R v Kadibil [1999] WASC 67

Perich v The Queen, unreported; CCA SCt of WA; Library No 960557; 3 September 1996

Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998

R v Azar (1991) 56 A Crim R 414

R v Matthews (1990) 58 SASR 19

R v Williams (1992) 8 WAR 265

Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334

1 WHITE J: The accused is charged on indictment that on 14 June 1998 at Meekatharra he wilfully murdered Rochelle Clause. His trial was listed to take place before a jury at Geraldton on 1 February 1999, but will now be heard on 21 to 25 June 1999.

2 The accused objects to the admissibility of certain evidence which the Crown wishes to call on his trial and the matter comes before me on a directions hearing. The objection is concerned with two categories of evidence, namely, the statements by the deceased after she was injured and the conversation between the accused and the Police, after the conclusion of the video-taped interview in which the accused had said that he did not wish to make any statements to the Police without his lawyer being present. It is convenient to deal with the latter objection first which I upheld following argument at the hearing.

The admissibility of an admission not video-taped

3 In his deposition, Sgt Adams states that he was at the material time attached to the Meekatharra District Detectives Office as a Detective Senior Constable.

4 During the video-taped interview with the accused, Sgt Adams said, inter alia:

"Remember, you don't have to say anything unless you wish to do so, Jerry, but whatever you do say, Jerry, is going to be recorded on the video camera and in the microphone here. Okay? Whatever you say - - might not be right to say - - and can be used in evidence against you in a court at a later date with a judge or magistrate.

" ... So is - - basically, Jerry, you don't have to say anything to us if you don't want to."

5 The accused indicated that he wished to speak to a lawyer and did not want to continue with the interview.

6 After the video-taped interview to which I have referred, Sgt Adams escorted the accused to the observation cell and, when they arrived there, Sgt Adams said:

"I know you don't want to say anything, Jerry, but will you tell me where the knife is, we've got the blade we just can't find the handle."

7 Sgt Adams says that the accused paused and sat down and he then said:

8 Sgt Adams did not administer a further warning to the accused before putting that question to him. It is probable that the accused would have understood the warning given during the video-taped interview to be directed only to whatever might be said during that interview. The question was one which could readily have been asked during the video-taped interview and there is no indication that, had this been desired, the accused could not have been returned to the interview room and asked the question so that the question and answer could be taped.

9 Subsection 570D(2) of the Criminal Code provides:

"(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless -

(a) the evidence is a videotape on which is a recording of the admission; or

(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or

(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

10 Subsection (4) gives four, non-exhaustive, examples of matters falling within the meaning of "reasonable excuse" for the purposes of subs (2); none of which is available in the present circumstances.

11 None of the provisions of s 570D(2) was satisfied in the instant case. The question objected to was not recorded on a videotape, no reasonable excuse was offered for there not being a recording of the admission and there were no exceptional circumstances justifying the admission of the evidence. Accordingly, the effect of s 570D(2) of the Criminal Code is to render the evidence inadmissible.

12 For these reasons, I ruled that the objection be upheld and that the answer to the question which I have quoted above is inadmissible at the trial of the accused.

The admissibility of the deceased's statements after injury

13 The depositions show that several witnesses are prepared to depose to the statements made by the deceased after she sustained the injury which resulted in her death. These statements are prejudicial to the accused and the Crown seeks to have them admitted as part of the res gestae. The Crown, quite rightly, I think, does not seek to contend that they should be admitted as dying declarations by the deceased.

14 The accused objects to these statements being admitted into evidence, on two broad bases: he says that the statements objected to were neither spontaneous nor contemporaneous with the stabbing and are not, therefore, admissible as pars rei gestae. Alternatively, he submits, they should be excluded in the exercise of my discretion on the basis that their prejudicial effect outweighs their probative value.

15 The statements attributed to the deceased and objected to are conveniently gathered by the Crown in a schedule to its submissions and I reproduce it hereunder:

Statements made by the deceased after her injuries were sustained and prior to her death

'Rochelle yelled out "Help I've been stabbed" I heard her say that at least twice and she was running across the road holding onto her left side.'

'The female was yelling, he stabbed me, he stabbed call the police.'

'She was still saying he stabbed me, he stabbed me.

I can not exactly remember the following chain of events but at some stage I asked her who stabbed you and she said Jerry.

I then went back into the bar to make sure Angela had rang the police and she had.

I then turned to return to the front entrance and noticed that the female had entered the bar area and was sitting slumped at the bar with her right side leaning on the bar saying call the police, he stabbed me.'

'The entire time we were treating her she was saying he stabbed me, he stabbed me.

A short time later police officers Darryl Voisey and Brian Bird arrived.

I remember Darryl Voisey saying Rochelle who did this to you, Rochelle who did it?

I don't recall who said it but someone said it was Jerry.

'When she was lying down she was pointing to the Picture Gardens saying he stabbed me.'

She said, "Here". She clutched her left upper chest.'

She replied but I couldn't understand what she said.

She was mumbling and she said what I thought was "Cherry".

I said, "Stay still the doctor will be here soon".'

16 In relation to the statement deposed to by Maxine Anne Hill, counsel for the accused said that, although the medical evidence is such as to establish that the death was caused by a stab wound, which is not disputed, it will be in issue as to whether the deceased was stabbed by someone else or whether she inflicted the wound herself. For this reason, although it does not directly implicate the accused the statement is objected to by him.

17 Prima facie, each of the statements attributed to the deceased and set out in the aforegoing schedule is hearsay and, unless constituting pars rei gestae, is inadmissible.

18 "The doctrine of res gestae sanctions the admission into evidence of statements which accompany and explain actions and events because they are said to be part of the transaction" (per Owen J in R v Golightly (1996) 17 WAR 401 at 411.) In that matter, Owen J, having discussed relevant authorities, expressed the view that the law in Australia now follows the guiding principles enunciated by Lord Wilberforce in Ratten v The Queen [1972] AC 378. In this regard, Owen J said, at 411-412:

"In Ratten v R [1972] AC 378 at 389 the Privy Council explained that there are two main reasons why courts are cautious about admitting evidence of this nature. First, there may be uncertainty as to the exact words used because they are being transmitted through a person other than the speaker. Secondly, there is risk of fabrication or concoction by persons who have been victims of assault or accident. The first is essentially a matter of weight rather than admissibility, largely because the person testifying to the use of the words can be cross-examined. The second is described by their Lordships as 'an entirely valid reason for exclusion.'

Ratten (supra) concerned the conviction of a man for murdering his wife by shooting her. His defence was that the gun had discharged accidentally. There was evidence that the wife was alive and well at 1.12pm. At 1.15pm a telephone operator took a call from the accused's house in which a woman, whose voice was described as hysterical, asked for the police. The police were then contacted. The Judicial Committee held that the telephone operator's evidence was properly admitted a part of the res gestae. Lord Wilberforce said (at 389-91):

'[It] must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in the circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.

[The] authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused'."

In R v Andrews [1987] 1 AC 281, Lord Ackner said, at 300-301:

"My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as 'hearsay evidence?'

1. The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O'Neill and the appellant because, so he believed, O'Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error."

19 I am informed that the deceased had on many occasions mutilated herself - and the post-mortem report of Dr Cadden, which is included in the brief, gives support to that information. I am also told that there have been occasions when the deceased had made complaints against the accused, which complaints she had subsequently withdrawn - for whatever reason.

20 Counsel for the Crown urges upon me the submission that the statements are admissible as part of the res gestae as they were made with approximate if not exact contemporaneity with the event and give an assurance of non-concoction arising from the spontaneity of the statements or the involvement of the maker in the events. He cited Golightly (supra), Ratten (supra), Andrews (supra) and Cross on Evidence 5th Australian edition, paras 37050-37080. Counsel submitted that:

"3. The event namely the chest wound to the deceased was so unusual, startling and dramatic as to dominate the thoughts of the victim, so that her utterances were an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.

4. Between the happening of the event and her encounter with people she had no opportunity for reasoned reflection as that time was occupied with her hasty escape up the street yelling 'Help I've been stabbed' whilst holding onto her left side. Those circumstances were not conducive to a reasoned reflection and concoction.

5. Further from what she said to people it is clear that the event did dominate her thoughts. In fact all the words she spoke were directed at what had happened to her.

6. The involvement or the pressure of the event excludes the possibility of concoction or distortion.

7. The statements were made in conditions of approximate but not exact contemporaneity.

8. Although precise timing is difficult to ascertain the statements were made within minutes of the injuries being inflicted.

9. The statements fall into three broad categories:-

(b) statements made after contact with people at the hotel who provide assistance; and

(c) statements made after the arrival of the police.

10. Notwithstanding that some of the statements were made in answer to a question, the event which provided the trigger mechanism for the statement was still operative.

11. There is no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

12. The statements were not made by way of a narrative of a detached prior event so that the deceased was so disengaged from it as to be able to construct or adapt her account.

13. The deceased's grave medical condition at the time she made the statements further supports the proposition that the statements were made in such conditions of involvement or pressure so as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.

Dr C.P. Thelander PH XN 43-51 particularly 49-51 iXXN 51-54

21 The facts as reflected in the depositions seem to show that the deceased was standing near the bridge when the accused and his companion, Kevin Riley, approached. The accused called to the deceased to come with them. The deceased and the accused were standing next to one another when an argument developed between them. The accused was seen to hit the deceased once or twice in the face with his hand or fist (and the post-mortem report indicates consistent bruising and tears to the deceased's face and mouth.) She was observed to hit the accused. No-one saw the knife. The deceased was injured and proceeded to walk towards the Royal Mail Hotel. There is no direct evidence as to the periods of time involved between the injury sustained by the deceased and her arrival at the Royal Mail Hotel. It appears to have been a relatively short period. In my opinion, the statement attributed to the deceased by the witness Hill falls within the ambit of res gestae and is admissible accordingly. The statement was made almost immediately after the infliction of the injury, and at that stage I consider that it was both spontaneous and was almost if not exactly contemporaneous with the injury so that one can discount the possibility of concoction or distortion. I am satisfied that her thoughts would have been entirely dominated at that stage by the injury sustained by her. In my opinion, the same applies to the first two statements attributed to the deceased by the witness Swarbrick, namely:

"The female was yelling, he stabbed me, he stabbed, call the police", and

"She was still saying he stabbed me, he stabbed me."

22 The subsequent statements attributed to the deceased by this witness seem to me to lack contemporaneity and to be outside the ambit of the res gestae. So much applies also, in my opinion, to the narrative statements contained in the evidence of the witnesses Newman, Voisey and Bird. In Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267, Barwick CJ (with whom Stephen and Jacobs JJ agreed) said, at 273:

"A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable: but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility . . . "

23 Although, in Walton v R [1989] HCA 9; (1989) 166 CLR 283 at 295, Mason CJ uttered dicta critical of Barwick CJ, expressing agreement with the House of Lords and Lord Wilberforce's test, Wilson, Dawson and Toohey JJ, referring to the relevant passage in Vocisano (supra) without disapproval, said, at 304:

"The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible"

24 The learned author of Cross on Evidence (op.cit.) says at par [37065]:

"It is difficult to be more precise with regard to the conditions of admissibility of hearsay statements under this head of the res gestae doctrine than to say that they must be spontaneous utterances made shortly before, during or soon after an event in issue, by observers of or participants in that event, and concerning it."

25 Counsel for the accused has drawn attention to the history of self-mutilation by the deceased and also stressed the evidence that there was an occasion when the deceased had alleged that the accused had assaulted her and had later retracted that accusation. He referred to an allegation that the deceased had alleged an assault upon her by the police whereas the police said that she had inflicted the injuries on herself with a sprinkler. In the light of those alleged facts, counsel submitted that the possibility that the deceased had stabbed herself, having already decided falsely to claim that it was the accused who had stabbed her, could not be excluded.

26 It seems to me that the facts relating to the incident itself are such as to exclude, on a balance of probabilities, the possibility of concoction on the part of the deceased at the time of her altercation with the accused when she made the first statements attributed to her and set out in the depositions of Maxine Anne Hill and Kevin Lawrence Swarbrick. In my opinion, the circumstances were such that the deceased did not have the time to concoct an allegation against the accused. The statements were made spontaneously and very nearly contemporaneously with the stabbing, and accordingly, they are admissible as pars rei gestae.

27 I rule that the following evidence is admissible and may be led by the Crown:

'Rochelle yelled out "Help I've been stabbed" I heard her say that at least twice and she was running across the road holding onto her left side.'

'The female was yelling, he stabbed me, he stabbed call the police.'

'She was still saying he stabbed me, he stabbed me.

28 I am not satisfied that the other evidence as to what the deceased said, set out in the schedule reproduced above, satisfies the criteria for admissibility as part of the res gestae and I accordingly rule it to be inadmissible at the trial of the accused.