The King v John [2025] NTSC 74

Conway v R [2000] FCA 461; (2000) 98 FCR 204; Geraghty v The King [2023] NSWCCA 47; Harris v R [2005] NSWCCA 432; (2005) 158 A Crim R 454; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018; Larsen v Director of Public Prosecutions (Cth) [2020] VSCA 335; Norman v The Queen [2012] NSWCCA 23; Priday v R [2019] NSWCCA 272; R v Frawley [2000] NSWCCA 340; R v Gover [2000] NSWCCA 303; (2000) 118 A Crim R 8; R v Mankotia [1998] NSWSC 295; R v Ryan [2013] NTSC 54; (2013) 33 NTLR 123; R v Tsingopoulos [1964] VicRp 86; (1964) VR 676; Roach v R [2011] HCA 12; (2011) 276 ALR 406; Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374; The Queen v Hoffman [2021] NTSC 31; Williams v R [2000] FCA 1868; (2000) 119 A Crim R 490; Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, referred to.

Crown: Office of the Director of Public Prosecutions

Accused: North Australian Aboriginal Justice Agency

• [1] The accused is charged with the murder of the deceased on 6 July 2023. Manslaughter is charged in the alternative. In brief compass, the Crown case is that on 6 July 2023 the accused and the deceased were drinking together. They started arguing. During that argument the deceased punched the accused in the head three times. The accused then threatened to get a knife and stab the deceased. He walked to the kitchen, picked up a knife and stabbed the victim in the upper back despite their adult daughter's attempt to stand between them.
• [2] By amended notice dated 7 October 2025, the Crown advised its intention to adduce hearsay evidence of previous representations made by the deceased pursuant to s 65(2) of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA). The Crown submits that if those previous representations fall within the exception to the hearsay rule they are admissible as relationship or context evidence. The Crown also intends to adduce evidence from the adult daughter concerning the relationship between the accused and the deceased. The preliminary questions for determination are: (1) whether the representations made by the deceased fall within the exception under s 65(2) of the ENULA; (2) if so, whether those representations and the adult daughter's evidence are prima facie relevant and admissible as relationship or context evidence; and (3) if so, whether the evidence must nevertheless be excluded under s 137 of the ENULA.
• [3] Sections 65(2)(b) and (c) of the ENULA provide:

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

(a) ...

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

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

• [4] The representations which the Crown intends to adduce are:

(a) representations made by the deceased in a statutory declaration taken before a police officer on 16 October 2021, approximately 21 months before the incident for which the accused now stands charged;[1] and

(b) representations made by the deceased to her daughter during the events which took place on 6 July 2023 culminating in the death of the deceased.

• [5] Turning first to the statutory declaration on 16 October 2021, it states that at approximately 11 PM on 14 October 2021 the accused grabbed the deceased by the hair with his left hand and punched her twice in the face with his right fist causing her to fall to the ground. The statutory declaration states further that at some unspecified time on 15 October 2021 the accused elbowed the deceased in the left shoulder on two occasions causing her to fall onto her back. While the deceased was on her back, the accused grabbed her by the hair with his left hand and forced two fingers into the left side of the deceased's mouth causing her pain. The statutory declaration also makes a general reference to violence in the relationship.
• [6] Section 65(2)(b) of the ENULA provides an exception for representations made 'shortly after' the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication. The representations relate to conduct alleged to have occurred on 14 and 15 October 2021. Although the phrase 'shortly after' imports a degree of flexibility[2], the Federal Court has observed that it would be an unusual case in which a representation made five days after an event might be regarded as having been made 'soon after' it[3]. That is so even in circumstances where the events might be considered still 'fresh' in the memory of the person making the representations. Even allowing for that caution, in my opinion the statements made somewhere between 24 and 36 hours after the incident in question are properly characterised as made 'shortly after' the asserted fact occurred in the relevant sense.[4]
• [7] There is nothing in the bare surrounding circumstances or in the representations themselves which would suggest that they were a fabrication. They were made upon the very recent memory of the incident when the matter was fresh in the mind of the person making those statements. There is nothing to preclude a finding that the circumstances made it unlikely that the representations were a fabrication.
• [8] Accordingly, I conclude that the representations in the statutory declaration were made 'shortly after' the event in the sense that they were made 'under the proximate pressure of the asserted fact'[5], and in circumstances that make it unlikely that they are a fabrication. The accused does not make any contrary submission.
• [9] That conclusion makes it unnecessary to determine whether the representations contained in the statutory declaration fall within the exception provided by s 65(2)(c) of the ENULA. The relevant question under that provision is whether the representations were made in circumstances making it 'highly probable' they are reliable. The focus of that inquiry is reliability rather than the unlikelihood of fabrication having regard to the surrounding circumstances.[6] They are quite different considerations, and the test in s 65(2)(b) of the ENULA is less stringent than that in s 65(2)(c).[7] Although the deceased was intoxicated to varying degrees when each of the incidents took place, she was treated at the community clinic in the aftermath of each incident and photographs of her injuries were taken. In addition, the statutory declaration was made during the course of a formal interview with police. It is significant in assessing the probability of reliability that the statutory declaration was given to police on oath. Notwithstanding the greater stringency of the test, I am also prepared to find that the representations contained in the statutory declaration were made in circumstances making it highly probable that they are reliable. Again, the accused does not make any contrary submission.
• [10] Turning then to the daughter's evidence, it is that a short time prior to the fatal incident she heard her parents arguing. She went inside to try to stop them from arguing. She saw the accused was sitting down and the deceased was upset and saying that the accused had punched her in the forehead. That representation was also made 'shortly after' the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, and therefore falls within the exception provided by s 65(2)(b) of the ENULA. The accused also does not make any contrary submission in that respect.
• [11] It does necessarily not follow from those conclusions that either category of evidence is therefore admissible. There is the anterior question of relevance. That hearsay evidence is only admissible if it is relevant. Section 55 of the ENULA provides that evidence will only be relevant if it could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. That term 'fact in issue' also appears in the definition of 'probative value' in the Dictionary. On an initial consideration, a 'fact in issue' might be seen as a reference to the facts which constitute the elements of the offences charged, together with such ancillary facts as are relevant to those ultimate facts, as opposed to a fact which is in dispute.[8]
• [12] However, in Stubley v Western Australia[9] the High Court held that in circumstances where the appellant had admitted that he had been sexually intimate with the complainants the question whether sexual intercourse had taken place was not a live issue at the trial and the fact in issue was whether the sexual acts were consensual. Accordingly, evidence demonstrating the appellant's tendency to have sex with his patients was of no significance because the evidence that sexual intercourse had taken place was not challenged. Similarly, in Larsen v Director of Public Prosecutions (Cth)[10], the Victorian Court of Appeal determined that where the allegation of sexual intercourse was admitted, the 'fact in issue' was the existence, or non-existence, in the appellant's mind of a belief that the complainant was over 16, not whether the offending conduct had occurred at all. The same approach to what constitutes a 'fact in issue' was adopted by the Court of Criminal Appeal of New South Wales in of Geraghty v The King.[11]
• [13] On those authorities, the assessment of the probative value of tendency evidence turns on the ultimate facts which the prosecution will be required to prove and the evidence that the prosecution will be required to lead in doing so. They do not approach the assessment on the basis that every fact going to the elements of the offence, whether contested or not, is a 'fact in issue'. Although those authorities are concerned specifically with whether tendency evidence would have 'significant probative value', the analysis of what will constitute a 'fact in issue' in the context of a criminal trial has an arguably broader application. However, for reasons I will come to it is unnecessary to resolve that question for present purposes.

1. There is no dispute that the accused stabbed the deceased causing her death. The issues in dispute are whether the accused had the requisite intent either to cause the death of or serious harm to the deceased and/or whether the conduct causing death was the result of the accused's loss of self-control induced by the deceased's conduct. Against that background, the Crown contends that the evidence identified in the notice is relevant and admissible as relationship or context evidence. Relationship evidence will be admissible if it is capable of providing context to the Crown's allegations,[12] including:

(a) as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct, and to explain the offences charged;[13]

(b) to ensure that the jury is not required to decide issues in a vacuum, and to overcome any false impression that the event was an isolated one, or that the offence happened 'out of the blue', in circumstances where the acts disclosed in the relationship evidence are closely and inextricably mixed up with the history of the offence;[14]

(c) to assess the credibility or coherence of a complainant's evidence;[15]

(d) to explain why a complainant has made a delayed complaint to witnesses and/or the police;[16]

(e) to prove that the accused had a motive to commit the acts charged;[17] and

(f) to negative issues concerning lawfulness (such as the question of intention, consent or mistake).[18]

1. For relationship or context evidence to be relevant it must be shown that the evidence could rationally affect the assessment of the probability of an allegation against the accused which is in issue in the proceeding. If the relationship or context evidence does tend to assist the choice between two alternative explanations of the occurrence which are asserted by the parties, then it will be relevant and prima facie admissible. The overarching purpose of relationship or context evidence is to place the accused's alleged conduct and/or state of mind within the surrounding events or a series of incidents which form part of a chain of events. For that reason, evidence of that type will generally need to have a sufficiently close temporal connection with the incident giving rise to the charge(s).[19] As with purported tendency evidence, purported relationship evidence will also lose its relevance and probative force if the prior occasions of which evidence is sought to be tendered are remote in point of time to the act(s) charged.[20]

• [16] The first category of relationship evidence which the Crown seeks to adduce in this case relates to two incidents which occurred approximately 21 months prior to the events the subject of the murder charge. That isolation and lack of temporal proximity is such that the two separate occasions cannot be said to form a chain of events within which the assessment of the accused's alleged conduct and/or state of mind in July 2023 properly falls to be assessed by the jury. That is so regardless of whether the facts in issue extend to the conduct alleged or are more narrowly confined to murderous intent and provocation.
• [17] Even were that not so, the evidence does not serve any of the recognised purposes of relationship evidence. The purpose of the evidence is not to assist in establishing that the accused stabbed the deceased by demonstrating that the stabbing did not come out of the blue. There is no dispute that the accused stabbed the deceased. The only recognised purpose which the first category of relationship evidence might potentially serve relates to negativing issues concerning lawfulness. However, this first category of relationship evidence cannot inform either the accused's intent to cause the death of or serious harm to the deceased and/or whether the conduct causing death was the result of the accused's loss of self-control induced by the deceased's conduct.
• [18] The fact that the accused has previously been involved in violent incidents in which he has punched or elbowed the deceased cannot rationally affect the assessment of the probability concerning his intention or state of self-control during the conduct charged. Neither of the previous incidents identified by the Crown involved serious harm or death, neither of them involved the use of a weapon and neither of them involved threats to kill the deceased. Quite apart from those distinctions, this is not a case in which the accused's intention or state of mind during incidents which took place some 21 months previously can afford any insight into his intention or state of mind on 6 July 2023. There is no process of reasoning by which a jury could legitimately take those incidents into account for the purpose of determining that on this occasion the accused intended to kill or cause serious harm to the deceased, or that on this occasion the accused did not lose self-control as the result of some conduct by the deceased. For those same general reasons, the adult daughter's evidence that there had previously been arguments and incidents of violence in the relationship between the accused and the deceased is also not relevant.
• [19] That conclusion makes it unnecessary to determine whether the probative value of this first category of relationship evidence is outweighed by the danger of unfair prejudice to the accused and must therefore be excluded by operation of s 137 of the ENULA. Even if I am wrong in my assessment of the evidence as irrelevant, its probative value would be so slight relative to its prejudicial effect as to require exclusion.

1. The evidence of the representations made by the deceased to her daughter during the events which took place on 6 July 2023 culminating in the death of the deceased falls into an entirely different category. On proper characterisation, that evidence is not context or relationship evidence at all. It is evidence of conduct closely related in time and circumstance to the conduct alleged in the charges, and forms part of the general narrative of events. This transactional evidence has potential relevance both to the accused's state of mind at a particular time proximate to the time of the offence[21] and to the question of provocation. It will be a matter for the jury to determine whether the accused's conduct as described in that evidence evinces any particular state of mind and what inferences should properly be drawn from that conduct when taken together with the other evidence. The probative value of the evidence for those purposes is not outweighed by its prejudicial effect.

• [21] The rulings on the matters for preliminary determination are:

(a) that the representations made by the deceased in a statutory declaration taken before a police officer on 16 October 2021 are inadmissible;

(b) that the evidence of Lilymay John identified at page 4 of the transcript of interview conducted on 7 July 2023 and at pages 9 to 11 and 33 to 35 of the transcript of interview conducted on 1 November 2023 is inadmissible; and

(c) that the representations made by the deceased to Lilymay John during the events which took place on 6 July 2023 culminating in the death of the deceased are admissible.

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[1] Assuming that at least one of the conditions in s 65(2) of the ENULA is satisfied, evidence of the representations may be adduced by tendering the statutory declaration through the relevant police officer: see Conway v R [2000] FCA 461; (2000) 98 FCR 204, [154]; R v Mrish (unreported, NSWSC, 4 October 1996).

[2] R v Mankotia [1998] NSWSC 295; Conway v R [2000] FCA 461; (2000) 98 FCR 204.

[3] Williams v R [2000] FCA 1868; (2000) 119 A Crim R 490; cf Harris v R [2005] NSWCCA 432; (2005) 158 A Crim R 454, [39]; R v Gover [2000] NSWCCA 303; (2000) 118 A Crim R 8, [33].

[4] R v Mankotia [1998] NSWSC 295; Conway v R [2000] FCA 461; (2000) 98 FCR 204; Williams v R [2000] FCA 1868; (2000) 119 A Crim R 490; cf Harris v R [2005] NSWCCA 432; (2005) 158 A Crim R 454, [39]; R v Gover [2000] NSWCCA 303; (2000) 118 A Crim R 8, [33]; R v Ryan [2013] NTSC 54; (2013) 33 NTLR 123, 131-132 [27].

[5] See R v Ryan [2013] NTSC 54; (2013) 33 NTLR 123, 131-132 [27].

[6] R v Ryan [2013] NTSC 54; (2013) 33 NTLR 123, 131-132 [27].

[7] See generally, Priday v R [2019] NSWCCA 272, [29]-[37].

[8] See, for example, The Queen v Hoffman [2021] NTSC 31, [18].

[9] Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374 ('Stubley').

[10] Larsen v Director of Public Prosecutions (Cth) [2020] VSCA 335.

[11] Geraghty v The King [2023] NSWCCA 47.

1. [12] Norman v The Queen [2012] NSWCCA 230.
2. [13] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, [5], [156].
3. [14] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, [6]-[7], [156], [428], [498], [500], [513]; Roach v R [2011] HCA 12; (2011) 276 ALR 406, [42].
4. [15] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, [156].
5. [16] Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018, [19].
6. [17] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, [5].
7. [18] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 339; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, [430].
8. [19] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 337.
9. [20] R v Tsingopoulos [1964] VicRp 86; (1964) VR 676; R v Frawley [2000] NSWCCA 340, [12]-[14].
10. [21] Semaan v The Queen [2013] VSCA 134 at [32]; R v Adam [1999] NSWCCA 189 at [26]; R v Player [2000] NSWCCA 123 at [22]; R v Serratore [2001] NSWCCA 123; R v Mostyn [2004] NSWCCA 97 at [135].