CITATION:The Queen v Rolfe (No 7) [2022] NTSC 1
PARTIES:THE QUEEN
v
ROLFE, Zachary
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21942050
DELIVERED: 20 January 2022
HEARING DATES: 20 and 21 December 2021
JUDGMENT OF: Burns J
CATCHWORDS:
EVIDENCE – Admissibility – Tendency evidence – Evidence (National Uniform Legislation) Act 2011 (NT), s 97 – Whether tendency evidence of significant probative value – Whether evidence supports proof of the alleged tendency – Whether proof of tendency makes more likely the elements of the offences charged – Whether probative value of the evidence outweighs any potential prejudicial effect on the accused – evidence inadmissible
Criminal Code Act 1983 (NT) s 43BD, s 156, s 160, s 161A, s 208E
Evidence (National Uniform Legislation) Act 2011 (NT) s 55, s 56, s 97, s 101, s 135, s137
Interpretation Act 1978 (NT) s 17
Police Administration Act 1978 (NT) s 5, s 25, s 126, s 148B
AC v R [2016] NSWCCA 21; Aravena v R (2015) 91 NSWLR 258; Armstrong v R [2017] NSWCCA 323; BD v The Queen [2017] NTCCA 2; BP v R; R v BP [2010] NSWCCA 303; DAO v The Queen [2011] NSWCCA 63; El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10; Elomar v The Queen [2014] NSWCCA 303; Festa v The Queen (2001) 208 CLR 593; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; Ibrahim v Pham [2007] NSWCA 215; IMM v The Queen [2016] HCA 14; KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165; Middendorp v The Queen [2012] VSCA 47; O’Keefe v R [2009] NSWCCA 121; Papakosmas v R (1999) 196 CLR 297 at 325; [1999] HCA 37; Patel v R (2012) 247 CLR 531; [2012] HCA 29; Qualiteri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95; R v Allen [2020] NSWCCA 173; R v BD (1997) 94 A Crim R 131; R v Cook [2004] NSWCCA 52; R v Ford [2009] NSWCCA 306; R v GAC (2007) 178 A Crim R 408; [2007] NSWCCA 315; R v MM [2014] NSWCCA 144; R v PWD [2010] NSWCCA 209; R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509; RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71; Saoud v R [2014] NSWCCA 136; Sokolowskyj v R [2014] NSWCCA 55; SSN v R [2012] NSWCCA 163; Taylor v The Queen [2020] NSWCCA 355; The Queen v Hoffmann [2021] NTSC 31; The Queen v Rolfe [2021] HCA 38; The Queen v Rolfe (No 5) [2021] NTSCFC 6; Townsend v Townsend [2001] NSWCA 136; Washer v Western Australia (2007) 234 CLR 492, referred to.
EVIDENCE…
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- AGLC
- The Queen v Rolfe (No 7) [2022] NTSC 1
- Case
- [2022] NTSC 1
- Decision Date
CaseChat Overview and Summary
In addressing the legal issues, the court referred to the High Court's decision in Hughes v The Queen, where the majority outlined the criteria for determining significant probative value. The court noted that evidence would have significant probative value if it strongly supported the proof of the tendency and if the tendency made more likely the elements of the offence charged. The court also highlighted the necessity of a comparison between the proposed tendency evidence and the facts in issue to assess the probative value. In this case, the applicant argued that the Crown’s estimate of the trial duration was overly optimistic and that the evidence would likely extend the trial considerably. The court evaluated whether the evidence met the threshold of significant probative value as required by section 97 of the ENULA.
Upon considering the arguments and the relevant legal principles, the court found that the proposed tendency evidence did not meet the threshold for significant probative value. The court concluded that the evidence did not strongly support the proof of the tendency, nor did the tendency make more likely the elements of the offences charged. Therefore, the evidence was deemed inadmissible under section 97 of the ENULA. The court’s decision hinged on the application of the legal criteria set out in Hughes, focusing on the strength of the evidence in supporting the tendency and its relevance to the facts in issue.
The final orders of the court were that the proposed tendency evidence was inadmissible as it did not possess significant probative value. This decision underscored the stringent requirements for admitting tendency evidence and the importance of the comparative analysis between the proposed evidence and the elements of the offence. The court’s reasoning emphasised the need for a high standard of probative value to justify the admission of such evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The accused also submitted that the Crown’s estimate that proof of the tendencies would only add a further five days to the estimated length of the trial was overly optimistic and that it would probably take considerably longer.Consideration In Hughes, at [40], the majority of the High Court (Kiefel CJ, Bell, Keane and Edelman JJ), after discussing conflicting authorities from intermediate appeal courts in Victoria and New South Wales, stated that proposed tendency evidence will have significant probative value if, by itself or in combination with other evidence, it makes more likely, to a significant extent, the facts that make up the elements of the offence charged. Later, at [41], the majority said:The assessment of whether evidence has a significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of the tendency, and (ii) the tendency strongly supports the proof of the fact that makes up the offence charged. The majority in Hughes accepted that proposed tendency evidence does not have to bear similarity to the conduct with which an accused is charged, but nevertheless opined that in undertaking the second part of the exercise referred to in the extract above, a comparison between the proposed tendency evidence and the facts in issue in the proceeding will be required. At [64], they said:The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for the tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. In assessing the probative value of proposed tendency evidence, the evidence must be taken at its highest and no question as to the credibility or reliability of the evidence should, for that purpose, be entertained: IMM at [52]. The phrase “significant probative value” is not defined in the ENULA. In IMM the plurality, at [46], referred with apparent approval to Cross on Evidence which suggested that a significant probative value is a probative value which is “important” or “of consequence”. In BD v The Queen [2017] NTCCA 2 the Court of Criminal Appeal (Grant CJ, Kelly and Barr JJ) said, at [84]:The test of “significant probative value” in the tendency rule is higher than that required to establish relevance under section 55 of [the ENULA]. The use of “significant” as a qualifier in this context connotes something more than mere relevance, but something less than a substantial degree of relevance. This resolves to a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.”