The Queen v Smiler (No 1) [2017] NTSC 28
PARTIES:THE QUEEN
v
SMILER, Robert
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21628678
DELIVERED: 11 April 2017
HEARING DATES: 3 APRIL 2017 AND 4 APRIL 2017
JUDGMENT OF: KELLY J
CATCHWORDS:
EVIDENCE – Admissibility – Hearsay – Statement of deceased – Evidence (National Uniform Legilsation) Act 2011 (NT) ss 65(2)(b), 65(2)(c), 137
Evidence (National Uniform Legislation) Act 2011 (NT) ss 65, 108, 137
Conway v The Queen (2000) 98 FCR 204; Harris v The Queen (2005) 158 A Crim R 454; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; R v Ambrosoli (2002) 55 NSWLR 603; R v Mankotia [1998] NSWSC 295; R v Ryan (2013) 33 NTLR 127; [2013] NTSC 54; Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32; Williams v The Queen (2000) 119 A Crim R 490, applied
R v Murphy [2000] NSWCCA 297, distinguished
Haddara v The Queen (2014) 43 VR 53, referred to
REPRESENTATION:
Counsel:
Crown:D Dalrymple with J Bochmann
Accused:J Murphy with P Coleridge
Solicitors:
Crown:Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: KEL1708
Number of pages: 21
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Smiler (No 1) [2017] NTSC 28
No. 21628678
BETWEEN:
THE QUEEN
AND:
ROBERT SMILER
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 11 April 2017)
The accused, Robert Smiler, has been charged with one count of aggravated assault against Peter Doucas and one count of unlawfully causing serious harm to Edward Aden. Mr Doucas has since died and the Crown seeks to have two statements made by him admitted into evidence under s 65 of the Evidence (National Uniform Legislation) Act2011 (NT) (“UEA”).
The Crown case
The Crown case is that on the night of 11 April 2016, Mr Smiler went with his wife in a taxi to Malabar Lodge in Smith Street, Darwin. Mr Smiler stayed in the taxi while his wife, Ms Wurramarrba, went up the external stairs at Malabar Lodge to get her cousin. As Ms Wurramarrba got to the landing at the top of the stairs, she passed Mr Doucas who was sitting on a chair on the landing.
It is alleged that Mr Smiler then ran up the stairs, confronted Mr Doucas, accused him of indecently touching Ms Wurramarrba, punched Mr Doucas, and then threw him down the stairs. It is further alleged that Mr Smiler ran down the stairs and further assaulted Mr Doucas, hitting him with a chair and kicking him in the head a number of times and that Mr Doucas called out, “I never touched your woman.”
It is alleged that Mr Aden heard shouting. He picked up a heavy stick he kept in his room and hit Mr Smiler on the legs…
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- The Queen v Smiler (No 1) [2017] NTSC 28
- Case
- [2017] NTSC 28
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining if the statements made to Senior Constable Leggett on 11 April 2016 were admissible under section 65(2)(b) of the Evidence (National Uniform Legislation) Act 2011 (NT). This section allows for the admission of statements made when or shortly after the asserted facts occurred, if it is unlikely that the statements are fabrications. The court had to consider the timing of the statements in relation to the events, the nature of the events, and the likelihood that the declarant's memory would have been clear. The Crown bore the onus of proving that the statements were admissible.
Upon review, the court found that the statements made to Senior Constable Leggett were indeed made on the same night as the alleged assaults, which fell within the ordinary usage of "shortly after." Given the traumatic nature of the events described, the court determined that it was likely the declarant's memory of the events would have been clear. Consequently, the court ruled that the statements were admissible under section 65(2)(b) of the Act.
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
Defence counsel objects to the admission of either statement. I will consider the objections to each set of representations in turn.(a)Consideration of the representations made to Senior Constable Leggett on 11 April 2016Section 65(2)(b) Evidence of the representations made to Senior Constable Leggett on 11 April 2016 is admissible under s 65(2)(b) if the representations were made when or shortly after the asserted facts occurred and in circumstances that make it unlikely that the representations are fabrications. In R v Ryan[1] I reviewed the cases on s 65(2)(b) and concluded that the following principles could be distilled from those cases.(1)The section is not just a restatement of the res gestae principles. It was intended to significantly expand upon the range of statements that were admissible at common law as part of the res gestae. (Conway at [123] and [133]; Harris at [33]). (2)A narrative of past events may be admissible under s 65(2)(b). (Conway at [133]). (3)The emphasis in s 65(2)(b) is not on reliability as such, but on admitting evidence that is unlikely to have been fabricated. For that reason the section requires that the statements be made “when” the asserted fact occurred (rephrased in Williams as “during the occurrence of the asserted fact”) or “shortly after” the asserted fact occurred (rephrased in Williams as “under the proximate pressure of the asserted fact”). (Williams at [48])(4)For that reason, the court should not over-emphasise such matters as whether the events in question were fresh in the memory of the person making the statement in determining whether a statement was made shortly after the event. (Williams at [48]) However it is proper to take into account whether the events are likely to have been fresh in the mind of the person when the statement was made, as the policy behind the provision is to exclude evidence of a recollection which may have faded in accuracy over time. (Conway at [123] – [135]; Harris [33] to 40; R v Mankotia (unreported, Supreme Court, NSW, Sperling J, No 70049 of 1997, 27 July 1998) quoted in Harris at [34]) (5)“The predominant factor in the phrase ‘shortly after’ must be the actual time elapsed and whether that fits the ordinary usage of the term ‘shortly after’ in the circumstances of the case.” (R v Mankotia quoted in Harris at [34]) (6)The assessment of whether a statement was made “shortly after” the event in question may be influenced by the subject matter of the statement and by how long the memory of such an event is likely to be clear in the mind. (R v Mankotia; Harris at [34])[2] The onus is on the Crown to establish that the hearsay evidence should be admitted. There is no doubt that the statements made to Senior Constable Leggett were made “at or shortly after” the asserted facts occurred. They were made on the same night that the alleged assaults occurred to police who were called to the scene. This falls comfortably within the ordinary usage of the phrase “shortly after”. Further, given the traumatic nature of the event the subject of the representation – being thrown down stairs and kicked in the face – the memory of the events described are likely to have been clear in Mr Doucas’mind.