The Queen v Metcalfe - [2018] NTSC 45

CITATION:The Queen v Metcalfe [2018] NTSC 45
PARTIES:THE QUEEN
v

METCALFE, Garrin

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21712433, 21719649 & 21722807
DELIVERED:  14 June 2018
REASONS PUBLISHED:                 5 July 2018
HEARING DATES:  13 & 14 June 2018
JUDGMENT OF:  Blokland J

CATCHWORDS:

CRIMINAL LAW – Evidence – admissibility of recordings made by complainant of conversations with accused – whether recordings inadmissible – recordings sought to be led as admissions highly probative but involved no procedural safeguards, incomplete responses and accused unaware of being recorded – recordings sought to be led as admissions inadmissible and excluded – Evidence (National Uniform Legislation) Act (NT), s 90.
CRIMINAL LAW – Evidence – admissibility of recordings made by complainant of conversations with accused – whether recordings illegal or improper as complainant police officer – all recordings relevant – some recordings are direct evidence or form basis of charges – some recordings are relevant relationship context evidence – recordings not illegal or improper under Surveillance Devices Act (NT) and Telecommunications (Interception and Access) Act1979 (Cth) not enlivened – all recordings not sought to be led as admissions admitted – Evidence (National Uniform Legislation) Act (NT), s 138.
CRIMINAL LAW – Practice and procedure – complainant requested certificate against self-incrimination – misapprehension about status of investigation into complainant and of certificate – possibility of re-opening issue – Evidence (National Uniform Legislation) Act (NT), s 128.
Evidence (National Uniform Legislation) Act (NT) ss 55, 90, 128, 135, 137, 138
Surveillance Devices Act (NT) s 15
Telecommunications (Interception and Access) Act1979 (Cth)
R v East (2003) 154 A Crim R 1
R v Storey, VSC, unreported, 1994, BC 9406093
RG v The Queen [2010] NSWCCA 173
Russell v Russell [2012] FamCA 99
REPRESENTATION:
Counsel:
Prosecutor:P D’Arcy
Defendant:T Berkley
Solicitors:
Prosecutor:Office of the Director of Public Prosecutions
Defendant:Hubber Legal
Judgment category classification:    B
Judgment ID Number:  BLO 1803
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queenv Metcalfe [2018] NTSC 45

No. 21712433, 21719649 & 21722807
BETWEEN:

THE QUEEN

AND:

GARRIN METCALFE

CORAM: BLOKLAND J
REASONS FOR RULINGS
(Delivered 5 July 2018)
Introduction

These are reasons for evidentiary rulings made before the trial of the accused on an indictment with 15 counts.[1]
The charges span over a period of approximately one decade. A number of historical charges were alleged to have occurred in or about 2007, through to relatively recent matters in 2017. The indictment contains nine counts of assault with circumstances of aggravation, one count of unlawful entry with intention to commit an indictable offence, one count of make a threat to kill with intent to cause fear and three counts of using a carriage service in such a way that reasonable persons would regard as menacing, harassing or offensive. The offending was alleged to have occurred over the course of a spousal relationship, including the marriage and eventual separation between the accused…

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 Metcalfe

Details

AGLC: The Queen v Metcalfe [2018] NTSC 45
Case: [2018] NTSC 45
Decision Date: 14 June 2018

CaseChat Overview and Summary

The Queen v Metcalfe involved a criminal trial where the defendant was charged with unlawful entry and aggravated assault. The case hinged on a series of recordings made by the complainant, who was also a police officer, during a confrontation with the defendant. The recordings were central to the prosecution's case, providing direct evidence of the alleged offences and context for the complainant’s testimony. The defendant contested the admissibility of the recordings on various grounds, including their legality, the lack of procedural safeguards, and the complainant’s failure to obtain a certificate against self-incrimination.

The court had to address whether the recordings were admissible under the Evidence (National Uniform Legislation) Act (NT) and whether they were obtained legally under the Surveillance Devices Act (NT) and the Telecommunications (Interception and Access) Act 1979 (Cth). The court found that while some of the recordings were admissions by the defendant and were therefore inadmissible, others were direct evidence of the alleged offences and were relevant contextual evidence. The recordings were not considered illegal or improper, as they were made by a police officer in the course of their duties. However, the recordings made as admissions were excluded because they lacked procedural safeguards and the defendant was unaware he was being recorded.

The court ruled that the recordings that constituted direct evidence and contextual evidence were admissible, while those that served as admissions were excluded. The court also noted that the complainant had not obtained a certificate against self-incrimination, which could have been relevant if there were ongoing investigations into her conduct. The possibility of reopening the issue of the certificate was left open, as there might have been a misunderstanding about the status of the investigations. The final orders were that the recordings serving as admissions were excluded, while the rest were admitted as evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A series of recordings made on 9 March 2017, namely recordings 57-67, are alleged to be the lead up to an incident and a recording of the incident itself that forms the basis of counts 13 and 14, namely unlawful entry of a building with intent to commit an indictable offence and aggravated assault. It is clear from the recordings the accused knew he was being recorded. The incident was recorded on the complainant’s iPod. In those circumstances the recordings are direct evidence of the alleged offending, are not tainted by illegality or impropriety and in my view should not be excluded in the exercise of any of the discretions under Part 3.11 of the UEA. They are not prejudicial in the relevant sense. They are highly probative given the complainant’s account of the unlawful entry and aggravated assault is denied and challenged. The balance of the calls – context evidence In my view the balance of the recordings that are primarily around the time of the issuing of the DVO and what follows are properly considered to give context to the specific allegations in the indictment. The calls will enable the jury to better understand the complainant’s evidence and assist to answer hypothetical questions that may arise.[13] In my view this is a case demanding of context and it would be wrong not to admit the balance of the recordings. Over the relevant period there are clear indications the accused knows he is being recorded.[14] The material disclosed by the recordings, although unpleasant, is not of such a kind to arouse disgust or cause the jury to be distracted from the task of impartially considering the evidence. I decline to exercise the discretions under Part 3.11 of the UEA to exclude the evidence to be placed before the jury to give context. For these reasons the recordings constituting admissions were excluded. The balance were admitted. Section 128 UEA certificate issue Prior to the complainant giving evidence, counsel for Crown advised the Court there may be areas of evidence in relation to which the complainant would request a certificate under s 128 of the UEA as she may incriminate herself.[15] The Court was told she would give the evidence if a certificate were issued. Counsel for the accused indicated there would be an objection to the issue of a certificate as relevant investigations had concluded. Counsel for the Crown were to make further inquiries as to the status of any investigation relevant to the complainant.[16] Nothing further was said about this issue until the end of the trial. Material produced at that time by counsel for the accused indicated there was a separate investigation continuing into one aspect of the complainant’s conduct. As no objection was taken during the course of the complainant’s evidence, s 128 of the UEA appeared not to have been complied with and on the face of it there was no jurisdiction to issue a certificate. It is noted however there may yet be an application made to re-open this issue as it is possible there was a misapprehension by the Crown and/or the witness as to the status of the issue of a certificate under s 128 of the UEA. -------------------------------

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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