The Queen v Nudjulu [2020] NTSC 54

Hughes v the Queen [2017] HCA 20; (2017) 263 CLR 338, IMM v The Queen (2016) 257 CLR 300,

R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21, R v El-Azzi [2004] NSWCCA 455, R v Smiler (No 2) [2017] NTSC 31, referred to

Stephen Odgers, Uniform Evidence Law (2016, Thomson Reuters, 12th ed)

Crown: Office of the Director of Public Prosecutions

Accused: North Australian Aboriginal Justice Agency

The Queen v Nudjulu [2020] NTSC 54

[1] The accused was charged with two counts of causing serious harm and one count of aggravated assault arising out of an altercation which occurred at a party at 53 Schombacher Circuit, Moulden, on 8 December 2018. The accused's defence at trial was that he was acting in self-defence. The jury returned verdicts of not guilty on each count.

[2] The trial commenced on Monday, 10 August 2020. The Crown case was that the accused attended the party with Stephen Bunduck, Sonya Singh and Jade Spicer, Sonya Singh's then partner, who had driven them in from Wadeye that day. They arrived at the address at around 4 pm. The accused did not speak much English. His first language was Murrinh-patha. Sonya Singh understood a little of that language but not enough to speak it. Stephen Bunduck's first language was also Murrinh-patha and his English was poor. A large number of other people were at the party. They were all members of the Singh family. All spoke reasonably good English. During the course of the evening the accused became very intoxicated and was behaving strangely and talking in language. Sonya Singh spoke to the accused asking him to be quiet and sit down. Her son Wayne Singh then walked over to the accused, and on one version of the evidence, spoke to the accused in a quiet voice, attempting to calm the accused down. On the Crown case as opened, an argument then erupted between them and they traded punches resulting in them both falling down. Whilst on the ground, the accused lunged at Wayne Singh with a knife severing tendons in his foot. Others then got involved during the course of which Stephen Bunduck was also stabbed by the accused and Samantha Singh's pants were torn by the knife. She also suffered a minor scratch from the knife to her thigh.

[3] The defence case was that the fight was started by Wayne Singh who punched the accused in the face and knocked him to the ground, and that in order to defend himself from Wayne Singh, and from Stephen Bunduck who struck him to the top of his head with his hand, and from others who had intervened and were threatening him with objects such as chairs and a broomstick handle, the accused used the knife in self-defence. It was part of the defence case that Wayne Singh was angered by the behaviour of the accused which showed disrespect towards Sonya Singh and the guests at the party who were there to celebrate Wayne Singh's son's birthday.

[4] On the first day of trial, counsel for the accused indicated that he intended to cross-examine Wayne Singh on his prior convictions for violence as going to his character, and I warned him that if he did that, he risked the possibility, should his client give evidence, of the Crown being able to cross-examine the accused and to call evidence as to his bad character as well. The issue was left until the following morning for a ruling under s.192A of the Evidence (National Uniform Legislation) Act 2011(the Act).

[5] The following morning, before the Court resumed, I caused to be emailed to counsel references to s. 104 (4) (a) and (b) of the Act and to the decision of the Court of Criminal Appeal of New South Wales in R v El-Azzi [1] anticipating that I would be asked to rule on whether, if the accused gave evidence, the Crown would be given leave to cross-examine the accused about his character. Instead, counsel for the accused sought to argue that he could cross-examine Mr Singh on his prior convictions as "disposition evidence", relying on the decision of Kelly J in R v Smiler (No 2) [2] and R v Cakovski[3], a decision of the Court of Criminal Appeal of New South Wales. After some debate about that possibility wherein I questioned whether the circumstances of this case would have permitted that course in the absence of a tendency notice bearing in mind that the accused was a total stranger to Mr Singh and knew nothing of his history for violence, counsel abandoned that argument and instead indicated that he would file a tendency notice later that day and seek a ruling on that question the following day. Counsel agreed that if Mr Singh's evidence was completed that day before I could rule on the tendency notice issue, he would be re-called later if necessary.

[6] The tendency notice was provided late on 11 August, and for various reasons I was not asked to rule on it until 13 August, which by this time was the fourth day of the trial.

[7] The tendency notice provided that the tendencies sought to be proved were, firstly, a tendency by Wayne Singh to act in a particular way, namely to initiate physical violence towards a person in the context of an argument, with violence directed towards the person's upper body (including head); and secondly, to have a particular state of mind, namely to readily anger and develop feelings of aggression in response to perceived slights or signs of disrespect. The conduct relied upon in support of the tendency notice was based upon a conviction for aggravated assault on 7 February 2020, five convictions for aggravated assault on 8 February 2016, and a conviction for unlawfully causing serious harm on the same date. The tendency notice stated that the evidence related to the following facts in issue in this case, namely whether Wayne Singh or the accused initiated the physical altercation and whether the accused was acting in self-defence when he stabbed Wayne Singh with the knife.

[8] The convictions on 8 February 2016 were for five counts of aggravated assault which related to events which occurred on 9 January 2015, 3 February 2015,

25 March 2015, and 14 May 2015. The conviction for causing serious harm on 8 February 2016 also related to the events on 14 May 2015. The principal victim in those cases was his then partner Ms C. Two of the aggravated assaults related to two female witnesses who tried to intervene in relation to the serious harm on 14 May 2015. Each of the attacks on Ms C involved striking Ms C to the face or head, sometimes using punches, kicks, or objects such as a chair, walking stick or a brick. The assaults on the other two women involved being grabbed around the throat and thrown to the ground, shoved up against a wall and threatened with a chair. Except for the assault on 25 March 2015, Mr Singh was intoxicated on each occasion.

[9] The conviction for aggravated assault on 7 February 2020 related to an assault on his partner Ms K. It again involved punches to the head and face.

[10] Except for the assaults on the two women who intervened on 14 May 2015, and the assault on 9 January 2015, the motive for the assaults related to feelings of jealousy over whether the victim was being unfaithful to him. The assault on 9 January 2015 related to his desire to obtain cannabis. All of these offences took place in a domestic relationship setting following an argument with the principal victim.

[11] Following the hearing of submissions from counsel, I ruled that the evidence was admissible as tendency evidence for the purposes contained in the tendency notice. I said that I would publish my reasons at a later time. These are my reasons.

[12] The first question is whether the proposed evidence is relevant. I was of the opinion that it was relevant to the facts in issue. No submission was made to the contrary.

[13] The second question is whether the evidence, if accepted by the jury, had significant probative value. As was pointed out in Hughes v the Queen[4] this involves consideration of two inter-related but separate matters. The first is the extent to which the evidence supports the tendency or tendencies alleged. In my opinion the evidence does support the tendencies alleged, perhaps more strongly with the first tendency than the second. But it also supports the second tendency because it could well be said that feelings of anger arising from jealousy over real or imagined infidelity by the victim is a "perceived slight or sign of disrespect", so far as Mr Singh is concerned which resulted in anger and aggression towards his victims. Similarly, it could be said that the anger and aggression directed towards the victims who attempted to intervene showed disrespect to Mr Singh, at least in his mind, because they were interfering in a matter which did not concern them.

[14] The second inter-related issue is the extent to which the tendency makes it more likely that the accused was the first person to initiate the physical violence and whether the accused was acting in self-defence.

[15] The dictionary to the Act does not define "significant probative value", although there is a definition of "probative value" which is defined to mean:

"the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue". I was referred to The Queen v Smiler (No 2)[5] where Kelly J said:

"Significant" probative value must mean something more than bare relevance, but it does not have to be as high as "substantial" probative value. It has been said to mean evidence that is "important" or "of consequence."

It needs to be borne in mind that the Crown bears the legal onus of proof on all issues negating self-defence. The accused need only point to a reasonable possibility that he was acting in self-defence and submit that the Crown has not eliminated that possibility. Very little may be required for evidence to 'significant" or "of consequence" in pointing only to a reasonable possibility that the accused may be acting in self-defence.

[16] Counsel for the Crown's submission started with the fact that the accused knew nothing of the previous history of Mr Singh who was a perfect stranger to him, and therefore cannot be relevant to the accused's state of mind. However, if the opposite had been the case, no tendency notice would have been required[6].

[17] Secondly it was submitted that the defence had inaccurately characterised the tendency, and what it really showed was a tendency to engage in violence towards his domestic partners and female family members and to possess a jealous and controlling state of mind towards his female partners. Whilst I agree that the previous convictions show those tendencies as well, I do not accept that the evidence is incapable of showing the tendencies relied upon by the defence. It was put that there were other differences, such as the fact that weapons were used, that the offending took place in a domestic setting, that in each case the victim was a female, and in most cases his female partner. It was submitted that that significantly reduced the probative value of the proposed evidence to the extent that its probative value at best was only slight. However, the jury and I were able to see that Mr Singh was a large, powerfully built man, much bigger than the slender frame of the accused. It is not difficult to see how he might use his propensities in a case such as this against a much smaller person. So far as the domestic setting of the violence was concerned, this happened at a supposed party for Mr Singh's son, it was alleged that he was upset at the accused for his behaviour at his son's party and for his disrespect towards himself and his mother, Sonya Singh, and it happened at 53 Schombacher Circuit, Moulden, where his mother and his sister Cheyanne Singh, were living. In all the circumstances, despite the generality of the tendency alleged, I considered that the evidence had significant probative value in the circumstances.

[18] The next question is whether I should exclude the evidence because its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Crown: see s 135 (a) of the Act. It was submitted by counsel for the Crown that because the probative value of the evidence was very low, or next to nothing, admission of the evidence should be excluded because of the risk that the evidence would engage the jury in emotive or irrational reasoning that he was a bad man in the past and got what he deserved. It was put that the offending history was likely to induce in the jury a feeling of revulsion or distaste towards him that would create a high risk that, notwithstanding any directions I might give, the jury would engage in improper reasoning. This was particularly so, so it was put, because the accused had used weapons on his former partners in the past.

[19] It was put by counsel for the accused that even in cases where evidence of previous sexual offences are alleged against an accused in cases brought by the Crown for another alleged sexual offence, and where juries are likely to be particularly revolted, the courts have long accepted that juries, if properly directed by the trial judge, can be expected to put those feelings aside and to use the evidence only for the purpose for which it has been admitted. There are differences between cases of that kind and the present. In cases where the evidence is sought to be led by the Crown, the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant: see s 101 (2) of the Act. In cases where s135 applies, as in this case, the unfair prejudice must substantially outweigh the probative value of the evidence, which is an entirely different thing. In any event, I agree with defence counsel's submission that any unfair prejudice to the Crown can be alleviated by the giving of a proper direction to the jury, and if so, then any possible remaining unfair prejudice would not outweigh the probative value of the evidence.

[20] Finally, objection by the Crown was taken to the late giving of the tendency notice. Section 97 (1) (a) of the Act requires a party seeking to rely on tendency evidence to give reasonable notice to the other party. Counsel for the accused submitted that reasonable notice had been given in the circumstances. It was put that the material being relied upon was in the Crown's possession prior to making the application. Further, it was put that the Crown were on notice that the defence were intending to rely on the complainant's prior convictions before the trial started. What happened was that on 28 July 2020, the defence sought disclosure of the antecedents of the three principal Crown witnesses, including Mr Singh. No indication was then given as to what use was intended to be put to this material. Copies of their antecedents were provided the same day. On 5 August 2020, an email was sent by the accused's solicitors to the Sheriff and copied to the Crown's solicitors, requesting the facts from Mr Singh's Supreme Court matter, ie the offending dealt with in relation to the offences in 2015. Counsel for the Crown immediately sought to access that information but was told by his staff on 7 August that the relevant documents were archived off site. The email sent on Wednesday, 5 August 2020 stated that during the trial [due to commence on Monday, 10 August], the defence anticipated that it would cross-examine the complainant, Wayne Singh about his prior convictions for violent offences. Counsel for the Crown obtained the facts of the offending by the afternoon of Friday, 7 August. So it was put, the Crown were on notice of that fact by 5 August 2020. Alternatively, if I were to find that no reasonable notice had been given, counsel sought an order dispensing with notice pursuant to s 100 (1) of the Act.

[21] However, the fact is that no notice was given until late on 11 August 2020, by which time the trial had lasted 2 days. It was only then that the relevant tendencies were articulated in relation to the relevant facts in issue. Although the Crown were on notice that the defence wished to cross-examine Mr Singh on his previous convictions, the Crown were not to know how this evidence was intended to be used or the basis for the admissibility of the evidence until the notice was delivered, or at the earliest, on the morning of 11 August 2020 when counsel for the accused advised the Court that he intended to serve a tendency notice.

[22] I was not referred to any authorities as to what is meant by "reasonable" notice. In my opinion what is reasonable depends on the circumstances of the case, and whether there is any prejudice suffered by the party receiving the notice at the time it was received. In general, it is not to be assumed that counsel, even for the Crown, can respond adequately to a late tendency notice once a trial has commenced. Usually counsel has an instructing solicitor who will be responsible for organising the witnesses and the like, but Counsel will still have to prepare for a number of matters that have to be attended to by him or her personally as each day of the trial passes. Trials are very time consuming and it is not unusual, in relatively straightforward cases, for trial counsel (as well as the trial Judge) to be working long hours outside of normal court hours. In this case, the admissibility of the tendency notice was not dealt with until 13 August 2020, the fourth day of the trial. As it happened, the trial was not disrupted by the Court having to deal with the admissibility issue due to the entirely unforeseen and fortuitous disappearance of the accused's interpreter. In fact, apart from dealing with the tendency notice, the trial was not able to resume until the afternoon of Friday, 14 August 2020 when the parties were able to reach agreement that the accused's mother, (who happened to be a fully qualified interpreter) could act in that capacity, all other attempts to find an interpreter having failed, despite the best efforts of the Aboriginal Interpreter Service. To that extent, some of the pressures on the Crown was off, although that was not to be known at the time. Also, the importance of the notice requirements is not confined to the other party. The Court has to make a rational decision about the evidence in order to rule on its admissibility, and this cannot be done adequately without proper notice.

[23] Of course, where late notice is given, it would be open to the other party to apply for an adjournment of the trial. No such application was made by counsel for the Crown, although he did ask for the issue to be adjourned to enable him time to properly prepare for it.

[24] In the end, I considered that reasonable notice had not been given, but that I should dispense with the requirement for reasonable notice under s 100 (1) of the Act. I considered that by the time the matter was ready to be argued, counsel for the Crown had had enough time to prepare his argument. He had had the material being relied upon by the defence for several days. A submission was made that granting a dispensation at this late stage would mean that evidence going to show that the inferences sought to be drawn by the Crown could not have been weakened by leading evidence from witnesses who had already been called and who were present at the time of the offences in 2015. I rejected that submission as the same submissions could be made to the jury based on the facts which the defence were relying upon, it being a question of submissions, rather than evidence. Alternatively, if I were wrong about that, the Crown could have obtained that information in re-examination of Mr Singh or recalled those witnesses. Another submission put was that the Crown would be forced to recall Mr Singh which would interfere with the way the Crown wished to present its case. I did not see any merit in that submission. In the end, I could see no real prejudice to the Crown in allowing the defence to rely on the notice notwithstanding that it was given late which would outweigh the prejudice to the defence case if the evidence was rejected.

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[1] [2004] NSWCCA 455.

[2] [2017] NTSC 31.

[3] [2004] NSWCCA 280; (2004) 149 A Crim R 21.

[4] [2017] HCA 20; 263 CLR 338 at [41].

[5] [2017] NTSC 31 at [15]- [16]. See also IMM v The Queen [2016] HCA 14; 257 CLR 300 at [40].

[6] R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21. See also the cases cited in Odgers, Uniform Evidence Law (2016, Thomson Reuters, 12th Ed) pp 726-729.