Falkiner v The Queen

Case [2019] SASCFC 118

Supreme Court of South Australia

(Court of Criminal Appeal)

FALKINER v THE QUEEN

[2019] SASCFC 118

Judgment of The Full Court

(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

3 October 2019

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE

On 27 April 2017, at the Elizabeth Shopping Centre, Falkiner killed the deceased Watts by stabbing him once with a large knife. He was convicted of the charge of Murder and appeals.

Falkiner was in a relationship with Renee.  Immediately prior to the stabbing, there was a good deal of talking or yelling between Watts and Falkiner. Renee could be heard to say things such as "do it already" and/or "just do it". Immediately after the stabbing, Renee was heard saying that Watts was “a dog” and he "deserved it".

Ground 1 of Appeal complained that the Judge erred in admitting the statements made after the stabbing as being irrelevant or more prejudicial than probative. Ground 2 of Appeal complained that the Judge failed to direct the jury as to the use that could be made of the statements made before and after the stabbing. No objection was taken at trial concerning any of these matters.

Held, per Peek J (Parker J and David AJ agreeing), dismissing the appeal:

1. As to Ground 1.1: It is generally the role of a Judge to receive evidence that is not objected to and to adjudicate upon objections as and when they arise. The evidence was prima facie admissible as being spoken words that were part and parcel of the subject incident. R v Pali; R v Buckingham (2018) 132 SASR 201; R v C, CA [2013] SASCFC 137; Ali v The Queen (2005) 79 ALJR 662 discussed. There was no miscarriage of justice.

2. As to Ground 1.2: Where the Judge has not been asked to exercise the Christie discretion, an appellate Court could do so only in exceptional circumstances. Here it is highly unlikely that the Judge would have exercised the discretion in favour of the defendant. The Queen v S, DD (2010) 109 SASR 46 discussed. There was no miscarriage of justice.

3. As to Grounds 2.1 and 2.2: The decision not to ask for directions was consistent with the actions of competent counsel. Ali v The Queen (2005) 79 ALJR 662 discussed. There was no miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) s 353; Criminal Procedure Act 1921 (SA) s 158, referred to.
Ali v The Queen (2005) 79 ALJR 662; R v C, CA [2013] SASCFC 137; R v Pali; R v Buckingham (2018) 132 SASR 201; Police v Dunstall (2015) 256 CLR 403; The Queen v S, DD (2010) 109 SASR 46, discussed.
R v Christie [1914] AC 545; Filippou v The Queen (2015) 256 CLR 47;

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Falkiner v The Queen [2019] SASCFC 118
Case
[2019] SASCFC 118
Decision Date

CaseChat Overview and Summary

The appeal concerned the admission of certain evidence during a criminal trial. The appellant, Falkiner, sought to appeal his conviction on grounds relating to the admissibility of evidence. The appeal was heard by Peek and Parker JJ and David AJ.

The primary legal issue before the appellate court was whether the trial judge had erred in admitting certain evidence, specifically concerning the discretionary exclusion of prejudicial evidence under the *Christie* discretion. The court was required to determine if the evidence, though potentially admissible, carried a substantial prejudicial influence on the jury that outweighed its evidential value, and whether the trial judge should have exercised a discretion to exclude it. A further issue was whether the appellate court could exercise this discretion when no objection had been taken at trial.

The court rejected the ground of appeal relating to the discretionary exclusion of evidence. It held that the *Christie* discretion to exclude evidence where its probative value is outweighed by the risk of prejudice is typically exercised by the trial judge. As no objection was taken to the evidence at trial, and the trial judge was not asked to exercise this discretion, the appellate court could only intervene in the most exceptional circumstances. While it was arguable that the discretion *could* have been exercised in favour of the appellant at trial, it was not the only appropriate exercise of discretion, nor would a miscarriage of justice clearly occur if the discretion were not exercised on appeal. The court noted that the *Christie* discretion applies to evidence whose probative value is outweighed by the risk of prejudice.

The appeal was dismissed on this ground.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I reject Ground 1.1 for all of the above reasons. Ground 1.2: Discretionary exclusion of evidence On the hearing of the appeal, senior counsel made clear that Ground 1.2 seeks to engage the Christie discretion.[11] However, there is a substantial problem here in that trial counsel did not object to this evidence and never asked the Judge to exercise an exclusionary discretion concerning it. That being so, an exercise of an exclusionary discretion by the appellate Court could only occur in the most exceptional circumstances. Thus, in The Queen v S, DD, it was stated:[12] 120. … while the point is appropriately taken in the grounds of appeal, unfortunately the rule 9 application and argument at trial (by counsel other than counsel on appeal) was restricted to questions of legal admissibility as distinct from discretion. The trial judge was never asked to exercise a discretion and nor did he purport to do so. 121. If the trial judge had been asked to exercise his discretion, and had done so adversely to the appellant, a review of that exercise of discretion on appeal would be required to proceed in accordance with the precepts adumbrated by the High Court in House v The King and Dinsdale v The Queen. The position of the appellant is very difficult here because the judge was never asked to exercise the discretion and therefore there are no reasons suggestive of error. 122. While I allow for the possibility that in an appropriate case a discretion may be exercised on appeal even though counsel below failed to ask the judge to do so, it would need to be very clear both that such was the only appropriate exercise of discretion and that a miscarriage of justice would clearly occur if the discretion were not to be so exercised on appeal. Although I consider that it was arguable that a discretion should have been exercised at trial in favour of the appellant here, it cannot be said that such was the only appropriate exercise of discretion. 123. Accordingly, I therefore reject the grounds of appeal dealing with discretionary exclusion of the complaint evidence. [Citation omitted][11] R v Christie [1914] AC 545.[12] (2010) 109 SASR 46, 75-76. It will be noted that the present case is a fortiori in that in The Queen v S, DD the evidence was at least objected to below (with the omission to apply as well for discretionary exclusion) whereas here no objection had been taken at all. Speaking generally, to make good such a ground an appellant would presumably have to establish that a Judge, faced with the situation that defence counsel was not objecting to the admission of certain evidence,[13] should of his or her own motion exclude evidence as an exercise of “discretion”. Of course, if a Judge were to do so, and the defendant were to be later convicted, it is not difficult to imagine the likely protests and associated grounds of appeal concerning the Judge’s conduct.[13] And, for all the Judge knew, may have been intending to use it to advance his case. I consider that that is enough to dispose of Ground 1.2. However, I add that if the Judge had been asked to exercise the discretion, it is highly unlikely she would have exercised it in favour of the defendant. The Christie discretion is to exclude evidence which, though admissible, would probably have a substantial prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value.[14] In Police v Dunstall, the plurality of the High Court stated it thus:[15] In criminal proceedings, there are two settled bases for the discretionary exclusion of non-confessional evidence, including "real" and circumstantial evidence. The first is where the probative value of the evidence is outweighed by the risk of prejudice to the defendant ("the Christie discretion"). [Citation omitted][14] R v Christie [1914] AC 545, 559 (Lord Moulton).[15] (2015) 256 CLR 403, 416-417 [26] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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