Assafiri v Horne

Case [2004] WASCA 40

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ASSAFIRI -v- HORNE [2004] WASCA 40

CORAM:   ROBERTS-SMITH J

HEARD:   17 FEBRUARY 2004

DELIVERED          :   12 MARCH 2004

FILE NO/S:   SJA 1105 of 2003

BETWEEN:   JAMES ALLAN ASSAFIRI

Appellant

AND

DARREN WILLIAM HORNE
Respondent

Catchwords:

Evidence - Video record of interview - No admissions made, merely denials - Video tendered by prosecution - Subsequently ruled inadmissible by Magistrate in course of reasons for decision - Appeal by convicted defendant - Whether open to court to reject tender at that stage - Admissibility of prior self­serving statements - Whether can be relied upon as evidence of the truth when tendered by the prosecution with consent of the defendant

Evidence - Police video record of interview - voluntariness - Questions "why would [complainant] lie?" - Effect of - Discretion - Applicability of principle in Palmer v The Queen (1998) 195 CLR 1 to police interview

Legislation:

Nil

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr B S Hanbury

Respondent:     Ms S T Gorman

Solicitors:

Appellant:     Beau Hanbury

Respondent:     State Solicitor

Case(s) referred to in judgment(s):

A Child v Andrews (1994) 12 WAR 552

Astill (1992) 63 A Crim R 148

Kochnieff (1987) 33 A Crim R 1

McDermott v The King (1948) 76 CLR 501

Palmer v The Queen (1998) 193 CLR 1

Penfold v Hobbs, unreported; SCt of WA; Library No 7529; 15 February 1989

Pollitt v The Queen (1992) 174 CLR 558

R v Callaghan [1994] 2 Qd R 300

R v Geesing (1984) 39 SASR 111

R v Gibson (1887) 18 QBD 537

R v Graham (1972) 26 DLR (3d) 579

R v Haycock [1989] 2 Qd R 56

R v Lee (1950) 82 CLR 133

R v Newsome (1980) 71 Cr App Rep 325

R v Steffan (1993) 30 NSWLR 633; (1993) 67 A Crim R 506

Radford (1993) 66 A Crim R 210

Re Petition by Van Beelen (1974) 9 SASR 163

S (2002) 132 A Crim R 326

Shaw v The Queen (1952) 85 CLR 365

Teper v The King [1952] AC 480

Walton v The Queen (1989) 166 CLR 283

Wogandt (1988) 33 A Crim R 31

Case(s) also cited:

Gill v The Queen [1999] WASCA 68

Leary v The Queen [1975] WAR 133

Middleton v The Queen (1998) 100 A Crim R 244

Mraz v The Queen (1955) 93 CLR 493

R v Higgins (1829) 3 C & P 603

  1. ROBERTS-SMITH J:  This appeal by a convicted defendant rather unusually springs from a Magistrate's rejection of an ostensibly inadmissible police video record of interview with the defendant, tendered by the prosecution, with the consent of the defendant's counsel.

  2. On 12 September 2003 the appellant was convicted by his Worship Mr P Malone SM in the Perth Court of Petty Sessions on one charge of unlawfully assaulting Ms Heather Anne Weir on 9 February 2003 contrary to s 313(1)(b) of the Criminal Code.  A further charge of breaching a violence restraining…

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AGLC
Assafiri v Horne [2004] WASCA 40
Case
[2004] WASCA 40
Decision Date

CaseChat Overview and Summary

In the case of Assafiri v Horne, the appellant contested the admissibility of a video record of an interview conducted with the respondent, which contained denials but no admissions, as well as prior self-serving statements made by the respondent. The primary legal issues before the court were whether the court could reject a tendered video record at a later stage and whether self-serving statements could be relied upon as evidence of the truth when tendered by the prosecution with the consent of the defendant. The court also considered the voluntariness of the video record and the effect of questions posed during the interview.

The court found that the rule against hearsay precludes the reception of self-serving statements as evidence of the truth of their contents. It was noted that self-serving statements do not fall under the exceptions to the hearsay rule, unlike admissions against interest. The court held that the appellant could not tender the record of interview himself, and therefore could not complain about the Crown not pressing the tender or the trial judge rejecting it. The court also considered the voluntariness of the video record and the effect of questions posed during the interview, but found that these issues did not affect the outcome of the case.

The court ruled that the statement was properly excluded and that the appellant could not rely on self-serving statements as evidence of the truth. The court did not find it necessary to consider the voluntariness of the video record or the effect of questions posed during the interview as the primary issue was the admissibility of self-serving statements. The court's decision was in line with established legal principles and case law on the hearsay rule and exceptions.

The court's final order was to dismiss the appeal and affirm the conviction of the respondent. The court found that the trial judge had correctly excluded the self-serving statements from evidence and that the appellant's other arguments did not provide sufficient grounds for overturning the conviction. The court's decision was based on the established principles of the hearsay rule and exceptions and did not speculate on any other possible outcomes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At 3‑5 Connolly J (with whom Kelly SPJ and Moynihan J agreed) said:"The question then is whether it was correct in point of law to exclude the statement. It was somewhat boldly suggested by counsel for the appellant that self-serving statements represent an exception to the hearsay rule. A short statement of the rule against hearsay is notoriously difficult to formulate but the following, from D Byrne and J D Heydon, Cross on Evidence (3rd Aust ed, 1986) par 16.3 will suffice for present purposes: 'An assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of the truth of that which was asserted.' [Emphasis mine.] The appellant's counsel sought to have the record of interview, in its edited form, before the jury on the footing that the protestations of innocence contained in it should be received as true. It was therefore hearsay. None of the standard texts which, traditionally, state the rule against hearsay and then enumerate the acknowledged exceptions, includes amongst those exceptions a self-serving statement. On the other hand admissions against interest constitute a recognised category of exception to the hearsay rule and the statement of the exception commonly contrasts the statement against interest with the self‑serving statement. Thus Cross (par 17.18) says: 'The self-serving statements of the parties to litigation are usually inadmissible as evidence of their truth on account of the fear of fabrication to which reference has already been made, but statements adverse to the maker's case are received as proof of the truth of their contents in civil and criminal proceedings.' Phipson on Evidence (13th ed, 1982), par 16-16 tabulates the exceptions to the hearsay rule. The list includes admissions and confessions of parties. It does not, of course, contain self‑serving statements of innocence. It is said (at par 19-02) that in criminal cases statements made out of court by an accused are admissible against him and, in relation to confessions the word 'against' is italicised. The most generally accepted ground of reception is stated to be 'that a party's declarations, whether for or against his interest when made, may always be taken to be true as against himself': at par 19-04. The proposition that a purely self-serving statement is receivable as evidence of the truth of its contents by way of an exception to the hearsay rule is, in my opinion, contrary to principle. We are, of course, not concerned here with the admissibility of such a statement for a purpose other than the proof of the fact stated, such as the rebuttal of an allegation of recent invention or afterthought. Nor is the principle weakened by the rule that a confessional statement, once tendered by the Crown, is evidence not only against but for the prisoner, in so far as any part of its contents may support his own case. The accused is entitled to have the whole statement put in, including any explanations given by him, which he may elicit by cross‑examination: McGregor [1968] 1 QB 371; 51 Cr App R 338; Higgins v Dorries [1965] Qd R 389 although the tribunal in fact is not obliged to give them the same weight as the confessional matter. However none of this touches the present case. In my view it cannot be doubted that the accused is not entitled to tender his own prior self-serving statements. So much was decided by the Court of Appeal in Newsome (1980) 71 Cr App R 325 at 330 and Steel [1981] 1 WLR 690; 73 Cr App R 173. In Lopes v Taylor (1970) 44 ALJR 412 at 421, Gibbs J, as he then was, after referring to the view expressed in some Australian cases that self- serving statements made in the course of an admission are admitted only as explanatory of or as qualifying the admission went on to state his own view in the following language: 'On the other hand, there is the view that where one party puts in evidence a statement made by the other the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated, although the court is not bound to accept all parts of the statement as true but may give different weight to different parts of the statement: see Higgins v Dorries; Higgins v Donnelly [1965] Qd R 389 at 395, 396; State Government Insurance Office (Qld) v Saarinen [1967] QWN 23; Horne v Tweed River Transport Pty Ltd (1967) 61 QJPR 114 at 119, 120; Eyre v Nationwide News Pty Ltd (1968) 13 FLR 180 at 185 and Sharp v Hotel International Ltd [1969] VR 103 at 109,110.'In Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581 at 585 Barwick CJ said: 'The fact that a statement by the driver of the vehicle that the destination of his load was Sydney might be regarded as self-serving would not make the information in the checking slip, otherwise properly in evidence, irrelevant in the resolution of the nature of the carriage, although the tender of a self‑serving statement not otherwise in evidence and having no other basis of admissibility would be rejected.' With respect, I take this to be a completely accurate statement of the law. I pause to say that the observations of both Barwick CJ and Gibbs J which I have set out, cast doubt on the views expressed in certain of the English cases to which the learned judge referred, to the effect that self-serving statements, though in evidence must not be treated by the jury as evidence of the facts. However that is a problem with which we are not presently concerned: cf Cox [1986] 2 Qd R 55 per Thomas J at 63 et seq. The edited record of interview in this case was properly regarded as a purely self‑serving statement. As such counsel for the appellant could not have tendered it himself and the appellant cannot be heard to complain either that the Crown did not press the tender of the document or that the learned trial judge rejected it." (My emphasis)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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