The Queen v XZ

Case [2016] NTSC 14

The Queen v XZ [2016] NTSC 14

PARTIES:The Queen

v

XZ

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING CRIMINAL JURISDICTION

FILE NO:21405513

DELIVERED:  15 March 2016

HEARING DATES:  22, 23 February 2016

JUDGMENT OF:  BLOKLAND J

CATCHWORDS:

EVIDENCE – Voir dire- Sexual Offences – Tendency Evidence - Whether a reasonable possibility of collusion, concoction or contamination– Whether Counsel could re-open the issue of admissibility of tendency evidence – Cross-examination - Real chance of collusion, concoction or contamination - Child witnesses –Effect of concoction, collusion on probative value – Leave granted to recall some witnesses.

EVIDENCE – Voir dire- Sexual offences - Tendency evidence – Context evidence – Relationship evidence - Whether a reasonable possibility of collusion, concoction or contamination–Child witnesses – Evidence to prove a sexual interest – Effect of concoction, collusion on probative value – Risk of contamination going to the substance of the evidence – Real chance of collusion, concoction or contamination – Reasonable Possibility of Collusion or Concoction - Assessment of probative value a matter of common sense and experience – Application of Hoch v The Queen under the Uniform Evidence Act- Portion of Tendency Evidence excluded – balance of evidence admitted.

EVIDENCE – Sexual offences - Tendency Evidence Notice requirements – Proof of a sexual interest - Notice dispensed with pursuant to s 100 of the Uniform Evidence Act in the use of evidence from one witness.

Evidence (National Uniform Legislation)Act (NT) ss 97, 100, 101

Director of Public Prosecutions v Boardman [1975] AC 421; R v OGD (No 2) [2000] NSWCCA 404; R v Murdoch (A Pseydonym) v The Queen (2013) 40 VR 451; SLS v R (2014) 42 VR 64; Velkoski v The Queen [2014] VCSA 121, referred to.

BP v The Queen [2010] NSWCCA 303; R v Altomonte [2015] NTSC 57; R v Hoch (1988) 165 CLR 292; R v JRW [2014] NTSC 52, followed.

REPRESENTATION:

Counsel:

Appellant:T Berkley

Respondent:  T Lee

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Halfpennys Lawyers

Judgment category classification:    B

Judgment ID Number:  BLO 1603

Number of pages:  28

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

The Queen v XZ [2016]

No. 21405513

BETWEEN:

THE QUEEN

Appellant

AND:

XZ

Respondent

CORAM:     BLOKLAND J

Rulings on Tendency Evidence
(Delivered 15 March 2016)

Introduction

  1. This matter has some history.  For reasons of brevity I will not set out all of the background, save that on 12 May 2015, after hearing an application to sever the indictment, one count of assault with circumstances of aggravation was ordered to be severed from an indictment originally charging seven counts.  

  2. A trial took place in relation to that count.  On 25 May 2015, a verdict of guilty for the offence of aggravated assault was returned, the circumstance of aggravation being that the offender was male and the victim female.  A verdict of not guilty was returned with respect to…

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AGLC
The Queen v XZ [2016] NTSC 14
Case
[2016] NTSC 14
Decision Date

CaseChat Overview and Summary

The case of The Queen v XZ involved a criminal trial where the primary issue was the admissibility of tendency evidence in relation to sexual offences against children. The case was heard in the Supreme Court of Victoria. The defendant argued that the evidence presented had a reasonable possibility of being the result of collusion, concoction, or contamination, and therefore lacked the probative value required for it to be admitted. The court was tasked with determining whether the evidence could be considered reliable and whether there was a reasonable possibility of collusion or concoction that would render it inadmissible.

The legal issues before the court were centered around the admissibility of tendency evidence under the Uniform Evidence Act, specifically whether there was a reasonable possibility of collusion, concoction, or contamination that would undermine the probative value of the evidence. The court had to assess the relationship between the witnesses, the opportunity for contamination, and the motive for concoction. The Crown argued that the evidence only raised a suspicion of collusion and did not meet the threshold for exclusion. The defence contended that the evidence demonstrated a reasonable possibility of collusion or concoction, making it unreliable.

In its reasoning, the court examined the evidence presented, including the Incident Reports, police interviews, and pre-recorded evidence. The court found that while there was some discussion among the witnesses, there was no real possibility of collusion or concoction. The substance of the allegations varied among the witnesses, and there was no motive to concoct stories. The court concluded that the evidence did not fall into the category of inadmissible evidence due to a real possibility of contamination. The court determined that the evidence, while not without some discussion, was sufficiently distinct and varied among the witnesses to be considered reliable.

The court granted leave to recall some witnesses to further clarify certain aspects of the evidence. Ultimately, the court found that there was not a reasonable possibility of collusion or concoction that would render the evidence inadmissible. The court admitted the balance of the evidence, finding it had the necessary probative value to be considered in the trial. The court's final orders included the admission of the contested evidence, subject to the court's findings on the probative value and potential contamination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Further, their Honours stated this threshold test could include unconscious influence: “Where there is a real possibility of contamination- concoction, collusion, unconscious influence and the like – evidence and coincidence will fall at the threshold, since it will not possess the significant probative value which is necessary to its reception. It will be inadmissible.” [37]Discussion of the Evidence Relevant to the Question of Reasonable Possibility of Collusion or Concoction As a review of recent authorities makes plain, if witnesses have a sufficient relationship with each other, opportunity and motive for concoction, then as a matter of common sense and experience, the evidence will lack the degree of probative value required for admission. Not all three factors need to be present. Counsel for the Crown contended that the evidential material before the Court at the time the question fell for consideration was insufficient to justify the exclusion of the tendency evidence. It was argued the evidence raised only a suspicion and it would be speculation to place the relationships and discussions between the witnesses into the category of concoction. Counsel for the accused contended the evidence disclosed a reasonable possibility of concoction therefore lacking the probative force required for it to be led. In particular it was pointed out the evidence revealed there were rumours within the school among the students about the accused. After reviewing the material before the Court, comprising primarily the Incident Reports, recorded interviews with police and pre-recorded evidence, I indicated that in my opinion there existed relationships of the type spoken of in Hoch,[38] and with many of the witnesses there had been some discussion, however a motive to concoct or innocent contamination was not a real possibility. The substance of the allegations made by the complainants differed noticeably. While there was no doubt discussion, it was primarily concerned with matters peripheral to the evidence of the offending. It would have been speculative and giving way to simple suspicion to hold collusion or concoction a real possibility.As mentioned, no motive could be detected, it was quite the opposite for a number of witnesses, who clearly liked the accused. Accounts varied as between witnesses. This was not indicative of collusion or even innocent concoction. The complainant with respect to count 1 (C1) gave evidence that she and the complainant with respect to count 2 (C2) became dirty after emptying bins. They started washing their legs and the accused said “no, no you’re doing it wrong”, so he started to wash them, and pulled up the shorts of C1 who said “that’s not appropriate.” C1’s aunt gave evidence of C1 telling her about the incident on the same day after school. This detracted significantly from a conclusion of reasonable possibility of concoction. In her Incident Report dated 4 December 2013, C1 described the allegation. She also wrote about another incident where the accused rested his hand very close to her bottom. She stated in the Incident Report dated 4 December 2013: “A group of us have noticed that he will never go near or help the boys, he will only help the girls with their projects.” She nominated “other people” with “more information” as W2, W3 and W1 (witnesses but not complainants) and C2 (complainant with respect to count 2). C1 and C2’s accounts of the incident, the subject of counts 1 and 2, varied in a way that was not at all indicative of concoction.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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