceeding, namely whether the complainant grabbed the defendant by the shirt before the defendant punched him in the face and broke his jaw. This, (ie the grabbing of the shirt by the complainant) is the fact relied upon by the defence as raising self-defence).
The allegation by the Crown is that the complainant and the defendant were drinking beer at the home of the complainant’s aunt and uncle. They had come to an agreement the previous day that the defendant would give the complainant some beer in return for some fuel.

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 Marawar

Details

AGLC: The Queen v Marawar [2019] NTSC 84
Case: [2019] NTSC 84
Decision Date: 27 November 2019

CaseChat Overview and Summary

The Queen v Marawar is a case heard in an Australian court where the defendant is challenging the Crown's burden of proof in relation to negating self-defence. The defendant argues that the Crown must prove beyond reasonable doubt that the defendant was not acting in self-defence. The court considers whether the defendant has raised a reasonable possibility that he was acting in self-defence and if the Crown has eliminated that possibility. The court notes that the defendant only needs to point to a reasonable possibility of self-defence and that very little evidence may be required to establish this. However, the court emphasises that the evidence must still be something and that if it does not rise higher than the statement by the aunt, it cannot be said to have significant probative value on the question of whether there is a reasonable possibility that the defendant was acting in self-defence.

The legal issues the court was required to decide were whether the defendant had raised a reasonable possibility that he was acting in self-defence and whether the Crown had eliminated that possibility. The court considered whether the evidence presented by the defendant was sufficient to establish a reasonable possibility of self-defence and whether the Crown had disproven this beyond reasonable doubt. The court also considered whether the defendant could rely on prior violent convictions of the complainant to establish a tendency towards violent behaviour, which could support the defendant's claim of self-defence. The court found that the application for leave to prove the prior convictions was premature and was refused for the time being.

The court's reasoning and outcome were that the defendant had not raised a reasonable possibility that he was acting in self-defence based on the evidence presented. The court noted that the defendant's reliance on the aunt's statement was not sufficient to establish a reasonable possibility of self-defence. The court also found that the defendant's application for leave to prove the prior violent convictions of the complainant was premature and was refused for the time being. The court emphasised that the defendant could renew the application if further evidence emerged that supported the alleged tendency towards violent behaviour by the complainant. The final orders of the court were that the application for leave to prove the prior convictions was refused, and the defendant was required to continue with the trial without this evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The defendant relied on Smiler,[4] for the following proposition.It needs to be borne in mind that the Crown bears the legal onus of proof on all issues including negating self-defence. The accused need only point to a reasonable possibility that he was acting in self-defence and submit that the Crown has not eliminated that possibility. Very little may be required for evidence to be “significant” or “of consequence” in pointing only to a reasonable possibility that the accused may have been acting in self-defence. [emphasis added] That is correct, but the “very little” must still be something. In my view, if the evidence rises no higher than the statement by the aunt, it cannot be said that the tendency (if it can be proved) can be said to have significant probative value on the question of whether there is a reasonable possibility that the defendant was acting in self-defence. Of course, as the evidence comes out, the analysis may change. For example, a more detailed description of the grabbing of the shirt may reveal it to have been a violent act instigated by the complainant which does fit within the alleged tendency (assuming it is accepted that the evidence of four convictions for domestic violence against the complainant’s partner establishes that tendency). Alternatively (or in addition) it may be established that, as a result of those convictions, the complainant had a reputation as a violent and dangerous man and that the defendant knew that, and truly believed it was necessary, in order to protect himself, to launch a pre-emptive punch. Accordingly, in my view, the application is premature. It is refused for the time being. The defendant may choose to renew the application for leave to prove the four prior violent convictions to prove the alleged tendency, if (for example) the evidence shows that the complainant’s conduct in grabbing the shirt was a violent act such that the alleged tendency makes it more likely that the complainant did it; and/or if the evidence shows that the defendant was aware of the convictions or the complainant’s violent tendency and considered it necessary to deliver a pre-emptive defensive punch.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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