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
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.
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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- [2004] WASCA 40
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CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
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Ratio Decidendi
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