The Queen v Wilkinson
[2019] NTSC 31
•13 May 2019
CITATION:The Queen v Wilkinson [2019] NTSC 31
PARTIES:THE QUEEN
v
WILKINSON, Camden
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21830750
DELIVERED ON: 13 May 2019
HEARING DATE: 1 May 2019
JUDGMENT OF: Grant CJ
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – TENDENCY EVIDENCE – CHARACTER EVIDENCE – REBUTTAL EVIDENCE – TRANSACTION EVIDENCE
Evidence relating to previous driving conduct – requirements of s 97 of the Evidence (National Uniform Legislation) Act (NT) – no strong inference of relevant tendency arising from the evidence – limited probative value of any tendency established in proving the probability of the conduct charged – evidence ruled inadmissible for tendency purposes – first category of evidence admissible to rebut accused’s statement in record of interview – third category of evidence admissible as “transaction” evidence.
Criminal Code 1983 (NT) s 174F
Evidence (National Uniform Legislation) Act 2011 (NT) s 97, s 110, s 135, s 137Assafiri v Horne [2004] WASCA 40, DSJ v The Queen; NS v The Queen (2012) 215 A Crim R 349, Festa v The Queen (2001) 208 CLR 593, Flowers v The Queen [2005] NTCCA 5, Higgins (1829) 172 ER 565, Hughes v The Queen (2017) 92 ALJR 52, McDonald v The Queen [2014] VSCA 80, R v Ford (2009) 201 A Crim R 451, R v Lock (1997) 91 A Crim R 356, R v Shamouil (2006) 66 NSWLR 228, R v Sullivan [2002] NSWCCA 505, R v Zhang (2005) 227 ALR 311, S v The Queen (2002) 132 A Crim R 326, Semaan v The Queen [2013] VSCA 134, referred to.
REPRESENTATION:
Counsel:
Crown:T Grealy
Accused:J Ker
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: GRA1908
Number of pages: 14
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Wilkinson [2019] NTSC 31
No. 21830750
BETWEEN:
THE QUEEN
AND:
CAMDEN WILKINSON
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 13 May 2019)
The accused is charged by indictment dated 14 February 2019 with driving a motor vehicle dangerously and causing serious harm to the complainant contrary to s 174F(2) of the Criminal Code 1983 (NT).
The offence is alleged to have occurred at about 4 a.m. on 10 July 2018. The Crown case is that the accused had driven the vehicle in question to a carpark in Rapid Creek in company with the complainant and two other passengers. They walked along a footbridge and spent some time in the area before returning to the vehicle. On the way back to the vehicle the accused and the male passenger began running back to the vehicle as if to drive away without the female passengers. They got into the vehicle and the accused started reversing it. He stopped after 20 metres.
The complainant then ran to the car and climbed into the rear seat of the vehicle. At that time the other female passenger was approximately 5 to 10 metres away. Before the complainant had opportunity to close the door or fasten her seatbelt, the accused placed the vehicle into reverse and accelerated at speed while steering left. The complainant grabbed one of the front seats but was unable to maintain her grip and was ejected from the vehicle while the accused was accelerating in reverse. She landed on the road and was run over by the front wheels of the vehicle. The complainant suffered extensive injuries as a result.
When interviewed by police later that morning the accused stated that the complainant had jumped out of the vehicle as he was reversing. The accused stated that before he commenced reversing he told everybody to “close their doors and put their seat belts on” and checked that everybody did in fact have their seat belts secured. He said that after he commenced reversing the complainant took her seat belt off, opened the door and came out of the vehicle.
Tendency evidence
The Crown has served a notice dated 11 April 2019 pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (the ENULA). The evidence sought to be adduced for tendency purposes relates to previous occasions on which the accused is said to have driven erratically. That evidence falls into three categories. The first is that on or around 1 July 2018 the accused reversed a utility vehicle at speed while the complainant was unsecured in the tray, causing her to be flung forward and hit her head on the cabin of the vehicle. The second category of evidence is that the accused had previously, and at various unspecified times, done “stupid stuff” such as driving at speed around roundabouts to show off. The third category of evidence is that earlier on the night in question the accused had been driving over roundabouts in a dangerous manner.
The Crown contends that the tendency evidence is relevant to various facts in issue in the proceedings, including whether the door to the motor vehicle was open at the time the accused placed the vehicle into reverse and accelerated at speed immediately before the complainant was projected from the vehicle, whether the complainant was unrestrained at that time, and whether the accused drove the vehicle in reverse at speed while steering left. The tendencies sought to be proved by that evidence are that the accused was given to driving motor vehicles erratically while there were unrestrained and unsecured passengers in the vehicles, and had a willingness to do so.
Section 97 of the ENULA provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value. The evidence will have “significant probative value” if it could rationally affect the assessment of the probability of the existence of a fact in issue in some important fashion.[1] The assessment of probative value is a two-step process. In the first step, the assessment is whether the evidence concerning the previous conduct would be probative in establishing the tendencies alleged by the Crown. If it is accepted that an inference of tendency could be sustained, the second question is whether that tendency makes it more probable that on this occasion the accused drove a motor vehicle dangerously in the manner alleged by the Crown.[2]
The first category of evidence involves the incident with the utility on or about 1 July 2018. The reference to that incident is made in a number of statements by the complainant and other witnesses.
The complainant’s statement made on 16 December 2018 contains the following material relevant to that incident. She was sitting in the tray of the accused’s vehicle and the tailgate was up. She states that she is certain the accused knew she was in the tray, without indicating any basis for that knowledge.[3] The accused then started the vehicle and reversed it “really fast” causing the complainant to be flung forward and hit her head on the cabin of the vehicle.
The complainant’s evidence was then pre-recorded in a hearing conducted on 8 May 2019. During the course of that hearing she was questioned in relation to the incident alleged to have occurred on or about 1 July 2018, subject to the excision of that material prior to trial if it is ruled inadmissible. The substance of her evidence was that she was sitting in the tray of the accused’s utility vehicle with another person. While she was sitting there the accused entered the vehicle and sat in the driver’s seat. One inference capable of being drawn from the order of those events is that the accused knew they were in the tray of the vehicle when he entered it. The accused then reversed the vehicle while the complainant was still in the tray in a manner that caused her to be propelled forward and knock her head on something in the back of the tray.
The witness Rickard’s statement made on 5 October 2018 states that a few weeks before the incident the subject of the charge the accused was driving his utility vehicle while the complainant was in the back tray and “whacked her head”. The mechanism by which she did so and the accused’s state of knowledge of the time are not explicit in the statement.
The witness Rickard’s evidence was also pre-recorded during the hearing on 8 May 2019. The substance of her evidence in relation to the incident was that was that she was sitting in the passenger seat of the accused’s utility vehicle and the complainant was lying down alone and unrestrained in the back of the tray. In that position, the complainant was visible from inside the cabin of the utility. The accused was in the driver’s seat of the vehicle. The accused then commenced driving the vehicle and as it was going around a roundabout the complainant slid and hit her head on the side of the tray.
The witness Bates’s statement made on 18 January 2019 provides the following relevant information. A couple of weeks before the incident the subject of the charge a number of people were trying to get into the accused’s car (presumably the tray of the utility) while he was trying to leave the location. The witness says “I’m not sure if he had moved and was parking again as he was pulling back into the car park”. The witness saw the complainant was in the tray of the utility. She got out and complained that she had hit her head. He did not see the complainant get into the tray or see her fall. He only saw the vehicle moving forward and stopping suddenly.
The witness Curnow’s statement made on 18 January 2019 provides the following relevant information. He saw some people sitting in the tray of the accused’s utility. He didn’t see the vehicle move in any particular way, but he did see the complainant storm off in an upset fashion.
That evidence has little probative value in proving a general tendency on the part of the accused to drive motor vehicles erratically while carrying unrestrained and unsecured passengers. Even if it was considered to have some probative value in relation to the accused’s driving tendencies, such tendencies as might be established by that evidence would have little probative value in establishing that on this occasion the accused drove the motor vehicle in reverse and to the left while the door was open and the complainant unrestrained. This category of evidence is inadmissible for tendency purposes.
I come to that conclusion even accepting that it is not necessary for the Crown to establish a specificity or similarity between the episode said to establish the tendency and the conduct alleged in the charge, and accepting that a tendency is capable of being established by reference to only one other incident involving that category of conduct.
The second category of evidence is that the accused had previously, and at various unspecified times, done “stupid stuff” such as driving at speed around roundabouts to show off. That evidence is contained in the complainant’s statement dated 17 July 2018 in those terms. For the same reasons given in relation to the first category of evidence, the second category is also inadmissible for tendency purposes. If anything, the probative value of this evidence is even more attenuated than the first category of evidence given the lack of any relevant similarity to the conduct charged.
The third category of evidence is that earlier on the night in question the accused had been driving over roundabouts in a dangerous manner. That evidence is contained in the statement of the witness Rickard and in her pre-recorded evidence. This category of evidence is also inadmissible for tendency purposes, for the same reasons.
Admissibility as evidence rebutting the accused’s account and which forms part of the relevant transaction
The Crown submits that even if not admissible for tendency purposes, all three categories of evidence are admissible for a non-tendency purpose in order to rebut certain statements made by the accused in the record of interview with police. Those statements include that he told everyone to “close their doors and put their seat belts on” because “I don’t drive anyone without seat belts on”. The Crown will be playing the record of interview as evidence in the trial, presumably because it contains admissions against interest.
The statements made by the accused in the record of interview might arguably have been directed to establishing that he is a person of good character in a particular respect, being his careful driving habits. However, those representations as made in the record of interview are not evidence adduced by the accused for the purposes of s 110 of the ENULA so as to permit the Crown to adduce evidence to prove that the accused is not a person of good character in that particular respect. Similarly, the other exceptions to the credibility rule would not permit the Crown to adduce evidence of bad character in that particular respect. While the Crown cannot be compelled to tender a record of interview which contains exculpatory or self-serving statements, where it chooses to do so both statements against the accused’s interests and any exculpatory statements made on that occasion will be before the jury.[4] As Parke J observed almost two centuries ago in Higgins:[5]
Now, what a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against the prisoner; however, if the prosecutor makes the prisoner’s declaration evidence, then it becomes evidence for the prisoner as well as against him …
Of course, the position in relation to the admissibility of evidence for the purpose of proving bad character would be different in the event the accused elected to give evidence during the course of the trial and asserted his good character in that particular respect. In that event the Crown would likely be given leave to adduce evidence of bad character in that respect.
However, even where an accused has not adduced evidence of good character so as to permit the prosecution to adduce evidence of bad character, evidence may be admissible for certain other uses subject to the discretions in ss 135 and 137 of the ENULA. Those uses include evidence rebutting a defence account and evidence of conduct which forms part of a relevant transaction. Such uses may include evidence which discloses conduct on the part of an accused which may reflect upon the accused’s character if accepted by the jury, but the use or purpose is not to establish bad character.
So far as the use of evidence for rebuttal purposes is concerned, in McDonald v The Queen[6] the Victorian Court of Appeal held that it was open to admit evidence that the accused possessed child pornography to rebut his statement to police in the record of interview which had been tendered by the Crown “that he was not interested in children”. By analogy, the first category of evidence in this matter would be admissible to rebut the accused’s statement in the record of interview that, “I don’t drive anyone without seat belts on”.
While it may be accepted that the circumstances evident from the first category of evidence involve a passenger unrestrained in the tray of a utility vehicle rather than seated in a sedan, the broad thrust of the accused’s statement is to the effect that he would not drive a vehicle with unrestrained passengers for reasons of safety. The first category of evidence, if it is accepted by the jury that the accused either knowingly or recklessly drove while a passenger was unrestrained in the tray of the utility vehicle, would have significant probative value in rebutting the implication contained in his statement to police; and, by extrapolation, probative value in determining whether the complainant was in fact restrained at the time the accused commenced reversing the vehicle on the night in question. It would also have some probative value in negativing any suggestion that the accused was under some misapprehension of fact concerning the complainant’s restraint at the time.
I turn then to consider whether the evidence should be excluded in the exercise of the general discretions under ss 135 and 137 of the ENULA. The first provision confers a general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. The term “probative value” is defined to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The evidence would have significant probative value for the purposes I have described.
So far as the balancing exercise is concerned, there is no basis on which to conclude that the receipt of the evidence might be misleading or confusing, or cause or result in undue waste of time. Evidence is only unfairly prejudicial if it would deprive an accused of a fair trial. An accused will be deprived of a fair trial if there is a real risk that the evidence will be misused by the jury in some unfair way. Any such risk which presents in this case may be ameliorated by appropriate directions.
Section 137 of the ENULA is restricted in its operation to criminal proceedings, and requires the court to refuse to admit evidence adduced by the Crown “if its probative value is outweighed by the danger of unfair prejudice to the defendant”. Again, in order for there to be a danger of unfair prejudice to the accused “[t]here must be a real risk that the evidence will be misused by the jury in some way that the risk will exist notwithstanding the proper directions which it should be assumed the Court will give”.[7] The test enunciated by McHugh J in Festa v The Queen is in the following terms:[8]
It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from the task.
The first category of evidence is not weak for the purpose for which it would be adduced. It is to the effect that the complainant was in the tray of a utility vehicle being driven by the accused when she suffered some form of mishap, in circumstances where the jury will receive an out-of-court statement by the accused to the general effect that he would not drive with passengers unrestrained so as to give rise to some risk to their safety. There may be some question arising as to the state of the accused’s knowledge at the time of the incident. There are also inconsistencies between and uncertainties in the accounts as to how many people were in the tray of the vehicle and whether it was moving backwards or forwards at the time. These are contestable matters of reliability which will ultimately fall to the jury to determine. There is no real danger that the jury would give the evidence more weight than it deserves, or that it would divert the jury from its proper task.
These matters militate against the exercise of the discretion to exclude the evidence in pursuance of ss 135 and 137 of the ENULA.
Turning then to conduct which forms part of a relevant transaction, the defence concedes that the third category of evidence is relevant and admissible as evidence as to how the vehicle was being driven prior to the subsequent incident because it may tend to show how the vehicle was being driven at the time of the incident.[9] This is because the conduct of the accused in that respect is closely related in time and circumstance to the conduct alleged in the charge. In those circumstances, the evidence will have substantial probative value both as to whether the conduct alleged occurred and the accused’s state of mind at the time.[10] The defence does not contend that the probative value of that evidence is outweighed by its prejudicial effect.
Rulings
I make the following evidentiary rulings:
1.The three categories of evidence are not admissible for tendency purposes.
2.The first category of evidence is admissible to rebut statements made by the accused in the record of interview.
3.The third category of evidence is admissible as transaction evidence.
______________________________
[1] R v Zhang (2005) 227 ALR 311 at [46]; R v Ford (2009) 201 A Crim R 451 at [52]; DSJ v The Queen; NS v The Queen (2012) 215 A Crim R 349 at [67], [71], [72]; R v Lock (1997) 91 A Crim R 356 at 361.
[2] Hughes v The Queen (2017) 92 ALJR 52 at [40]-[41].
[3] In that form, the statement would be inadmissible as evidence of the accused’s knowledge and state of mind at that time.
[4] Flowers v The Queen [2005] NTCCA 5 at [36]-[40]; S v The Queen (2002) 132 A Crim R 326 at 330; Assafiri v Horne [2004] WASCA 40 at [59]-[60].
[5] Higgins (1829) 3 C & P 603 at 604; 172 ER 565 at 565.
[6] McDonald v The Queen [2014] VSCA 80 at [28]-[29].
[7] R v Shamouil (2006) 66 NSWLR 228 at [72] per Spigelman CJ.
[8] Festa v The Queen (2001) 208 CLR 593 at [51].
[9] R v Sullivan [2002] NSWCCA 505 at [13].
[10] Semaan v The Queen [2013] VSCA 134 at [32].
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