The Queen v Wilkinson - [2019] NTSC 31

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 137
Assafiri 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 DARWIN
The 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…

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 Wilkinson

Details

AGLC: The Queen v Wilkinson [2019] NTSC 31
Case: [2019] NTSC 31
Decision Date: 13 May 2019

CaseChat Overview and Summary

The case of The Queen v Wilkinson involved the Crown prosecuting the accused for dangerous driving causing injury. The accused, Wilkinson, was alleged to have driven his vehicle in a dangerous manner, causing a passenger to be ejected from the vehicle. The court was tasked with determining the admissibility of certain pieces of evidence that the Crown sought to introduce, which related to the accused's previous driving conduct. The court had to consider the relevance and probative value of the proposed evidence under the provisions of the Evidence (National Uniform Legislation) Act 2011 (NT).

The primary legal issue before the court was whether the proposed tendency evidence relating to the accused's previous driving conduct met the requirements of section 97 of the Evidence (National Uniform Legislation) Act 2011 (NT). The Crown argued that the evidence was relevant to several facts in issue, including whether the accused drove the vehicle in a dangerous manner and whether the passenger was unrestrained. The accused contested the admissibility of the evidence, arguing that it did not have significant probative value and should be excluded under the legislation. The court had to determine whether the evidence could rationally affect the assessment of the probability of the facts in issue.

The court found that the evidence did not give rise to a strong inference of relevant tendency and that any tendency established had limited probative value in proving the probability of the conduct charged. The first category of evidence, relating to a previous incident where the accused reversed a utility vehicle at speed with an unsecured passenger, was ruled inadmissible for tendency purposes. However, the court found that this evidence was admissible to rebut the accused's statement in his record of interview, where he claimed that the passenger had taken her seat belt off and exited the vehicle voluntarily. The third category of evidence, which related to the accused's driving over roundabouts on the night in question, was admitted as "transaction" evidence.

The court ruled that the evidence did not meet the significant probative value threshold for tendency purposes but could be used for other permissible purposes, such as rebutting the accused's statements and as transaction evidence. The court excluded the second category of evidence, which related to unspecified instances of reckless driving, due to its speculative nature and lack of probative value. The court's decision balanced the need to consider relevant evidence against the statutory requirements for admissibility and the potential for prejudice to the accused.

The court's final orders were that the first category of evidence was admissible for rebuttal purposes, the third category was admissible as transaction evidence, and the second category was excluded. The court directed the parties to proceed with the trial based on the admitted evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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