R v Rudd [2009] VSCA 213

Court of Appeal (Vic)|2009-09-25|Before: MAXWELL P and REDLICH JA and VICKERY AJA

THE APPLICANT: See, why he's come back the next day and said, 'Do you mind if we have a look at Allan's clothes and all that', is because he's gerried - he's gerried, 'There's no fuckin' gunshot residue on his fuckin' clothes or anything. He's probably changed 'em and we missed it in the fuckin' raid.'

CATHY RUDD: They asked me that afternoon. They said, 'What was Allan wearing?' And I told 'em.

CATHY RUDD: I said, 'He was wearing his ..... and black jumper, his black jeans, his runners and his jacket.' They said, 'What colour was his jacket?' I told 'em and they've thought, 'Nuh, he was wearin' the same clothes that we found him in.'

APPLICANT: He goes, 'Where did that come from?' I said, 'I found it in the fuckin' lane,' you know. Well, Stephanie and Alicia play in the lane, other kids playin' the fuckin' lane. I'm not goin' to just leave it there for them to pick up.

APPLICANT : So - yeah. And I was takin' it fuckin' home. I was goin' to hand it in the enxt fuckin' day.

CATHY RUDD: Yeah, I think we better watch what we say on the phone.

CATHY RUDD: Because the only thing I'm thinkin', if they ........ on a bloody tape - - -

CATHY RUDD: No, but we're talkin' about it constantly, if - if you know what I mean.

CATHY RUDD: And then he turned around and goes, 'Well, are you aware exactly what Allan done?' I said, 'Hey, hang on a minute.'

CATHY RUDD: He goes, 'Are you actually aware of what Allan's done?'

CATHY RUDD: And I said, 'Hang on a minute.' I said, 'You've got him convicted and sentenced and everything already.'

CATHY RUDD: And he goes, 'Well, I believe he's done it.' I said, 'Righto, what you believe is what you believe.' I said, 'No' - I said, 'Listen here.' I said - and then he goes, 'You're insinuating that I told the Northcote Leader.' I said, 'Hey, hang on a minute.' I said, 'I'm not insinuating that.' I said, 'I asked you -' - - -

CATHY RUDD: And then he turned around and he goes, 'Are you aware that - that Allan missed Dorothy by a couple of inches?'

CATHY RUDD: 'Allan missed Dorothy by -' I said, 'No, I'm not. You know why? Because' - - -

CATHY RUDD: I said, 'Because you barged in my house and threw this warrant.' I said, 'And that's all I got told.'

APPLICANT: I would have said, 'Because Allan didn't fuckin' do it.'

CATHY RUDD: I've got this gut feeling he's gonna come back ......

APPLICANT: Look, they've got nothin' on me. They've got nothin' on me, you know, and that's why he said, 'Well, I think he done it.' You know, the - - -

APPLICANT: They've got nothin' on me, you know, and now they're just graspin' at straws thinkin' right, 'I hope we can trace one of his numbers that he rang that night and bang, maybe that's where he, you know, picked the gun up or the cunts might come' - you know, 'We might be able to fuckin' bribe them if they're out on bail on a shit blue.' Just say, 'Well, listen, if you fuckin' come to the party and say you give him this, we'll drop the other charge,' or somethin' like that.

[2] See for example Ibrahim v R [1914] AC 599; Burns v R [1975] HCA 21; (1975) 132 CLR 258.

[3] The trial judge relied upon the judgment of Humphries J in R v Roberts [1942] 1 All ER 187 for these propositions.

[4] R v Roberts [1942] 1 All ER 187, 191_; R v Callaghan_ (1993) 70 A Crim R 350; Allied (Interstate) Queensland (Pty Ltd) v Barnes [1968] HCA 76; (1968) 118 CLR 581, 585 (Barwick CJ); Mule v R ( [2005] HCA 49; 2007) 221 ALR 85; R v Fry [2006] SADC 36.

[5] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 208-9 (Deane, Dawson and Gaudron JJ).

[6] Ibid 208, 210-11; DPP v Farr [2001] NSWSC 3; (2001) 118 A Crim R 399 (Smart AJ).

[9] R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, [18] (Winneke P); R v Franklin [2001] VSCA 79; (2001) 3 VR 9, [118].

[11] Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 288 (Mason CJ); Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 577 (Brennan J).

[12] Mawaz Khan v The Queen [1967] 1 AC 454.

[18] R v Debs & Roberts [2005] VSCA 66, [311] (Vincent JA).

[19] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 674; Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279, 292_; Richardson v The Queen_ [1974] HCA 19; (1974) 131 CLR 116; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

[20] Jack v Smail [1905] HCA 25; (1905) 2 CLR 684, 695_; Mule v The Queen_ [2005] HCA 49; (2005) 79 ALJR 1573, 1574-1575 & 1579; Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397, cf R v Callaghan [1994] 2 Qd R 300.

[22] But the exception is not to be confined to statements or other post-offence conduct which is made or occurs before the offender is charged.

[23] Cross on Evidence (Australian Edition) J.D Heydon [33455] ('Cross').

[25] Jack v Smail [1905] HCA 25; (1905) 2 CLR 684, 695 (Griffiths CJ); Griffiths v The Queen [1994] HCA 55; (1994) 76 A Crim R 164, 169.

[27] R v Berry & Wenitong [2007] VSCA 202; [2007] 17 VR 153, [79].

[29] See for example R v Fry [2006] SADC 36, [18].

[30] [2007] VSCA 202; [2007] 17 VR 153, [87]-[89] (citations omitted).

[32] (1998) 19 WAR 179, 189-190 (Ipp J).

[47] R v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84, [32]-[35] (Grove J); R v Pearce (1979) 69 Cr App R 365.

[50] Berry & Wenitong v R [2007] VSCA 202; (2007) 17 VR 153.

[51] See for example The State of Western Australia v Yerkovich [2004] WASC 62.

[52] R v Berry and Wenitong [2007] VSCA 202; [2007] 17 VR 153.

[54] R v Kuster [2008] VSCA 261.

[55] See comments on Defence Excerpts 2 and 3.

[60] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, [107].

[64] See para [26] above.

[65] Weiss v R [2005] HCA 81; (2005) 224 CLR 300, [44]; Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293, [18] (Gummow, Hayne JJ).

[70] [2007] VSCA 265, [20]-[22] (Ashley JA).

CRIMINAL LAW - post offence conduct - conversations of applicant and wife designed to conceal guilt - adequacy of direction - R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, R v Berry & Wenitong [2007] VSCA 202; (2007) 17 VR 153 applied

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