The King v Choolum [2022] NTSC 85

EVIDENCE - Joint application for a view of the locations of the stabbing, deceased's death and accused's arrest pursuant to s 367 of the Criminal Code - View would be useful for jury - View is not onerous - Jury is directed to view the above locations during the trial.

BC v The Queen [2015] NSWCCA 327; (2015) 257 A Crim R 340; BD v The Queen [2017] NTCCA 2; Director of Public Prosecutions (Vic) v Dixon [2020] VSC 743; Elias v The Queen [2006] NSWCCA 365; Em v The Queen [2007] HCA 46; (2007) 232 CLR 67; Festa v The Queen (2001) 208 CLR 593; Gilbert v The Queen (2000) 201 CLR 414; HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334; Hoyle v The Queen [2018] ACTCA 42; Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; Ladd v The Queen [2009] NTCCA 6; (2009) 27 NTLR 1; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045; Morton v The Queen [2020] NTCCA 2; Nguyen v The Queen (2020) 94 ALJR 686; Pfenning v The Queen [1995] HCA 7; (1995) 182 CLR 461; Plevac v The Queen (1995) 84 A Crim R 570; Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610; Sokolowskyj v The Queen [2014] NSWCCA 55; (2014) 239 A Crim R 528; Spencer v The Queen [2003] NTCCA 1; (2003) 137 A Crim R 444; Spruill v The Queen [2008] NSWCCA 39; The Queen v Archer (No 1) [2021] NSWSC 569; The Queen v AW [2018] NTSC 29; The Queen v Bauer [2018] HCA 40; (2018) 266 CLR 56; The Queen v Downs [2019] NTSC 7; The Queen v Esposito (1998) 45 NSWLR 442; The Queen v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451; The Queen v GP [2015] NTSC 53; The Queen v Grant (2016) 262 A Crim R 348; The Queen v Helmhout [2000] NSWSC 208; (2000) 112 A Crim R 10; The Queen v Jennings [2020] NTSC 71; The Queen v JGW [1999] NSWCCA 116; The Queen v Joiner [2002] NSWCCA 354; (2002) 133 A Crim R 90; The Queen v Lisoff [1999] NSWCCA 364; The Queen v RN [2005] NSWCCA 413; The Queen v O'Brien [2017] NTSC 34; The Queen v Ostojic (1978) 18 SASR 188; The Queen v Rolfe (No 7) [2022] NTSC 1; The Queen v Rooke (unreported, NSW Court of Criminal Appeal, Newman, Levine and Barr JJ, No 60550/96, 2 September 1997); The Queen v Shamouil (2006) 66 NSWLR 228; The Queen v Swaffield (1998) 192 CLR 159; The Queen v Tipiloura [2019] NTSC 92; The Queen v Yirrawala [2015] NTSC 37; Viro v The Queen (1978) 141 CLR 88; Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, referred to.

S Odgers, Uniform Evidence Law (LawBook Co,16th ed, 2021).

Criminal Code Act 1983 (NT) ss 1, 43AI, 43AK, 43AL, 43AM, 156, 160 and 367.

Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 59, 80, 85, 90, 97, 101, 135, 137 and 138.

Police Administration Act 1978 (NT) ss 137 and 140.

Crown: Office of the Director of Public Prosecutions

Accused: North Australian Aboriginal Justice Agency, then Ward Keller

The King v Choolum [2022] NTSC 85

[1] The accused is charged with murder. He stabbed a man 11 times, causing his death. The accused has pleaded guilty to the alternative charge of manslaughter. The only issue in the trial will be whether the accused intended to cause serious harm to the deceased. Four issues have been raised before the trial. The first issue is whether evidence of three prior incidents of violent conduct by the accused causing harm, for which he was convicted, should be admitted as tendency evidence. The second issue is whether admissions made by the accused shortly after the stabbing that this was the first time he had 'murdered' someone are inadmissible or should be excluded from the evidence at trial because of: (i) the use of the word 'murder'; and (ii) the circumstances in which they were made, particularly the intoxication of the accused. The third issue is whether the evidence of the three prior incidents should be admitted as context evidence, to explain the references to this being 'the first time' in the accused's admissions. The fourth issue is whether the joint application by the parties for the jury to be taken on a view of the scene of the stabbing, the death and the arrest should be allowed.

[2] The Crown's case is that, on 3 April 2020, the accused drank alcohol and became intoxicated. At around 11.30pm, RK ('the deceased') and a witness ('SH') walked to the residence of the deceased's brother ('AK'), which was in a unit complex on Gap Road. The deceased was intoxicated. After they had been waiting at AK's residence for about 20 minutes, the deceased and SH saw the accused walking towards the unit complex. He entered a gate to the complex and swore at the deceased and SH. SH asked who he was talking to and the accused did not reply. The deceased and SH left the unit complex. The accused followed them out of the unit complex. The accused called out to the deceased and SH. They stopped walking and the accused caught up to them. The deceased and the accused had a conversation SH described as 'chatting'. SH then continued walking. He stopped to wait for the deceased who started to follow him. The accused walked the other way. SH heard the deceased call out something 'cheeky'. The deceased then ran to catch up with the accused. SH last saw them walking across the unit complex car park. The accused and the deceased returned to the unit complex and walked to an alleyway between two of the units in the complex. This was recorded on CCTV, but there is no footage of what occurred in the alleyway.

[3] The Crown says the accused became angry with the deceased, drew a 15cm long kitchen knife from his pants pocket and stabbed and slashed the deceased to the head and torso at least 11 times, inflicting four significant injuries and other more superficial injuries. The accused inflicted a 15cm deep stab wound to the right side of the deceased's chest, which passed through cartilage, the upper lobe of the right lung, the pericardium and the right ventricle of the heart. This wound caused the deceased's death. The other significant injuries were an 11cm long stab wound to the deceased's back left shoulder area, an 8cm long gaping incised wound across the deceased's right cheek and a 4cm deep stab wound to the deceased's left hip area which had two tracks in different directions.

[4] After stabbing the deceased, the accused fled to the rear of the unit complex and then along Parke Crescent. He removed his shirt and wrapped it around his left hand to stem bleeding from cuts to his middle, ring and little fingers, which were caused by his hand slipping on the blade of the knife during his attack on the deceased. The accused banged on the front door of a residence in Parke Crescent, the occupants of whom were known to him. The occupants came to the door and saw him holding a knife, wearing shorts with blood on them and blood on his hand. He told them to call police because he had stabbed someone. The occupants encouraged the accused to walk out to the street. The accused told them he had 'murdered someone' because he was 'teasing'.

[5] While this was occurring, the deceased made his way to one of the units in the unit complex in Gap Road and banged loudly on the door and called for help. The occupant came to the door and the deceased collapsed on the ground. Police and ambulance services were called. Attending police officers received the call to attend at 11.58pm on 3 April 2020. The first police officer on the scene arrived at 12.01am. Ambulance officers arrived shortly after. The deceased was alive when they arrived and ambulance officers worked to save him.

[6] At this time, the accused was seen by police in Parke Crescent. Police approached him and he was directed to lie face down on the road, which he did. At 12.06am, he was handcuffed, arrested and placed in the police caged vehicle. He was then taken to the Alice Springs Watch House, where he was processed into custody. As he was arrested, police administered the caution under s 140(a) of the Police Administration Act 1978 (NT) ('the s 140 caution').[1]

[7] Immediately following his arrest at the scene,[2] and whilst at the Watch House,[3] the accused made various admissions which were captured on the body worn footage ('BWF') of cameras worn by various police officers to the effect that he had 'stabbed' a man, that this was the first time he had 'murdered' someone, that he had never 'murdered' anyone before, that he had done so 'just only today' or 'tonight', that he had 'murdered' the 'bloke', that the deceased had 'threaten me too much' and he 'couldn't take it', that he told the deceased 'leave me alone, don't follow me', that he had a knife in his pocket and the deceased kept 'chasing' him, he didn't like it, 'so I have a stab, another stab', and that he had stabbed the man and stuck a knife 'to his throat'.

[8] Despite the efforts of ambulance officers, the deceased was pronounced dead at the scene at 12.42am on 4 April 2020.

[9] At 8.51am on 4 April 2020, at the Watch House, the accused was informed by police that the deceased had died and that he was under arrest for murder. At that time, the accused was re-administered the s 140 caution. During that conversation, the accused made admissions to the effect that this was his 'first time ever', the 'first time [he] ever done this' and that he 'never murdered before and this is [his] first time'.

[10] Later that day, after speaking to a lawyer from the North Australian Aboriginal Justice Agency ('NAAJA'), the accused declined to participate in an electronic record of interview.

[11] On 12 August 2021, then Defence counsel raised objections to the admissibility at trial of some, but not all, of the admissions made by the accused (referred to in paragraphs [7] and [9] above), and filed written submissions in support of those objections, essentially on the bases that the challenged admissions should be excluded from evidence pursuant to ss 85, 90, 135 and 137 of the Evidence (National Uniform Legislation) Act 2011 (NT) ('ENULA'). On 16 August 2021, the Crown filed written submissions in support of the Crown's position that the challenged admissions are admissible and should not be excluded.

[12] On 12 August 2021, the Crown filed a notice under s 97(1) of the ENULA of its intention to adduce at the trial tendency evidence relating to six prior incidents of violent conduct committed by the accused between October 1993 and April 2013 for which he was convicted. The Crown also filed an affidavit which annexed the precis of facts and sentencing remarks in relation to those prior incidents. The Crown also filed written submissions in support of the admission of that proposed tendency evidence. On 16 August 2021, then Defence counsel filed written submissions opposing the admission of that proposed tendency evidence.

[13] On 16 August 2021, at the commencement of the voir dire to determine these issues, the accused entered a plea of not guilty to the charge of murder. It was not disputed that the accused stabbed the deceased as described in paragraph [3] above, but issues of self-defence, provocation and accident were all potentially live at the trial.

[14] Across 16 and 17 August 2021, numerous witnesses were called to give oral evidence on the voir dire, both by the Crown and by the Defence. Almost all were cross-examined. The Crown called the following witnesses:

(a) Four police officers who were involved in or present when the accused was arrested. Their statements were tendered[4] and their BWF of the arrest was tendered.[5]

(b) One police officer, who was involved in or present when the accused was arrested, was involved in transporting him to the Watch House and taking him from the vehicle into the Watch House, and was present in the Watch House when the accused was being processed into custody. His statement was tendered[6] and his BWF of those times was tendered.[7]

(c) The police officer who held the position of Watch House Keeper on the night of the accused's arrest. His statement was tendered.[8]

(d) One police officer involved in dealing with the accused at the Watch House the morning after the stabbing. His statement was tendered[9] and his BWF of those interactions was tendered.[10]

(e) A police auxiliary who interacted with the accused at the Watch House. His statement was tendered.[11]

(f) A police detective was called through whom the police records of the accused's previous interactions with police were tendered.[12]

(g) The custody nurse present at the Watch House when the accused was processed into custody. Her statement and clinical records she made about the accused were tendered.[13]

[15] The Defence called the Custody Notification Service ('CNS') Co-ordinator for NAAJA. His statement was tendered.[14] .

[16] Near the conclusion of the oral submissions on 17 August 2021, then Defence counsel indicated that a supplementary statement from the CNS Co-ordinator would be forthcoming, and she sought the opportunity to make further submissions about whether police had complied with the agreed CNS protocols and the bearing that may have on the exclusion of the challenged admissions. The Crown also sought to make further submissions on the issue. The voir dire remained part-heard on the basis that further evidence and submissions would be made.

[17] On 8 September 2021, the Court was advised that the accused had terminated his instructions with NAAJA and then Defence counsel and that his matter would be referred to the NT Legal Aid Commission.

[18] On 30 March 2022, new Defence counsel sought to be heard further on the voir dire. On 12 April 2022, the Defence was granted leave to raise further matters on the voir dire, specifically in relation to the degree of intoxication of the accused (including obtaining expert evidence about that), the impact of that intoxication upon the receipt of the challenged admissions, and on the admission of the proposed tendency evidence.

[19] On 13 July 2022, the Crown called two witnesses to give evidence in a Basha inquiry, namely EM and SH. Those witnesses were cross-examined by Defence counsel. Their statements were tendered.[15] Their evidence was to the effect that SH and the deceased had refused the accused's request for cigarettes, there was some disagreement about that, and the accused may have called out a swear word or something cheeky to the deceased and SH not long before the deceased ran across the road towards the accused.

[20] After those witnesses were cross-examined, the accused sought to vary his plea. He was re-arraigned on the indictment. He entered a plea of not guilty to murder, and a plea of guilty to the alternative charge of manslaughter.

[21] On 13 July 2022, each party tendered reports from respective expert witnesses regarding the accused's level of intoxication and the impacts of that intoxication upon his physical and mental functioning and cognitive capacity. By agreement, the experts were not called to give evidence and the expert reports were tendered.[16]

[22] On 29 July 2022, the Defence filed written submissions on the voir dire indicating that, of all of the admissions made by the accused (both to lay witnesses and police officers), the only admissions that were the subject of objection were those in which the accused used the word 'murder' or its derivatives (these admissions will be referred to in these reasons as 'the murderous admissions'). The Defence written submissions also addressed, effectively anew, the admissibility of the proposed tendency evidence.

[23] On 15 July 2022, in response to the Defence written submissions regarding the proposed tendency evidence, the Crown filed an amended tendency notice which confined the proposed tendency evidence to three of the six prior incidents of violent conduct committed by the accused referred to in the original tendency notice. Those three incidents occurred between October 2008 and April 2013. The Crown also filed supplementary written submissions addressing the amended tendency notice and responding to the Defence written submissions.

[24] On 15 July 2022, oral submissions on the extant issues on the voir dire were heard.

[25] On 9 August 2022, the Crown filed a further amended tendency notice and some supplementary written submissions and sought to be heard in relation to the further amended tendency notice. On 2 September 2022, the Defence filed written submissions in further reply to the further amended tendency notice. On 6 September 2022, oral submissions on the further amended tendency notice were heard.

[26] Under the Criminal Code, the offence of murder has two physical elements: (1) to engage in conduct (s 156(1)(a)); and (2) that the conduct causes death (s 156(1)(b)). The fault element for the first physical element is intention (s 43AM(1)).[17] A person has an intention in relation to conduct if the person means to engage in that conduct (s 43AI(1)). In this case, the conduct was the accused stabbing the deceased. There is no requirement that the Crown prove the accused intended to stab the deceased in that part of the body to which the fatal stab wound was inflicted.[18] It is not in dispute that the accused stabbed the deceased 11 times as alleged by the Crown and intended to do so. There is no issue that the accused's stabbing of the deceased was accidental.[19]

[27] The fault element for the second physical element is intention to cause the death or serious harm (s 156(1)(c)).[20] 'Serious harm' is defined to mean any harm (including the cumulative effect of more than one harm) that endangers, or is likely to endanger, a person's life or that is or is likely to be significant and longstanding (s 1). There is no requirement that the accused knew that their conduct would or was likely to cause the serious harm; it is the intention to cause the harm, not knowledge as to the likelihood or otherwise of success, that is the basis of the necessary fault element.[21] Such knowledge may, however, support an inference that the accused had the requisite intention. This is the basis for the Crown's argument dealt with in paragraph [56] and following below.

[28] The only issue to be determined at trial is the second fault element, that is, whether the accused intended to cause (relevantly) serious harm to the deceased. There is no issue about the accused acting in self-defence or under provocation, although the deceased's conduct will be relevant as to whether the accused had the requisite intention. The Crown is likely to submit to the jury that the requisite intention may be inferred from the number of stab wounds inflicted, the significant nature of at least four of them, including the fatal stab wound, and the location of a number of them on the deceased's body (namely, his head and torso). The Crown is also likely to submit to the jury that the requisite intention may be inferred from the admissions the accused made, particularly that the accused admitted to police that he had 'murdered' the deceased (if the murderous admissions are ruled admissible), and did so before the deceased had died, demonstrating that the accused was aware of the serious harm that he had inflicted upon the deceased and permitting the inference he intended such harm as he inflicted it.

[29] The accused's intoxication at the time of the stabbing will be relevant to whether he formed the requisite intent.[22] This raises whether the accused possessed the capacity to form the requisite intent and whether he actually did form the requisite intent.[23] Where the Crown seeks to invite the jury to infer the requisite intent from the injuries inflicted, the inference might not be drawn as readily when the accused was intoxicated as might have been the case if he had been sober.[24]

[30] As to the effect of intoxication upon the accused, the parties relied on reports from two expert witnesses. Neither was called to give oral evidence. It is anticipated that, by consent, both experts would give evidence at trial.

[31] Dr Michael Robertson is a pharmacologist and forensic toxicologist. He described the impacts on physical and mental functioning of people at different levels of intoxication. After reading the statements from lay witnesses who interacted with the accused before and after the stabbing, the statements from police officers who interacted with the accused at and after his arrest, and viewing the BWF, he opined that the accused was likely affected by alcohol at the time of the stabbing, but was not so affected as to be significantly cognitively impaired. Dr Robertson opined that there was no evidence that the accused was confused, unaware of his surroundings or otherwise profoundly cognitively impaired. By 'profoundly cognitively impaired', Dr Robertson meant having an inability to appreciate or understand his surroundings, impaired judgement and reasoning, and confusion. Dr Robertson opined that the accused had appropriate recall and understanding when spoken to and did not have profoundly slurred speech or impaired balance. His actions after the offending demonstrated appropriate awareness of his actions and appropriate judgement. Dr Robertson opined that it is likely the effect of alcohol on him contributed to his behaviour and decision making, but there is no evidence of significant or profound cognitive impairment at the time of the stabbing.

[32] Emeritus Professor Jason White is a psychologist with post-doctoral training in pharmacology who has held various academic and other positions related to pharmacology. After viewing the BWF of the accused, Professor White opined that the accused's behaviour was consistent with him experiencing a high degree of intoxication and profound effects of alcohol, but not at a level where he was unable to walk or stand or comprehend what was being said or what was happening around him. While his thinking, decision making and judgement were impaired, his cognitive functioning was not so impaired that he would have failed to understand his actions. Professor White opined the accused was acting in an impulsive manner without the usual level of regard for the consequences of his actions. Professor White opined that it was very likely that at the time of the stabbing the accused was experiencing a similar level of intoxication to what he was experiencing during his interactions with police, namely alcohol-induced disinhibition and impairment of thinking, judgement and decision making. It is likely he would have understood what he was doing in stabbing the deceased, but is unlikely to have fully appreciated the degree of risk to the deceased.

[33] In response to Professor White's report, Dr Robertson opined that the accused may have been acting impulsively, but that could not be stated with certainty. He concurred with the opinion that, at the time of the stabbing, the accused would have understood what he was doing in stabbing the deceased and may not have appreciated the degree of risk to the deceased.

[34] The expert evidence appears to confirm that, despite his intoxication, the accused was capable of stabbing the deceased, capable of forming the intention to do so, and capable of forming the intention to cause serious harm.

[35] The evidence of the experts is considered further below in relation to the effect of the accused's level of intoxication when making the murderous admissions.

[36] By its further amended tendency notice, the Crown has given notice under s 97(1) of the ENULA of its intention to adduce tendency evidence at the trial. The notice advises that the tendencies sought to be proved are the tendencies of the accused:

(a) to hold a particular state of mind, namely, to be easily angered to a violent rage;

(b) to have a particular state of mind when engaging in violent conduct, namely:

(i) an awareness of the risks of causing serious harm or at least significant physical harm when applying force to other persons with weapons;

(ii) an understanding of the increased likelihood of causing serious harm where the applications of force by the accused with a weapon are sustained rather than momentary;

(iii) an understanding of the increased likelihood of causing serious harm where the applications of force by the accused with a weapon are targeted at a vulnerable part of the body; and

(c) to act in a particular way, namely, to threaten or inflict serious harm or significant physical injury with weapons.

[37] The Crown seeks to adduce evidence about conduct that is the subject of three convictions for various forms of violence by the accused causing harm. For the purposes of the voir dire, the evidence received was in the form of the sentencing remarks of the court for two of the convictions and the precis of facts upon which the guilty plea was entered in relation to the other. If the proposed tendency evidence is ruled to be admissible, the Crown intends to reduce the material to a set of agreed facts about the offending to be received in evidence, which Defence accepted would be appropriate.

[38] The conduct forming the proposed tendency evidence is as follows:

The accused went to his sister's house to have a shower, for the purpose of sobering up. His sister's partner ('M') refused him a shower. The accused picked up a metal picket, swung it at M and struck two blows. One hit M's forearm which he held up in a defensive way above his head, and the other hit M on the top of the head. The accused ran away and was arrested later that day.

Assault occasioning grievous bodily harm; unlawful wounding

Whilst on bail for the offending against M, the accused's then partner, JD, was walking with two other women, including JP, along an alleyway. The accused and JD had been drinking alcohol that day. JD had told the accused she would follow him that night. The accused said he would chase her. The accused approached the women from behind, pulled a knife from his shorts and cut JD in the back. JD pleaded with the accused not to stab her. He stabbed her in the left thigh. She said to him: 'Why are you doing this? I've left you.' He told her he wanted her to go back to him. The accused then started to slice her with the knife, moving it in a stabbing motion at her face. JP tried to stop the accused and he swung the knife at her. She put her arm up to block the knife coming towards her throat and got a deep cut on her forearm. She stepped back and the accused continued to swing the knife at her. During the course of the attack, the accused cut JD's face such that her lip was hanging from her face. The women ran to the hospital. Police located the accused on the side of the road with the knife behind his back. He dropped it when Police got out of the car.

The accused was heavily intoxicated. He walked to the Alice Springs Town Council lawns near KFC and spoke with his nephew and TL. TL and the accused had a verbal argument. A short time later, unrelated to the accused, TL was attacked by a group of unknown men. He was punched, kicked, had a bottle smashed on his head and fell to the ground unconscious. The accused saw this happen. He crossed the road, armed himself with a stick about 1 m long and 2-3 cm in diameter and approached TL, who was lying on the lawn. He swung the stick downwards twice, striking TL on the head. The accused was restrained by security guards and arrested by Police at the scene.

[39] The proposed tendency evidence is said to be relevant to the primary fact in issue at trial, namely whether the accused had the requisite state of mind that he intended to cause serious harm to the deceased.

[40] Under s 97 of the ENULA, evidence of the conduct of a person is not 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, unless the appropriate notice has been given and the Court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value.

[41] There is no issue about the adequacy of the notice, which was served well before the matter is listed for trial.

[42] The second question under s 97 is whether the evidence has significant probative value in relation to the factual issue referred to above.

[43] The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 ('Hughes') at [16]:

The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. [citations omitted]

...The test posed by s 97(1) is as stated in Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [125]: 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.

[45] Assessing the probative value of proposed tendency evidence requires consideration of both the facts in issue that make up the elements of the charged offence and, if applicable, the facts that are likely to be in issue that make up the elements of likely 'defences'.[25] In this case, no likely defences will be raised.

[46] Assessing the probative value of proposed tendency evidence is, generally speaking, therefore a two stage process. As the plurality said in Hughes at [41]:

The assessment of whether evidence has 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 the 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 a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

[47] In that last statement, the Court was not laying down a threshold of admissibility, or equating the requirement of 'significant probative value' in s 97 with 'a high degree of probative value' so as to invoke the circumstances covered by the words 'strongly supports'. To so conclude would be inconsistent with their Honours' observations at [16] of Hughes, that tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent, citing the observation of French CJ, and Kiefel, Bell and Keane JJ in IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 ('IMM') at [46] that Cross on Evidence suggests that a significant probative value is a probative value that is important or of consequence, and that 'the evidence must be influential in the context of fact-finding'.

[48] The critical question is whether the tendency evidence has significant probative value. 'Significant' means something in between mere relevance and a substantial degree of relevance, and this resolves to a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[26]

[49] The assessment of the probative value of the proposed tendency evidence is to be determined by the trial judge on the assumption that the jury will accept the evidence.[27] Given the nature of the proposed tendency evidence and the form in which the proposed tendency evidence would be put to the jury, this is not an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and does not meet the criterion of relevance.[28]

[50] Initially, the Crown argued that the proposed tendency evidence establishes one or more of the alleged tendencies set out in paragraph [36] above to a significant extent, and that those tendencies make the principal fact in issue (whether the accused intended to cause the deceased serious harm) more probable to a significant extent, essentially because the accused is 'experienced with violence and with weapons' and understands the likely outcome in terms of harm when weapons are used.

The alleged tendencies in the tendency notice - to be angered to a violent rage and to threaten or inflict serious harm with weapons

[51] I am unable to see how either of the alleged tendencies to be easily angered to a violent rage or to threaten or inflict serious harm or significant physical injury with weapons has significant probative value in establishing that the accused had the requisite intent for the charge of murder. That a person is easily angered to a violent rage or has a tendency to inflict serious harm or significant physical injury with weapons has low probative value in establishing that he intended to cause serious harm to the person he intentionally stabbed 11 times with a knife, and appeared to believe he had killed (as expressed in the murderous admissions). The capacity of these alleged tendencies to make more likely that the accused intended to cause the deceased serious harm is weak. They extend to little more than the proposition that he has angrily and violently caused harm to others in the past, and he did so to the deceased. So much is admitted by the manslaughter plea. Further, the generality with which these alleged tendencies are expressed makes them little more than relevant to the fact in issue.[29]

[52] I am not satisfied that these two alleged tendencies have significant probative value in establishing the fact in issue.

The alleged tendencies in the tendency notice - awareness of increased likelihood of serious harm

[53] As to the three other alleged tendencies, the Defence argued that they are all matters of common knowledge and experience.

[54] It is plain enough that, if the alleged tendencies of the accused are things commonly within human knowledge and experience, that is, present in all or most or many people, they cannot have significant probative value because those things cannot make the relevant fact in issue (that the accused did something or had some state of mind) more likely. Such tendencies would not be 'something important about the accused, in particular the way in which the accused can be expected to think or act in particular circumstances'.[30]

[55] Each of these alleged tendencies refers to: (i) an awareness[31]; (ii) of the increased likelihood[32]; (iii) of causing serious harm[33] (iv) when applying force to other persons[34]; (v) with a weapon. One of the alleged tendencies goes no further. The other two alleged tendencies refer additionally to where the force is 'sustained rather than momentary' and 'targeted at a vulnerable part of the body'. I accept that these three aspects of awareness are matters of common knowledge and experience. The ordinary person is aware of the increased likelihood of causing serious harm when applying force to other persons with a weapon, including where the force is sustained rather than momentary and/or targeted at a vulnerable part of the body.

[56] The Crown essentially argued that the accused has these three aspects of awareness to a greater extent than the ordinary person because he has experience in applying force to a person with a weapon. I do not accept that having experience in applying force to a person with a weapon can give the accused any significantly greater awareness of the increased likelihood of causing serious harm than that which the ordinary person would have. Consequently, I do not accept that any greater degree of awareness that the accused might have because of his experience has significant probative value.

[57] The Defence also argued that such awareness of the increased likelihood of causing serious harm does not make it significantly more likely that the accused had the requisite intention to cause serious harm to the deceased. It was argued that having an awareness that his actions in stabbing the deceased might cause serious harm is not the same as having an intention to do so. It was said that while such awareness might found a charge of reckless homicide, it does not establish a charge of murder.

[58] The Defence appeared to accept that such awareness is probative of the requisite intent, in the sense that one cannot have the requisite intent to cause serious harm without being aware that stabbing the deceased in the way the accused did increased the likelihood of causing him serious harm. That is, the awareness is an essential pre-requisite for the intention, so establishing the awareness is a stepping stone along the way to the requisite intention. The Defence argued, however, that the accused's awareness was able to be established by other evidence. It was said that the accused's plea to manslaughter, the stabbing and the way it was carried out are capable of establishing that the accused had such awareness.

[59] Under the Criminal Code, one of the elements of manslaughter is that the accused is reckless or negligent as to causing the death of the deceased by the conduct that causes the death (s 160(c)). A person is reckless in relation to a result (here, the death caused by the accused stabbing the deceased) if the person is aware of a substantial risk that the result will happen (s 43AK(1)(a)). A person is negligent as to a physical element of an offence (here, causing the death of the deceased) if their conduct involves such a great falling short of the standard of care that a reasonable person would exercise in the circumstances and such a high risk that the physical element exists or will exist, that the conduct merits criminal punishment (s 43AL).

[60] Given the alternative bases upon which manslaughter can be established, a question arises as to whether, by his plea, the accused has admitted to recklessly causing the death or to negligently causing the death. This matters because the former involves an admission to awareness of a substantial risk that the deceased would die from his conduct, but the latter does not.

[61] This case is clearly one of recklessly causing death. It is not a case of conduct falling short of the standard of reasonable care.

[62] It follows that, by the plea to manslaughter, the accused has admitted to having awareness of a substantial risk that the deceased would die from his conduct in stabbing him the way that he did. In these circumstances, the probative value of the three aspects of awareness captured by the alleged tendencies must be minimal at best. These alleged tendencies do not add significantly to what is established by the accused's plea to the charge of manslaughter.

[63] For the reasons set out above, I am not satisfied that these three alleged tendencies have significant probative value in establishing the fact in issue.

[64] The Defence also argued that, in the present case, tendency reasoning to a finding that the accused had the requisite intent for murder must involve establishing that the accused had that particular state of mind at the time of the three prior instances of violent conduct (namely an intent to cause serious harm), so as to permit the inference that the accused had the same state of mind at the time of the charged offending. The Defence argued that the three prior instances do not rationally permit the conclusion that, on those occasions, the accused had an intent to cause serious harm.

[65] In response to that argument and the others made by the Defence dealt with above, the Crown relied on the following observations made by Burns J in The Queen v Rolfe (No 7)[35] (at [95]-[96]):

The justification for adducing tendency evidence in cases such as the present is that the evidence tells the tribunal of fact something important about the accused, in particular the way in which the accused can be expected to think or act in particular circumstances. What is revealed about the accused by the tendency evidence must be of importance in determining a fact in issue. The fact in issue need not be the ultimate fact in issue, but may be a subsidiary or collateral fact which is nevertheless important in reasoning that an ultimate fact in issue exists. [emphasis added]

The word 'tendency' is not defined in the [ENULA] and must be taken to have its ordinary meaning of an inclination towards particular behaviour or way of thinking. Proposed tendency evidence need not, therefore, establish that a person has a fixed pattern of behaviour or thought. What is anticipated by s 97 of the [ENULA] is that the proposed tendency evidence will allow the tribunal of fact to draw an inference that, when presented with particular circumstances, the accused will tend to act or think in a particular way. The purpose of the Crown asking the tribunal of fact to draw this initial inference is so that the Crown may then ask the tribunal of fact to draw a second inference from the initial inference, being that when confronted with the same or similar circumstances, the accused will act or think in the same way as he has acted or thought in the past when confronted with those circumstances.

[66] The Crown explained that it was not seeking to use the proposed tendency evidence to ask the jury to conclude that the accused had a specific intent to cause serious harm on previous occasions and must have had that same specific intent at the time he stabbed the deceased. Rather, the Crown seeks to use the proposed tendency evidence to establish the five alleged tendencies set out in the tendency notice in order to establish a relevant subsidiary fact, namely that 'the accused is a person who when engaging in violent conduct will assess the extent and duration of the force he applies, and take account of the potential harm outcome in doing so'. The Crown argued that the accused was such a person during the past incidents of offending and that the accused was such a person at the time he stabbed the deceased. The Crown intends to then ask the jury to infer from that subsidiary fact that the accused intended to cause serious harm to the deceased.

[67] In oral argument, the Crown accepted that the 'subsidiary fact' it had identified is actually a tendency to have a particular state of mind. The Crown argued that the proposed tendency evidence shows the accused making deliberate decisions and 'real time assessments' as to the escalation and cessation of violent force, despite being angry and despite being intoxicated.

[68] As regards the first prior incident, the proposed tendency evidence establishes that the accused struck the victim twice with a metal picket. The first strike hit the victim's forearm as he put his arm above his head to defend himself. The second strike hit the victim to the top of his head, causing blood to run down his face. The accused then ran away. The Crown argued that the following inferences could be drawn: (a) the accused approached the victim with an intention to inflict a particular level of harm; (b) having struck the victim on the forearm, the accused was not satisfied with the harm inflicted and so struck him again; and (c) when the second strike hit the victim and caused him to bleed, the accused was satisfied with that degree of harm and desisted.

[69] As regards the second prior incident, the proposed tendency evidence establishes that the accused approached the victims from behind. One of them was his partner who had earlier told the accused she would follow him that night and he told her he would chase her. The accused pulled out a knife. He cut his partner in the back. He stabbed her in the thigh. She asked him why he was doing this and said she had left him. He said he wanted her back. He then sliced her with the knife, using a stabbing motion to her face. She suffered a cut causing her lip to hang from her face. The other woman tried to stop him and he swung the knife at her throat. She put her arm up to block the knife and was cut to the forearm. She stepped back. The accused continued to swing the knife at her. The women ran away. The Crown argued that the following inferences could be drawn: (a) the accused approached his partner with an intention to inflict a particular level of harm upon her, noting that she was a woman and he wanted her back; (b) he made a deliberate choice to cut her to the back, not stab her; (c) he made a deliberate choice to stab her to the thigh; (d) he made a deliberate choice to slice her face causing a disfiguring injury; (e) he made a deliberate choice not to harm his partner any further; (f) when the other woman intervened, he made a deliberate choice to swing the knife at her throat, but cut her to the forearm instead; (g) he kept swinging the knife at her until they ran away.

[70] As to the third incident, the proposed tendency evidence establishes that the accused approached the victim, a man he had earlier had an argument with. The victim was lying on the ground unconscious after having been assaulted by others. The accused picked up a stick, approached the victim and struck him twice with the stick to the head. He was then restrained by security guards. The accused said that he tried to hit the victim but he was moving around. The Crown argued that the following inferences could be drawn: (a) the accused approached the victim with an intention to cause him a particular degree of harm; and (b) the accused struck the victim twice to the head with force calculated to stop him moving around.

[71] The Crown argued that these various inferences would support the finding that the accused has the tendency, when engaging in violent conduct, to assess the extent and duration of the force he applies, and take account of the potential harm outcome in doing so.

[72] The Crown argued that the inferences were open on the evidence about the prior incidents, coupled with the evidence about the accused's actions in stabbing the deceased. Specifically, the Crown argued that the accused's actions in these prior incidents did not involve the infliction of numerous strikes with the weapon, or the infliction of any fatal or life threatening wound, or the infliction of greater harm than actually occurred.

[73] A difficulty with the Crown's argument is that, in order to infer that the accused made calculated and deliberate decisions to inflict the level of harm he did, it would be necessary to know that it was open to him to make such choices in the circumstances, and the proposed tendency evidence contains very bare facts about the accused's actions, the victim's actions and the surrounding circumstances.

[74] For example, the Crown emphasised that in the second incident, the accused only cut his partner to the back rather than stabbing her, which was said to show a deliberate decision on his part to do so. The sentencing remarks say the accused 'cut [the victim] in the back with the knife' and she pleaded with the accused not to stab her. They also say that he came up behind her and she heard a noise. These facts rationally permit the inference that she heard him coming at her with the knife and flinched or dodged so that he was only able to inflict a superficial cut rather than a stab wound. The inference that the accused intended only to cut her to the back is rationally open, but barely. The Crown emphasised that the next stabbing was to the thigh rather than to a more vulnerable part of the body like the torso. The sentencing remarks say the accused stabbed the victim with the knife to the thigh after she pleaded with him not to stab her. There is nothing in the facts to indicate one way or the other whether the accused deliberately chose that part of her body and achieved his intended target, or whether he was aiming for elsewhere and he missed, striking the thigh. The Crown emphasised that the accused then began to 'slice' the victim with the knife to her face and inflicted a disfiguring injury. The sentencing remarks say that the accused 'started to slice her with the knife, moving it in a stabbing motion at her face'. Again, there is nothing in the facts to indicate one way or the other whether the accused deliberately chose that part of her body and achieved his intended target. There is no information about whether the accused was aiming for her face, or what the victim was doing at this time, whether she was standing or on the ground, whether she was defending herself or moving around trying to avoid his stabs. Further, the inference that he desisted his attack upon being satisfied that he had achieved his deliberately chosen level of harm is unavailable because the sentencing remarks simply say that the women ran away after the accused cut the other victim on the forearm when he swung the knife towards her throat and continued swinging the knife at her. The fact that the accused swung the knife at the other victim's throat, and kept swinging it at her even after he cut her on the forearm, is somewhat inconsistent with the inference that he deliberately chose a degree of harm against her that was not likely to be fatal because she was a woman.

[75] In the third incident, the inference that the accused desisted from striking the victim with the weapon because he was satisfied with the level of harm he had inflicted is not open because, after he struck the victim twice with the stick, he was restrained by security guards. That inference is only open in one of the three prior incidents. Further, the precis of facts about the third incident says the accused told police that his reason for assaulting the victim was because he was moving around and his reason for hitting the victim with a stick was that the accused tried to hit him but he was moving around. Those answers are unclear as to a motive for the assault. I cannot see how they permit a reasonable inference that the accused struck the victim with the stick to the head in a deliberate and calculated decision about the extent of the harm he intended to inflict.

[76] In each incident, the accused was intoxicated. In the first incident, the sentencing remarks simply say the accused wanted 'a shower to sober up'. In the second incident, the sentencing remarks say the accused was very affected by alcohol and had no recollection of the incident. In the third incident, the precis of facts simply says he was intoxicated. Those bare facts give no information about how intoxicated the accused was, which would bear upon his mental capacity to make calculated and deliberate decisions calibrating the degree of harm inflicted by his actions, and upon his physical capacity to carry any such decisions out.

[77] The Crown seeks to support these inferences by contrasting what the accused did in stabbing the deceased on this occasion, effectively arguing that the accused's use of the knife on the deceased was sustained, targeted at the torso and head, and fatal, making it different to the conduct in the prior incidents. The forensic pathologist's report identified seven superficial wounds, five of which were to the deceased's arms or fingers, and one of which was to the base of the side of the neck. There was a gaping wound to the cheek, a lengthy wound to the back shoulder area and only two deep wounds, one 4cm in depth to the hip area and one 15cm deep to the chest. The latter was the fatal wound. Other than the number of strikes made and that one was fatal, it is difficult to see any significant differences between these injuries and those inflicted in the three prior incidents which would reasonably permit the inference that, when intoxicated and in a violent rage, the accused makes deliberate choices to calibrate the level of violence and the harm he inflicts on victims. To my mind, the injuries in the stabbing of the deceased do not appear to be specifically targeted to any part of the body and they vary in seriousness, for reasons unknown.

[78] Further, this aspect of the Crown's reasoning is novel and somewhat counter-intuitive. Generally speaking, even though similarity is not determinative, the probative value of tendency evidence is heightened by similarities between the prior conduct (or circumstances) and between that conduct (or circumstances) and the charged conduct (or circumstances), and lessened by differences between those things.[36] Here, the Crown relied on differences between the accused's conduct on prior occasions and the accused's conduct on the charged occasion to establish a tendency to have a particular state of mind. The Crown was unable to point to any authority in which that kind of reasoning has been deployed.

[79] Another difficulty with the Crown's argument is that the tendency to have the particular state of mind (on the earlier occasions and on the charged occasion) rests on two incidents which occurred over 11 years, and one incident that occurred almost 7 years, before the charged offending. The accused was in custody for approximately 2 to 4 years[37] after the 2008 prior incidents and before the 2013 prior incident, and for 4 months after that incident. Even accounting for those periods where the opportunity to act on the alleged tendency may have been absent, a gap of that degree substantially weakens the inference that the accused had the alleged tendency at the time of the charged offending.[38] This is even more so where the Crown relied, not on similarities to link the prior incidents and the charged offending, but on differences in the accused's actions between those prior incidents and the charged offending. Similarities may have supported the inference that the tendency has persisted over the lengthy period of time, whereas differences may be readily explained by changes in the accused's state of mind over time.

[80] The Crown argued that the tendency has greater probative value when considered with the murderous admissions because the accused himself distinguished between the past incidents, where he had not killed anyone, and the charged incident, where he had. The Crown argued that the accused appeared to be expressing some satisfaction about having killed the deceased, and satisfied that he had taught him a lesson. For example, in one of the murderous admissions, made while the accused was in the police vehicle after his arrest, the accused said:

Haha, first time murderer for me. First time I murder people. First time. Haha, my first time murdering...

I never murdered anyone. You can check all my fucken profile. I never murdered anyone. Just only today, only tonight. That was my first time I ever murdered someone.

[81] These statements do not unequivocally express satisfaction. They are equally capable of being construed as the expression of shock or surprise at what he had done and/or a recognition that he faced very serious consequences. Even if such statements were capable of being construed as the expression of satisfaction with the deceased's death, that may simply be the accused's satisfaction, after the event, that the deceased got what he deserved. It is difficult to see how they are reasonably capable of supporting the inference that the accused had a tendency, when engaging in violence, to assess the extent and duration of the force he applies, and take account of the potential harm outcome in doing so.

[82] For the reasons set out above, I am not satisfied that this alleged tendency has significant probative value in establishing the fact in issue.

[83] Given the conclusions above, it is strictly unnecessary to consider this issue.

[84] Section 101(2) of the ENULA provides that, in a criminal trial, tendency evidence is not admissible unless the probative value of the evidence outweighs the danger of unfair prejudice to the accused.

[85] Section 101(2) was amended by the Evidence (National Uniform Legislation) Amendment Act 2021 (NT), which commenced on 1 April 2021, and which changed the requirement from 'substantially outweighs any prejudicial effect' to 'outweighs the danger of unfair prejudice'. The effect of the amendment is discussed in the leading text by Stephen Odgers, Uniform Evidence Law, 16th edition, at [EA.101.183]. The learned author says that the amendment was not intended to effect any substantive change in the operation of the provision, other than the deletion of the word 'substantially', which was intended to have a substantive effect, although whether it will have a significant impact may be doubted because of the paucity of authority on the significance of the word 'substantially'. Reference is there made to the view expressed in The Queen v RN[39] that the following passage from the judgment of McHugh J in Pfennig v The Queen[40] at 528-529 describes 'the essence of [the] task' required by s 101(2):

If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial

[86] The learned author says that the 'fair minded people' test was applied by the New South Wales Court of Criminal Appeal in Sokolowskyj v The Queen,[41] and that these views still bear noting following the recent amendment.

[87] It remains that s 101(2) involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused.

[88] When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[42] The notion of prejudice in this general context:

... means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.[43]

[89] In other words, evidence is not prejudicial merely because it makes it more likely that the accused will be convicted.[44] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect. For example, the jury may be influenced to convict as punishment for conduct other than that charged; may overestimate the probative value of the evidence and give it disproportionate weight, or may be distracted from the central issues in the trial, say, by an emotional or irrational response to the evidence.

[90] The plurality in Hughes (at [17]) explained the kinds of potential prejudice that can arise in a criminal trial as follows:

The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

[91] The test of danger of prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[45]

[92] In this case, the Defence asserted that there was a real risk of prejudice by the jury becoming distracted from the single issue in the case by both an emotional response to the violence and harm involved in the three incidents in the proposed tendency evidence and by the difficult intellectual task that would be required of them to draw the inferences necessary to consider the alleged tendency(ies) put by the Crown.

[93] It seems to me that the Crown (and the Defence in response) would be asking the jury to analyse in significant detail the facts of the three prior incidents, to draw numerous inferences from those facts about those incidents, particularly the accused's actions, the injuries to the victims and the accused's state of mind at the time, including by reference to and by drawing distinctions from the charged offending, to then draw the further inference(s) as to whether those inferences establish the alleged tendency(ies) put by the Crown, and then to draw the final inference that, by virtue of the found tendency(ies), the accused intended to cause serious harm to the deceased. That would be a complicated intellectual exercise which has the clear potential to overshadow and interfere with the jury's task of assessing and drawing inferences from the other evidence in the case. Further, there is a real risk that the jury may have an emotional response to the prior incidents (given the degree of violence and the serious levels of harm involved) which could interfere with this complicated intellectual exercise and the jury's task generally.

[94] While the jury might be expected to put aside their emotional responses when directed by the Judge to do so,[46] directions as to tendency reasoning are commonly quite complicated[47] and the complicated path of reasoning that the Crown would have the jury take would add substantially to that complexity.

[95] If I had held that the proposed tendency evidence had significant probative value, I would have concluded that its probative value does not outweigh the danger of unfair prejudice to the accused. I would have excluded the proposed tendency evidence pursuant to s 101(2) of the ENULA.

[96] For the above reasons, the proposed tendency evidence specified in the Crown's further amended tendency notice may not be admitted as tendency evidence because it does not satisfy the requirements of s 97 of the ENULA or, alternatively, is excluded pursuant to s 101(2) of the ENULA.

[97] By s 59(1) of the ENULA, evidence of a prior representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. This is referred to in the ENULA as 'the hearsay rule'.

[98] The ENULA contains various exceptions to the hearsay rule. The Crown relied on the exceptions found in s 80(1). Section 80(1) provides that the hearsay rule does not apply to evidence of an admission. The term 'admission' is defined to mean a previous representation that is: (a) made by a person who (relevantly) is or becomes a defendant in a criminal proceeding; and (b) adverse to the person's interest in the outcome of the proceeding.

[99] There is no dispute that each admission made by the accused, including the murderous admissions, constitutes a 'prior representation' for the purposes of the ENULA.[48]

[100] The Defence objected to the admissibility of the murderous admissions in reliance on ss 85, 90, and 135 or 137 of the ENULA. In essence, the Defence argued that:

(a) because of the accused's intoxication, because the accused was not aware that the deceased had actually died, and because 'murder' can have both a legal and a non-legal meaning:

(i) the truth of the murderous admissions was adversely affected within s 85(2), and the admissions are inadmissible; or

(ii) if they are admissible, it would be unfair to the accused to use the admissions within s 90 and they should be excluded in the Court's discretion; and

(b) alternatively, the probative value of the murderous admissions is outweighed by the danger of unfair prejudice to the accused within s 137 so the Court is obliged to refuse to admit them; or

(c) alternatively, the probative value of the murderous admissions is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused within s 135 so the Court should refuse to admit them in its discretion.

[101] There is no dispute that the murderous admissions made in the presence of police officers[49] were made in circumstances falling within s 85(1) of the ENULA. Section 85(2) provides that evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the admission was adversely affected. Section 85(3) provides (relevantly[50]) that, in addition to other matters, the Court is to take into account any relevant condition or characteristic of the person who made the admission, including age, personality and education, and any mental, intellectual or physical disability to which they are or appear to be subject.

[102] Section 85 of the ENULA is concerned with whether the circumstances adversely affected the 'truth of the admission'. It is not directly concerned with whether the evidence has been improperly or illegally obtained, or general considerations of fairness, and nor is the provision concerned with the voluntariness of the admission, except to the extent that it might bear on the assessment of reliability in the relevant sense.[51]

[103] The enquiry also does not raise any consideration of whether the admissions made were, in fact, true.[52] The relevant enquiry is whether circumstances such as the accused's personal characteristics and the level of compliance with procedural safeguards may have affected the truth of the confession.[53]

[104] The operation of the provision and the relevant factors and considerations were identified by Barr J in The Queen v GP[54] (at [30]) in the following terms:

The prosecution in the present case must satisfy the court on the balance of probabilities that the admissions relied on were made in circumstances that were not likely to affect their truth adversely [Bin Sulaeman v R [2013] NSWCCA 283 at [81]]. As trial judge, I must determine whether the reliability of the admissions may have been impaired by the way in which they were obtained. In this exercise, I need to consider all the circumstances. Those circumstances include the characteristics of the accused person making the admission, including age, personality, education and any mental, intellectual or physical disability affecting him. The circumstances would also include, where they exist, misconduct by those interrogating, the procedural safeguards adopted, and whether there was any impairment of the ability of the person making the admission to make a rational decision.

[105] In other words, the enquiry is whether the circumstances were such that it was unlikely that the accused made a false confession.[55]

[106] Section 90 of the ENULA provides that the Court may refuse to admit evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The accused bears the onus of establishing the facts giving rise to unfairness on the balance of probabilities.[56] Section 90 applies to the murderous admissions made in the presence of police as well as those made to the lay witnesses.

[107] In The Queen v Jennings,[57] Grant CJ made the following points about the operation of s 90. Firstly, the focus of the enquiry is not upon whether the circumstances in which the admission was made were fair or unfair; rather, it is on whether, having regard to those circumstances, it would be unfair to an accused to use the evidence at trial.[58] Secondly, the consequences which follow from illegal or improper conduct by investigating authorities fall to be dealt with under s 138 of the ENULA, and are not to be dealt with under s 90. Thirdly, it is not possible to mark out the full extent of the meaning of 'fairness' in this context. The unfairness discretion is capable of operating in relation to procedural rights and forensic disadvantages. Some circumstances which might give rise to unfairness in the nature of forensic disadvantage include the admission of a statement made by an accused to another person if that person is not called as a witness, and where the manner in which the accused was questioned has led to apparent inconsistencies which might be used to impair his credit as a witness.[59] Fourthly, admission of evidence is not unfair simply because it has some potentially inculpatory effect.[60] Fifthly, assuming there is otherwise no relevant unfairness, that some of the admissions may be subject to different interpretations is a matter properly to be determined by the jury.[61]

[108] In The Queen v Ostojic,[62] Wells J (Hogarth and King JJ agreeing) considered that admissions made by a person so severely intoxicated as to be unaware of his surroundings, of the identity of his interrogator, and of the drift of questions put that he is incapable of choosing whether to speak or not and is just 'gabbing' might be 'involuntary'[63], and observed (at 197):

Liquor may loosen a man's tongue; it may impair his ability to continue fraudulent conduct when under close questioning; it may inhibit his inventiveness and hence weaken his capacity to lie effectively. In such circumstances, if there is no more, I see no ground in principle or authority for excluding his answers ... it is a question of fact and degree.

[109] In The Queen v Helmhout,[64] Bell J held (at [34], [39]) as follows:

I consider the appearance of the accused during the course of the interview to be consistent with a person still affected, to some degree, by the effects of the substantial quantity of alcohol and drugs consumed by him some hours earlier. However, I am satisfied that the accused was aware that he had been arrested and was being interviewed with an allegation of murder. The introductory questions and answers make clear that the accused was aware of his surroundings and that he was able to recall the sequence of events from the time he was woken by police and informed that he was under arrest.

The fact that the accused may have made admissions ... in part because his tongue was loosened by the effects of alcohol and drugs does not, in my view, make it unfair to admit the interview for the reasons given in Ostojic.

[110] In The Queen v Archer (No 1),[65] after referring (at [41]-[42]) to the above authorities, Hamill J held (at [49]) that the circumstances in which the admissions were made, which included that the accused was sleepy, drowsy and affected to a degree by drugs and alcohol, did not make it unlikely that the 'untruth' of the admission (because the admissions were lies) was adversely affected.

[111] As set out above, the two experts' reports set out their opinions about the accused's level of intoxication. Dr Robertson noted that, at the time of his arrest, the accused followed police instructions to lie on the ground and get into the vehicle, his communication with police was fluid and appropriate, he was able to state his name and address, had knowledge of the origin of blood, and was aware of his actions of having stabbed someone. After the stabbing, he fled, removed his shirt and wrapped it around his injured hand. He also went to a residence and demanded police be called. In Dr Robertson's opinion, this demonstrated appropriate awareness of his actions and appropriate judgement. He was able to walk, albeit assisted by police, and he entered and exited the police vehicle unassisted. He did not have profoundly slurred speech or impaired balance.

[112] Professor White noted the accused responded appropriately to simple directions from police, was able to give his name, told police he had stabbed someone and that he himself was not hurt. His speech was slurred. He began yelling to police after being placed in the vehicle. He stepped down from the vehicle without apparent difficulty. He responded appropriately to some questions, such as giving his address and asking for his niece to be contacted. He did not respond appropriately to COVID-19 related questions and was uncooperative with health questions. He repetitively stated he had murdered someone, yelled at times and talked over police. He showed evidence of pronounced disinhibition, with a lack of restraint in his conversation with police and a lack of comprehension of the gravity of the situation. His speech was very repetitive. He was able to walk unaided but was unsteady on his feet. He was able to change his pants, but did so from a seated position. Professor White opined he was experiencing a high degree of disinhibition from the effects of alcohol, and acting in an impulsive manner without the usual level of regard for the consequences of his actions.

[113] Various police officers gave evidence about their observations of the accused's level of intoxication.

1. Constable Hudson was present when the accused was arrested and when he was being processed into custody at the Watch House.[66] Her evidence was that she recalled the accused showed signs of intoxication, that he had very slurred speech, but she did not recall if his eyes were bloodshot or he smelled of alcohol. Asked if he was grossly intoxicated, she rejected the adjective 'grossly' and said she recalled him being intoxicated.
2. Senior Constable Donaldson was one of the officers who arrested the accused.[67] He was unable to recall anything about the accused's sobriety.
3. Constable Cramp-Harding was partnered with Constable Hudson and was present when the accused was arrested and when he was being processed into custody at the Watch House.[68] His evidence was that the accused was intoxicated, which he determined because he had bloodshot eyes, smelt of alcohol, was slightly unsteady on his feet but could walk unassisted, he was unresponsive to questioning and 'spouted out information'.
4. Constable Sykes was the arresting officer.[69] He was unable to recall anything about the accused's sobriety.
5. Constable Gillett was one of the arresting officers.[70] He handcuffed the accused during the arrest. His evidence was that he could not recall the accused being intoxicated. Asked if the accused was unsteady on his feet and referred to the assistance of officers to get up from the ground and escort him to the vehicle, Constable Gillett's evidence was that the accused was heavy, had his hands behind his back, and that it is usual practice for police to safely lift a handcuffed person from the ground with a member on each side.
6. Sergeant Dunnage was the Watch House Keeper when the accused was brought in.[71] His statement said that the accused appeared to be intoxicated, refused to answer any of the health questions in the Custody Health Assessment questionnaire, but answered that he was healthy to the question: 'Are you healthy or sick?', said he would not kill himself in custody, and asked that his daughter be contacted and told about his arrest. In his oral evidence, Sergeant Dunnage said it was difficult to remember how intoxicated the accused was, but from memory he was 'moderately intoxicated'. Sergeant Dunnage was referred to a note of a call made by him notifying CNS that the accused was in custody but was 'highly intoxicated and unable to speak' to a lawyer. He could not recall having made that note, but agreed he may have said it if it was in the note.
7. Detective Senior Constable Stephen Heffernan was tasked with investigating the death of the deceased and he attended the Watch House and spoke with the accused at 8.51am on 4 April 2020.[72] He reminded the accused of the s 140 caution and advised him he was under arrest for murder as the deceased had died. He asked the accused if he wanted anyone told of his arrest, the accused mentioned the managers of Stirling Station, and also asked to speak with a particular police officer. Detective Heffernan was also present when the accused underwent a forensic examination by other officers. At 1.54pm, Detective Heffernan offered the accused the opportunity to participate in an electronic record of interview. He declined on advice from his lawyer. Detective Heffernan was unaware of the accused's intoxication when he was brought in. He said he had been told of the deceased's death at 1.00am when he was called in to duty. He said the reason the accused was not arrested for murder then was that he had to review BWF and witness statements. It was not the case that the accused was not fit to be cautioned and arrested before then, it was simply that the investigation had not reached that point.
8. Police Auxiliary Verma held a custody observer role when the accused was brought into the Watch House.[73] He performed 15 or 30 minute observations of the accused for a seven hour period from the time he was placed in a cell. His evidence was that the accused was really intoxicated, he was slurring his words and his balance was impaired. He said the accused was talking non-stop and kept repeating that he had killed someone. He said every time he spoke to the accused, the accused wanted to continue talking about it, even though PA Verma told him 'don't tell me, save it for the judge'.

[122] Beena Mathew was the custody nurse working in the Watch House when the accused was brought in.[74] In her statement, Ms Mathew said she did not remember the events of that night, or the accused. Her 'progress notes' recorded that he 'appears intoxicated'. After the BWF of the accused at the Watch House when Ms Mathew was present was played, her evidence was that she remembered that the accused was staggering, not talking like a 'normal person' and was behaving in a disorderly way. She expressed the view that he was 'severely intoxicated'. She was a custody nurse in the Alice Springs Watch House for seven and a half years.

[123] Stephen Karpeles was a lawyer and the Coordinator of the NAAJA CNS.[75] He said that CNS records showed that, at 12.35am on 4 April 2020, a CNS staff member was contacted by Police and told that the accused had been arrested at 12.06am. It is recorded that Police said he was 'highly intoxicated' and most likely unable to speak with a NAAJA lawyer until the morning. The CNS records also showed that, at 11.30am when the accused spoke to Mr Karpeles, he said he had been 'very drunk' the night before and did not recall speaking to police about the events.

[124] The parties were agreed that I could also take into account my own assessment of the accused's level of intoxication, based on the BWF. Given the variation in the descriptions of the above witnesses about the accused's level of intoxication, which is not surprising given that it relates to a night some 17 months before they gave their evidence, and the differences in opinions between the experts, I place significant weight on my own observations of the accused from the BWF, but I do take the evidence from the above witnesses into account.

[125] My observations of the accused in the BWF are as follows:

(a) Leading up to the arrest, the accused was on his knees in the road with his hands in the air and was then directed by police to lie face down, which he did. He did not appear unsteady whilst kneeling. He was compliant with police instructions.

(b) After being handcuffed and arrested, he was assisted to sit up. He was compliant with police instructions and responsive to questions. His eyes did not appear bloodshot. He was then escorted to the police vehicle, a short distance away. He was briefly unsteady on his feet after he was assisted to stand up, but not whilst walking. He was patted down by police whilst standing, and did not appear unsteady, although he was then held on the arms by police. He then got into the vehicle himself, as instructed by police. He was responsive to police questions, although sometimes slow to respond. His speech did not appear particularly slurred. His movements were fairly slow paced.

(c) Whilst in the police vehicle, he sat quietly for several minutes. He then began yelling out and became impatient and swearing about wanting to go to the police station. His speech was slow, but not noticeably slurred.

(d) On arrival at the Watch House, he exited the vehicle himself and was escorted into the custody processing area by Constables Cramp-Harding and Hudson. He was a little unsteady on his feet. As they offered to help him, he told them he was alright. As he started to speak, he was reminded of the s 140 caution. When told to sit down, he did not do so immediately, being intent upon telling Constable Cramp-Harding, and then Sergeant Dunnage, about this being his 'first time'. He essentially ignored the numerous custody health assessment questions asked by Constable Hudson, but he was responsive to questions about his address and whether he had been drinking. He said he did not want to answer the questions, and continued to ignore them. When Ms Mathew, the custody nurse, asked him a question he told her he only answers his mother, and said Ms Mathew is not his mother. When she said she wanted to help, he told her to shut up. He then said he did not want to answer questions and wanted to see his lawyer. During this time, he was sitting on the bench, still handcuffed. He was slightly slumped forward with his head looking downwards most of the time. His speech did not appear slurred.

(e) When Constable Cramp-Harding told the accused he was going to explain his rights, the accused said 'I don't care' and that he had been in prison for a long time. While Constable Cramp-Harding formally administered the s 140 caution, the accused spoke over the top of him, saying he wanted his lawyer. Asked if he wanted anyone notified about his being in custody, the accused initially declined, saying he was on his own, but then asked for his daughter to be contacted, giving her name and address, and where the house was located. His speech was at times slightly slurred and he was at times rocking a little on the bench.

(f) He was then spoken to by Sergeant Dunnage and asked some of the health questions again. He spoke over his questions, and said he did not want to give information, he was a 'well educated person', he did not have to give information and he wanted to see his lawyer. He then answered some of the health questions, and his answers were responsive and made sense.

(g) He was then assisted to stand up by police, the handcuffs were removed and he was patted down. He walked to and leaned on the counter while this happened. He walked to a cell to remove his shorts and put some other pants on. He removed his shorts himself, stepped his feet out of them, and then sat down, a little heavily, on the bench to put the other pants on. When he stood up, he was able to bend down to roll up the legs of the pants he put on without swaying or unsteadiness. He then walked back to the custody processing area. His movements were slow and he was slightly unsteady on his feet while walking. At one point, he placed his hand on the doorway as he walked through it. He continued to speak as he was being instructed by police. He held his hands out to show the cuts on his fingers. They were steady. He was asked to put a t-shirt on, but refused saying he wanted to talk to Sergeant Dunnage. He spoke slowly, and gesticulated with his hands, becoming animated, but not aggressive. He then walked, unassisted, to a cell (approximately 20 metres from the custody processing area). He was a little unsteady on his feet.

(h) The murderous admissions were made multiple times throughout the period from when he was taken into custody at the arrest scene until he was placed in the cell. They were consistent in content. They were also made after, including immediately after, police cautioned him or told him he did not have to say anything.

(i) The next morning, when he was woken up by Detective Senior Constable Heffernan, he woke and sat up slowly, saying he thought he was at his house. As he was spoken to, he sat quietly on the bench, in a similar posture to the night before. As he was cautioned, he sat quietly and nodded when asked if he understood. When told about the deceased's death and his arrest for murder, he sat quietly and, at one point, placed his finger to his lips. Asked if he wanted someone notified, he said his family at Stirling Station. He spoke softly and with some pauses. His speech did not appear to be significantly different from the night before, save that he was less animated in the morning and quieter. At some points, he gesticulated with his hands, similarly to how he did the night before.

(j) Shortly after that, the accused was taken out of the cell for forensic procedures. He walked unassisted back to the custody processing area. He walked slowly. He was responsive to police instructions, but his responses were slow and sometimes the instructions were repeated. He stood near a wall as directed by police and was steady on his feet.

[126] In my view, it is clear that the accused was affected by alcohol at the time of his arrest and when processed into custody at the Watch House. However, he did not appear 'grossly intoxicated' and his manner at that time was not substantially different from his manner the following morning, when it is not in dispute that he was no longer significantly affected by alcohol. The accused's answers to questions were articulate and deliberate, as were his interactions with the various police officers. He made decisions about which of them he did, or did not, wish to respond to or communicate with. I have no doubt that the accused was aware of his situation, namely that he had been arrested in relation to the stabbing of the deceased, that he was in police custody, and that he was aware he did not have to say anything to police about what he had done. The murderous admissions were spontaneously made, rather than in response to police questioning. Indeed, some of them were made immediately after a s 140 caution, or with police making efforts to stop the accused from making them, by distracting him to focus on other matters. One of the murderous admissions was made to Detective Senior Constable Heffernan at around 8.50am. At that time, it is not suggested that he was still affected by alcohol. The fact that the accused made that admission when unaffected by alcohol suggests that his level of intoxication was not a significantly contributing factor in the making of the murderous admissions. Even if he made the murderous admissions because his 'tongue was loosened' by the effects of the alcohol he had consumed, that does not, in the circumstances of this case, adversely affect the likely truth of them, or make it unfair to admit them.

Ruling on admissibility of admissions due to intoxication: ss 85, 90

[127] On the basis of the accused's intoxication, the murderous admissions are not inadmissible pursuant to s 85(2) of the ENULA and are not excluded in the exercise of the discretion in s 90 of the ENULA.

[128] The Defence argued that it cannot reasonably be inferred that any lay person, but even more so an Indigenous person, would use the word 'murder' because they understand the legal elements of the offence of murder, and so it cannot reasonably be inferred that the accused was admitting to having the requisite intent to establish the offence. That may be accepted.

[129] The Crown intends to submit to the jury that, in using the term 'murder', the accused was acknowledging his awareness that he had inflicted multiple stab wounds to the deceased and the likelihood that those stab wounds would cause death or serious harm to the deceased, which awareness can give rise to an inference of an intention to cause at least serious harm. The Crown said the term 'murder' was the accused's way of acknowledging and emphasising the lethality of the force he had deliberately used.

[130] The Defence argued that for the accused to say that he had 'murdered' someone when he was aware that person was alive is a circumstance indicating the truth of the admission was adversely affected. Essentially, Defence argued that the accused's reference to 'murder' could not be true because, as far as he was aware, the deceased was alive.

[131] This submission is inconsistent with the legal propositions set out in paragraph [103] above. Further, as already mentioned, it is extremely unlikely that, in using the term 'murder', the accused was admitting that he had the requisite mental element of the offence of murder, namely an intent to kill or do serious harm. However, understood as expressions of acknowledgement of the injuries caused or expectation that the deceased had died or would die from being stabbed as he was by the accused, there is nothing about the fact that the deceased had not actually died or the fact that the accused had not been made aware of his death, which adversely affects the truth of those expressions of acknowledgement or expectation, or which makes it unfair to admit them.

[132] The Defence argued that there is no rational distinction between the word 'murder' and the word 'stab' which the accused admitted to numerous times, giving the murderous statements no probative value. I disagree. It is noteworthy that the deceased did not use the word 'kill' at all. It is a reasonable inference that when he said 'murder' what he meant was 'kill'. Whether understood in that way or not, the word 'murder' does add the notion of substantial and potentially life threatening harm to the admissions to stabbing the deceased with a knife. The murderous statements are clearly capable of being construed by the jury as an acknowledgement by the accused that he stabbed the deceased in a way that was likely to cause the death of the deceased.

[133] Any question of interpretation of the murderous admissions, and the use of the word 'murder' in particular, would properly be a matter for the jury.[76]

[134] The murderous admissions were made by the accused immediately and within a few hours after the stabbing. They are capable of being construed as acknowledgements of his awareness that the injuries he inflicted were likely to cause the deceased's death or serious harm. That finding could reasonably give rise to an inference that, when he stabbed the deceased, the accused had the requisite intention. They are therefore capable of affecting the likelihood that he did have that intention. The only issue at the trial will be whether the accused had the requisite intention. Even with the evidence about the interactions between the accused and the deceased beforehand, the stabbing and the injuries inflicted, and the accused's degree of intoxication, there is very little other evidence about the accused's state of mind at the time he stabbed the deceased. In my view, the murderous admissions have significant probative value.

[135] The Defence argued that, if admissible within s 85 of the ENULA, the murderous statements should be excluded pursuant to s 90 of the ENULA because: (a) their reliability is in issue (given the accused's intoxication and that he is an Indigenous person, which may give rise to language issues); (b) they have no legitimate forensic purpose and virtually no probative value; (c) they constitute an admission of law rather than an admission of fact, making the risk of misuse disproportionate to their probative value; and (d) they will cause the jury to be distracted and potentially confused by the directions necessary to cure the unfairness, which will include 'a Zoneff type' direction, by which Defence counsel meant that the jury will be told they can use the murderous statements for one purpose, but not for another.

[136] I have already dealt with the effect of the accused's intoxication on the reliability of the murderous admissions and concluded that it was not of such a degree as to render the murderous admissions unreliable. As to the accused being an Indigenous person, there is nothing before the Court to indicate that the accused suffered from any difficulties with the English language which significantly added to the unreliability of the murderous admissions beyond the matters referred to in paragraphs [128] to [130] above. The use of the word 'murder' by Indigenous people as a synonym for something other than 'kill' or 'seriously injure' is not a known occurrence like the use of the word 'kill' as a synonym for[77]injure'.77

[137] The legitimate forensic purpose for the murderous admissions has been set out in paragraph [129] above, and their probative value is addressed in paragraph [134] above.

[138] As to the submission that the jury would be distracted and potentially confused by the direction, what would be required is a direction along the lines that:

(1) The accused's state of mind is a matter they will have to infer from facts they find on the basis of all of the evidence in the case.

(2) They may take the admissions into account as evidence of the accused's state of mind at the time he stabbed the deceased and, particularly, as to his intention to cause the deceased serious harm.

(3) What the accused meant when he made the admissions is a matter for them to decide, taking into account his personal characteristics, such as his being an Indigenous man for whom English may not be his first language, and his not having received legal advice, and his degree of intoxication at the time. They may think that he was simply acknowledging that he had stabbed the deceased, which is not in dispute in the trial.

(4) However, they may take the admissions into account if they find that what he said was an acknowledgement that the injuries to the deceased from the stabbing did or were likely to cause the death of or serious harm to the deceased.

(5) They may, if they think it appropriate in light of all the other evidence in the case, be prepared to use that finding in drawing an inference that, at the time he stabbed the deceased, the accused knew his actions would cause the deceased serious harm and he intended them to cause the deceased serious harm.

(6) However, they may not assume that the deceased knew that the crime of 'murder' is legally defined by a killing coupled with an intention to cause death or serious harm, and may not reason that, because he used the word 'murder', he was admitting to having committed the crime of murder.

[139] The mere fact that the jury would be told that they can use the murderous admissions to reason in one way, but cannot use the murderous admissions to reason another way, does not make the admission of them unfair. Juries are commonly given such directions. Nor are the directions set out above any more confusing than other directions given to juries about complex matters of law.

[140] Any risk of unfairness to the accused in admitting the murderous admissions is mitigated by directions along the lines of those set out above.

Ruling on admissibility of admissions due to references to 'murder': ss 85, 90

[141] On the basis of the accused's use of the word 'murder' in all the circumstances, the murderous admissions are not inadmissible pursuant to s 85(2) of the ENULA and are not excluded in the exercise of the discretion in s 90 of the ENULA.

[142] Defence counsel acknowledged that ss 135 and 137 may not have work to do once exclusion under s 90 of the ENULA is ruled out. For completeness, I include my reasoning in relation to the operation of these provisions to the murderous admissions.

[143] Section 135 of the ENULA 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.

[144] The murderous admissions would have significant probative value for the reasons referred to in paragraph [134] above. 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.

[145] 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'. [78] In Festa v The Queen,[79] McHugh J described (at [51]) the test as follows:

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 content of the evidence may inflame the jury or divert the jurors from their task.

[146] The probative value of the murderous admissions is addressed in paragraph [134] above. The same bases as referred to in relation to ss 85 and 90 were relied on by the Defence. The meaning properly attributed to the murderous admissions is a matter for the jury, taking into account that the accused is an Indigenous man, whose first language is not English, was intoxicated, had not had the benefit of legal advice, and that he used the word 'murder' when the deceased was still alive. For reasons already addressed, there is no real danger that the jury would give the evidence more weight than it deserves, or that it would distract the jury from its proper task. Rather, the significance properly attributed to those admissions will form part of its proper task.

[147] On the bases referred to above, individually and in totality, the murderous admissions are not excluded under ss 135 or 137 of the ENULA.

[148] The Crown argued that, if the proposed tendency evidence could not be admitted as tendency evidence, it should be admitted as context evidence because it permits a proper understanding of the accused's admissions to the effect that he had never committed murder before. That understanding was argued to be necessary for the jury to appreciate the full import of the murderous statements, by showing the accused was distinguishing between the degree of force and injuries inflicted in the three past incidents with the degree of force and injuries inflicted upon the deceased.

[149] Context evidence answers hypothetical questions that may be raised by the jury about the allegations giving rise to the charge. It may overcome false impressions conveyed to the jury such as that the incident came out of the blue or occurred in startling isolation. It may also be admitted in child sexual assault cases to explain the lack of complaint by the complainant. The purpose of context evidence is usually to make the complainant's version of events the subject of the charge (such as assault) more capable of belief when seen in the context of the relationship between complainant and accused (such as a violent domestic relationship) because otherwise the question that would naturally arise in the minds of the jury is: Why would the accused suddenly act this way out of the blue?[80]

[150] To be admissible, context evidence must be relevant within s 55 of the ENULA and not excluded under ss 135 or 137 of the ENULA.

[151] As already explained in paragraphs [80] to [81] above, I find it difficult to see how knowing about the three prior incidents of violence would enhance the jury's understanding of the import of the murderous admissions. The accused has committed, on the proposed course sought by the Crown, three prior incidents of inflicting physical violence causing injuries on other people. He said (effectively): 'I have never committed murder before'. The Crown argued those admissions are an acknowledgement that the accused knew he had caused serious harm to the deceased which can be used to draw the inference that he intended to do so. The Crown argued that, essentially, the accused was saying: 'I have hurt people before, but I have never murdered anyone'. Does the proposed tendency evidence give the murderous admissions greater probative value than if the accused was a person who had never committed violence before? The answer is: Possibly, but only if the proposed tendency evidence is also admitted as tendency evidence, because the Crown seeks to argue that the accused is a man who makes deliberate decisions to calibrate his use of force and the nature of the injuries he inflicts. For the reasons I have already expressed above, the proposed tendency evidence does not (even if the murderous admissions are admitted) have significant probative value in establishing the alleged tendency. Consequently, for use in reasoning in the way the Crown proposed, the proposed tendency evidence does not have probative value as context evidence. It does not answer a hypothetical question raised by the evidence about the stabbing, it does not overcome any false impression the jury might have about the stabbing or the interactions between the accused and the deceased. All it does is tell the jury that when the accused said 'I have never committed murder before' he was not describing the full extent of his past violent conduct. In the absence of the tendency reasoning sought to be engaged in by the Crown, that is not a matter which could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. That is, it is not relevant.

[152] In addition, for similar reasons to those set out in paragraphs [92] to [95] above, I consider there to be a real risk of unfair prejudice to the accused from the use of the proposed tendency evidence as context evidence within s 137 of the ENULA.

[153] The proposed tendency evidence is not admissible as context evidence. Even if it were, the proposed tendency evidence would be excluded pursuant to s 137 of the ENULA.

[154] In order to avoid argument as to the admissibility of a 'reconstruction video' showing the locations of the stabbing, the deceased's death, and the accused's arrest, both parties made a joint application for a view of those locations pursuant to s 367 of the Criminal Code.

[155] That section provides that the Court may, if it thinks fit, direct that the jury shall view any place or thing that the court thinks it is desirable that they should see, and may give any necessary directions for that purpose.

[156] There will be evidence at the trial about the accused's and the deceased's movements prior to the stabbing, which will include CCTV footage of their movements. There is also the BWF relating to the arrest scene that the jury will be played. I accept that a view would permit the jury to understand the evidence better. It may also be that the amount of footage to be played to the jury can be reduced if the jury has a view. The locations are all close together, and close to the Court, meaning the time taken for a view would not be substantial. A view would also reduce the risk of some members of the jury deciding to visit the scenes on their own. I consider that a view is desirable within s 367 of the Criminal Code.

[157] The proposed tendency evidence is not admissible within s 97 of the ENULA.

[158] Even if it were admissible, it would be excluded pursuant to s 101(2) of the ENULA.

[159] The murderous admissions are admissible pursuant to s 81(2) of the ENULA. They are not excluded pursuant to ss 85, 90, 135 or 137 of the ENULA.

[160] The proposed tendency evidence is not admissible as context evidence.

[161] Even if it were admissible as context evidence, it would be excluded pursuant to s 137 of the ENULA.

[162] Pursuant to s 367 of the Criminal Code, I direct that the jury have a view of the locations of the stabbing, the deceased's death and the accused's arrest.

[1] Section 140 requires that, immediately prior to any questioning or investigation under s 137(2) (which permits a person to be held in custody to enable them to be questioned and investigations to be carried out to obtain evidence of or in relation to an offence involving the person in custody), the investigating member must inform the person in custody that they do not have to say anything but that anything they do say or do may be given in evidence.

[2] Admissions made by the accused are reproduced in the transcripts of the BWF as follows: (1) BWF of Constable Gillett (Ex P13), p 1, points 7, 9, 11; (2) BWF of Constable Cramp-Harding (Ex P7), p 1, points 8, 10; p 2, point 2; p 3, point 8; p 5, point 8; p 6, point 10; (3) BWF of Constable Hudson (Ex P2), p 1, points 4, 6; p 5, point 5; p 6, point 1; (4) BWF of Constable Mulu (not tendered on the voir dire), p 1, points 8, 10; p 2, point 1; (5) BWF of Constable Sykes (Ex P11), p 9, points 11, 13, 15.

[3] Admissions made by the accused are reproduced in the transcripts of the BWF as follows: (1) BWF of Constable Cramp-Harding (Ex P8), p 2, point 12; p 3, points 2, 3, 4, 5, 6, 7, 8; p 4, points 2, 6, 12; p 5, points 1, 3, 8, 10, 12, 14; p 6, points 11, 12, 13, 14, 15, 16; p 7, point 13; (2) BWF of Constable Hudson (Ex P3), p 2, points 1, 3, 5, 9, 15; p 3, points 2, 5, 7, 10, 12; p 6, point 5; p 8, points 4, 8, 10; p 9, point 7; p 11, points 2, 4, 6; (3) BWF of Constable Cramp-Harding (Ex P9), p 2, points 1, 3, 5, 9, 15; p 3, points 2, 5, 8; p 6, point 1; p 8, points 1, 5, 7; p 9, points 13, 15; p 10, point 1.

[17] Ladd v The Queen [2009] NTCCA 6; (2009) 27 NTLR 1 at [92] per Martin (BR) CJ (Mildren J agreeing).

[18] Ibid at [63]-[64] per Martin (BR) CJ (Mildren J agreeing).

[19] Ibid at [66]-[75] per Martin (BR) CJ (Mildren J agreeing).

[20] Ibid at [96] per Martin (BR) CJ (Mildren J agreeing).

[21] Ibid at [118]-[119] per Martin (BR) CJ (Mildren J agreeing). As I understand it, the Crown case (like that in Ladd) does not assert intention to cause serious harm because the accused was aware that the result will happen in the ordinary course of events, which is an alternative means of establishing intention under s 43AI(2).

[22] Morton v The Queen [2020] NTCCA 2 at [46], [50]-[52] per Grant CJ, Blokland and Barr JJ, citing Viro v The Queen (1978) 141 CLR 88 at 112 per Gibbs J (Stephen J agreeing).

[23] Ladd v The Queen [2009] NTCCA 6; (2009) 27 NTLR 1 at [138]- [140] per Martin (BR) CJ (Mildren J agreeing), citing Viro v The Queen (1978) 141 CLR 88 at 111-112 per Gibbs J.

[24] Ladd v The Queen [2009] NTCCA 6; (2009) 27 NTLR 1 at [142]- [143] per Martin (BR) CJ (Mildren J agreeing), citing Spencer v The Queen [2003] NTCCA 1; (2003) 137 A Crim R 444 at [20] per Mildren J (Bailey J and Priestley AJ agreeing).

[25] See, for example, Director of Public Prosecutions (Vic) v Dixon [2020] VSC 743 at [108]- [110] per Kaye JA, citing Elias v The Queen [2006] NSWCCA 365 at [18]- [20] per Simpson J and Spruill v The Queen [2008] NSWCCA 39 at [43] per Hodgson JA. These cases are examples where the proposed tendency evidence was sought to be relied on by an accused, but the principle applies equally where the evidence is sought to be relied on by the Crown.

[26] BD v The Queen [2017] NTCCA 2 at [84] per Grant CJ, Kelly and Bar JJ.

[27] IMM at [51]-[52], [54]; The Queen v Bauer [2018] HCA 40; (2018) 266 CLR 56 at [69].

[28] IMM at [38]-[39], [41], [58].

[29] See Hughes at [64] per Kiefel CJ, Bell, Keane and Edelman JJ. The generality of these two alleged tendencies may be contrasted with the particularity of the tendency found to have significant probative value in establishing an intention to cause death or serious harm in The Queen v Joiner [2002] NSWCCA 354; (2002) 133 A Crim R 90 at [26]: A tendency in respect of the accused's wives or domestic partners to react violently towards them over the most minor situation in explosive outbursts involving attacks to the head and violence of a kind which shows an intention to inflict serious bodily harm.

[30] The Queen v Rolfe (No 7) [2022] NTSC 1 at [95] per Burns J.

[31] The use of the word 'understanding' in two of the three alleged tendencies does not relevantly change the meaning.

[32] The use of the word 'risks' in one of the three alleged tendencies does not relevantly change the meaning.

[33] The use of the words 'or significant physical harm' in one of the three alleged tendencies does not relevantly change the meaning.

[34] The use of the words 'where the applications of force by the accused' in two of the three alleged tendencies does not relevantly change the meaning.

[35] [2022] NTSC 1.

[37] For the offending on 10 March 2009, which occurred in Queensland, the accused was sentenced to six years imprisonment commencing on 10 March 2009, with a non-parole period of two years. The accused appears to have been granted parole because he was convicted in the Northern Territory of the offence committed on 17 April 2013, but it is unknown when that parole was granted. The rough estimate is that he was incarcerated for between two years and four years of that sentence.

[38] See McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [30] per Kiefel CJ, Bell, Keane and Nettle JJ; Hoyle v The Queen [2018] ACTCA 42 at [120].

[39] [2005] NSWCCA 413 at [11] per Sully J (Grove and Howie JJ agreeing).

[40] [1995] HCA 7; (1995) 182 CLR 461.

[41] [2014] NSWCCA 55; (2014) 239 A Crim R 528 at [57]. I note that the 'fair minded people' test was held to be inconsistent with s 101(2) by Adams J in BC v The Queen [2015] NSWCCA 327; (2015) 257 A Crim R 340 at [23].

[42] The Queen v AW [2018] NTSC 29 at [30].

[43] HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [12] per Gleeson CJ.

[44] The Queen v Grant (2016) 262 A Crim R 348 at [61] per Grant CJ ('Grant').

[45] The Queen v Lisoff [1999] NSWCCA 364 at [60]; Grant at [61].

[46] See The Queen v O'Brien [2017] NTSC 34 at [42] per Grant CJ, citing Gilbert v The Queen (2000) 201 CLR 414 at 420 per Gleeson CJ and Gummow J: 'The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.'

[47] See, for example, the New South Wales Criminal Bench Book at [4-227].

[48] See the definitions of 'prior representation' and 'representation' in Part 1 of the Dictionary.

[49] Two of the murderous admissions were made to lay witnesses when the accused went to a residence immediately after the stabbing and asked for police to be called. Section 85 does not apply to them, but their exclusion is sought under s 90.

[50] None of the murderous admissions were made in response to questioning, so the matters in s 85(3)(b) do not apply here.

[51] The Queen v Downs [2019] NTSC 7 at [29] per Grant CJ.

[53] Ibid at [30], citing The Queen v GP [2015] NTSC 53 at [30].

[54] [2015] NTSC 53.

[55] Ibid at [30], citing The Queen v Esposito (1998) 45 NSWLR 442 at 459-460; The Queen v Rooke (unreported, NSW Court of Criminal Appeal, Newman, Levine and Barr JJ, No 60550/96, 2 September 1997).

[57] [2020] NTSC 71 at [12]- [14].

[58] Ibid, citing Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 at [107] per Gummow and Hayne JJ.

[59] Ibid, citing The Queen v Swaffield (1998) 192 CLR 159 at [77].

[60] Ibid, citing The Queen v Tipiloura [2019] NTSC 92 at [23] per Grant CJ.

[61] Ibid, citing The Queen v Yirrawala [2015] NTSC 37 at [8] per Kelly J. See also The Queen v JGW [1999] NSWCCA 116 at [37] per Wood CJ at CL (Barr and James JJ agreeing), citing Plevac v The Queen (1995) 84 A Crim R 570 at 579-580 per Badgery-Parker, Dunford and Simpson JJ; Nguyen v The Queen (2020) 94 ALJR 686 at [22] per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ.

[62] (1978) 18 SASR 188.

[63] Being the issue for admissibility of admissions under the common law.

[64] [2000] NSWSC 208; (2000) 112 A Crim R 10.

[65] [2021] NSWSC 569.

1. [66] Her statement dated 4 April 2020 was received into evidence (Ex P1), as was her BWF (Ex P2), and she gave oral evidence on the voir dire.
2. [67] His statement dated 4 April 2020 was received into evidence (Ex P4), as was his BWF (Ex P5), and he gave oral evidence on the voir dire.
3. [68] His statement dated 4 April 2020 was received into evidence (Ex P6), as was his BWF (Ex P7, P8, P9), and he gave oral evidence on the voir dire.
4. [69] His statement dated 4 April 2020 was received into evidence (Ex P10), as was his BWF (Ex P11), and he gave oral evidence on the voir dire.
5. [70] His statement dated 3 April 2020 was received into evidence (Ex P12), as was his BWF (Ex P13), and he gave oral evidence on the voir dire.
6. [71] His statement dated 28 May 2021 was received into evidence (Ex P14), and he gave oral evidence on the voir dire.
7. [72] His statement dated 12 April 2020 was received into evidence (Ex P15), as was his BWF (Ex P16, P17), and he gave oral evidence on the voir dire.
8. [73] His statement dated 16 August 2021 was received into evidence (Ex P18) and he gave oral evidence on the voir dire.

[74] Her statement dated 11 August 2021 (Ex P20) and the 'progress notes' she entered into the PCIS database about the accused (Ex P21) were received into evidence and she gave oral evidence on the voir dire.

[75] His statement dated 16 August 2021 (Ex D1) was received into evidence and he gave oral evidence on the voir dire.

[76] See the authorities referred to in footnote 61 above.

[77] See D Mildren, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7, 8.

[78] The Queen v Jennings [2020] NTSC 71 at [20] per Grant CJ, citing The Queen v Shamouil (2006) 66 NSWLR 228 at [72] per Spigelman CJ.

[79] (2001) 208 CLR 593.

[80] See Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 at 344 per Menzies J (McTiernan and Walsh JJ agreeing); Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 at [42]- [44]; The Queen v Grant (2016) 262 A Crim R 348 at [77] per Grant CJ.