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The Queen v Visagie

The Queen v Visagie

Case [2022] NTSC 71 29 August 2022

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CITATION: The Queen v Visagie [2022] NTSC 71

PARTIES: THE QUEEN

v
VISAGIE, Anthony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21943088
DELIVERED:  29 August 2022
HEARING DATE:  28 July 2022
JUDGMENT OF:  Reeves J

CATCHWORDS:
EVIDENCE – Admissibility – Evidence (National Uniform Legislation) Act 2011 (NT) ss 66, 108(3), 135 and 137 – Recorded conversation – Child complainant – Whether evidence admissible as complaint evidence – Whether probative value is outweighed by danger of “unfair prejudice” – Evidence partially admissible.

Statutes referred to:
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 56, 66, 66(2), 97(1)(a), 97(1)(b), 97A(2), 108(3), 135, 137.
Cases referred to:
Allen v The Queen [2020] NSWCCA 173; Armstrong v The Queen [2017] NSWCCA 323; BC v The Queen [2019] NSWCCA 111; CA v The Queen [2017] NSWCCA 324; DAO v The Queen (2011) 81 NSWLR 568; De Jesus v The Queen (1986) 61 ALJR 1; Evans v The Queen (2007) 235 CLR 521; Festa v The Queen (2001) 208 CLR 593; Gilbert v The Queen (2000) 201 CLR 414; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Lynch v The Queen [2020] NTCCA 6; Papakosmas v The Queen (1999) 196 CLR 297; Patel v The Queen (2012) 247 CLR 531; Pfennig v The Queen 182 CLR 461; [1995] HCA 7; R v Bauer (A Pseudonym) (2018) 266 CLR 56; R v Gibson [2021] NTSC 28. R v O’Brien [2017] NTSC 34; R v PWD (2010) 205 A Crim R 75; R v SK; SK v R [2011] NSWCCA 292; R v TJB (1998) 4 VR 621; R v Visagie (2021) NTSC 73; RH v The Queen (2014) 241 A Crim R 1; Sokolowskyj v The Queen (2014) 239 A Crim R 528; Taylor v The Queen [2020] NSWCCA 355.
REPRESENTATION:
Counsel:
Crown:V Engel
Accused:J Tippett QC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Ward Keller
Judgment category classification:      B
Judgment ID Number:  Ree2204
Number of pages:  32

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Visagie [2022] NTSC 71
No. 21943088

BETWEEN:
THE QUEEN

AND:
ANTHONY VISAGIE

CORAM: REEVES J

REASONS FOR RULING
(Delivered 29 August 2022)

Introduction

This ruling concerns the admissibility of a recording made in November 2019 of a conversation between the complainant, a six-year-old girl, and her parents following a disclosure that she had made to them some weeks earlier which eventually led to the two counts with which the accused has been charged.
Those counts are that:
Count 1
Between 1 January 2019 and 20 October 2019 at Darwin in the Northern Territory of Australia, the accused attempted to procure a child under the age of 16 years, namely…

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 Visagie

Details

AGLC: The Queen v Visagie [2022] NTSC 71
Case: [2022] NTSC 71
Decision Date: 29 August 2022

CaseChat Overview and Summary

The Queen, represented by the Director of Public Prosecutions for the Northern Territory, brought a case against Visagie before the Supreme Court of the Northern Territory. The dispute centred on the admissibility of evidence obtained from a recorded conversation involving a child complainant. The case involved serious allegations of child sexual abuse, and the crux of the legal argument was whether the recorded conversation could be admitted under the Evidence (National Uniform Legislation) Act 2011 (NT). The court was required to determine if the probative value of the evidence was outweighed by the potential for unfair prejudice to the accused.

The primary legal issue was whether the recorded conversation could be admitted as evidence of a complaint made by the child, and if so, whether any prejudicial effect would outweigh its probative value. The court examined sections 66, 108(3), 135, and 137 of the Act. Section 135 permits the admission of evidence of a complaint made by a child, while section 137 allows for the exclusion of such evidence if its prejudicial effect substantially outweighs its probative value. The court had to balance these provisions to determine the admissibility of the evidence in question.

The court found that while the recorded conversation was indeed a complaint made by the child, the prejudicial effect it had on the accused was significant. However, the probative value of the evidence in proving the alleged offence was also considerable. Ultimately, the court ruled that the prejudicial effect did not substantially outweigh the probative value. Consequently, the court decided to admit the evidence in part, ensuring that the prejudicial impact on the accused was mitigated while still allowing the probative value to contribute to the case.

The final orders of the court were that the recorded conversation was to be admitted in part, with specific protections in place to minimise any unfair prejudice to the accused. This included limiting the scope of the evidence presented and ensuring that any prejudicial aspects were carefully managed during the trial. The court's decision balanced the need to protect the accused's rights with the necessity of allowing relevant evidence to be considered in the case.

Orders