The Queen v Wanambi

[2022] NTSC 7

CITATION:The Queen v Wanambi [2022] NTSC 7

PARTIES:THE QUEEN

v

WANAMBI, Daniel

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NOs:22019925, 22104823 & 22037693

DELIVERED:  28 January 2022

HEARING DATE:  21 January 2022

JUDGMENT OF:  Burns J

REPRESENTATION:

Counsel:

Crown:H Riley

Accused:L McLaughlin

Solicitors:

Crown:Office of the Director of Public Prosecutions

Accused:Maleys Barristers & Solicitors

Judgment category classification:    C

Judgment ID Number:  Bur2202

Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Wanambi [2022] NTSC 7

Nos. 22019925, 22104823 & 22037693

BETWEEN:

THE QUEEN

AND:

DANIEL WANAMBI

CORAM:    BURNS J

REASONS FOR JUDGMENT

(Delivered on 28 January 2022)

Introduction

1. The accused, Daniel Wanambi, is awaiting trial on an indictment dated 1 November 2021 alleging three offences.

2. Count 1 alleges that on 6 March 2020 the accused unlawfully caused serious harm to CB, who I will refer to as the complainant.

3. Count 2 alleges that on 19 March 2020 the accused unlawfully assaulted the complainant in circumstances of aggravation.

4. Count 3 alleges that on 22 April 2020 the accused unlawfully assaulted the complainant in circumstances of aggravation.

5. It is not clear from the Court record whether the accused has been arraigned on that indictment. It is, nevertheless, clear that he intends to plead not guilty to these charges.

6. The Crown has served on the accused a notice pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘the Act’) notifying the accused that it intends to adduce tendency evidence at his trial. The accused objects to the admission of that evidence. The principal ground of objection is that the proposed tendency evidence does not possess significant probative value.

7. The tendency evidence which the Crown proposes leading is directed to proving that the accused had or has two tendencies. The first is a tendency to act in a particular way, being a tendency to engage in violence towards the complainant, including striking her to the face and pushing her over and attacking her on the ground. The second tendency the Crown seeks to prove is that the accused had or has a particular state of mind, namely an angry and/or controlling state of mind towards the complainant including when intoxicated.

8. The notice states that the tendency evidence relates to the following facts in issue at the accused’s trial:

   (a)     firstly, whether the fractured jaw suffered by the complainant on 5 March 2020 was caused by the accused;

   (b)     secondly, whether the accused assaulted the complainant on 19 March 2020; and

   (c)     thirdly, whether the accused assaulted the complainant on 22 April 2020.

9. The Crown proposes that evidence relevant to each individual charge be cross-admissible as tendency evidence on the other charges.

10. Evidence that is relevant in a proceeding is admissible in the proceeding except to the extent that the Act provides otherwise: s 56(1) of the Act. Evidence is relevant where, if it were accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: s 55(1) of the Act. I do not understand counsel for the accused to have challenged the relevance of the proposed tendency evidence. Clearly enough, evidence that the accused has assaulted and injured the complainant on one occasion in 2020 could rationally affect the jury’s assessment of whether the accused has assaulted and/or injured the complainant on other occasions in the same year.

11. Tendency evidence is generally inadmissible, as is set out in s 97(1) of the Act. There is however, an exception to that general rule. Evidence will be admissible to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind if, relevantly for present purposes, the Court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. “Probative value” is defined in the Dictionary to the Act as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

12. A further restriction on the admissibility of tendency evidence is found in s 101 of the Act, which provides that tendency evidence about an accused person adduced by the prosecution cannot be used against the accused unless the probative value of the evidence outweighs the danger of unfair prejudice to the accused.

13. The complainant is alleged to have been in a longer-term domestic relationship with the accused. As such, the tendency evidence is not being led to establish the identity of the accused as the offender. The complainant will be capable of giving such evidence. The proposed tendency evidence is clearly intended to establish that the offences took place and, particularly regarding Count 1, to meet the possible suggestion that it was someone other than the accused who assaulted and/or inflicted injuries on the complainant. In that regard it is important to recollect the statement of the majority of the High Court in Hughes v The Queen [2017] HCA 20, at [41], that:

    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.

14. Proposed tendency evidence does not have to bear similarity to the conduct with which an accused is charged. Nevertheless, in undertaking the second part of the analysis referred to by the majority in Hughes, a comparison between the proposed tendency evidence and the facts in issue will be required. A passage of some importance is found at [64] in Hughes, where the majority 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 probative 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.

15. The notice sets out brief details of the allegations relating to each charge. On Count 1, it is alleged that the accused pushed the complainant to the ground, kicked her multiple times and then punched her to the face and body. It is alleged that one of the blows fractured the complainant’s jaw. The Crown alleges that the accused had been drinking with the complainant and another woman when an argument occurred and the other woman slapped the complainant’s face. It is alleged that the complainant told the accused and the other woman that they could be together and that she would leave, and at this point the accused became angry and assaulted the complainant. The accused was well-known to the complainant as they had been in a domestic relationship for about five years. The Crown’s case against the accused on this charge is complicated by the fact that the complainant has changed her version of events regarding how she suffered a fractured jaw. In her initial statement to the police, the complainant said that it was another woman who had assaulted her and broke her jaw. In a subsequent statement made just over 12 months later, the complainant said that it was the accused who had assaulted her and broken her jaw.

16. On Count 2, it is alleged that the accused armed himself with a tree branch and pushed the complainant over. He then struck her once to the head with the branch. After the complainant got up and attempted to get away the accused threw rocks at her. The Crown alleges that the accused and the complainant had been arguing because the complainant wanted to return home and the accused wanted the complainant to come with him.

17. On Count 3, it is alleged that the accused punched the complainant to the face. The Crown alleges that the complainant wanted to attend the local medical clinic for a check-up relating to her broken jaw and a sore throat. It is alleged that the accused did not want the complainant to go to the clinic and was calling for her to come back. The accused then took hold of the complainant’s arm and pulled her handbag away from her. It is alleged that the accused then punched the complainant to the right side of her face.

18. There is no suggestion that the accused has made any admissions with regard to any of these alleged offences. It therefore seems highly probable that with regard to Count 1, the significant issue at trial will be whether it was the accused or some third party who assaulted the complainant and broke her jaw. It also appears likely that the significant issue with regard to the other two counts will be whether the accused engaged in the conduct alleged by the complainant. In my opinion, proof that the accused assaulted the complainant on two subsequent occasions cannot possess significant probative value, via the medium of the alleged tendencies, in establishing that it was the accused and not a third-party who fractured the complainant’s jaw on 5 March 2020. There is nothing about any of the alleged events that would assist the jury in determining that the accused had committed the other alleged offences. The evidence is relevant to the extent that it may rationally support the alleged tendencies, but not strongly so. The first alleged tendency, being the tendency to engage in violence towards the complainant is expressed at a very high level of generality, notwithstanding the inclusion of the particulars “including striking her to the face and pushing her over and attacking her on the ground”. Not all of these particulars are alleged to have occurred in each incident.

19. The second alleged tendency, being the tendency to have an angry and/or controlling state of mind towards the complainant including when intoxicated, places two entirely different states of mind within the one tendency. Clearly enough, not all of the incidents can be said to support a single state of mind. Similarly, the Crown has used the word “including” in this tendency because there is no evidence on at least one occasion that the accused was intoxicated.

20. I am not satisfied that the proposed tendency evidence has significant probative value. Accordingly, the application to lead tendency evidence should be refused.

21. The Crown also submits that evidence relevant to each individual charge should be cross-admissible in respect of each other charge as relationship or context evidence. I am satisfied this submission is correct. At the present time, the accused has made no application to sever the indictment. Nevertheless, the jury will be instructed that they must consider each charge separately. Approaching each charge in this way, the jury may consider it unlikely that the accused has assaulted his partner in the manner alleged if the jury is not entitled to take into account evidence establishing that the accused was, from time to time, violent towards the complainant in the relationship.

22. In addition, the use of this evidence as relationship or context evidence would be relevant to the jury’s assessment of any suggestion that the events described by the complainant occurred as an accident or by mistake.

23. The accused submitted that the Crown should not be entitled to use the evidence as relationship or context evidence because its probative value does not outweigh the danger of unfair prejudice to the accused. I do not accept that submission. In both s 135 and s 137 of the Act the term “unfair prejudice” refers to the potential for the jury to misuse evidence. I am satisfied that appropriate directions to the jury can eliminate any realistic prospect of unfair prejudice to the accused.

24. The Crown will be permitted to use evidence relevant to each individual count as relationship or context evidence with regard to each other count.

25. These Reasons for Judgement are published to the parties and their legal advisors only and may not be published elsewhere until further order of the Court following the conclusion of the trial of the accused person.

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