R v Allen - [2010] SASC 236

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v ALLEN
[2010] SASC 236
Reasons for Ruling of The Honourable Justice Vanstone
26 July 2010
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS
Accused charged with murder - application by defence for exclusion of evidence of statements made by deceased to witnesses as to the cause of injuries sustained prior to her death - application for exclusion of witnesses's observations of injuries from time to time - whether statements made by deceased and observations of witnesses admissible.
Held: the statements made by deceased were inadmissible hearsay - observations of injuries to deceased were relevant and admissible - no need for direct proof that accused caused those injuries.

EVIDENCE - WITNESSES - CROSS-EXAMINATION - AS TO CREDIT - ON FORMER STATEMENTS
Defence sought to put an out of court statement to an expert witness - terms of s 28 of Evidence Act - whether witness had "formerly made a statement inconsistent with his present testimony".
Held: statement could not be put to the witness because he had not given any evidence contradictory to it.
Evidence Act 1929 (SA) s 28, referred to.
T (a child) v The Queen (1998) 20 WAR 130; Wilson v The Queen (1970) 123 CLR 334, discussed.

R v ALLEN
[2010] SASC 236
Criminal
Reasons for ruling on admissibility of evidence

VANSTONE J: Prior to the jury being empanelled I heard argument on matters raised in a Rule 9 Notice filed on behalf of the accused.
The Rule 9 Notice was not filed within the time required by the Rules, but no issue was taken about that and I dispense with that requirement.
Objection is taken to two topics of evidence, those topics being touched on in the statements of a number of witnesses. The first topic is statements of the deceased made to other persons as to the cause of injuries that she had sustained. It is said that the evidence is hearsay and is therefore inadmissible. The second objection goes further. It is said that all evidence of injury sustained by the deceased prior to the events leading to her death is inadmissible, being irrelevant. In the alternative, it is argued that even if the evidence has some relevance, it should be excluded in the exercise of my discretion, as being more prejudicial than probative.
I deal first with the question of relevance and admissibility of statements made by the deceased about the cause of her injuries. These statements were in the nature of testimonial or assertive statements. Mr Nitschke, who appeared for the prosecution, put that it was not sought to lead the statements for the purpose of proving their truth; merely that they were relevant to prove the deceased’s state of mind at the time when the statements were uttered. He argued that the deceased’s state of mind…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Allen

Details

AGLC: R v Allen [2010] SASC 236
Case: [2010] SASC 236
Decision Date: 26 July 2010

CaseChat Overview and Summary

The case before the court was an appeal by the respondent, Allen, against a conviction for murder. Allen had been charged with the murder of a woman, and the central issue at trial was whether the statements made by the deceased to witnesses regarding the cause of her injuries, as well as the witnesses' observations of those injuries, were admissible as evidence. The trial judge had ruled that the statements were inadmissible hearsay, but allowed the observations of the injuries to be presented. Allen argued that without direct evidence linking him to the cause of the injuries, the observations were not relevant.

The primary legal issues before the court were the admissibility of hearsay statements made by the deceased and the relevance and admissibility of witnesses' observations of the deceased's injuries. The court had to consider whether the statements and observations were relevant and whether their probative value outweighed any prejudicial effect they might have. The court also needed to determine if the defence could cross-examine an expert witness about a prior inconsistent statement under section 28 of the Evidence Act.

The court found that the statements made by the deceased were indeed hearsay and therefore inadmissible. However, the observations made by the witnesses regarding the injuries were held to be relevant and admissible. The court reasoned that the probative value of the observations outweighed any prejudicial effect, and that it was not necessary to have direct proof that Allen caused the injuries for the observations to be considered. The court further held that the defence could cross-examine the expert witness about a prior inconsistent statement, as permitted by section 28 of the Evidence Act. Given the admission of the witnesses' observations and the proper application of the evidence provisions, the court upheld the conviction.

Orders