Kelly v The State of Western Australia

[2013] WASCA 114

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   KELLY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 114

CORAM:   McLURE P

NEWNES JA
MAZZA JA

HEARD:   8 APRIL 2013

DELIVERED          :   3 MAY 2013

FILE NO/S:   CACR 247 of 2012

BETWEEN:   CAMERON FRANCIS KELLY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

File No  :IND 1659 of 2011

Catchwords:

Criminal law - Application for leave to appeal - Appellant convicted of assaulting a public officer performing a function of his employment - Whether exculpatory statement by appellant was part of res gestae - No reasonable prospect of success

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Kim Farmer Barristers & Solicitors

Respondent:     No appearance

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

Armstrong v The State of Western Australia [2012] WASCA 42

1. McLURE P:  I agree with Newnes JA.

2. NEWNES JA: This is an application for leave to appeal. The appellant was convicted after trial in the District Court on one count of assaulting a public officer who was performing a function of his office or employment, contrary to s 318(1)(d) of the Criminal Code (WA). The appellant seeks to leave to appeal against his conviction on the ground that at trial the primary judge wrongly excluded evidence of an exculpatory statement made by the appellant.

3. For the reasons which follow, I would refuse leave to appeal.

Background

1. On the day of the offence, the appellant burgled a house in Canning Vale.  He had on him a replica PPK .32 calibre pistol.  While the appellant was helping himself to her belongings, the occupant of the house arrived home.  On seeing the appellant, she ran from the house and called police.  Two police officers, a male and a female officer, attended the premises.  As chance would have it, they were accompanied by a television film crew who were filming the officers' work that day for the purposes of a television programme called 'The Force'.

2. The prosecution case at trial, in essence, was that the male police officer had confronted the appellant at the rear of the house.  The appellant had pointed the replica gun at or in the direction of the police officer and threatened to shoot him.  After repeatedly being told to put the gun down, the appellant moved in a manner which caused the police officer to believe that his life was in imminent danger, and the police officer then fired the three shots at the appellant, striking him once in the arm and once in the stomach.  After first aid was provided, the appellant was taken to hospital for treatment.  It was only after the incident that it was found the pistol the appellant had brandished was a replica.

3. It was the appellant's case that he had not pointed the gun at, or in the direction of, the police officer.  He contended that when called upon to put the gun down, he had told the police officer he was putting it down and he was bending down very slowly to do so when he was shot.

4. At trial the prosecution intended (and ultimately did) put into evidence an edited version of footage taken by the television crew at the house.  That footage showed (relevantly) the male police officer at the rear of the house calling on the appellant a number of times to 'put it down'.  The view of the appellant is obscured by part of the building.  The

police officer is then shown firing three shots.  The camera‑operator moves quickly to the rear of the house where the appellant is shown lying on the ground in a pool of blood.

1. The appellant's counsel sought to put into evidence subsequent footage which contained an exchange between the appellant and the police officer after the appellant had been shot.  The question of the admissibility of that footage came before the primary judge for determination at the commencement of the trial.

2. The footage shows the appellant lying on the ground, obviously in considerable pain, while the female police officer tries to stem the bleeding from the arm wound.  It records the male police officer saying to the appellant:

   Why did you have the gun at me, mate?  What's going on?

   The appellant's response is:

   I don't know, I am [inaudible] out.

3. The appellant then asks for a drink of water and several times asks the police officers to stop pressing on his wound.  The female police officer elicits the appellant's name, address and age from him while administering first aid.

4. A little later, the male police officer says to the appellant:

   You shouldn't have pointed the gun at me.

   The appellant responds:

   I didn't point the gun, I was putting it down.

5. Counsel for the appellant submitted that the statement by the appellant that he did not point the gun at the police officer but was putting it down, formed part of the res gestae and was admissible on that basis.

6. The primary judge, having viewed the relevant footage, rejected the submission and concluded that the statement was not admissible.

7. The appellant contends that his Honour erred in so finding and that the exclusion of the evidence caused a miscarriage of justice.

The ground of appeal

1. The sole ground of appeal is as follows:

   There was a miscarriage of justice when his Honour ruled as inadmissible an exculpatory statement by the appellant to the effect that he didn't point the gun at the officer and he was putting the gun down at the time he was shot ('the statement').

   Particulars

   1.1The statement formed part of the res gestae of the offence of assaulting a public officer;

   1.2His Honour should have been satisfied that, as the statement was made shortly after the appellant was shot twice, the possibility of concoction could be disregarded;

   1.3The statement was made to someone at the first reasonable opportunity;

   1.4Although the statement was made in response to a question, it was made before the appellant had a reasonable opportunity to volunteer it or otherwise unilaterally make the statement.

The disposition of the application

1. The relevant legal principles were recently considered in Armstrong v The State of Western Australia [2012] WASCA 42 [46] ‑ [50]. It is sufficient for present purposes to repeat what was said there:

   In general, a statement made spontaneously by an observer or participant during or immediately after an event which culminates in the charging of a criminal offence is admissible in evidence at the trial as part of the res gestae.

   In Ratten v The Queen [1972] AC 378, Lord Wilberforce said that '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' (389 ‑ 390).

   In Ratten, Lord Wilberforce also said:

   '[H]earsay 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 (391).'

   This approach was approved by the High Court in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 295 (Mason CJ), 304 (Wilson, Dawson & Toohey JJ) and Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 582 - 583 (Brennan J).

   In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, Gaudron and Kirby JJ made these observations:

   'The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law's bias against the reception of hearsay evidence.  That is because it is not logically necessary for the possibility of concoction to be excluded before a statement is probative of the fact asserted in it.  Rather, all that is necessary is that the statement be consistent with the fact to be proved and its making so connected to that fact that, when taken in conjunction with other evidence in the case, it bears on the probability of that fact having occurred.

   The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved.  Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true.  Similarly, a statement that is closely contemporaneous with the fact in issue and is contrary to what would ordinarily be expected if that fact were true rationally bears on the improbability of its having occurred [55] - [56].'

2. It is clear from the television footage that the statement by the appellant lacked the contemporaneity that would be necessary for it to form part of the res gestae.  By the time the statement was made the confrontation in which it was alleged the offence had occurred was well and truly over.  The appellant had been lying on the ground having his wounds attended to by police officers for some four and a half minutes when the statement was made, and it was not in any sense a spontaneous utterance.  It was made only when the male police officer had raised with the appellant for the second time the issue of the appellant having pointed the gun at him.  Whilst the appellant was in considerable pain, he had had time enough to collect his thoughts and in the circumstances the possibility that his self-serving version of events had been concocted could certainly not be excluded.

1. In the circumstances, the primary judge was clearly correct to find that the statement did not form part of the res gestae and was inadmissible.

2. The ground of appeal has no reasonable prospect of success. Accordingly, leave to appeal should be refused and the appeal dismissed.

3. MAZZA JA:  I agree with Newnes JA.