The Queen v Darren Anthony Ashley

• Jurisdiction: Northern Territory
• Judge: Blokland J
• Judgment Date: 03 July 2014
• Neutral Citation: [2014] NTSC 26
• Docket Number: FILE NO: 21218788
• Date: 03 July 2014
• Court: Supreme Court

[2014] NTSC 26

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT ALICE SPRINGS

Judgment of:

Blokland J

FILE NO: 21218788

Between:

The Queen

and

Darren Anthony Ashley

Accused

REPRESENTATION:

Counsel:

Prosecution: D Morters

Accused: A Elliott

R v Crisologo (1997) 99 A Crim R 178 ; R v Parkes (2003) 147 A Crim R 450; Dupas v The Queen (2010) 241 CLR 237; Webb v The Queen [1993–1994] 181 CLR 41; Smith v The State of Western Australia [2014] HCA 3, (12 February 2014), referred to.

Evidence (National Uniform Legislation) Act (NT) 2011, ss 59, 65, 66.

EVIDENCE — Hearsay — Exception to hearsay rule — ‘available to give evidence’ — exculpatory statements by accused.

JURIES — jurors note — application to discharge jury — reasonable apprehension of bias — jury directed — jury not discharged.

REASONS FOR RULINGS

(Published 3 July 2014)

Introduction

1 These are the reasons for two rulings given during the course of a trial in Alice Springs. Reasons for pre-trial rulings unrelated to these issues were published on 24 April 2014. 1

2 These issues arose when the accused was on trial for the murder of Kirsty Ashley.

(i) The Admissibility of Certain Exculpatory Statements made by the Accused to other witnesses to be called by the Crown

3 Some brief history is required to understand the context of this ruling. When the accused was interviewed by police on 15 May 2012, in short, as

well as denying his own involvement, he told police of his belief that one Kim Christenson or bikies associated with Kim Christenson were the deceased's likely killers. He also spoke of the threat to his own life from those same persons, and of suspicious incidents involving unknown persons at his block at Lillicrap Road, Ilparpa.

4 References were made by some witnesses to Kim Christenson in their evidence during the course of the trial. For example, Heather Steadman and Arial Ashley were asked about whether either of them had heard the deceased speak of Kim Christenson. Justin Rennie was asked about whether he knew of Kim Christenson or whether he knew if the accused knew of him.

5 The Crown sought to exclude a portion of the evidence of three witnesses about what the accused had told them about persons behaving suspiciously around him. The Crown submitted this was inadmissible hearsay or was in contravention of the rule excluding credibility evidence about a witness. 2 The evidence, if accepted, was potentially exculpatory and relevant to an aspect of the defence case. The subject evidence was contained in the Crown's disclosed brief.

6 Those portions of evidence objected to were as follows:

(a) Statements by Jaryn Ashley contained in the Child Forensic Interview dated 15 May 2012 when Jaryn Ashley told police: 3

Ah, there was something weird that happened a few weeks ago, my dad told me, exactly what happened.

He was in the shower and he heard somebody come into the demountable, while he was in the shower and the shower like you can hear it really loud. He just thought it was me but he came over to the caravan and I was still asleep so he went looking and there was no one there. So someone walked in there while I was asleep and he was in the shower.

Um … not sure how long ago that was. Maybe a week.

Nah, he's had some trouble with his brother before, but that's all resolved now, so.

(b) The following part of Jacinta Ashley's statement to police of 15 May 2012:

Dad was also sounding like he was being quite paranoid. He told me that on the night he left he was in the shower and heard loud footsteps in his house which had worried him.

(c) The following part of David Wallace's statement to police of 15 May 2012:

During one of the phone calls with Darren he told me that he was threatened by a biker looking fella with a gun. He said a car arrived and there were a few people in it but only one got out threatening him. He said that he thinks that Kim, I am not sure of his surname, sent this bloke to threaten him. Kim is an ex-partner of Darren's younger sister and is in a bike group either the Descendants or the Comancheros motor cycle club.

7 Clearly this evidence to be given by these three witnesses is hearsay within the definition of s 59 UEA as the statements amount to previous representations communicated by the accused to the respective witnesses and would be used to prove the existence of the facts asserted. The focus of the argument at trial was whether these statements fell within an exception to the rule prohibiting hearsay.

8 The exception to the hearsay rule in s 65 UEA in criminal proceedings may be enlivened if the maker of a previous representation, here the accused, is ‘not available’. The exception to the hearsay rule in s 66 UEA in criminal proceedings may be enlivened if the maker (1) ‘is available to give evidence’ and (2) ‘has been or is to be called’ to give evidence. Both sections provide that additional requirements be met before hearsay can...