The King v Bob [2025] NTSC 3

Supreme Court of the NT|2025-07-11|Before: Kelly J, Agency J

Evidence - Evidence (Uniform National Legislation) Act 2011 (NT) ("ENULA") s 65 - whether statements by now deceased complainant should be admitted - statements admissible under s 65(1)(b) - would also be admissible under s 65(1)(c) - whether statement should be excluded under ENULA s 137 or 135 - probative value of the evidence not outweighed by the danger of unfair prejudice to the defendant - statement not excluded

Evidence (Uniform National Legislation) Act 2011 (NT) s 65, s 66, s 135, s 137

Festa v The Queen (2001) 208 CLR 593 at [22]; ; ; ; ; ; ; ; ; (2017) 261 CLR 601; ; , referred to

Crown: Office of the Director of Public Prosecutions

Accused: North Australian Aboriginal Justice Agency

The King v Bob [2025] NTSC 3

[1] The accused is charged with one count of unlawfully causing serious harm to SP ("the complainant") by stabbing him in the back of the neck with a large kitchen knife and then stabbing him a further three times in the back with the same knife.

[2] The Crown also intends to adduce evidence of out of court statements made by the complainant pursuant to s 65 of the Evidence (Uniform National Legislation) Act 2011 (NT) ("ENULA") which provides:

Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was:

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

[3] There is no doubt that the complainant is not available to give evidence. He has since died from unrelated causes.
[4] The out of court statements the Crown intends to adduce are as follows.

(a) a statement made by the complainant to a neighbour, Terrance Dunn, to whose unit the complainant ran for help immediately after the alleged stabbing, "Krystal and Reggie stabbed me," (being a reference to the accused and her father Reggie Bob);

(b) a statement made to two police officers when they arrived at Terrance Dunn's unit at about 8.30 pm that same evening and saw the complainant's injuries, that Krystal had stabbed him and that it had happened at House 22; and

(c) statements made to police in an audio-visually recorded statutory declaration at the Alice Springs Hospital the day after the alleged stabbing, that he had been stabbed four times by the accused at or near Reggie Bob's unit at the Erldunda flats in Braitling, Alice Springs the previous day (ie 1 September 2023).

[5] The notice served by the Crown contains details of the documents in which the representations are to be found - ie a statement made by Terrance Dunn on the same night, statements by the two police officers who attended Mr Dunn's unit that night, one made on 2 September 2023 and one on 3 September 2023, and the audio-visually recorded statutory declaration of the complainant.
[6] The Crown contends that each of these statements is admissible under s 65(2) (b) and (c). The defence objects to any of these out of court statements being put to the jury.
[7] If at least one of the conditions in s 65(2) is satisfied, evidence of the representations may be adduced by those witnesses reading onto the record what was said; or, where a witness observed a declaration being produced, by tendering the declaration through that witness.[1] Where a witness heard the representation but it was not recorded in a document, the witness may give evidence of what the witness heard.
[8] Section 65(2)(b) of the ENULA provides an exception for representations made 'shortly after' the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication. The principles concerning the operation of s 65(2)(b) are set out in R v Ryan,[2] adopted by Grant CJ in The Queen v Sullivan.[3]

(1) The section is not just a restatement of the res gestae principles. It was intended to significantly expand upon the range of statements that were admissible at common law as part of the res gestae. ([Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204] at [123] and [133]; [Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454] at [33]).

(2) A narrative of past events may be admissible under s 65(2)(b). (Conway at [133]).

(3) The emphasis in s 65(2)(b) is not on reliability as such, but on admitting evidence that is unlikely to have been fabricated. For that reason the section requires that the statements be made "when" the asserted fact occurred (rephrased in Williams as "during the occurrence of the asserted fact") or "shortly after" the asserted fact occurred (rephrased in Williams as "under the proximate pressure of the asserted fact"). ([Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490] at [48]).

(4) For that reason, the court should not over-emphasise such matters as whether the events in question were fresh in the memory of the person making the statement in determining whether a statement was made shortly after the event. (Williams at [48]) However it is proper to take into account whether the events are likely to have been fresh in the mind of the person when the statement was made, as the policy behind the provision is to exclude evidence of a recollection which may have faded in accuracy over time. (Conway at [123]-[135]; Harris at [33]-[40]; R v Mankotia (unreported, Supreme Court, NSW, Sperling J, No 70049 of 1997, 27 July 1998) quoted in Harris at [34]).

(5) "The predominant factor in the phrase 'shortly after' must be the actual time elapsed and whether that fits the ordinary usage of the term 'shortly after' in the circumstances of the case." (R v Mankotia quoted in Harris at [34]).

(6) The assessment of whether a statement was made "shortly after" the event in question may be influenced by the subject matter of the statement and by how long the memory of such an event is likely to be clear in the mind. (R v Mankotia; Harris at [34]).[4]

[9] Each of the statements sought to be adduced by the Crown was made shortly after the asserted fact - ie the alleged stabbing - occurred, the first one to Terrance Dunn immediately after, when he ran to Mr Dunn's unit to seek help; the second very shortly thereafter to police and the third the following day in hospital. In each case, the actual time elapsed "fits the ordinary usage of the term 'shortly after' [the alleged stabbing] in the circumstances of the case". Further, in considering whether the third statement, made the next day may be said to have been made 'shortly after' the alleged stabbing according to the ordinary usage of that term, regard may be had to the subject matter of the statement - that the complainant had been stabbed and who had stabbed him - and to the fact that the memory of such an event is likely to be clear in the mind the next day. Plainly, the stabbing was likely to have been fresh in the mind of the complainant the day after it occurred while the complainant was in hospital receiving treatment for his injuries.
[10] I also consider that the circumstances in which each statement was made make it unlikely that the representation was a fabrication. In relation to the first two statements, the circumstances were that the complainant had run straight from the unit where he had been stabbed, where the accused remained, and he was seeking help for his injuries. He had no reason to lie about how those injuries occurred. Further, the third statement was made in circumstances where he had promised to tell the truth to the interviewing police and had been warned that it was an offence to give false information in a statutory declaration.
[11] I consider that the statements are admissible under s 65(2)(b). That makes it unnecessary to consider the application of s 65(2)(c). However, I also consider that all of these circumstances make it highly probable that the statements are reliable, and that they would also be admissible under s 65(2)(c).
[12] In assessing whether a statement is admissible under s 65(2)(c), the focus must be on the circumstances in which the representation was made and whether those circumstances render the representation likely to be reliable evidence of the fact asserted, not on the apparent truthfulness of the person making the representation, or its actual reliability judged (for example) by reference to its consistency with other reliable evidence.[5]
[13] The first two statements were made immediately after the event, when the fact of the stabbing and the person who stabbed the complainant would have been at the forefront of the complainant's mind. In addition, the third statement was made to a police officer in circumstances where she promised to tell the truth and it was explained to her that making a false statement is an offence.
[14] At the hearing of the voir dire, Ms Wild for the defence withdrew the defence objection to the receipt of statements 1 and 2 and conceded that statement 3 would be admissible under s 65(2)(b). However, defence contended that statement 3 should be excluded under ENULA s 137 or, alternatively under s 135.
[15] Under s 137, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The application of s 137 does not involve the exercise of judicial discretion; the Court must exclude evidence if, in the judgment of the Court the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant.
[16] The focus is on the danger of "unfair prejudice" - that is to say whether there is a danger that the jury may misuse the evidence in some way or use the evidence in some manner that goes beyond the probative value that may properly be given to the evidence, including the possibility that the jury may give the evidence greater weight than is warranted.[6] The legitimate use of the evidence to inculpate the accused does not amount to unfair prejudice.
[17] The Crown has fairly conceded that '[i]t is no light thing to admit a hearsay statement inculpating an accused'.[7] "That is particularly so where the statement is one made by the complainant going directly to the elements of the offence(s) in question, because the accused is deprived of the forensic advantage of being able to cross-examine the complainant."[8]
[18] The fact that the defence will be unable to cross-examine the maker of the statement may be a relevant consideration, but is not determinative.[9] If it were, that would render s 65(2) inoperative: it will always be the case that the defence is unable to cross-examine the maker of a representation rendered admissible under s 65(2) as it is a precondition to the availability of that section that the maker of the statement is unavailable.
[19] To the extent that it is relevant, if the complainant had been available, the statements would not have been excluded by s 66(3) which provides:

If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

[20] The first and second statements would not come within s 66(3); and the third statement would fall within the exception in ss 66(3) as it concerns the identity of the person the complainant said stabbed him. I say, to the extent relevant, as s 65 does not contain any equivalent to s 66(3) for the obvious reason that one of the purposes of s 65, in circumstances such as the present, is to allow for the admission of statements made to police where a witness is unavailable because, for example, the witness is deceased.
[21] My initial view was that the probative value of the three statements is extremely high. In the first two, the complainant identifies the person who stabbed him within minutes of its occurrence and close to the vicinity while the accused was still at the location of the stabbing. The third statement confirmed what was said in the first two with added detail and was made under a promise to tell the truth with knowledge that it was an offence to lie. Further, the evidence, I thought, was likely to be crucial to the prosecution of the accused. However, at the hearing of the voir dire, defence counsel advised that it would not be disputed that the accused stabbed the complainant; the only issue would be whether she did so in selfdefence. That cast a different light on the probative value of the statements.
[22] The Crown submitted that the probative value of the third statement was that it gave important context to the central event - the stabbing. Without the explanation given by the complainant in the third statement the jury would not have any context by which to judge what happened, just the bare fact of the stabbings. The statement gives an explanation of what went before, the complainant had not been drinking and went to Ms Bob's unit from elsewhere, Ms Bob had been drinking and started "jealousing" him and the stabbing was preceded by the complainant saying, "No more drinking," and chucking the remaining grog over the fence. I agree that this is important evidence with high probative value.
[23] Defence counsel contended that the danger of unfair prejudice to the accused if the statement was admitted was high. Ms Wild contended that partly because English is not the complainant's first language and the statement was taken without an interpreter, the statement is incomplete to the point of being misleading.
[24] Ms Wild pointed to aspects of what the complainant said that might suggest that it was the complainant who first had the knife and contended that the interviewing officer did not follow these matters up. When the interviewing officer asked the complainant, "The other thing I'd like to ask, where did she get the knife from?" the complainant said, "Knife from me. Get it from kitchen." Ms Wild submitted that the failure to follow up these matters made the statement so incomplete as to be misleading.
[25] Further, Ms Wild contended that the interviewing officer made an assumption that it was the accused who first produced the knife instead of asking that question. When the interviewing officer asked, "So Kyle Bob ... was there?" the complainant said, "Yeah he was, he was stopping me. He stopped Krystal got knife." Did the complainant intend to convey that Kyle stopped him from doing something, or that Kyle stopped Krystal from getting a knife or using it on him?
[26] The interviewing officer followed that answer with, "Okay. So he saw Krystal with a knife?" The complainant answered, "Yeah." Later in the statement the interviewing officer asked, "... Where did she ... ah at what point did she produce the knife?" Ms Wild characterised this as an unwarranted assumption by the officer that Krystal Bob was the first one to produce the knife." She also contended that there was a real danger that the jury would uncritically accept the police officer's unwarranted assumption about who first produced the knife and that there is now no opportunity to correct that through cross-examination.
[27] The Crown contended that the passages relied on by Ms Wild as supporting the view that the complainant may have been the first one to produce the knife were susceptible of other interpretations and submitted that these things were matters for submission to the jury; the defence may well benefit from the fact that some of the complainant's utterances were susceptible to more than one meaning. I agree. I do not think that the third statement should be excluded under s 137. The probative value of the statement is high for the reasons outlined by the Crown and is not outweighed by any danger of unfair prejudice to the accused. In my view, the matters complained of by the defence as giving rise to potential prejudice are matters which can be adequately dealt with in submissions by the defence.
[28] The defence contended, in the alternative, that the Court should exercise its discretion under s 135 to exclude the third statement as its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing.[10] Defence counsel contended that the statement was misleading or confusing essentially for the same reasons relied upon for the s 137 argument. It is confusing because some of the things said by the complainant are susceptible to more than one interpretation. It is misleading because the failure by the interviewing officer to explore some of those ambiguities make the statement misleading. Ms Le Comte for the Crown relies on the wording of s 135; to be excluded under that section the probative value of the evidence must be substantially outweighed by the relevant risk. Ms Le Comte submitted that the probative value of the evidence is high, the likelihood of confusion or the jury being misled is small and can in any event be dealt with in submissions. That likelihood cannot be said to substantially outweigh the probative value of the evidence.
[29] Despite the fact that the issue in the trial is likely to be whether the accused acted in self-defence, not whether she stabbed the complainant, I consider the probative value of the third statement to be high and that its probative value is not outweighed by any danger of unfair prejudice to the accused. I decline to exclude the third statement under ENULA s 137 or 135.