The Queen v Swan - [2021] NTSC 10

CITATION:The Queen v Swan [2021] NTSC 10
PARTIES:THE QUEEN

v
SWAN, Nathen Lloyd

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21753871
DELIVERED:  3 February 2021
HEARING DATE:  1 February 2021
JUDGMENT OF:  Kelly J

CATCHWORDS:
Evidence (National Uniform Legislation) Act 2011 (NT), s 137
R v Ciantar (2006) 16 VR 26; 167 A Crim R 504; Wilson v R (1970) 123 CLR 334, relied on
R v Lumsden [2003] NSWCCA 83, referred to

REPRESENTATION:
Counsel:
Crown:S Robson SC
Accused:T Collins with D Cooper
Solicitors:
Crown:Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:  Kel2104
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The Queen v Swan [2021] NTSC 10

No. 21753871

BETWEEN:
THE QUEEN

AND:
NATHEN LLOYD SWAN

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 3 February 2021)

The accused is charged with the manslaughter of his former partner.
The deceased died in the bedroom of her home in the early hours of the morning on Sunday 29 March 2015 as a result of a stab wound to the lower front of her right thigh which cut the femoral artery. The stab wound was inflicted with a kitchen knife and went into the deceased’s thigh to a depth of 8.5 cm. The deceased and the accused were the only two people in the house at the time.
“Edwards” lies
The Crown seek to adduce evidence of the following statements made by the accused in a 000 call shortly after 4:15 on that Sunday morning.
AMBULANCE:     Okay Nathen. Tell me exactly what happened.
SWAN:I dunno. My wife just fell down. She fell on something sharp and she’s bleeding and she’s drunk.
AMBULANCE:     Okay, I need you to tell me exactly what happened. Did she fall over or did she collapse?
SWAN:No, she just fell down. I dunno (inaudible) she fell down.
AMBULANCE:     Is she awake?
SWAN:She’s snoring.
AMBULANCE:     Can you wake her up?
SWAN:No, I can’t. She’s had a few beers.
…
SWAN:There’s a lot of blood in the bedroom and (inaudible) freaking me out.
AMBULANCE:     Where’s the blood coming from?
SWAN:I dunno, um trying to figure out how to (inaudible) … I think she fell on something sharp. (speaking to wife) Baby, baby …
Shortly after, when police attended, the accused contradicted these statements saying that the deceased had stabbed herself and had told him in advance that she was going to self-harm. Later still, when police were about to conduct a fingerprint examination of the knife that had been found on the TV unit in the bedroom, the accused told police he had pulled the knife out of the deceased. The Crown intends to rely on the statements in the 000 call as lies told out of a consciousness of guilt.
The defence objects to the statements being adduced in evidence for this purpose.
The defence submits that there are…

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 Swan

Details

AGLC: The Queen v Swan [2021] NTSC 10
Case: [2021] NTSC 10
Decision Date: 3 February 2021

CaseChat Overview and Summary

The Queen brought an action against Swan in the Supreme Court of Victoria, alleging that Swan had stabbed a person to death. The court was required to determine the admissibility of certain evidence relating to the relationship between Swan and the deceased, as well as evidence of domestic violence orders and prior incidents of violence. The court also needed to consider whether the evidence met the threshold for exclusion under s 137 of the Evidence Act 2008 (Vic), which excludes evidence if the potential for prejudice to the accused outweighs the probative value of the evidence. The central issue was whether Swan had stabbed the deceased or if the deceased had stabbed herself. The nature of their relationship was deemed relevant to assist the jury in determining this question. Defence counsel argued that the evidence should not be admitted as it would encourage the jury to engage in impermissible propensity reasoning. However, the court found that the evidence had considerable probative value and that the risk of impermissible propensity reasoning was not significant. The court compared this case to Wilson v R, where evidence of prior statements by the deceased was admitted in a similar case.

The court found that the evidence of domestic violence orders, prior incidents of violence, and abusive text messages was relevant to the nature of the relationship between Swan and the deceased and should be admitted. The court rejected the argument that the evidence should be excluded under s 137 of the Evidence Act 2008 (Vic), as there was no evidence of potential misuse of the evidence by the jury. The court concluded that the evidence was necessary to give the jury a complete picture of the circumstances surrounding the incident and would assist in determining the central issue of whether Swan had stabbed the deceased or if the deceased had stabbed herself. The court found that the probative value of the evidence outweighed any potential prejudice to Swan. The court allowed the Crown to adduce the evidence of the domestic violence orders, prior incidents of violence, and abusive text messages.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the purpose of s 137, prejudice means potential misuse of the evidence by the jury. It does not include the legitimate tendency of the evidence to implicate the accused in the commission of the crime. The defence has not identified any potential misuse of the evidence. It will not be excluded under s 137.Relationship evidence The Crown intends adducing three kinds of evidence to show the relationship that existed between the accused and the deceased. The first is evidence that in the years before the incident in question, domestic violence orders were made for the benefit of both the accused and the deceased. The second is evidence of an incident which occurred in February 2012 in which the accused used a shovel to damage the deceased’s car and to hit a window in the house they shared while the accused and their children were locked inside the house. (The substance of that evidence will be the agreed facts from the accused’s guilty plea.) The third is evidence of angry and abusive text messages between the accused and the deceased in the two days before the deceased died. The Crown contends that this evidence is relevant to show that the alleged offence is not the only time that the accused has acted in an angry and aggressive manner towards the deceased; and, further, that the relationship was not a loving and affectionate one, but, rather, dysfunctional. It is necessary for the jury to have an appreciation of the nature of the relationship in order to make some sense of what might be otherwise inexplicable. I agree. As Mr Robson SC for the Crown pointed out in written submissions, the central issue in this case will be whether the accused stabbed the deceased, or whether she stabbed herself. The nature of the relationship is clearly relevant in assisting the jury to determine that question. Defence counsel submitted that the use to which the Crown wants to put the evidence is actually for a tendency purpose and that this should not be permitted, in part because of the danger that the jury may engage in impermissible propensity reasoning. Defence counsel relied on the following statement of principle by McHugh J in R v Lumsden:[3][E]vidence as to the criminal conviction of an accused person in relation to a discrete offence (especially if of the same nature as that charged) will almost invariably be inadmissible. But that is because of the combined impact of the conviction (which puts guilt or innocence beyond doubt) and its capacity to induce the jury to engage in propensity or tendency reasoning. Such evidence is highly prejudicial and unfair in its trenching upon the presumption of innocence. In my view the relationship evidence has considerable probative value and I do not think that the risk of impermissible propensity reasoning is great. As to its probative value, the main issue in the trial will be whether the accused stabbed the deceased or whether she stabbed herself – or rather whether the Crown has proved beyond reasonable doubt that it is not reasonably possible that she stabbed herself. This case seems to me to be analogous to the situation before the court in Wilson v R[4] in which a husband, charged with the murder of his wife by shooting, claimed she had been killed when the gun he had borrowed accidentally discharged. The question before the High Court was whether evidence of statements by his wife that she knew he wanted to kill her had been properly admitted by the trial judge.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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