//
[2025] NTSC 85
General information, not legal advice.
Supreme Court of the NT
2025-12-04
Brownhill J
Original judgment source is linked above.
EVIDENCE - Admissibility and relevance - Evidence (National Uniform Legislation) Act ss 81, 85 - Admissibility of admissions made to Police whilst in custody - Whether accused intoxicated at time of making admissions - Whether circumstances were such as to make it unlikely that the truth of the admissions was adversely affected - Accused's degree of intoxication at time of first admission not significant and accused not affected by alcohol at time of recorded interview - Accused's alcohol withdrawal symptoms were mild and appropriately treated by medication prior to recorded interview - Admissions admissible
EVIDENCE - Admissibility and relevance - Evidence (National Uniform Legislation) Act s 137 - Whether probative value of admissions is outweighed by danger of unfair prejudice to the accused - First admission has significant probative value as relationship evidence and appropriate directions to jury as to its use as such will ameliorate any danger of unfair prejudice arising from the generality of the admission - Fact that first admission could be construed as an admission to conduct with the complainant not in dispute does not detract from its probative value - Admission not excluded by s 137
EVIDENCE - Admissibility and relevance - Evidence (National Uniform Legislation) Act s 90 - Whether use of admissions would be unfair to the accused - Multiple factors relied on by Defence to establish unfairness rejected - Admissions will not be excluded under s 90
EVIDENCE - Admissibility and relevance - Evidence (National Uniform Legislation) Act ss 138 and 90 - Whether latter part of recorded interview involved a breach of a Police General Order and thereby was obtained in consequence of an impropriety within s 138 - Whether questions involved impermissible cross-examination - Whether use of the latter part of the recorded interview would be unfair to the accused because of the way questions were framed - Latter part of recorded interview will not be excluded under s 90
BD v The Queen [2017] NTCCA 2; Choudhary v Director of Public Prosecutions [2013] VSCA 325; Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; Kerridge v The Queen [2025] NTCCA 6; Mole v Prior (2016) 36 NTLR 171; Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546; The King v Poudel [2024] NTSC 108; The Queen v Bonson [2019] NTSC 22; The Queen v Esposito (1998) 45 NSWLR 442; The Queen v Layt [2018] NTSC 36; The Queen v Lawrence [2016] NTSC 65; The Queen v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501; The Queen v Rooke (unreported, NSW Court of Criminal Appeal, No 60550/96, 2 September 1997); The Queen v Suckling [1999] NSWCCA 36, referred to.
Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 19th ed, 2020).
Crown: Office of the Director of Public Prosecutions
The King v RM [2025] NTSC 85
[1] The accused is charged with seven offences (a number in the alternative) alleged to have been committed against his 13 year old step-son on an evening in December 2023.
[2] The parties sought pre-trial rulings on the admissibility of things said by the accused after his arrest and during a recorded interview which are intended to be relied on by the Crown at trial as admissions.
[3] The Defence objected to the admissibility of any admissions on the bases that the accused was intoxicated at the time of his arrest, and was intoxicated at the time of the recorded interview the following morning and/or was withdrawing from the effects of alcohol at that time, arguing that those were circumstances precluding a finding that the circumstances were such as to make it unlikely that the truth of the admissions were adversely affected. The Defence also argued that the admissions should be excluded because: (a) as regards the post-arrest admission, its probative value was outweighed by the danger of unfair prejudice to the accused; (b) as regards all admissions, having regard to the circumstances in which they were made, it would be unfair to the accused to use the evidence. In the alternative, the Defence argued that the remainder of the recorded interview beyond 33 minutes is inadmissible because the questioning was in breach of a Police General Order prohibiting cross-examination, rendering the accused's answers evidence obtained in consequence of an impropriety, or alternatively the remainder of the recorded interview should be excluded because it would be unfair to the accused to use those answers.
[4] The accused is charged by an indictment dated 15 November 2025 with seven counts in relation to conduct on 17 December 2023. The charges are:
(a) one count of exposing a child under the age of 16 to an indecent act by the accused, contrary to s 132(2)(b) of the Criminal Code 1983 (NT) ('Criminal Code') (Count 1);
(b) in the alternative to Count 1, a count of procuring a child under the age of 16 to perform an indecent act, contrary to s 132(2)(d) of the Criminal Code (Count 2);
(c) a count of committing an act of gross indecency on a child under the age of 16 years, contrary to s 127(1)(b) of the Criminal Code, with the circumstance of aggravation that the child was under the care of the accused (Count 3);
(d) one count of sexual intercourse without consent with that child, contrary to s 192(3) of the Criminal Code (Count 4);
(e) in the alternative to Count 4, a count of sexual intercourse with a child under 16 years, contrary to s 127(1)(a) of the Criminal Code (Count 5);
(f) one count of performing an act of gross indecency on that child without his consent and knowing about or being reckless as to the lack of consent, contrary to s 192(4) of the Criminal Code (Count 6); and
(g) in the alternative to Count 6, a count of committing an act of gross indecency on a child under the age of 16 years, contrary to s 127(1)(b) of the Criminal Code (Count 7).
[5] The Crown case is that on 17 December 2023, the accused consumed a large quantity of beer throughout the day, having started drinking at 8.00am.
[6] At about 6.00pm, the accused returned home from a bar near his home. Once home, he continued to drink beer in the back yard. Present with him was a friend of his, CH.
[7] The complainant is the accused's step-son who was 13 years old at the time of the alleged offending. The complainant was in the care of the accused and the complainant's mother. The complainant had been receiving medical treatment for suspected developmental delays, and the accused was aware of that.
[8] The complainant went outside to sit with the accused and CH. He sat on a chair next to the accused under a banyan tree.
[9] At about 7.00pm, the accused walked a short distance away to urinate in the yard. The complainant followed him and also urinated. When they were finishing, the complainant made a joke about shaking the accused's penis. The accused turned to the complainant and directed him to shake the accused's penis.
[10] The accused and the complainant then returned to sit under the tree next to CH. CH said he was going to bed and went to a flat located on the property.
[11] Once CH had left, the accused was sitting on a chair. He spread his legs and directed the complainant to masturbate with him. The complainant complied. The accused did not ejaculate. That is the offending the subject of Count 1 and, alternatively, Count 2.
[12] After a short time, the accused asked the complainant if he could touch the complainant's penis. He then pulled down the complainant's shorts and took hold of the complainant's penis, manipulating it back and forth, masturbating the complainant. That is the offending the subject of Count 3.
[13] After a short time, the accused asked the complainant to get him another beer from the freezer, which he did. The complainant returned to the accused with a beer.
[14] The accused then directed the complainant to 'kiss [his] penis goodnight' and exposed his penis to the complainant. The complainant complied out of fear.
[15] The accused then directed the complainant to kneel in front of him, down on the ground, and perform fellatio on the accused. The complainant did so, fearful of the accused. That is the offending the subject of Count 4 and, alternatively, Count 5.
[16] Once the accused finished, he directed the complainant to stand in front of him so he could perform fellatio on the complainant. The complainant asked if he could go inside the house. The accused told the complainant he wanted to 'taste' the complainant and wanted him to 'cum in his mouth'. The accused then held the complainant's buttocks with both hands and performed fellatio upon the complainant. After about three or four minutes, the accused stopped, and the complainant pulled his pants back up. That is the offending the subject of Count 6 and, alternatively, Count 7.
[17] The accused explained to the complainant what a 'golden shower' meant (being urination on another person) and said that he wanted to watch the complainant shower. The complainant said nothing and returned inside and went to bed. One or two minutes later, the accused went inside and into the complainant's bedroom. The accused asked the complainant if he was okay. The complainant nodded. The accused went to the living room and watched television.
[18] At about 4.00pm on the following day, the complainant disclosed these incidents to his mother whilst the accused was away from the home. The complainant's mother called Police and reported the matter.
[19] The complainant was taken to the Sexual Assault Referral Centre where he completed a Sexual Assault Investigation Kit. The following morning, he completed a child forensic interview with Police.
[20] At 7.44pm on 18 December 2023, the accused was arrested and cautioned.
[21] The accused was taken to the Watch House and held under s 137 of the Police Administration Act 1978 (NT) for investigation and due to his level of intoxication. At 9.55pm, he was cautioned again and stated that the conduct with the complainant was 'consensual'. This statement is relied on by the Crown as an admission.
[22] A crime scene was established at the home. Clothing was seized and the home was photographed.
[23] At 11.52am on 19 December 2023, the accused participated in an electronic record of interview ('EROI'). During the EROI, he said various things relied on by the Crown as admissions. In the EROI, the accused told Police:
(a) He had consumed alcohol throughout the day and evening. He recalled urinating next to the complainant in the back yard, the complainant asked him if he could shake his penis and the accused let him.
(b) He had no memory of the incident beyond that point.
(c) He recalled telling Police when he had been cautioned at the Watch House that he believed it was 'consensual'. He explained that, by that statement, he meant that the complainant was a willing participant in whatever they had done together.
(d) Asked about his recall of specific things, the accused said words to the effect that: 'Did I do that?' and 'I'm not a very good role model'.
(e) The accused said that he was remorseful for doing that to the complainant.
[24] The accused denies committing this offending.
[25] On the basis of the evidence received on the voir dire indicated by the footnotes, I make the following findings of fact. Also set out below is reference to some of the oral evidence adduced on the voir dire relating to issues arising on the questions of admissibility.
[26] After the complainant's mother contacted Police on 18 December 2023, Sergeant ('Sgt') Harris-Jacobs of the Batchelor Police Station sought assistance and Senior Constable ('SC') de Graaff and Constable ('C') Baker went to Batchelor from Palmerston.[1] SC de Graaff was told by Sgt Harris-Jacobs that the accused was at a bar near his home. Sgt Harris-Jacobs went to the bar and was told that the accused had left about an hour earlier.
[31] DSC Spencer asked the accused if he was sober or intoxicated and the accused replied that he had 'had a few beers'.[11] DSC Spencer asked the accused how much he had had to drink or what his level of intoxication was and the accused did not respond, having been distracted by the presence of a child.[12] DSC Maxwell asked the accused how much he had had to drink today and the accused said words to the effect of: 'Oh, mate ... Um, I don't know. It's what I do. I'm retired. I don't do anything'.[13]
[33] On the basis of that exchange, I find that the accused had consumed more than three and less than four cans of full-strength beer between 6.45pm and 7. 44pm.
[34] Tooheys Extra Dry beer cans or stubbies contain 1.2 standard drinks.[16]
[35] The accused was taken to the Watch House, entering about 15 to 20 minutes before 9.48pm when the body worn footage (BWF) started recording.[17]
[36] At around 9.48pm, the accused was told that his clothing was to be seized and he was asked to go into another cell where he could change his clothes.[18] He did as he was instructed, placing his clothing in paper bags. He asked to use the toilet, and this was facilitated. He was told not to flush the toilet and he complied with those instructions. He walked to the receiving counter and was asked a number of health questions by the custody nurse. He was asked if he had been drinking alcohol today and confirmed he had. He was asked what he had been drinking and he said 'Tooheys Dry'. Asked how many, he said: 'Oh, [laugh], yeah, I don't know, 12.' Asked: '10 to 12?', he agreed. Asked when he had his last drink, he asked SC de Graaff: 'How long ago was it when you picked me up?' and SC de Graaff gave the time of 7.44pm. The accused said he drinks every day.
[37] The accused was asked numerous other health questions, and gave responsive answers, some of them relatively detailed.[19] Asked if he had had any accidents recently, he said he had had a fall on Sunday (the day before), and sustained a little cut over his eye, spinal pain and a scratch to the back of his head. He also said he had suffered diarrhea 'yesterday'.
[38] The custody nurse recorded that the accused was calm/cooperative; alert/able to follow instructions; his speech was coherent; no abnormalities in thought form or content were detected; no perceptual disturbances were identified; and his gait was normal.[20]
[39] The accused was patted down, removed a necklace and was wanded. He then stood next to the counter until he was asked to sit down on a bench, which he did.[21]
[41] The relevant parts of the s 140 conversation are as follows:
de Graaff: ... you know the caution I gave you out on the crime, gave you out at the um scene. Ah, just saying you don't have to say anything unless you want to. We just um, gunna do more official version of that now that we're in cust---.
de Graaff: We just gunna do a more official version of that now that we're...
de Graaff: And another is a male I know as [NAME REDACTED]. [NAME REDACTED] can I just get you to state your full name?
de Graaff: Alright we are currently standing in the reception area of the Palmerston Watch House. So [NAME REDACTED], you understand you are being arrested for, um sexual assault of a child?
de Graaff: Okay. So just let you know that um we're gunna ask you certain questions throughout the investigation, which will be recorded. Okay? You are not obliged to say anything, unless you wish to do so, but whatever you do say will be recorded and may be given into evidence. Do you understand that?
de Graaff: Okay. Um, you also have the right to contact a, um, family member or a friend to let them know you are in custody.
de Graaff: Alright. So there is no-one you want contacted?
de Graaff: You're by yourself. Alright. That is fine. Um, is there anything else you wanna say at the present time in relation to why you are here?
de Graaff: Okay, alright, I will leave it there. ...
[43] SC de Graaff's last question to the accused is a question he normally asks a person after cautioning them.[24] He said it is a general question to see if he can facilitate anything else. For example, if a person says they do not understand the process, he can do it again. He accepted that a person asked that question could ask him anything about why they are in custody and could say something about the reason for arrest just put to them.[25] He disagreed that the way he phrased the question seemed to be inviting a response about the offence for which the person has been arrested.[26] He said it was not his intention to ask questions about the offence.[27] He agreed that he could have framed the question differently. He said he stopped the conversation when the accused made the admission, which was confirmation that his purpose was not to ask about the alleged offence. SC de Graaff agreed that, at the time he asked this question, he knew that the accused had been drinking that day.[28]
[44] On the assumptions: (a) of a zero blood alcohol content at the start; and (b) that the accused consumed four cans of Tooheys Extra Dry in the one hour period prior to 7.44pm, at 9.40pm, those four cans would contribute a blood alcohol content of between 0.029 to 0.059.[29] If the accused had a blood alcohol content before 7.44pm, that would also have to be taken into account to determine his actual blood alcohol content.[30]
[45] Dr Sungaila, a forensic physician called by the Crown, opined that alcohol causes disinhibition, which is often present to a degree, even for a heavy drinker.[31] Disinhibition may cause a person to say what they would not say in other circumstances. In particular, disinhibition can 'make somebody spit out the truth' more so than if they were not intoxicated. In other words, intoxication may cause a person to decide to speak when they may not have decided to do so when sober, but whether they are speaking the truth or not cannot be determined simply on the basis of intoxication. Dr Sungaila agreed that a person who was disinhibited by alcohol might say something that was based in truth but exaggerated.[32]
[46] On the basis of her observations of the BWF of the accused at the Watch House, Dr Sungaila considered that the accused understood the caution, and any impairment from intoxication would have been by way of disinhibition inclining him to speak when he may not have done so if sober.[33]
[47] Dr Sungaila opined that a blood alcohol level of 0.05% or 0.08% was considered to be a reasonable level for a person to participate in an interview if there was good evidence that they were an alcoholic.[34]
[48] The accused was held in the Watch House overnight.
s 140 admission
[49] The Crown argued that the italicised answer above ('s 140 admission') is an implied admission by the accused that sexual activity had occurred between himself and the 13 year old complainant.
[50] On the basis of the evidence on the voir dire indicated by the footnotes, I make the following findings of fact. Also set out below is reference to some of the oral evidence adduced on the voir dire relating to issues arising on the questions of admissibility.
[51] At 7.00am on 19 December 2023, Registered Nurse ('RN') Nesvinga, who was on shift at the Watch House as a custody nurse, reviewed the accused's health questionnaire and noted that he had denied withdrawals from alcohol or drugs.[35]
[52] At 9.00am, RN Nesvinga conducted a visual check on the accused and noted he was resting and breathing well.[36]
[53] At 10.54am, DSC Lynden spoke to the accused.[37] DSC Lynden repeated the caution to the accused. In response, he nodded and made affirmative sounds. DSC Lynden told the accused he had been arrested for sexual assault against the complainant and asked whether he would like to speak about it. The accused indicated that he would. DSC Lynden asked the accused if he had had breakfast and he told her he could not eat, he could not keep it down, he had diarrhea and the shakes in his hands from alcohol withdrawal. DSC Lynden told the accused she would tell the nurse about that before proceeding.
[54] DSC Lynden agreed in cross-examination that, when she first spoke to the accused, she was aware that a s 140 conversation had occurred with the accused the night before. She did not know what exactly was said and could not recall whether the accused had asked for a family member or friend to be contacted.[38] She agreed she could have had another s 140 conversation with the accused that morning but did not see the need as it had already been done. She also agreed that this was covered in the EROI, and the accused had said he has got no one and is 'here' by himself. DSC Lynden agreed she took this to mean he did not want to speak to anyone.[39] DSC Lynden said there are no services that can be contacted by Police for a non-Aboriginal person in custody who has no one available to them.[40] DSC Lynden could not answer whether one of the services available to Aboriginal people would refuse, if called, to provide a service to the accused.
[55] At 11am, DSC Lynden told RN Nesvinga that the accused appeared to be suffering from alcohol withdrawal and asked her to review him.[41]
[56] RN Nesvinga then conducted a Clinical Institute Withdrawal Assessment for Alcohol on the accused and recorded an alcohol withdrawal score of 6, meaning he had mild withdrawals.[42] That score was arrived at from a score of 2 out of 7 for mild nausea with no vomiting and 4 out of 7 for moderate tremors.
[57] The accused was experiencing alcohol withdrawal symptoms at this time.[43] His symptoms were mild[44] and his score of 6 indicated very mild alcohol withdrawal.[45] Withdrawal symptoms can be experienced while a person has a blood alcohol content, but their blood alcohol level is usually quite low by the time they get symptoms like sweating or shaking.[46]
[58] At 11.20am, after consulting the duty medical officer, RN Nesvinga administered to the accused: 300mg of Thiamine; 1000 mg of Paracetamol; 10 mg of Metoclopramide; and 5mg of Diazepam (Valium) for the purpose of treating the effects of alcohol withdrawal.[47] Thiamine is a vitamin that has no effect on mood or cognition.[48] Metoclopramide is an anti-nausea drug, which can have uncommon adverse side effects such as drowsiness, insomnia, headache or confusion.[49] A dosage of 5mg of Diazepam is a low dosage, which a study has shown does not affect cognitive capacity.[50]
[59] Dr Sungaila opined that the dose of Diazepam administered to the accused was low and simply reverted him back to his usual status quo; there was no sign of adverse effects; the dose was unlikely to have caused the accused to participate in the EROI; and, if the Diazepam had lulled him into agreement to participate rather than doing so voluntarily, some signs such as drowsiness would be expected, and there were none.[51]
[60] DSC Lynden gave evidence that at 11.40am, she spoke to RN Nesvinga and told her Police wanted to interview the accused and RN Nesvinga said she had given the accused medication to alleviate the symptoms of alcohol withdrawal and he would be fine to complete an interview.[52]
[61] RN Nesvinga did not recall speaking to any Detectives about the accused or being asked by any of the Detectives if the accused was okay to be interviewed.[53] She said officers do not normally come and ask her for permission to interview people unless they find them unwell, but she did not recall any such conversation.
[62] An extract from DSC Lynden's Police notebook was attached to her statement. It included notes that she had written after the EROI on the same day it was conducted.[54] The notes relevantly said:
EROI with [accused]. Spoke to us and wanted to talk. Had alcohol withdrawals. Medicated by WHS nurse who stated he was fine to EROI first.
[63] DSC Lynden confirmed that her conversation with RN Nesvinga was just prior to taking the accused for the EROI.[55] DSC Lynden agreed it was not the custody nurse's job to determine if a person is fit for an interview, and it was for the interviewing officer to determine that, but said the determination would be informed by an opinion from a medical professional about whether medication would cause the person to feel groggy or if the person was not feeling well. DSC Lynden said she had directed such questions to RN Nesvinga, something along the lines of: 'Is he okay, or does he need to sleep longer?'
[64] On the basis of the contemporaneous note made by DSC Lynden, and her evidence, I find that she did ask RN Nesvinga, in effect, if there was any medical reason why the accused should not be interviewed.
[65] Just prior to 11.50am, the accused was taken by Police into an interview room for the purpose of conducting the EROI.[56]
[66] At 11.50am and 12.00pm, RN Nesvinga went to review the accused and was told that he was out of his cell.
[67] The EROI commenced at 11.52am and ended at 12.40pm.[57]
[68] Dr Sungaila calculated that the interview commenced approximately 15 hours after the accused had consumed his last drink of alcohol.[58] On the assumption that the accused last drank alcohol at the time of his arrest at 7.44pm the night before, the EROI actually commenced just over 16 hours after he had consumed his last drink.
[69] Blood alcohol content is eliminated at the rate of between 0.01% to 0.02% per hour and heavy drinkers eliminate alcohol faster than occasional drinkers.[59]
[71] Alcohol elimination commences as soon as alcohol reaches the blood stream and continues whilst a person is consuming more alcohol.[63] That is the reason for the safe driving advice that, to stay under the limit, a person should consume one standard drink per hour.[64] If a person is eliminating alcohol at the rate of 0.02% per hour, across a 15 hour period that person would have eliminated 0.30% blood alcohol content.[65] In other words, on those assumptions, for the accused to have had any blood alcohol content at the commencement of the EROI, he would have had a blood alcohol content of at least 0.30% at 7.44pm. At a blood alcohol level of 0.30%, most people would show signs of impairment such as slurred speech and staggering gait.[66] Based on her observations of the accused on the BWF at the Watch House at 9.55pm the night before, Dr Sungaila's opinion was that he certainly was not at a blood alcohol level of 0.30%[67] She said that someone with the accused's alcohol history could achieve a blood alcohol content of 0.2% or a little more without showing very obvious signs of intoxication.
[72] Dr Sungaila agreed that the alcohol elimination rate can be considerably reduced if a person has liver damage but said the damage would have to be quite severe.[68] She agreed that there was no evidence that the accused had any liver damage, and said he denied any issues relating to his health when he was received into custody. Dr Sungaila agreed that if the accused was eliminating alcohol at the rate of 0.10%, and if he was at 0.25% at 7.44pm, he would have had a blood alcohol content at the start of the EROI of 0.01%
[73] Dr Sungaila opined that a person with a significant blood alcohol content may participate in an interview when they would not be prepared to do so if sober, as a result of disinhibition and impairment to thinking about the consequences of their actions.[69] She agreed that a very heavy drinker who does not exhibit outward signs of intoxication may still be disinhibited, and may still be suffering the effects on cognitive functioning such as poor decision making.[70]
[74] At the commencement of the EROI, the accused identified himself, stated his date of birth and age, confirmed his understanding that the interview was being recorded, confirmed his understanding that he was under arrest, in custody and not free to leave, and said he could not recall the conversation with Police when he was arrested. He was reminded that he had been told the reason he was under arrest and had been offered the opportunity to tell a friend or relative of his whereabouts. He confirmed that he had no one. Asked if he wanted to contact someone, he repeated that he had no one and is in Australia by himself. He was reminded that he did not have to say anything to Police, but anything he said or did would be recorded and may be used in evidence. He was again cautioned and confirmed his understanding. Asked to repeat it in his own words, he said that whatever he said would be there and he could not change it.
[75] Asked if the matter went to court, who could hear the interview, he said: 'Probably the judge'. He was told there would also be lawyers present and possibly a jury. Asked if he knew what a judge could decide after hearing the evidence, he said:
'Um, probably imprisonment or - or, ah, probation or - whatever. Whatever it ---
Well, it depends on the degree of the - the charge.
[76] He was told that if a judge deemed his evidence to be weighted towards guilty, he could be convicted and punished and if it was not deemed as he is guilty, he could be freed. He agreed with that.
[77] He confirmed that if he was asked a question by either officer, he did not have to answer but said he would answer as best he could remember.
[78] He said he had been a 'DSO' for an electrical services company in a remote community before his age retirement. He agreed that the custody nurse had given him some medication, including a Valium and three other drugs but he was not sure what they were. DSC Lynden said she thought they were for his stomach, the nurse had said it was to settle his stomach. There was then this exchange:
Lynden: Um, so despite having those medications on board, do you feel that you are coherent enough to continue talking with us?
Lynden: Are you currently under the influence of alcohol or drugs?
Accused: I don't think I am. [indistinct]. I think I might have sobered up. I don't know.
Accused: Yeah. Well, I - you see, I normally start at 8 o'clock in the morning or go through till one in the morning.
[79] DSC Lynden disagreed that her question as italicised above was quite a complicated question, saying: 'Not for an educated person'.[71] DSC Lynden took the accused to be joking with her when he gave his answer as underlined above. She agreed that the accused's response as italicised and underlined above could be interpreted as an explanation that he is a habitual drinker, but another was that he was explaining what he does but not suggesting he was intoxicated. She did not agree that he was accounting for his sober appearance by explaining he is a habitual drinker.
(a) The accused was asked to say everything that occurred between himself and the complainant on Sunday evening. The following exchanges occurred:
Accused: All I can remember, I was sitting there with my mate having a few beers.
Accused: And [the complainant] came out, which he doesn't normally do, and come out and pulled up a chair beside me. And then my mate said, 'Oh, it's getting late', I think it was after 7 o'clock.
Accused: And my mate, 'Oh well, I got to go and get some tea'. I said, 'Yeah all right, [indistinct] and I'll go in then as well'. And then I got up and walked away from [the complainant] and went to have a leak.
Accused: While I was doing that [the complainant] walked up beside me.
Accused: And I think he said, 'Can I touch that?'
Accused: I don't know what I said after that. It sort of all gone to a big blur. And, then what happened I do not basically recall. I remember - I don't even remember what we had for tea.
Accused: We went back inside, had tea. I don't even know what it was.
Accused: Yeah. That's - that's my recollection of what happened, you know.
(b) Asked about going to have a leak, the following exchange occurred:
Accused: Well, I just got up and walked [indistinct] away from the Banyan Tree on - onto the grassed area.
Accused: And next minute [the complainant's] standing beside me, [indistinct], 'What are you doing?', 'Oh, can I touch that?'
Accused: I can't remember. Obviously, I must have let him touch it.
Accused: Well this is what's happened now, isn't it?
Accused: You know, so something's happened that, you know, that is to have happened whether he instigated it. I think he did, ah, cause he said, I'm sure he said, 'Can I touch that?' and I let him, and then after that I - I don't know what happened.
(c) A little later, the following exchange occurred:
Lynden: All right. So you - um, he said, 'Can I touch that?', and you assume you let him?
(d) A little later, the following exchange occurred:
Lynden: All right. So just going through a few points. Um, so earlier you said that, um, [the complainant] came up to you and said, 'Can I shake that?' referring to your penis?
Accused: M'mm. 'Can I touch that?', I think he said.
(e) A little later, the following exchange occurred:
Lynden: Um, we received information that you - when he made that joke to you [about shaking the accused's penis] that you, ah, exposed your penis to him directly and said to him to shake it and he did.
Lynden: Um, after you guys had finished urinating you returned to the chairs at the tree, the Banyan Tree.
Lynden: ... So the information we have is that once [CH] had left, you were sitting on the beige plastic chair.
Lynden: And you spread your legs and told [the complainant] that you two could masturbate together?
Accused: No, I do not remember that conversation at all.
Lynden: Okay. Um, you then placed your hand on his penis and then [indistinct] his penis masturbating him, basically. Do you recall that?
Lynden: You directed [the complainant] to kiss your penis?
Lynden: Um, so once you directed him to kiss your penis, um, you then told him to kneel in front of you and perform fellatio upon you. Do you recall that at all?
Accused: No, this is all blind - this is all blank, yeah.
Lynden: Um, after you had done so, you directed [the complainant] to stand in front of you and to - and to allow you to perform fellatio upon him. Do you recall that?
Lynden: He said that he wanted to go back inside. But you said that you wanted to taste him and you wanted him to cum in your mouth. Do you recall saying that?
Accused: No, I don't. I don't remember any of that. I honestly don't.
Lynden: Yeah. That's the allegation. Do you want to say anything about it?
Accused: I can't - like I - this is what I do say, I don't know. I honestly don't know.
Accused: I - I can't recall any of that. I can recall him standing beside me. Him wanting to shake my penis or touch me. I remember sitting back on the chair. But I can't - and that's - and that's - the rest is a blank.
(g) A little later, the following exchange occurred:
Lynden: Yep. When you got back to the police station here and they had that conversation with you on that recording, um, where they gave you your rights. They, um - the - the male police officer told you that you didn't have tell them anything, anything you say will be recorded.
Lynden: Um, and then at the end of that conversation they asked if you wanted to say anything. Do you recall---
Accused: Well that - whatever happened [the complainant] - [the complainant] agreed with it.
Accused: It was like he wasn't freaked out about it ---
Accused: He - we - whatever we were doing we were doing it together.
Accused: So it wasn't like I was holding a gun to his head and telling him to do it.
Accused: You know, he was - he wanted to do it as much as what I did. I didn't realise I'd done that.
Lynden: Yeah. ... so even if he was touching your penis that's still a - a gross indecency.
Accused: No, I'm just so sorry for him. I did - I am.
Accused: You know, I didn't want to harm him or - you know, I've got his best interests at heart. Like I want him to be a good kid. I want him to grow up to be, you know, better than his - his other siblings.
Accused: So, you know, apparently I'm not a very good role model, am I?
(i) Near the end of the EROI, the following exchange occurred:
Lynden: All right. Um, okay. Have you got anything further you wanted to add?
Levers: ... this is your - this is your [indistinct] last chance to, um, on the record make a comment about what the allegation is. Are you sure that's all you want to say to us? Because this is your opportunity, after that the camera turns off, that's it.
Accused: Well, I'm regretful for what I did. I really am. I don't go round doing this sort of crap.
Accused: You know, and it's just out of character. And why I did it, I don't know.
[81] Dr Sungaila's observations of the accused during the EROI were that he presented himself calmly, there was no evidence of drowsiness or difficulty with thought processes, he appeared to have understood the caution and was willing to speak. He agreed that he felt coherent, was attentive to the interviewer throughout the interview, and was willing to continue after about half an hour.[73]
[82] Dr Sungaila opined that the accused participated in the EROI in a voluntary manner, having received adequate nursing treatment for his symptoms and appropriate and required medications.[74]
[83] As regards her questions set out in paragraphs (e) and (g) above, DSC Lynden said at no stage of the EROI, and in particular by her questions framed as 'do you recall...', was she intending to cross-examine or challenge the accused.[75] Rather, she was asking him if he knew more about the particular thing she had referred to. In cross-examination, DSC Lynden identified that from the point set out in paragraph (d) above, she was beginning the phase of the EROI referred to as 'compare and contrast', which is done in fairness to the suspect to know and respond to the allegations.[76] She agreed it is important for an accused to have a full opportunity to respond to the allegations.[77]
[84] At 1.15pm, RN Nesvinga observed the accused, treated an old wound above his right eyebrow and, at 1.30pm, she administered another alcohol withdrawal assessment, with the accused scoring a 3, which was mild alcohol withdrawal symptoms.[78] He still had a tremor but was feeling better. The accused was given a further 5mg of Diazepam at 6.25pm.[79]
[85] The Crown argued that the italicised answers above ('EROI admissions') are admissions by the accused to the complainant's version of events in the lead up to the alleged offending, and implied admissions to his specific allegations.
Proper characterisation of the alleged admissions
[86] Section 81(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) ('Evidence Act') provides (relevantly) 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.[80]
[87] In his leading text, Stephen Odgers states that:[81]
... any acknowledgement of some relevant fact that tended to establish guilt, or liability, would be an admission. Indeed, any representation, adduced by the prosecution and capable of rationally affecting the assessment of the probability of the existence of facts asserted by a prosecution witness in relation to an alleged offence would constitute an admission.[82]
[88] Section 81(2) of the Evidence Act provides that the hearsay rule does not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made or shortly before or shortly after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission.
[89] The intention behind this provision was to permit the admission into evidence of assertions which qualify or modify an admission to ensure, in fairness to the defendant, that the admission is considered in context.[83]
[90] In Nguyen v The Queen ('Nguyen'),[84] the High Court observed (at [22]) that:
It is to be expected that exculpatory statements made in a record of interview which also contains admissions will usually satisfy the requirements of s 81(2)(a) and (b). In the event that there is some doubt about the connection between an exculpatory statement and an admission, it should be borne in mind that what is to be made of a mixed statement is a matter for the jury, which might attach different degrees of credit to different parts of it. It has been observed that, under the Uniform Evidence Acts, provided relevant evidence is rationally capable of acceptance, questions of credibility and reliability are to be seen as squarely within the province of the jury. Considerations of this kind suggest that no narrow approach should be taken to the relationship between exculpatory statements and admissions. [citations omitted]
[91] What is 'shortly before' or 'shortly after' the admission is to be determined by reference to whether the admission and the other representation were made on a 'single occasion', or within such time as excludes the intervention of self-serving after-thought, reconstruction or alteration.[85] There is no issue about whether the statements by the accused were made shortly before or shortly after the alleged admissions within s 81(2).
[92] It was not in dispute that the s 140 admission was an 'admission' within the meaning of s 81(1).
[93] Following his arrest for 'sexual assault of a child', the statement in relation to why the accused was at the Watch House that it was 'consensual' is clearly capable of being understood as an admission that some sexual activity had occurred with the child complainant.
[94] It was not in dispute that the EROI admissions are 'admissions' within the meaning of s 81(1).
[95] The EROI admissions are clearly admissions against the accused's interests and capable of being understood as admissions that some or all of the complainant's allegations are true.
Admissibility of the admissions - Circumstances and reliability: s 85
[96] There was no dispute that the alleged admissions were made in the presence of Police officers in circumstances falling within s 85(1) of the Evidence Act.
[97] Section 85(2) of the Evidence Act 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 that, in addition to any other matters the Court may take into account, the Court must take into account: (a) 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; and (b) if the admission was made in response to questioning, (relevantly) the nature of the questions and the manner in which they were put.
[98] Section 85 of the Evidence Act 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.[86]
[99] The enquiry also does not raise any consideration of whether the admissions made were, in fact, true.[87] 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.[88]
[100] The operation of the provision and the relevant factors and considerations were identified by Barr J in The Queen v GP[89] (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.
[101] In other words, the enquiry is whether the circumstances were such that it was unlikely that the accused made a false confession.[90]
[102] In The King v Choolum,[91] in the context of a similar argument about the impact of the accused's intoxication at the time of making admissions to Police on the admissibility of those admissions, I made reference to the following authorities.
[103] In The Queen v Ostojic,[92] 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'[93], 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.
[104] In The Queen v Helmhout,[94] 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.
[105] In The Queen v Archer (No 1),[95] 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.
[106] The Defence argued that, at the time of the s 140 admission, the accused was intoxicated with alcohol, so I cannot be satisfied on the balance of probabilities that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected as required by s 85(2) of the Evidence Act.
[107] The Defence argued that the 'rapid' consumption of four full strength beers shortly prior to his arrest, and the total number of beers he consumed across the day, would have meant that he was 'most certainly' still affected by alcohol at the time of the s 140 admission.
[108] My observations of the BWF of the accused at the time of his arrest, and more importantly, at the Watch House are that:
(a) He showed no obvious signs of intoxication - he was steady on his feet, and his speech was not noticeably slurred.
(b) He was co-operative and followed instructions as to emptying his pockets, being handcuffed, removing his clothing and placing it in evidence bags at the Watch House, and walking, standing and sitting where he was told to in the Watch House.
(c) He gave responsive answers to health and other questions including some relatively detailed answers - his answers were clear and coherent.
(d) He confirmed his understanding of the reason for his arrest (twice) and that he understood the caution. During the s 140 conversation, he was not taken by surprise by the charge, having been told and confirming he understood it at the time of his arrest. There was no suggestion that the s 140 admission was blurted out unintentionally or without thinking.
[109] Further, the following day, during the EROI, the accused was able to recall having made the s 140 admission the night before and explained what he had meant by it. There was no attempt to retract what he said or deny its truth. There was no attempt to identify what he said as any exaggeration of the truth and his explanation of what he meant is entirely consistent with the truth of the statement on its face.
[110] On the basis of my observations of the accused, as well as those of the custody nurse, I would conclude that the accused was not affected by alcohol to any significant degree at the time of the s 140 admission.
[111] As set out above, I have found that between 6.45pm and 7.44pm, the accused had consumed more than three and less than four cans of full-strength beer. That means that he consumed more than 3.6 and less than 4.8 standard drinks.
[112] I have also found that the accused was a heavy drinker and accept as appropriate to him the rate of alcohol elimination for a heavy drinker of up to 0.025%. There is no evidence that the accused suffers from severe liver damage, so I accept as appropriate to him the assumed elimination rate of 0.02% per hour.
[113] Consequently, I find that the alcohol content from those three to four cans would yield a blood alcohol content of between 0.029 to 0.059% at 7.44pm. That is below what Dr Sungaila considered a reasonable level for an alcoholic to participate in an interview.
[114] There are two other important matters. The first is that the accused had his last drink at 7.44pm, and the s 140 conversation took place at 9.55pm, over two hours later, during which time the accused would have continued to eliminate alcohol at the rate of 0.02% per hour. If his blood alcohol content was 0.059% at 7.44pm, it would have reduced to 0.019% by 9.55pm.
[115] The second important matter is that the blood alcohol content at 7.44pm would be additional to whatever the accused's blood alcohol content was at 6.45pm because he had been drinking earlier.
[116] As set out above, at the Watch House, the accused estimated that he had consumed 12 full strength beers that day. In the EROI, the accused told Police that every day he starts drinking at 8am. On that evidence, by the time of the s 140 conversation at 9.55pm, the accused would have consumed 12 full strength beers, or 14.4 standard drinks, in almost 14 hours. That is only slightly over the recommendation for safe driving of consuming one standard drink per hour.
[117] Although the accused said in the EROI that he could have drunk 18 beers on the night of the alleged offending and could drink up to a pack of 30 beers in a day, he also told Police that he would drink from 8am to 1am every day. That estimate of 30 beers could not apply to his consumption on 18 December 2023 because he stopped drinking at 7.44pm when he was arrested.
[118] Consequently, I am satisfied on the balance of probabilities that the accused's estimate that he consumed 12 beers on that day was reasonably accurate. Thus, I find that he had consumed 14.4 standard drinks in 14 hours. He had a higher elimination rate of alcohol than the average person.
[119] It follows, and I find, that at 6.45pm the accused's blood alcohol content was significantly less than the recommended safe level for driving. Further, I find that by 9.55pm, the three to four beers he had consumed in the hour leading up to his arrest would have contributed no more than 0.019% to his blood alcohol content as it was at 6.45pm. Thus, I find that at the time of the s 140 conversation, his blood alcohol content was likely to be below the recommended safe level for driving a car.
[120] Notwithstanding that a heavy drinker like the accused can be affected by alcohol such that they are disinhibited and their cognitive functioning such as decision making may be impacted without exhibiting outward signs of intoxication, on the basis of my findings about his blood alcohol content at the time of the s 140 conversation, I am satisfied that the accused was not affected by alcohol to any significant degree at the time of the s 140 admission.
[121] In particular, I have no doubt that the accused was aware of his situation, namely that he had been arrested in relation to sexual offending against the complainant, that he was in police custody, and that he was aware that he did not have to say anything to police about what he had done. Even if he made the s 140 admission because his 'tongue was loosened' by the effects of the alcohol he had consumed, that does not adversely affect the likely truth of it.
[122] For the above reasons, I am satisfied that the s 140 admission is admissible in accordance with s 85 of the Evidence Act.
[123] The Defence argued that, at the time of the EROI, the accused was intoxicated or affected by alcohol. Alternatively, the accused was a person suffering alcohol use disorder, was withdrawing from alcohol, he had been administered Diazepam, which would have 'peaked' at around 12.16pm during the EROI, and he appeared 'heavy lidded' and drowsy during the EROI. These were said to render the EROI inadmissible pursuant to s 85(2) of the Evidence Act.
[124] On the basis of Dr Sungaila's calculations set out above, and the fact that there were 16 hours between the accused's last drink of alcohol and the EROI, I am satisfied that for the accused to have had any blood alcohol content at the start of the EROI, he would have had a blood alcohol content of over 0.30% at 7.44pm, and that he would have shown outward signs of intoxication at that level. In my observation, neither at the time of his arrest nor at the Watch House was the accused exhibiting any outward signs of intoxication.
[125] It follows, and I find, that the accused did not have any blood alcohol content at the start of the EROI. He was not affected by alcohol by that point.
[126] Further, I note Dr Sungaila's observations of the accused during the EROI as set out above, and her opinions about the effect of the Diazepam and other medications he had been administered. I am satisfied that the accused's alcohol withdrawal symptoms were mild and had been properly treated by the medications.
[127] In my observations of the accused during the EROI:
(a) The accused showed no obvious signs of intoxication, drowsiness or any impairment in thinking, communication or understanding.
(b) The accused answered questions coherently, responsively, gave detailed answers or explanations to some questions and nodded or shook his head at appropriate points.
(c) The accused confirmed his understandings that the interview was being recorded, he was under arrest and not free to leave, he did not have to say anything, what he did say or do would be recorded and may be used in evidence (twice) and was asked to explain that in his own words.
(d) The accused explained that the caution meant that whatever he said would be what he said, he could not change it, and if the matter went to court the Judge would hear what he said and he was told that lawyers or a jury might also hear it.
(e) Asked what a judge can decide upon hearing his evidence, the accused said 'probably imprisonment' or 'probation' or 'whatever', depending on 'the degree of the... charge'. He was told that if he was found guilty, he may be convicted and punished or if he was found not guilty he would be freed. He confirmed his agreement with that.
(f) Asked if he had to answer questions, he said he does not have to, but would answer as best he could on his memory.
(g) Asked if he was under the influence of alcohol or drugs, he stated that he did not think he was, and he thought he might have sobered up, but did not know.
(h) The accused was able, on more than one occasion, to correct the questioning officer when they made an error.
[128] I find that at the time of the EROI, the accused was not affected by alcohol or alcohol withdrawal symptoms or the 5mg of Diazepam or other medications administered to him to any significant degree. The circumstances in which the EROI was conducted did not adversely affect the likely truth of the EROI admissions.
[129] For the above reasons, I am satisfied that the EROI is admissible in accordance with s 85 of the Evidence Act.
Probative value is not outweighed by danger of prejudice: s 137
[130] The Defence argued that the Court must refuse to admit the s 140 admission under s 137 of the Evidence Act because its probative value is outweighed by the danger of unfair prejudice to the accused.
[131] Section 137 of the Evidence Act obliges the Court to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
[132] 'Probative value' means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[96]
[133] 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.[97] A 'significant' probative value is a probative value which is important or of consequence.[98] The term 'significant' connotes something more than mere relevance but less than a substantial degree of relevance, and requires a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of a fact in issue.[99]
[134] The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence.[100] This does not involve any assessment of the credibility or reliability of the evidence except in 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 so does not meet the criterion of relevance.[101] It was not suggested by the Defence that the s 140 admission fell within that category.
[135] As the Crown submitted, consent is not an element of the offences charged as Counts 1, 2 3, 5 and 7. All of the charged counts involve some sexual conduct in front of, or with, the child complainant. The s 140 admission is an implied admission to some sort of sexual conduct with the complainant.
[136] The Defence argued that the s 140 admission was not specific as to any particular sexual conduct with the complainant, so its probative value was low, and that was outweighed by the danger that the jury would construe it as an admission to some or all of the particular serious sexual conduct alleged.
[137] Acknowledging its lack of specificity and the consequent danger identified by the Defence, the Crown submitted that the s 140 admission would only be relied on by the Crown as relationship evidence. That is, evidence admissible for the limited purpose of confirming some sexual activity between the accused and the complainant affecting the plausibility of or to assess the credibility and coherence of the complainant's evidence.[102]
[138] In Choudhary v Director of Public Prosecutions,[103] there were multiple charges of sexual activity between the appellant and his wife's sister. The appellant's wife had asked him whether it was true that he had been having sex with her sister. He replied that it was true. On another occasion, when confronted about the allegations with the words 'so this is all true?', he nodded his head. Priest JA (Maxwell P and Lasry AJA agreeing) held (at [46]) that the evidence had been properly admitted by the trial Judge as admissions against interest and the probative value of the evidence was not outweighed by the risk of unfair prejudice. The Court agreed (at [47]) with the Crown's concession that there had been a miscarriage of justice due to a failure to properly direct the jury about the use to which the evidence could be put. After reference (at [48]-[52]) to an earlier authority,[104] Priest JA held (at [56]) that the trial Judge would need to direct the jury that, amongst other things, the admissions could only be used as relationship evidence. That is, to show a sexual relationship between the appellant and the complainant. This was because it was not possible for the jury to determine whether the admissions went to any specific offence or sexual activity charged in the indictment.
[139] The Defence sought to distinguish Choudhary from the present case because here the s 140 admission could be construed as no more than an admission to the accused having permitted the complainant to touch or shake the accused's penis as or after he urinated, something he admitted to in the EROI. The Defence argued that, so construed, the s 140 admission would have little probative value because it is not in issue that the accused did permit the complainant to touch or shake his penis.
[140] The first response to that is that the accused did not actually admit that he allowed the complainant to touch his penis. He said that he recalled the complainant asking to do so, but he could not remember anything after that. Earlier in the EROI, he said that he 'must have let' the complainant touch his penis because of, essentially, his arrest. He confirmed that this was an assumption he had made. Consequently, the s 140 admission would have significant probative value even if it were construed as no more than a reference to having allowed the complainant to touch his penis during or after he urinated.
[141] The second response is that the s 140 admission could equally be construed to refer to other sexual conduct between the accused and the complainant. The accused's explanation in the EROI of what he meant by the s 140 admission supports such a construction. He said the following things: 'whatever happened [the complainant] agreed with it'; 'he wasn't freaked out about it'; 'whatever we were doing we were doing it together'; 'it wasn't like I was holding a gun to his head and telling him to do it'; and 'he wanted to do it as much as what I did'. These things are highly suggestive of some sexual conduct in which the accused was actively engaging, rather than passively allowing the complainant to touch his penis after he asked to do so.
[142] The proper construction of the s 140 admission is a matter for the jury, but to my mind it has significant probative value as relationship evidence, however it is construed. With the appropriate directions to the jury as to its permissible and non-permissible uses,[105] any risk of unfair prejudice to the accused from its admission would be ameliorated.
[143] Consequently, I am not satisfied that the s 140 admission be excluded pursuant to s 137 of the Evidence Act.
[144] The Defence did not argue that the probative value of the EROI was outweighed by any danger of unfair prejudice to the accused within s 137 of the Evidence Act.
Admissibility of the admissions - Unfair to the accused to use the admissions having regard to the circumstances in which they were made: s 90
[145] The Defence argued that the Court should exercise its discretion to refuse to admit the alleged admissions under s 90 of the Evidence Act, because:
(a) as regards the s 140 admission, the accused was likely intoxicated and unaware of the specifics of the allegations made against him; and
(b) as regards the EROI admissions, the interviewing Police did not take adequate steps to ensure the accused was aware of the seriousness of the allegations against him and the use that could be made of any admissions he made, was 'lulled into a false sense of security' regarding his participation in the EROI, he had no criminal history or experience with Police, he was intoxicated when it took place, and he did not receive any legal advice or assistance from a friend or relative.
[146] Section 90 provides that the Court may refuse to admit evidence of an admission if it is adduced by the prosecution and, having regard to the circumstances in which it was made, it would be unfair to the accused to use the evidence.
[147] While s 90 acts as a final or 'safety net' provision, questions relating to reliability and illegality or impropriety are covered by ss 85, 138 and 139 of the Evidence Act.[106]
[148] In The Queen v Lawrence,[107] Grant CJ observed (at [121]-[122]) as follows:
... When considering the exercise of the 'fairness' discretion, the relevant focus in this inquiry is not whether the police have acted unfairly or unlawfully. It is whether it would be unfair to the accused to admit the statement. Secondly, that assessment will depend upon the particular circumstances of the case and in which the admission was made, and is guided ultimately by the question whether the admission of the evidence would be unacceptable having regard to contemporary community standards of fairness.
These observations reflect the fact that voluntariness, reliability, unfairness to the accused and public policy considerations concerning the minimum standards expected of law enforcement authorities are not discrete issues. They tend to overlap both in the factual circumstances that may be considered in determining whether to exercise a particular discretion to exclude evidence, and in the rationales underlying each ground of exclusion.
[149] The reference there to 'community standards' is not to any notions of populist public opinion, but to community standards concerning the maintenance of the rule of law, the elements of the proper administration of justice and the due requirements of law enforcement.[108]
[150] In The Queen v Lawrence, the accused was interviewed by Police about an assault, appeared in the Local Court in relation to it and was released on bail, and was then interviewed by Police in relation to alleged sexual assaults on the same complainant at the same time. In both interviews, the accused made admissions concerning the circumstances of the alleged offending.
[151] Grant CJ held (at [134]) that the accused had established unfairness such that the receipt of admissions made by the accused during two recorded interviews would be unfair. The finding was based on a number of matters apparent in the circumstances surrounding the conduct of the interviews. Those circumstances were:
(a) The second interview was conducted when the accused was already legally represented. That was known to Police, and no attempt was made to advise the accused's legal representatives of the intention to interview the accused a second time, or to afford him the opportunity to take legal advice. His Honour characterised this (at [135]) as the most significant consideration, finding that if the accused had taken legal advice he would not have participated in the second interview. For that reason alone, his Honour held (at [136]) that the second interview should be excluded.
(b) The first interview was excluded because, during the second interview, the accused had made exculpatory statements in response to further information provided to him by Police, which information was not available at the time of the first interview. His Honour held (at [137]) that if the first interview was admitted, the accused would be deprived of the opportunity to have his full account placed before the jury, so it would be unfair to the accused to use the first interview in isolation.
(c) Two other matters, taken in combination with the failure to advise the accused's legal representative of the intention to interview him a second time, were held (at [138]) to reinforce the conclusion that it would be unfair to admit the interviews. Those matters were:
(i) The manner in which the caution was administered and the nature of the accused's response to it in both interviews gave rise to uncertainty as to whether the accused understood his right to silence (at [139]).
(ii) Police had spoken to the accused about a 'magistrate' and the potential disposition of the matter by way of a 'fine', which had the potential to lull the accused into a false sense of security in relation to the gravity of the charges he was facing and the Police attitude to the matter. That atmosphere was contributed to by the Police's prior indication that they wished to 'sort the matter out' and they wanted the accused to 'tell them his side of the story'.
[152] As set out above, at the time of the s 140 conversation, despite his intoxication, I have no doubt that the accused was aware of his situation, namely that he had been arrested in relation to sexual offending against a child, 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 fact that he may have been disinhibited to a degree by intoxication is, according to the authorities referred to above, not a basis for concluding that the use of the s 140 admission would be unfair.
[153] I make that finding notwithstanding that the accused had not received legal advice or spoken to a relative or friend. The caution he received was the second caution administered to him that evening, he was well able to communicate and did not appear to have any difficulties comprehending his situation or his right to silence. He confirmed his understanding of it in clear and forthright words: 'Yes I do'.
[154] I do not accept that the generality in expression of the reason for his arrest materially bears upon the exercise of the unfairness discretion under s 90. It is self-evident that, at an early stage of any police investigation, it is quite likely that the specifics of the allegations have not been identified and so cannot be put to the suspect in a detailed way. Here, the child complainant had not at that stage given a child forensic interview, so the police were not then aware of the details of his complaints. As the Crown submitted, there is nothing remarkable about a generally stated allegation at an early stage of police investigations begetting a generally stated response.
[155] Nor do I accept that the question which elicited the s 140 admission ('Is there anything else that you want to say at the present time in relation to why you are here?') was a question intended to elicit a response to the charge on which the accused was arrested. I accept SC de Graaff's evidence that he did not intend it that way, and what he intended by the question was to see if he could facilitate anything for the accused, such as explaining the process after arrest or the reason for it. It is clear from SC de Graaff's response to the s 140 admission that he was not expecting the accused to make any kind of admission - he ended the conversation immediately.
[156] The Defence argued that the question, so framed, invited a response to the charge. Clearly, the question could have been better framed as: 'Is there anything else you want to ask me at the present time in relation to why you are here?'. However, understood in the context of what preceded it, where the accused was told twice that he did not have to say anything unless he wanted to, and was told once that whatever he said could be given in evidence, the framing of the question does not make the use of the s 140 admission unfair. That is particularly so when the accused had already been cautioned, twice, earlier that night at the time of his arrest.
[157] The Defence argued that the fact that the accused said he had no one to be contacted was a matter that gave rise to unfairness because no steps were taken to probe that further and investigate whether there was actually someone that the accused could have contacted to inform them of his whereabouts.
[158] I do not accept that it would be unacceptable having regard to contemporary community standards of fairness to admit the s 140 admission when the accused was twice asked if he wanted a family member or friend to be contacted and he said he had no family 'here' and was by himself. There were no support service providers available to the accused who could have been contacted. The Defence said the accused had been drinking at the bar that day, and he had been drinking with his friend CH at his home before the Police arrived, so he did have friends that he could have called. The availability of those persons to the accused was something the Defence argued should have been probed or investigated by the Police. I disagree. For reasons known only to him, the accused chose not to identify such a person to be contacted. That was a matter for him.
[159] The Defence argued that the fact the accused was not offered a lawyer was also a matter contributing to unfairness. The Defence acknowledged that the accused was not entitled to speak to a lawyer, and there were no procedures in place for him to speak to a duty lawyer like there are for Aboriginal people. It was said that this disadvantage, coupled with his intoxication, meant Police were required to be 'exemplary' in their interactions with the accused, and SC de Graaff's question to the accused was not.
[160] I do not accept the proposition that any interaction less than 'exemplary' with a suspect who is unable to access a lawyer and who may be affected by alcohol renders any admission made by the suspect after a caution inadmissible under s 90 of the Evidence Act.
[161] Nor do I accept the submission that it would be unacceptable having regard to contemporary community standards of fairness to admit the s 140 admission made in response to SC de Graaff's question in all of the circumstances in which the s 140 admission was made, including all of the particular circumstances relied on by the Defence.
[162] Consequently, I do not accept that the Defence has established that it would be unfair to the accused within s 90 of the Evidence Act to admit the s 140 admission.
[163] The Defence argued that the accused's answer in the EROI to the question: 'Are you currently under the influence of alcohol or drugs?', which was: 'I don't think I am... I think I might have sobered up. I don't know', raised the possibility that he was still feeling the effects of intoxication. I have already decided that by the time of the EROI, the accused did not have any blood alcohol content and was not affected by alcohol. I therefore reject the Defence submission that the accused's response to DSC Lynden's observation that the accused looked sober to her, namely: 'Well, you see, I normally start at 8.00 in the morning, go through to 1.00 in the morning', was the accused informing DSC Lynden that a heavy drinker who is intoxicated can appear sober, an awareness held by most heavy drinkers which I could take judicial notice about.
[164] The Defence argued that the accused's alcohol withdrawal symptoms were a factor contributing to the unfairness of the admission of the EROI. It was argued that the accused appeared uncomfortable and said so throughout the EROI. These submissions have no foundation. The expert evidence is that the accused's alcohol withdrawal symptoms were mild at 11.00am, he was appropriately administered various medications to address those symptoms, and those medications reverted the accused 'back to his usual status quo'. After the EROI his alcohol withdrawal symptoms were mild, but less than before the medications, and he said to RN Nesvinga that he was 'feeling better'. My observation of the accused during the EROI does not reveal any indication that the accused was, during the EROI, uncomfortable. The accused said nothing like that during the EROI. Indeed, when he was asked if he is feeling okay and wants to continue, he said that he was and did.
[165] The Defence argued that DSC Lynden 'made light' of the accused's alcohol withdrawal symptoms by saying the nurse had given him medication to settle his stomach. That submission is unsustainable when the accused had earlier told DSC Lynden that he could not keep breakfast down and had diarrhea and one of the medications administered by RN Nesvinga was an anti-nausea medication.
[166] The Defence argued that DSC Lynden's question: 'So despite having those medications on board, do you feel that you are coherent enough to continue talking with us', which the accused answered affirmatively, was a confusing question for the accused. I reject that submission. The accused answered it clearly and confidently. He clearly understood it.
[167] The Defence argued that, in administering the caution, DSC Lynden 'made light of' the implications of participating in the EROI by saying that a Judge hearing the EROI might, if they did not find him guilty, free him. This was said to be a 'subtle inducement' to participate in the EROI. That submission is also without foundation. That statement by DSC Lynden immediately followed her explanation that a judge hearing the EROI and deeming it 'weighted towards being guilty' could convict him and punish him. It also followed the accused confirming his understanding that a judge hearing the EROI may decide to impose imprisonment or probation or whatever, depending on the seriousness of the charge. More importantly, the accused had already agreed to participate in the EROI when he spoke to DSC Lynden before the EROI commenced. This comment cannot have been any inducement to participate.
[168] These matters show that the accused was patently aware of the seriousness of the allegations against him. Further, any reasonable person in his position would be well-aware that allegations of sexual offending against a child are extremely serious. Despite his lack of criminal history or experience with Police, not only did he expressly state his awareness that he could be imprisoned if found guilty, he was able to articulate that the degree of punishment would depend upon the seriousness of the charge. This case is nothing like the circumstances in The Queen v Lawrence which led to the exclusion of the two recorded interviews.
[169] True it is that the accused had not spoken to a friend or relative, but he did not identify any friend or relative to be called, despite being given numerous opportunities (both in the s 140 conversation and at the outset of the EROI). Consistent with my findings about s 137 above, that cannot be a basis, in the circumstances of this case, upon which to find that the use of the evidence would be unfair.
[170] Similarly, he had not been provided with an opportunity to obtain legal advice, but he clearly understood the effect of the caution, his right to silence, and the possible serious consequences for him if he did choose to speak.
[171] The Defence also argued that there was some unfairness because a 'proper s 140 caution' was not administered to the accused before the EROI commenced. Again, this submission is without foundation. The accused had been cautioned twice at the time of his arrest, once when processed into custody at the Watch House (referring twice to his right to silence), once by DSC Lynden when she asked him if he would like to do an EROI that morning and again at the outset of the EROI. The submission was that the failure to administer another 'full caution' before the EROI commenced makes or contributes to it being unacceptable having regard to contemporary community standards of fairness to admit the EROI is untenable.
[172] Nor do I accept the submission that it would be unacceptable having regard to contemporary community standards of fairness to admit the EROI in all of the circumstances in which the EROI admissions were made, including all of the particular circumstances relied on by the Defence.
[173] Consequently, I do not accept that the Defence has established that it would be unfair to the accused within s 90 of the Evidence Act to admit the EROI admissions.
EROI admissions after 33 minutes - improperly obtained or unfair: ss 138 and 90
[174] The Defence argued that, if the EROI is admissible and not excluded for the reasons referred to above, it should be considered inadmissible or excluded essentially from the admissions referred to in paragraph [67](e) and onwards. The reason for this was because it was argued that the questions in the form: 'Do you recall...' were contrary to the Police General Order which prohibits cross-examination and were, consequently, evidence obtained in consequence of an impropriety within s 138 of the Evidence Act. Alternatively, it was argued that it would be unfair to the accused to use his answers to those questions within s 90 of the Evidence Act.
[175] Section 138(1) of the Evidence Act provides that evidence that was obtained (relevantly) improperly or in consequence of an impropriety is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way the evidence was obtained.
[176] The Evidence Act does not contain a general or specific definition of 'impropriety'. In this context, the method or conduct in issue will only be 'improper' in the relevant sense if it is clearly inconsistent with the minimum standards which society should expect and require of law enforcement officers.[109]
[177] It is well-established that a breach of a Police General Order can comprise an impropriety within s 138 of the Evidence Act.[110]
[178] Provision 4.8 of Police General Order Q1 provides as follows:
There is no objection to a person being shown confessional material given by a third person concerning the offence of which the former is suspected, or jointly suspected. That person can be given the opportunity to respond to this material, provided that the member first cautions the person that he/she need not reply to any of the information contained in the material. That person may be invited to reply to any allegations concerning them and asked if they did the things alleged, but the person 'is not to be cross-examined'.
[179] The Defence relied on the italicised words to impugn the questions asked by DSC Lynden which were prefaced with the words: 'Do you recall' or similar. This was said to be cross-examination contrary to paragraph 4.8.
[180] The first point in response is that paragraph 4.8 has nothing to do with putting the allegations made by a complainant to a suspect, which is what DSC Lynden was doing. Paragraph 4.8 relates to a person 'being shown confessional material' given by a third person. It is clear from paragraph 4.1 of the Order (and other paragraphs) that 'confessional material' as used in that Order means material comprising admissions made by a person against that person's interests.
[181] It must follow that I do not accept that the questioning of the accused in the EROI after 33 minutes was in breach of paragraph 4.8 of Police General Order Q1. The accused's answers in response to those questions were not obtained in consequence of an impropriety within s 138 of the Evidence Act.
[182] The second point is that to ask a suspect if they recall doing something is not a leading question, at least as that term is defined in the Evidence Act. The Dictionary defines that term to mean a question that: (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute and as to the existence of which the witness has not given evidence before the question is asked.
[183] The 'do you recall' questions did not suggest 'a particular answer' to the accused. Further, the use of the 'do you recall' questioning arose in the EROI because the accused said that his memory of the evening ended after he urinated and the complainant asked to touch his penis. He repeatedly stated that he could not recall what happened after that time. In that context, the questioning officer put the details of the complainant's allegations to the accused in questions asking about his recall.
[184] Nor do I accept that the questions in the impugned form 'corralled' the accused's answers by giving him 'an easy answer', namely 'yes' or 'no', and led him to 'incriminate himself' by saying he does not remember instead of giving him the opportunity to give a full response to the particular allegations.
[185] None of the accused's answers to the questions framed this way elicited admissions. The Crown does not seek to rely on any of the answers to these 'do you recall?' questions as admissions (but may rely on them for the purposes of assessment of his credibility).
[186] Further, the accused was well capable of giving whatever answer he thought appropriate to the questions during the EROI. He said during the EROI multiple times that he did not recall anything beyond a certain point, being the point shortly before which the conduct the subject of the particular allegations was said to have commenced. He reiterated his lack of memory at the end of the EROI, in response to an open question. The likely inference is that, even if the questions had been put to him in a different form, he would have said that he did not remember.
[187] The Defence referred to the decision of Blokland J in The King v Poudel.[111] In that case, her Honour excluded a recorded interview given by the accused in that case for a combination of reasons, namely (at [63]) that the interview was conducted while the accused was tired, he had the additional cognitive burden of not conversing in his first or even second language and the interview was very long and conducted to the point where the accused said he felt like he was going to pass out. Her Honour added that if wrong about that conclusion, she would have excluded those parts of the interview after it recommenced because the questioning from that time was in the form of cross-examination 'or at least deeply probing questions' which illustrated a degree of oppression that contributed to its unreliability. These factors were said (at [64]) to make it likely that the truth of any admissions was adversely affected. In addition (at [66]), the accused had asked to have a support person present at the start of the interview, and that could have been, but was not, facilitated and the interview proceeded. Because of these matters and the accused being a person for whom English was not his first language, her Honour held (at [67]) that it was not in the interests of justice to admit the interview.
[188] This case bears no similarity to the case of Poudel.
[189] Consequently, I do not accept that the Defence has established that it would be unfair to the accused within s 90 of the Evidence Act to admit the remainder of the EROI after 33 minutes.
[190] Further, the proposal that part of the EROI be excluded, where the EROI contains both inculpatory and exculpatory statements, appears to be inconsistent with the decision of the High Court in Nguyen, where the Court held (at [27]):
It is well settled that if the prosecution seeks to rely upon an out-of-court admission or other incriminating statement the whole statement made by the accused must be put before the jury including those hearsay statements by which the accused tried to exculpate himself or herself. This practice is not to be confused with questions of admissibility, although the two may share a common rationale. The practice may be understood to reflect the fundamental obligation ... that the prosecution put its case fully and fairly. The prosecution may not 'pick and choose' between statements which it says bear out its case and those which do not. [citations omitted]
[191] For the above reasons, I make the following rulings.
(1) The s 140 admission, that is, the admission made by the accused to Police in the s 140 conversation at the Watch House, is admissible as relationship evidence and may be relied upon by the Crown at the trial as described in these reasons.
(2) The alleged admissions made by the accused to Police in the EROI are admissible and may be relied upon by the Crown at the trial as described in these reasons.
----------------------
[1] Transcript, pp8-9, SC de Graaff.
[2] Statutory Declaration of SC de Graaff made on 18 December 2023 ('Ex P1'), [3], [5].
[4] Statutory Declaration of DSC Spencer made on 19 December 2023 ('Ex P8'), [8].
[14] Ex P2; Transcript, p 7, SC de Graaff.
[15] Ex P2; Transcript, p 11, SC de Graaff.
[16] Report of Forensic Physician Dr Angela Sungaila ('Ex P9'), [23]; Transcript, p 40, Dr Sungaila.
[17] Transcript, p 11, SC de Graaff.
[18] BWF of SC de Graaff at the Watch House ('Ex P3').
Section 140 of the PAA provides that, before any questioning or investigation under s 137(2) commences, the investigating member must inform the person in custody that the person: (a) does not have to say anything but that anything the person does say or do may be given in evidence; and (b) may communicate with or attempt to communicate with a friend or relative to inform them of the person's whereabouts and, save in circumstances not presently applicable, the investigating member must defer any questioning or investigation that involves the direct participation of the person for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable them to make or attempt to make the communication.
[23] Transcript, p 13, SC de Graaff.
[24] Transcript, pp 8, 13, SC de Graaff.
[25] Transcript, pp 8, 13, SC de Graaff.
[26] Transcript, pp 13-14, SC de Graaff.
[27] Transcript, p 14, SC de Graaff.
[28] Transcript, p 14, SC de Graaff.
[29] Transcript, p 42, Dr Sungaila.
[30] Transcript, p 43, Dr Sungaila.
[31] Transcript, p 47, Dr Sungaila.
[32] Transcript, p 51, Dr Sungaila.
[33] Transcript, p 49, Dr Sungaila.
[34] Transcript, p 54, Dr Sungaila.
[35] Statutory Declaration of Zvanyadza Nesvinga made on 31 March 2025 ('Ex P7'), [6].
[37] Statutory Declaration of DSC Jacqueline Lynden made on 14 April 2025 ('Ex P4'), [6]; BWF of DSC Lynden on 19 December 2023 ('Ex P5').
[41] Ex P7, [7]; Ex P4, [7]; Transcript, p 18; DSC Lynden; Transcript, p 34, RN Nesvinga.
[43] Transcript, p 44, Dr Sungaila.
[44] Ex P9, [36]; Transcript, p 44, Dr Sungaila.
[45] Ex P9, [29]; Transcript, p 42, Dr Sungaila.
[46] Transcript, p 44, Dr Sungaila.
[47] Ex P7, [8]-[9], Annexure ZN01, p 5; Transcript, p 35, RN Nesvinga.
[48] Ex P9, [21]; Transcript, p 45, Dr Sungaila.
[49] Ex P9, [21]; Transcript, p 45, Dr Sungaila.
[50] Ex P9, [18]; Transcript, p 45, Dr Sungaila.
[51] Ex P9, [33], [36]; Transcript, pp 46-47, Dr Sungaila.
[52] Ex P4, [8]; Transcript, p 18, DSC Lynden.
[53] Transcript, pp 37-38, RN Nesvinga.
[54] Ex P5, Annexure JKL01; Transcript, p 26, DSC Lynden.
[57] Ex P4, [9]; BWF of DSC Lynden ('Ex P5').
[59] Ex P9, [6]; Transcript, p 41, Dr Sungaila.
[60] Ex P9, [6]; Transcript, p 41, Dr Sungaila.
[61] Transcript, p 41, Dr Sungaila.
[62] Transcript, p 43, Dr Sungaila.
[63] Transcript, p 41, Dr Sungaila.
[64] Transcript, p 42, Dr Sungaila.
[65] Transcript, p 42, Dr Sungaila.
[66] Transcript, p 42, Dr Sungaila.
[67] Transcript, p 44, Dr Sungaila.
[68] Transcript, p 49, Dr Sungaila.
[69] Transcript, p 48, Dr Sungaila.
[70] Transcript, pp 50-51, Dr Sungaila.
[74] Ex P9, [40]; Transcript, pp 46-47, Dr Sungaila.
[75] Transcript, pp 19-21, DSC Lynden.
[78] Ex P7, [11]; Transcript, p 35, RN Nesvinga.
[81] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 19th ed, 2020) [EA.81.60].
[82] Citing The Queen v W [1999] NSWCCA 116 at [39]- [41] per Wood CJ at CL (Barr and James JJ agreeing). See also The Queen v Visagie [2021] NTSC 73 at [12]- [14] per Brownhill J.
[83] See Australian Law Reform Commission, Evidence (Interim) Report (Report 26, Vol 1) [755], extracted in Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 19th ed, 2020) [EA.81.240].
[84] (2020) 94 ALJR 686 per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ.
[85] See Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769; (2009) 258 ALR 598 at [48], [50] and [54] per Barrett J.
[86] The Queen v Downs [2019] NTSC 7 ('Downs') at [29] per Grant CJ.
[88] Ibid at [30], citing The Queen v GP [2015] NTSC 53 at [30].
[90] 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).
[91] The King v Choolum [2022] NTSC 85 at [108]- [110].
[93] Being the issue for admissibility of admissions under the common law.
[96] Evidence Act, s 3, Dictionary, Part 1.
[97] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 ('Hughes') at [16] per Kiefel CJ, Bell, Keane and Edelman JJ.
[98] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [46] per French CJ, Kiefel, Bell and Keane JJ ('IMM').
[99] BD v The Queen [2017] NTCCA 2 at [84] per Grant CJ, Kelly and Barr JJ.
[100] IMM at [51]-[52], [54]; The Queen v Bauer (2018) 266 CLR 56 at [69].
[101] IMM at [38]-[39], [41], [58].
[102] See Kerridge v The Queen [2025] NTCCA 6 at [68] per the Court.
[103] Choudhary v Director of Public Prosecutions [2013] VSCA 325.
[104] The Queen v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501.
[105] See Choudhary v Director of Public Prosecutions at [56].
[106] The Queen v Layt [2018] NTSC 36 at [58], [61]-[62] per Grant CJ; The Queen v Jennings [2020] NTSC 71 at [12]- [14] per Grant CJ.
[107] The Queen v Lawrence [2016] NTSC 65.
[108] The Queen v Suckling [1999] NSWCCA 36 at [40]- [41] per McInerney, Ireland and Adams JJ.
[109] Mole v Prior (2016) 36 NTLR 171 at [30] per Riley CJ, Kelly and Hiley JJ, citing Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546 at [23] per Basten JA (Barr J agreeing).
[110] See, for example, The Queen v Bonson [2019] NTSC 22.
[111] The King v Poudel [2024] NTSC 108.
The King
RM [2025] NTSC 85
(2017) 263 CLR 338
(2016) 257 CLR 300
(2016) 36 NTLR 171
(1998) 45 NSWLR 442
(2020) 94 ALJR 686
(2009) 258 ALR 598
(1978) 18 SASR 188
(2018) 266 CLR 56