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 a number of plausible explanations for the accused’s statement in the 000 call that the deceased sustained injuries when she fell on something sharp, particularly as the statement was prefaced by, “I dunno,” and his later clarification, “I think she fell on something sharp.” Counsel gave the following, non-exhaustive possibilities that did not involve the accused telling a deliberate lie out of a consciousness of guilt.
(a)The accused did not know how the deceased sustained her injuries and was merely speculating.
(b)He did not want to believe or did not want to tell other people that she had inflicted the injuries on herself.
(c)He felt guilty for the argument which preceded the deceased’s self-harm or for not taking her threat to harm herself sufficiently seriously to stay with her and prevent her from carrying out her threat.
Defence counsel submitted that the existence of these other plausible explanations for the statements in the 000 call prevents the evidence of those statements from having relevance as evidence of consciousness of guilt. I reject that submission. If a statement made by an accused is capable of demonstrating a consciousness of guilt, it should be left to the jury. In R v Ciantar[1] the Victorian Court of Appeal said, in a joint judgment of the court:
[I]f an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect.
This is not the case where an innocent explanation of the statement made in the 000 call is so inherently likely that a jury could not properly regard the statements as evidence of guilt; nor are the statements intractably neutral. In conjunction with the other evidence, in particular later statements made to police, the statements are plainly capable of demonstrating a consciousness of guilt in the accused. Subject to consideration of whether the statements should be excluded under Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) s 137, it will be a matter for the jury to determine whether they do in fact demonstrate such a state of mind in the accused.[2]
Under UEA s 137, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. A decision under s 137 involves assessing the probative value of the evidence, identifying any potential prejudice and performing a balancing exercise.
In my view, taken in conjunction with the accused’s later, contradictory account of how the deceased sustained her injuries, the probative value of the evidence is high.
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.
In determining that the evidence had been properly admitted, Barwick CJ said:[5]
… [the nature of the] relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.
Menzies J said:[6]
... Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death, but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly … the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.
In this case, evidence that the relationship was such that, over the years it was considered necessary by police and the courts to put in place domestic violence orders for the protection of each of the accused and the deceased from each other; evidence that on one occasion in the past the accused had engaged in violent conduct using a shovel to smash the deceased’s car and a window of their house while she and the children locked themselves inside; and evidence of the exchange of angry abusive text messages the day before and the day of the deceased’s death, will all be relevant to the jury’s assessment of the credibility of the accused’s account to police that the deceased stabbed herself and of whether the Crown has proved beyond reasonable doubt that the accused stabbed the deceased.
Considering the potential prejudice on the other side of the balancing exercise, this is not a situation such as that under consideration in R v Lumsden. The Crown does not wish to rely on the accused’s conviction for the violent behaviour in 2012, simply the bare facts of the behaviour, and would prefer to do so in the form of agreed facts without reference to the conviction. Nor is the earlier conduct of a very similar nature to that with which the accused is now charged: it was a matter of property damage.
The evidence sought to be relied on is not such as would invite tendency reasoning. The domestic violence orders, the one incident of property damage and the abusive text messages are different in nature and do not point to a specific tendency in the accused. Rather they illuminate the nature of the relationship and that is the use to which the Crown intends to make of the evidence in final submissions.
The existence of the domestic violence orders and the property damage incident do point to the fact that the relationship not only involved conflict over a number of years but also mutual violence. That is something the jury is entitled to take into account in assessing the credibility of the accused’s story to police and whether the Crown has eliminated the possibility that the deceased stabbed herself to the jury’s satisfaction beyond reasonable doubt. The jury will receive the usual strong warning against rank propensity reasoning and I see no reason why it ought not be effective.
I do not think that potential prejudice to the accused from the possibility of rank propensity reasoning outweighs the probative value of the relationship evidence. The relationship evidence will be admitted. The parties will no doubt co-operate with a view to having the facts of the 2012 incident placed before the jury without the need to prove or refer to the conviction.

[1] (2006) 16 VR 26; 167 A Crim R 504

[2] The Crown contended that the 000 call is in any event relevant and admissible as part of the narrative of events closely connected with the death of the deceased and contains the accused’s immediate account of what had occurred. The prosecutor characterised the defence objection as, in effect, an application under UEA s 136 to limit the use that may be made of the evidence and contended that no basis had been shown for any such limitation. Characterised that way, the result remains the same; no basis has been identified for limiting the use which can be made of the evidence by preventing the Crown from submitting to the jury that the statements to the ambulance were lies demonstrating a consciousness of guilt.

[3] [2003] NSWCCA 83 at [5]

[4] (1970) 123 CLR 334

[5] at p 337

[6]at p 344