R v Anderson - [2017] SASCFC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ANDERSON
[2017] SASCFC 125
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Doyle)
21 September 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE - BURDEN OF PROOF
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL REFUSED - VERDICT NOT UNREASONABLE - GENERALLY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - OTHER PARTICULAR MATTERS
Appeal against conviction. The appellant was convicted by a jury of one count of attempted murder.
On 12 July 2013 Mr Walsh was driving from Penong to Adelaide on a remote stretch of the Eyre Highway between Kimba and Port Augusta when the appellant began tailgating him. The appellant overtook Walsh and then braked heavily in front of him, causing a minor collision between the two vehicles. Walsh attempted to get away from the situation by overtaking the appellant, accelerating at speeds in excess of 150 kilometres per hour. A high speed pursuit ensued, during which the appellant fired five rounds from a hand gun. During the pursuit Walsh telephoned the police on 000. The recordings of the 000 calls were tendered by the prosecution. Police stopped the appellant’s vehicle on the highway a short time later, locating a hand gun, a speed loader and spent cartridges in the vehicle. A bullet hole was discovered in the petrol tank of Walsh’s vehicle and a bullet consistent with the ammunition located in the appellant’s vehicle was extracted from the petrol tank.
The appellant appealed against conviction on five grounds, that the trial Judge: (1) failed to properly direct the jury about the appellant’s failure to comply with the rule in Browne v Dunn and improperly characterised the case to the jury as a choice between the appellant or the principal prosecution witness; (2) made various errors in directing the jury as to the burden of proof and failed to correct matters improperly put to the jury by the prosecutor; (3) failed to give a lies direction; (4) erred in admitting the entirety of the 000 calls as part of the res gestae, and; (5) that the verdict is unsafe, unsatisfactory and against the weight of the evidence.
Held per Kelly J (Kourakis CJ and Doyle J agreeing): Dismissing the appeal.
1.       The prosecutor’s cross examination of the appellant did not go beyond permissible bounds and, in any event, the Judge’s directions were sufficient to direct the jury’s attention to the critical issue, which was whether the prosecution had proved on the evidence beyond reasonable doubt the appellant’s guilt. There was no misdirection to the jury as to the burden of proof.
2.       The appellant was not prejudiced by the Judge’s failure to direct the jury in accordance with the suggestions made by King CJ in Manunta.
3.       The Judge fully and fairly summarised the evidence in such a way that the jury could not fail to have been aware of the many inconsistencies in Walsh’s evidence and the issues for determination which arose from those inconsistencies. The Judge’s directions to the jury in relation to the legal elements and the facts were comprehensive and balanced.
4.       The Judge was correct to admit all of the 000 calls as part of the res gestae.
5.       It was open to the jury to find that the appellant possessed the requisite intention to kill at the time when he fired five shots from his weapon.
Ratten v The Queen [1972] AC 378, applied.
Vocisano v Vocisano (1974) 130 CLR 267, distinguished.
R v Leak [1969] SASR 172; R v Buckley (2004) 10 VR 215; R v Manunta (1989) 54 SASR 17; R v Morrow (2009) 26 VR 526; Browne v Dunn (1893) 6 R 67, considered.

R v ANDERSON
[2017] SASCFC 125
Court of Criminal Appeal: Kourakis CJ, Kelly and Doyle JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Kelly J and the following brief additional reasons on Grounds 1A.2 and 2.
I turn first to Ground 1A.2 and the complaint that the Judge misdirected the jury on how it might evaluate the competing evidence of the appellant and Mr Walsh. The substance of the appellant’s complaint is that the prosecutor, in his address, and the Judge, in his summing up, left the jury to determine whether the offence had been proved beyond reasonable doubt on the basis of a preference for Mr Walsh’s testimony over that of the appellant. The appellant contends that this was the result of placing undue emphasis on the manifest inconsistencies in material respects between their respective testimonial accounts. However, the Judge correctly and clearly directed the jury that an acceptance of the credibility and reliability of Mr Walsh’s testimony over that of the appellant’s did not in itself prove the offence beyond reasonable doubt.
The evaluation of competing evidence should not be conflated with the application of the onus of proof which finally determines the verdict. It is not necessary, and often unhelpful, to suggest that the jury consider whether it accepts the testimony of the prosecution witness or witnesses beyond reasonable doubt. It is similarly unhelpful to ask whether the defendant’s account is reasonably possible. An intermediate fact need not be proved beyond reasonable doubt, unless it is an indispensable link in the chain of proof. So too with respect to the testimony of a witness. After evaluating the competing testimonies of witnesses, a tribunal of fact may have complete confidence in the credibility and reliability of some, and no confidence, if not positive disbelief, in others. Moreover, between those extremes there is a continuum of relative weight which a jury might be prepared to give testimonial evidence. It is on the evidence so evaluated that a jury must then consider whether the criminal onus of proof has been satisfied. The Judge’s, and the prosecutor’s, comments on the testimonial accounts of Mr Walsh and the appellant went only to the evaluation of the competing evidence and was appropriate for that purpose. The Judge made no error in his directions on the application of the onus of proof to the evidence.
The complaint in Ground 2 is that the Judge did not direct the jury to compartmentalise each shot fired by the appellant and to consider whether each of those shots was accompanied by the necessary intent. A direction to that effect would have imposed a strained and artificial construct on the events. The prosecution did not bind itself to one particular shot as constituting the actus reus of the offence. The jury were directed, more than once, that the appellant could not be found guilty unless at least one shot was fired with the requisite intent. A juror who found that any particular shot was fired with that intent must, in the circumstances of this case, have been satisfied that any subsequent shot was also fired with the same intent. There was no need to direct the jury that they must all agree on which shot, or shots, were fired with the requisite mental element.
KELLY J.
Introduction
On 25 July 2014 the appellant was convicted by a jury of one count of attempted murder. The appellant filed a notice of appeal on 28 March 2017, some two years and seven months out of time.
There are five grounds of appeal: the first, various complaints about the conduct of the trial on the issues of lies, the rule in Browne v Dunn[1] and the characterisation of the case to the jury as a choice between either the appellant or the principal prosecution witness, Mr Walsh (Walsh); the second ground relates to what are said to be various errors made by the trial Judge in directing the jury about the burden of proof, and the failure to correct some of the matters improperly put to the jury by the prosecutor; the third, said to be the failure of the Judge to give a lies direction; the fourth, an error in admitting the entirety of the 000 calls as part of the res gestae; and the fifth ground of appeal, a complaint that the verdict is unsafe, unsatisfactory and against the weight of the evidence.
[1] (1893) 6 R 67.
A single Judge granted permission in respect of grounds 1, 1A, 2 and 4 and referred the remaining grounds to this Court for permission. An extension of time in which to file the notice of appeal was also granted.
Background
On 12 July 2013 Walsh was driving from Penong to Adelaide to visit his mother for her 60^th birthday. On a remote stretch of the Eyre Highway between Kimba and Port Augusta the appellant began tailgating him. As Walsh was negotiating a right hand bend in the road, the appellant overtook him by crossing double white lines on the road. Once the overtaking manoeuvre was complete, the appellant slammed on his brakes, causing a slight rear end collision between the rear of the appellant’s vehicle and the front of Walsh’s vehicle.
Walsh attempted to get away from the situation by overtaking the appellant and accelerating at speeds in excess of 150 kilometres per hour. The appellant pursued Walsh and then overtook him a second time.
As Walsh was again trying to overtake the appellant in order to get away from him, he saw the appellant hanging out of the driver’s side window pointing a gun at him.
In the sequence which followed the appellant fired five rounds from a hand gun. During the chase which unfolded at that time Walsh telephoned the police on 000. The recordings of the phone conversations which Walsh had with the police at that time were tendered by the prosecution. The total combined duration of the three calls was around 20 minutes.
Police stopped the appellant’s vehicle on the highway a short time later. They located a hand gun, a speed loader and spent cartridges in the appellant’s vehicle. Subsequently crime scene examiners discovered a bullet hole in the petrol tank of Walsh’s vehicle. A bullet consistent with the ammunition located in the appellant’s vehicle was extracted from the petrol tank.
At trial the evidence that five shots were fired during the course of the car chase was undisputed. The appellant admitted to loading the gun and firing those shots, however there was some dispute as to timing of the shots being fired and the direction in which they were fired. The appellant also admitted to removing the five spent cartridges and one live round and placing them in a handkerchief in the boot of the vehicle.
The contents of the 000 calls described an unfolding car chase between the appellant and Walsh with both men driving at speeds in excess of 150 kilometres per hour. In the 000 calls Walsh described seeing the appellant pointing a large hand gun towards his vehicle and hearing what he thought sounded like a bullet hitting the side of his vehicle shortly afterwards. In the calls he made a number of references to being shot at whilst speaking on the phone. The phone call reception was intermittent and the phone line dropped out which resulted in there being three separate and distinct calls made to the police.
I turn now to the grounds of appeal.
Grounds 1, 1A and 3: Complaints in relation to “choice reasoning”, the rule in Browne v Dunn and lies
To some extent the complaints made under grounds 1, 1A and 3 overlap and it is convenient to discuss the issues which arise for consideration in respect of each of those grounds at the same time.
The complaints made in respect of grounds 1 to 1.4 arise from what the appellant says was the impermissible cross-examination of the appellant as to whether he was lying, the prosecutor’s address to the jury about the appellant’s counsel’s failure to comply with the rule in Browne v Dunn in order to undermine the appellant’s credibility, and the prosecutor’s comments to the jury inviting them to choose between whether the appellant or the witness Walsh was lying. It was submitted that the prejudice caused to the appellant by the combination of those matters was compounded by the failure of the Judge to correct any of that in his summing up.
Discussion
The prosecution case was based on the evidence of Walsh, the driver of the red Holden Commodore. The only witness called by the defence was the appellant who was the driver of the silver Holden Commodore. The evidence of both witnesses was in fact diametrically opposed.
After commencement of the appellant’s cross-examination, the prosecutor questioned him as to why he changed his position several times in the first few minutes of his cross-examination about why he had passed Walsh when he did and the movement of Walsh’s vehicle at that time. The first impugned question arose out of an exchange as follows:
Q.Well, I thought you said just a few moments ago that one of the reasons you decided to overtake him when you did was because his wheels were on the white line and that throws up a lot more spray -
A.Yeah -
Q.Hang on, and that’s what you were trying to avoid.
A.Yes, that’s true.
Q.But that’s not what you have just said though, is it.
A.Maybe not.
Q.So are you just changing your story as you go along.
A.It is quite possible. Here’s what happened, I pulled out to overtake and Mr Walsh pulled out onto the white line, and instead of me pulling back I continued along to overtake.
Q.So you weren’t having to overtake because driving over the white lines was causing all of this spray to come up and obscure your vision.
A.Not this time.
Q.What about the second time, is that what made you overtake the second time.
A.The second time I don’t believe there was any white lines, it was a straight section of road.
Q.I suggest you’re changing your story because you’re making it up.
A.Well, that’s your suggestion.
Later, the cross-examination continued as follows:
Q.What did your wife say to you when you began that manoeuvre to overtake him for the second time.
A.For the second time?
Q.Yes.
A.I believe she said something like ‘Just let him go’.
Q.Yesterday you told us she said that when you were in front of him after the overtaking manoeuvre. Which is it.
A.Beg your pardon?
Q.Did she say it before you overtook him or after you overtook him.
A.For the first or the second time?
Q.For the second time. You know what I’m asking you about, you know I’m asking you about the second overtaking manoeuvre, don’t you.
A.I think before I overtook him for the second time, I think she said ‘Just let him go’.
Q.Yesterday you said that she uttered those words after you’d overtaken him. Which one is it.
A.It is probably both.
Q.So she said it both before and after.
A.That’s not unusual for my wife to repeat things.
Q.Is this just another example of you changing your story as you go along.
A.No.
The cross-examination continued in similar vein until the following exchange occurred:
A.One, he didn’t skid down the camber of the road and, two, his dog remained asleep next to him on the front seat and had he applied his brakes in the manner that he describes that dog would have, at the very least, woken up and maybe even slid down onto the floor, something that Mr Walsh forget in his little pretence of what he said it was.
Q.Your account is Mr Walsh has simply lied about how that initial contact was made, isn’t it.
A.Look, it’s so completely at odds with what my wife and I experienced that you could only categorise it as a lie.
Q.There is no room for mistake, is there, between Mr Walsh’s account at one end of the spectrum and your account at the other end of the spectrum.
A.And there is no way a dog would lie about it, because the dog was asleep on the seat in Mr Walsh’s own words. I do recall him saying that.
The appellant then complained to the Judge that it was very hard to deal with Walsh as a witness because he had a propensity to exaggerate and get facts wrong.
It has been necessary to set out at some length the earlier cross-examination and answers in order to understand the context of the impugned passages of cross-examination which occurred later:
Q.You think Mr Walsh should have been able to nut all that out as he’s talking to police on the phone, do you.
A.No, I think that if he had stuck to the truth on the phone that it would be a different matter. I might not even be here.
Q.Do you think he’s told lies to police in that 000 call.
A.Plainly.
Q.What do you say that he’s lied about in that 000 call.
Thereafter the prosecutor asked a series of questions about the 000 calls in which he identified the principal contents of the 000 calls. Viewed in context, the prosecutor’s cross-examination was not to seek the opinion of the appellant about whether Walsh was lying, but to clarify which factual assertions made by Walsh the appellant was claiming he had been lying about.
This was not a situation where the prosecutor had driven the appellant into saying that Walsh was a liar. To the contrary, very early in cross-examination the appellant made repeated assertions to the effect that Walsh was wrong, exaggerating and got the facts wrong, before he finally explicitly asserted that Walsh was lying. In support of the argument on this ground of appeal Mrs Shaw QC relied on two authorities, R v Leak[2] and R v Buckley.[3] It is necessary to say a little about both.
[2] [1969] SASR 172.
[3] (2004) 10 VR 215.
In R v Leak this Court observed:[4]
In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witness’s mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness’s testimony. No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness, least of all a detective, is a liar.
[4] [1969] SASR 172 at 173-174.
The mischief the Court was referring to in Leak is the mischief of seeking irrelevant opinion evidence from a witness about someone else who might be lying and thereby distracting the jury from its main task.
In Buckley the Victorian Court of Appeal per Nettle JA (as he then was), Winneke P and Charles JA agreeing, explained the reasons why, as a general rule, cross-examination of any witness, particularly an accused who gives evidence, as to whether another witness is telling lies or has invented something is generally impermissible. His Honour explained that this is because it may deflect the jury from a proper assessment of the credibility of the prosecution witnesses and of the accused in accordance with the burden and standard of proof which is always borne by the prosecution.

As the passages of cross-examination which appear above show, in this case, it was the appellant himself who had volunteered that the prosecution witness Walsh lied, had a propensity to exaggerate and got the facts wrong. Where the versions given by the appellant and Walsh were diametrically opposed, and in circumstances where the appellant had already asserted more than once that Walsh was lying, I consider that the prosecutor’s cross-examination did not go beyond permissible bounds.
In any event, the Judge’s directions were sufficient to direct the jury’s attention to the critical issue, which was whether the prosecution had proved on the evidence beyond reasonable doubt the appellant’s guilt. His Honour directed as follows:
I direct you, however, that even if you find the accused’s evidence is untruthful and is unconvincing and you conclude that he lied to you, or that his evidence is unreliable for some other reason, either in whole or in part, you cannot and must not conclude that, therefore, he must be guilty. It would be quite wrong to approach the case on the basis ‘I do not believe the accused when he gave evidence, therefore, he is guilty’. That is not the way in which we determine cases in the criminal court. If you conclude that you do not believe the accused’s evidence, then you will put his evidence aside and you will give it no weight.
Allied to this ground of appeal, counsel for the appellant also complained about the prosecutor’s comments in relation to the failure of counsel for the appellant to put the appellant’s case to Walsh during his initial cross-examination of Walsh.
It is necessary to say something about the course of events which led to the prosecutor’s comments.
During the appellant’s cross-examination the prosecutor cross-examined the appellant about his version of the events, crucial aspects of which had not been put to Walsh during cross-examination of Walsh by the appellant’s counsel.
At the conclusion of cross-examination of the appellant, during the course of a wide-ranging discussion about the proposed directions of the trial Judge, the prosecutor indicated he would seek a direction from the Judge that the jury could take into account the failure to challenge Walsh on a number of matters which the prosecutor regarded as important and about which the appellant gave evidence which was in direct contradiction to that of Walsh. The prosecutor said he would rely on that failure to support a submission to the jury of recent invention.
The parties were then given overnight to consider their respective positions and the next day counsel for the appellant submitted that the matters relied on by the prosecutor were not important, but rather they were collateral to the main issues and he requested the Judge to say nothing.
When the prosecutor took issue with that characterisation and reiterated that in his submission the matters not put to Walsh went to the heart of who was the aggressor, the appellant then applied to recall Walsh. That application was not opposed and in due course he was recalled and those matters were duly put to him.
There the matter rested, until the Judge commented prior to addresses that whether or not he made any reference to the Browne v Dunn point would depend upon the prosecutor’s address. He then invited counsel for the appellant to deal with the issue after he had heard what the prosecutor had to say.
In due course the prosecutor addressed the jury on the failure to cross-examine initially and suggested to the jury that was because the appellant “just invents things as he goes along” as a prelude to suggesting that the appellant was lying. The prosecutor concluded his address on that topic with the following comments:
If you find that he has lied to you about those matters and, indeed, other reported matters, that doesn’t mean he is guilty of these charges. It just means you put his evidence to one side. We go back to Mr Walsh’s evidence and then we apply the facts that arise, reasonably arise, from Mr Walsh’s account to the elements of the crime of attempted murder.
Counsel for the appellant did not respond directly to any of those submissions in his address to the jury.
The appellant’s complaint on appeal is that the matters relied on by the prosecutor to establish what he claimed was recent invention on the part of the appellant were not matters which went to the heart of the relevant and crucial issues at trial and, in view of the point made by the prosecutor in his address, it was necessary for the trial Judge to give a direction as to the limited circumstances in which a jury is able to rely on the failure to comply with Browne v Dunn.
The only reference in the summing up to the jury concerning the failure to put certain matters to Walsh by the appellant’s counsel was the Judge’s remarks as follows:
During cross-examination Mr Pearce put a number of propositions to the accused about his evidence and about the failure of his counsel to put to Mr Walsh certain matters which arose during the accused’s evidence. You will recall Mr Walsh was recalled and we lost some time because we had to bring him back, because he had to be brought back.
Those matters were then put to Mr Walsh, in fairness to Mr Walsh they were put to him, and you will remember Mr Walsh’s responses to the suggestions that had come out of the accused’s evidence and he takes issue with a number of those matters. I am not going to go back and deal with them, they should be fresh in your memory.
The complaint made on appeal is that the trial Judge should not have remained silent on the topic but, in view of the prosecutor’s address to the jury, ought to have given a direction along the lines suggested by King CJ in R v Manunta.[5] In making that submission Mrs Shaw also relied on a decision of the Victorian Court of Appeal in R v Morrow.[6]
[5] (1989) 54 SASR 17.
[6] (2009) 26 VR 526.
In Manunta the trial Judge was criticised for leaving three aspects of evidence to the jury for their consideration as to whether there had been a recent invention on the part of the accused.
In giving the jury a direction, the trial Judge quoted extensively from the relevant passages of evidence, including the cross-examination concerning the specific topics about which it was alleged there had been failures to cross-examine, and then left it to the jury to draw what inferences they saw fit.
The appellant complained that the Judge had erred in those directions in leaving for consideration to the jury whether the inference of recent invention could be drawn from those passages.
In the end the Court dismissed the appeal, finding that the Judge had fairly explained to the jury the evidence and the inferences fairly available on the evidence. However, in the course of the reasons King CJ said:[7]
I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.
[7] R v Manunta (1989) 54 SASR 17 at 23-24.
In Morrow the trial Judge’s directions to the jury about the failure of counsel for the accused to put matters in cross-examination to the complainant in a sexual case about which the appellant later gave evidence were said to be inadequate.
The Court held that the Judge was justified to conclude that there had been a substantial breach of the rule in Browne v Dunn and was correct to direct the jury that that failure could be taken into account in assessing the weight to be given to the appellant’s evidence and any argument that rested upon it.
However, the Court held it was not an appropriate case in which to have gone further, as the trial Judge did, and direct the jury to reason that as a consequence of the breach the jury might more readily accept the evidence of the complainant and reject the evidence of the appellant on what was a crucial issue at the trial.
The Court observed that it is neither necessary nor desirable whenever there is a failure of defence counsel to comply with the rule in Browne v Dunn for a trial Judge to make comments adverse to an accused. In the course of the judgment Redlich JA, with whom Nettle JA and Lasry AJA agreed, cited with agreement the comments of King CJ in Manunta referred to herein in [45].
As the authorities make plain, the issue of a trial judge’s comments about any perceived failure to comply with the rule in Browne v Dunn must be approached with caution. However in the circumstances which unfolded at trial, I do not consider that any of the authorities referred to by the appellant’s counsel assist the appellant or have any particular relevance to the facts here.
The first difficulty in accepting the submission, made in this Court for the first time, that the Judge should have given a direction is that counsel for the appellant at trial did not seek such a direction. To the contrary, he specifically asked the Judge to say nothing on the topic.
There was no suggestion made when the matter was first raised in the absence of the jury and the topic was first canvassed, that the failure to cross-examine Walsh had been a mere oversight on the part of counsel or had resulted from some misunderstanding by him as to his instructions.
The silence of the appellant’s counsel both at trial and later after the prosecutor’s address, suggests that the failure to cross-examine was not a case of oversight.
The only submission made by counsel for the appellant after reflecting on the matter was that the matters not put were not central issues at the trial but were merely collateral to the main issues.
It seems to me that that position is untenable. The matters not cross-examined on included but were not limited to assertions that Walsh was the aggressor, that on the second overtaking manoeuvre Walsh was driving so close to the appellant that the appellant had to bring his arm back inside the vehicle, that Walsh made contact with the rear of the appellant’s vehicle on multiple occasions, that Walsh was trying to run the appellant off the road, that the overtaking manoeuvres conducted by the appellant were done in a safe and careful manner, and finally, that the appellant at no stage produced a gun when Walsh’s vehicle was stuck behind the truck.
The application to recall Walsh for further cross-examination was not opposed by the prosecutor and was permitted by the Judge because the matters not put were in fact crucial and did go to the heart of the issues at trial.
The Judge’s comments referred to in [40] herein must be seen in the context of what went before, particularly in the context of a request that he say nothing and having agreed at the request of counsel for the appellant to have the witness recalled for further cross-examination. In the circumstances, had the trial Judge gone further and given a direction along the lines suggested by Mrs Shaw, it could only have had the effect of reinforcing the prosecutor’s submission that the only possible explanation for the failure to cross-examine Walsh on those topics was because the appellant was indeed making it up as he went along.
It is for these reasons no doubt that the trial Judge made a decision to leave the topic well alone during the summing up. As King CJ observed in Manunta, whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial.
Given the way in which the evidence unfolded and given the specific request by counsel for the appellant that nothing be said, the Judge’s decision to leave the matter well alone appears to me to have been a sound one. Certainly there is nothing the trial Judge could have said which would have had the effect of assisting the appellant’s case. In the circumstances I consider that the silence of the Judge, beyond referring to Walsh’s recall and the reasons for it, can only have been of advantage to the appellant.
For these reasons I do not consider that there has been any possible prejudice to the appellant by the Judge’s failure to direct the jury in accordance with the suggestions made by King CJ in Manunta.
The final complaint which is made under this ground of appeal is that the Judge erroneously directed the jury of the availability of “choice reasoning”. The argument as I understood it is that the characterisation of the issues in the case by the prosecutor amounted to telling the jury that they had a choice as to whether Walsh or the appellant was telling the truth.
The prosecution case was that the appellant began tailgating Walsh on a remote section of the Eyre Highway between Kimba and Port Augusta. As Walsh negotiated a right hand bend, the appellant overtook him on a double white line and then immediately after moving back onto the left hand side of the road, slammed on his brakes, causing a minor collision with the front of Walsh’s vehicle. Walsh was frightened by this, sped up and overtook the appellant to get away from him, reaching speeds in excess of 150 kilometres per hour. The appellant again caught up and overtook Walsh for a second time. As Walsh attempted for a second time to pass him and get away, and as he was approaching the rear of the appellant’s vehicle, he saw the appellant hanging out the driver’s side window pointing a gun at him. At some stage during the high speed pursuit Walsh said the appellant shot at him. The evidence of Walsh was materially inconsistent with the account given by the appellant of what happened at that time on the Eyre Highway. The differences were such that they could not be explained by one witness being mistaken about the evidence. The only explanation for the differences had to be that one party was not telling the truth.
There is no prohibition on either party pointing that out to a jury. The crucial point is that at no stage was the jury ever invited to reason to guilt by preferring the evidence of Walsh to the evidence of the appellant. On the contrary, the prosecutor prefaced his remarks to the jury by saying:
A criminal trial is never so straightforward as saying ‘Do I accept the prosecution witness or do I accept the accused?’. It is never that easy. The prosecution must prove its case and proved [sic] it beyond a reasonable doubt. If you find Mr Walsh to be an honest and reliable witness, that is only one step in the process. We then have to determine what factual basis we find acceptable based on Mr Walsh’s evidence and then apply it to the legal framework of the two charges.
Later, before concluding his address, the prosecutor again said to the jury:
If you find that he has lied to you about those matters and, indeed, other reported matters, that doesn’t mean he is guilty of these charges. It just means you put his evidence to one side. We go back to Mr Walsh’s evidence and then we apply the facts that arise, reasonably arise, from Mr Walsh’s account to the elements of the crime of attempted murder.
The appellant’s further complaint that the trial Judge repeated the same mischaracterisation as that alleged to have been made by the prosecutor is based on the following paragraph in the Judge’s summing up:
You might think, it is a matter for you, that there is no room for error in those descriptions. You might think one or other of them is not telling the truth. Ultimately it is for you to decide what you make of their evidence. What do you believe, what do you find accurate, what are you doubtful about?
You will need to make an assessment of Mr Walsh’s evidence and the accused’s evidence. If you conclude that the accused’s evidence is truthful and reliable, then you will give that consideration when assessing Mr Walsh’s evidence and deciding the guilt or innocence of the accused.
If you come to the conclusion that the accused has been accurate and told you the truth, ladies and gentlemen, you would find him not guilty of any charge because, on his evidence, he at no stage fired his weapon at Mr Walsh’s car or at Mr Walsh, he fired into the bitumen, and he did not have the requisite intention in respect of any of the charges that you are required to consider. So, if you accept the accused’s evidence as being honest and accurate, it is a matter for you, but I would suggest you acquit him.
If, on the other hand, you find the accused’s evidence or some of his evidence untruthful and unreliable and you find Mr Walsh’s evidence on most of the significant topics both truthful and reliable, then you will have regard to that evidence in drawing your conclusions and when considering the charges.
I direct you, however, that even if you find the accused’s evidence is untruthful and is unconvincing and you conclude that he lied to you, or that his evidence is unreliable for some other reason, either in whole or in part, you cannot and must not conclude that, therefore, he must be guilty. It would be quite wrong to approach the case on the basis ‘I do not believe the accused when he gave evidence, therefore, he is guilty’. That is not the way in which we determine cases in the criminal court. If you conclude that you do not believe the accused’s evidence, then you will put his evidence aside and you will give it no weight.
[emphasis added]
Counsel for the appellant identified the paragraph emphasised above as the alleged misdirection as to the burden of proof. Read in the context of the complete directions on that topic it is readily apparent that the appellant’s submission is misconceived.
There was no misdirection. If anything the direction to the jury to put aside the appellant’s evidence in the event they found the appellant to have been untruthful was favourable to the appellant. The trial Judge correctly directed the jury as to the onus of proof.
I would dismiss grounds 1 and 1A of the appeal. I would grant permission to the appellant to appeal on ground 3, however I would dismiss that ground of appeal.
Ground 2: Directions on intent
As I understand the appellant’s argument in respect of this ground of appeal, the appellant complains that when directing the jury on the issue of intent the Judge failed to identify the actus reus at the time of which it was necessary for the jury to be satisfied beyond reasonable doubt that the appellant had the specific intention to kill.
Counsel for the appellant submitted that it was also necessary for the Judge to direct the jury that the prosecutor must establish that the appellant turned his mind to the consequences of his conduct and performed the actus reus with the intent to achieve that consequence.

Here, the evidence raised a number of competing scenarios about the sequence in which the five shots were fired by the appellant and in what direction they were fired. The appellant’s complaint is that in failing to direct the jury on each and every one of those scenarios and instead focusing on the contest between the credit of the appellant and the main prosecution witness Walsh, the jury’s attention was diverted from the critical issue which was whether the prosecution had proved beyond reasonable doubt that the appellant had an intention to kill at the time when he fired the shot or shots.
The Judge’s summing up
The appellant’s submission necessitates a careful examination of the trial Judge’s summing up.
The Judge crystallised the critical issue for the jury early in the summing up as a prelude to directing them as to the elements of the offence. He did so in the following terms:
In this case you might think that the issues are in respect of the first count of attempted murder whether the prosecution has proved beyond reasonable doubt that the accused, Mr Anderson, firstly deliberately shot at Mr Walsh or the car in which Mr Walsh was travelling and whether you can be satisfied beyond reasonable doubt that at the time he fired the shot or shots, whichever you find that to be, he intended to kill Mr Anderson.
The defence case is in relation to count 1 that there was no specific intention to kill but this incident occurred in the background of the accused, Mr Anderson, being confused, in fear, panicking about the situation he perceived to exist. The defence case is that it was Mr Walsh’s aggressive driving that caused the accused to be concerned, become confused and panicked. The defence case is that Mr Anderson did not fire at Mr Walsh or his car, he fired into the road in order to frighten Mr Walsh and to demonstrate to Mr Walsh that it was a genuine firearm. The accused and his wife perceived Mr Walsh might be a threat to them.
So, ladies and gentlemen, really in a nutshell if you look at it, and it is more complex than just a nutshell but they are the basic lines of dispute here and they are the matters that you might think are going to tax your consideration when you retire to consider your verdicts.
Then, in the context of directing the jury in relation to each element of the offence, the Judge again identified the issue in relation to the element of intent as follows:
So in this case the first question you should ask yourselves is are you satisfied beyond reasonable doubt that Mr Anderson fired shots at or in the direction of Mr Walsh and that was a deliberate act on the part of Mr Anderson. If you are so satisfied, are you satisfied beyond reasonable doubt that the accused, Mr Anderson, at the time he fired a shot or shots, intended to kill Mr Walsh.
Now the technical position is that if he has that intention when he fires any one shot that would be sufficient intention for the purposes of the crime.
If you are not satisfied beyond reasonable doubt that he had the specific intent to kill Mr Walsh at the time he fired the gun then you will find the accused not guilty of attempted murder. If you are satisfied beyond reasonable doubt that the accused fired the gun at Mr Walsh or in his direction with the intention of killing him, then you must also be satisfied beyond reasonable doubt that the accused’s conduct was unlawful and amounted to an attempt to murder.
I direct you that there are circumstances in which a person can kill another or attempt to kill another when that conduct is not unlawful. For example, if the act is done in self-defence or in defence of another that would create a situation where the act is not unlawful. In other words, it is a lawful act. I do not need to go into the detail of self-defence for this case but there are circumstances, and self-defence is one of them, where a killing, even though it was a deliberate killing of another, would not be unlawful.
In this case, ladies and gentlemen, if you find all other elements proved beyond reasonable doubt I direct you that there is no evidence from which you could conclude the accused’s conduct was lawful. It is not suggested by the defence that in any way what he did was lawful, nor is it being suggested in any way that his act of firing a weapon was a lawful act. And ladies and gentlemen, you will recall when he admits that he fired the shots what he says is he did not fire them deliberately at or towards Mr Walsh and he never intended killing.
It can be seen that on each occasion when the Judge discussed the issue of intent with the jury he reiterated the defence case, namely that although the appellant admitted firing five shots, he did not fire any at Walsh’s vehicle but rather in the direction of the bitumen and that his only purpose was to frighten Walsh and to get him to leave the appellant and his wife alone.
At the conclusion of the directions on the elements of the offence the Judge said:
I remind you that each element must be proved beyond reasonable doubt. You might think the issues for you to focus on when considering count 1 are has it been proved beyond reasonable doubt that the accused fired bullets at or in the direction of Mr Walsh or Mr Walsh’s car? Secondly, if he did that, was his act deliberate? Thirdly, did he intentionally fire the bullets at Mr Walsh or his car? And finally, if he did so, are you satisfied beyond reasonable doubt he intended to kill Mr Walsh? If you find all of those matters proved you might have little difficulty in concluding that the accused’s conduct amounted to an attempt to murder Mr Walsh.
Those initial directions were directing the jury’s attention specifically to the critical issue, namely whether the appellant deliberately fired a bullet or bullets at Walsh’s vehicle and, if he did so, whether he intended at that time to kill Walsh.
After correctly directing the jury as to the legal issues, the Judge then spent quite some time reminding the jury of the evidence which had been given at trial.
In the course of that summary he reminded the jury of the many inconsistencies in Walsh’s evidence between his oral evidence and the 000 calls. Those inconsistencies focused mainly on the sequence of events described by Walsh. The Judge then turned to the appellant’s evidence and directed the jury as follows:
In assessing the accused’s state of mind and whether you can be satisfied beyond reasonable doubt that he intended to kill Mr Walsh, you should consider the objective facts, determine what you are satisfied of and what you are satisfied occurred during the course of the chase, including how many bullets were fired and in what direction they were fired. The fact that Mr Walsh believed he might die does not prove that the accused intended to kill him. What you have to look at is what are you satisfied of. Are you satisfied that the accused pointed a loaded gun at Mr Walsh? Are you satisfied beyond reasonable doubt that he fired the gun in the direction of Mr Walsh’s vehicle and what was his intention, having regard to all the circumstances that you find?
If you think it was a reasonable possibility in this case that the accused was firing at the bitumen and not at Mr Walsh or his car, then, it is a matter for you, but it would be very difficult to conclude in those circumstances that you are satisfied beyond reasonable doubt that he intended to kill Mr Walsh, but they are matters that you will have to consider.
He went further, directing the jury’s attention to an issue which arose from the evidence about the hole found in the petrol tank of Walsh’s vehicle:
As to the hole in the petrol tank in Mr Walsh’s car, you might ask yourselves are you satisfied that the hole was caused by a bullet from the gun fired by the accused? You have the evidence of Mr Walsh that his petrol tank had not been damaged prior to the incident. You have the evidence of the police officer who discovered the projectile in the tank and you have the evidence of Sergeant Plummer that the projectile is consistent with a bullet that could have been fired from the pistol.
If you are satisfied that it was a shot fired by the accused which entered the petrol tank you might ask was that as a result of the accused firing in the direction of Mr Walsh’s car? If you conclude that the accused deliberately shot at Mr Walsh’s car or at Mr Walsh, then you will consider what he intended at the time.
In that regard the accused says that at no time did he intend Mr Walsh any harm, let alone to kill him. And the accused says at no time did he actually shoot at Mr Walsh’s car or at Mr Walsh, that when he fired the shots they were fired towards the bitumen.
As in his earlier directions, the Judge reminded the jury again what the critical issues for determination were, namely the appellant’s intention at the time when the shots were fired and in which direction the appellant fired them. On every occasion when the Judge distilled the issue for the jury he reminded them again of the defence position in relation to that issue.
While it was not up to the trial Judge to tell the jury which scenario they should find, he was careful to point out that there was more than one view of the evidence open to them. When reminding them of counsels’ submissions he said:
Well, ladies and gentlemen, you have again heard Mr Pearce’s submissions about that and the submissions were that, really, when he was making the 000 call from behind the truck, that is when the shots were fired and, again, you will have to weigh up whether shots were fired before he got behind the truck, whether some shots were fired before he got behind the truck and whether there were shots fired when he got behind the truck, but the Crown case is that you should have regard to the 000 calls and, if you listen to them carefully, the Crown case is that you should draw the conclusion that shots were fired when Mr Walsh had to slow down because of the trucks in front of him and that is probably when the bullet went into the petrol tank.
In the summing up the Judge fully and fairly summarised the evidence in such a way that the jury could not fail to have been aware of the many inconsistencies in Walsh’s evidence and the issues for determination which arose from those inconsistencies. In the context of directing the jury, both as to the legal elements and giving them necessary assistance with the facts, I consider that the Judge’s directions were comprehensive and balanced. I do not consider there is any more which the Judge could have done or should have done to assist the jury with the critical factual and legal matters for their determination.
I would dismiss this ground of appeal.
Grounds 4, 4A, 4B and 4C: Error in admitting the entirety of the contents of the 000 calls or error in failing to exercise the discretion to exclude all or part of the 000 calls
The appellant complains that the contents of the 000 calls in their entirety ought to have been excluded or, in the alternative, that the trial Judge erred in his directions as to the permissible and impermissible use of those calls. The appellant further complains that the trial Judge’s directions as to the use the jury could make of inconsistencies they found between the oral evidence of Walsh and what he said in the 000 calls were inadequate. Finally, there is a complaint that in any event the content of 000 calls should have been excluded by the trial Judge in the exercise of the discretion.
At the trial evidence of the content of each of the three calls was admitted by the Judge over objection. Although it was not possible to precisely state the time of each call, it appears that they all took place over a period of approximately 20 to 25 minutes. It would appear that during the calls the phone connection was dropping in and out intermittently which resulted in there being three separate calls, the first two of which lasted no more than about three minutes and the last call approximately 10 to 15 minutes.
Counsel for the appellant submitted that the trial Judge made an error in treating all of the 000 calls as admissible on the same basis, namely as part of the res gestae of the offence, therefore rendering them as admissible to prove the truth of the contents. The appellant argued that on a proper analysis of the 000 calls, at least one, if not two of the calls were made by Walsh when he was describing an event which had already passed. It was submitted that the offence was completed by the time the witness called the police and therefore the calls ought not to have been admitted as part of the res gestae.
In developing this submission the appellant’s counsel pointed to the prosecutor’s opening and submissions made at trial in support of the proposition that the prosecution had tied its case to there being five shots fired in quick succession by the appellant at a time when Walsh was stuck behind a truck and trying to overtake it. From that proposition it followed in the appellant’s argument that most of the conversation Walsh had with the police during the 000 calls was at a time when the offence had already been completed. In making that submission the appellant’s counsel relied on the High Court decision in Vocisano v Vocisano.[8] Before discussing that case it is necessary to say something about the manner in which the trial proceeded.
[8] (1974) 130 CLR 267.
Discussion
At the outset, the prosecutor made it clear that the prosecution would rely on the contents of the 000 calls in addition to the oral evidence of Walsh. The following extracts taken from the prosecution opening make that clear:
This crime began with what I would call an act of road rage, an act of road rage on the part of the accused, but quickly the accused’s actions went well beyond that which might be labelled as an act of road rage. Well beyond anything that could possibly carry that label. This incident culminated with the accused producing a handgun, a .35 Smith & Wesson magnum revolver and shooting at another motorist. Shooting at a motorist he didn’t know, a motorist who was, at the relevant time, simply minding his own business, driving along on a country road on the Eyre Highway with his dog and his surfboard in the car. Not only did the accused produce a gun and shoot at another motorist. He did so repeatedly. He shot at that motorist as he was trying to get away. The accused chased him and shot at him as that man tried to get away. That other motorist drove as fast as his car would go. He drove at speeds approaching 200 km/h. He drove at those speeds on a wet country road as he desperately tried to get away from the man who was shooting at him.
…
Mr Walsh pulls out for his second overtaking manoeuvre. He pulled out into the right-hand lane and began to accelerate up towards the rear of the accused’s silver Commodore.
As the nose of Mr Walsh’s car got close to the back of the accused’s car Mr Walsh saw the driver of that silver Commodore, as I say, on the Crown’s case, the accused, Mr Walsh saw the driver of that car lean out the driver’s window, he put his head and arm out the driver’s window. The accused was holding a gun. The gun was pointed at Mr Walsh’s car.
Faced with the sight of a man pointing a gun at his car Mr Walsh ducked down in his seat as he was driving along at 90 plus km/h. He ducked down into his seat and put his foot to the floor, literally. He put the accelerator down as far as it would go. He tried to accelerate away from the silver Commodore but the silver Commodore accelerated as well and for a short time the two cars were side by side. Eventually Mr Walsh was able to pull ahead.
As that was going on Mr Walsh heard what he will describe as a loud metallic sound near, he thought, the front of his car. Mr Walsh thought he was being shot at.
…
And Mr Walsh saw at that point as the silver car approached him the driver’s head once again come out of the car with his hand and the gun and Mr Walsh believed he was being shot at; on the prosecution’s case the accused did shoot at Mr Walsh as Mr Walsh was stuck behind the truck.
Mr Walsh will tell you he thought he was going to die at that point. Because he thought he was going to die he pulled out from behind the truck. He had no idea what the road ahead had in store for him. He had no idea whether there were any cars coming. He had no idea if there was any oncoming traffic. He chose the option of pulling out into the unknown to get out from behind the truck so he could try and accelerate away from the accused. Fortunately, members of the jury, the road was clear and having pulled out into the unknown away from the spray of the truck and avoiding any oncoming traffic he again had the foot to the floor and sped away, resuming from time to time his contact with police where he’s begging police for help.
…
Anyway, amongst other things he told the police this: ‘I need help, I need help, he’s shooting me, Jesus, quick, what the fuck, oh Jesus Christ, I’m flat out, it’s raining, I’m really scared cause the car is like, oh my God, this guy is shooting at me’. A bit later on, ‘He overtook me and then slowed right down and forced me to run into him. Then as I tried to overtake him he just shot at the side of my car, then he’s come right up my arse again and just shot again. Then he just had another go. Then, when I’m talking to you far out man’. A bit later on ‘I’m really scared, he’s right up my arse again, oh shit. I’m going about 180 now and he’s right up my arse’. A bit later ‘When I was talking to you before I couldn’t pass a truck, it came right up behind and he took another shot and then I just went around a blind corner, I was lucky there was nothing coming the other way, I would have died’. The calls went on for some time, about half an hour.
On the prosecution case as these things sort of unfolded five rounds were fired by the accused towards Mr Anderson as he desperately tried to get away. From all of that the accused stands charged with a crime of attempted murder.
[emphasis added]
As things transpired, in his evidence in court, Walsh maintained that he had been shot at by the appellant as he tried to pass the appellant for the second time. Even when the contrary proposition was put to Walsh, he maintained that position.
It is correct, as the appellant submitted, that as a consequence the evidence of Walsh is not clear and there is some apparent inconsistency between what he told the police in the 000 calls and what he later said in court.
On one interpretation of Walsh’s evidence all of the shots were fired while Walsh was stuck behind a truck waiting for an opportunity to overtake it. On another interpretation, one or more of the shots may have been fired when Walsh was overtaking the appellant for the second time.
Nevertheless, on either scenario Walsh described and maintained the description of the appellant pointing a gun out of the window of his vehicle while the appellant’s vehicle was behind Walsh’s vehicle.
In any event, on any view of the evidence, what Walsh described both in evidence and in the 000 calls, was a high speed pursuit, the commencement of which was an act described by the prosecutor as an act of road rage, when the appellant first overtook Walsh and then braked suddenly, causing a rear end collision with Walsh’s vehicle. Thereafter a chase ensued in quite dramatic circumstances when both vehicles reached speeds well in excess of 150 kilometres per hour and during which shots were fired from the appellant’s vehicle.
It is true, as the appellant submitted, that in the third and final 000 call, if the contents of the call were to be accepted at face value as accurate, the shooting, regardless of when it occurred, had come to an end by the time Walsh was speaking to the police in that phone call. The additional information which is contained in that third call to some extent put in context the events which had been described by Walsh in the first two calls to the police. He said:
Comms:Alright has there been any more shots fired.
Walsh:No only just before, before he cut out, when he thought I couldn’t pass a truck and they came right up behind me and took another shot.
Comms:Sorry what was that, four shots.
Walsh:When I was talking to you before I couldn’t pass a truck, they came up right behind and he took another shot. And then I just went around a blind corner it was lucky there was nothing coming the other way. I would have died.
Comms:Ok so there’s been nothing since then.
Walsh:Nothing since then, they’re a fair way back now, they’re probably about 200 metres …

In his final address to the jury the prosecutor urged upon the jury a view of the evidence that Walsh had been shot at five times in quick succession while he was stuck behind the truck. Although the prosecutor made those submissions in his final address, that was not the only view open on the evidence as the Judge recognised when he directed the jury’s attention to that point as follows:
Well, ladies and gentlemen, you have again heard Mr Pearce’s submissions about that and the submissions were that, really, when he was making the 000 call from behind the truck, that is when the shots were fired and, again, you will have to weigh up whether shots were fired before he got behind the truck, whether some shots were fired before he got behind the truck and whether there were shots fired when he got behind the truck, but the Crown case is that you should have regard to the 000 calls and, if you listen to them carefully, the Crown case is that you should draw the conclusion that shots were fired when Mr Walsh had to slow down because of the trucks in front of him and that is probably when the bullet went into the petrol tank.
In light of the foregoing I do not accept the submission made by the appellant’s counsel that the prosecution tied its case to one particular scenario as opposed to another and therefore the admissibility of the evidence of the 000 calls is to be decided on the basis to which the prosecution committed itself.
As I have pointed out, there were inconsistencies in the evidence of Walsh about the sequence of events. There were also inconsistencies in the 000 calls themselves. Ultimately those inconsistencies went to the weight of the evidence the jury were prepared to give to Walsh’s evidence and the evidence of the 000 calls, not to the admissibility of those calls.
In my view the Judge was correct to admit all of the calls as part of the res gestae.
In my view the reliance placed by the appellant on the High Court in Vocisano is misplaced. In Vocisano, which was a civil case for damages, one brother sued another brother after both had been involved in a motor vehicle accident. Bystanders who came upon the scene of the accident five minutes after it occurred heard the respondent in the proceedings say that his brother (the appellant in the proceedings) was the driver. The High Court, in rejecting the admissibility of that statement as part of the res gestae, observed that there was no sufficient contemporaneity in the statement made to the bystanders to warrant the conclusion that they were made as part of the res gestae. In so holding the Court said:[9]
But, in the present case, there was, in my opinion, no sufficient contemporaneity of the statements made to either of the witnesses Smith to warrant the conclusion that the statements were made as part of the res. The occurrence was the accident, and although the statements by the respondent were made proximately to the occurrence of the accident, they were in the nature of a historical account rather than in the nature of a statement made as part and parcel of the occurrence.
[9] Vocisano v Vocisano (1974) 130 CLR 267 at 273.
To my mind the sequence of events described by Walsh in the 000 calls accords with a scenario contemplated by Lord Wilberforce in Ratten v The Queen:[10]
In the present case, in their Lordships’ judgment, there was ample evidence of the close and intimate connection between the statement ascribed to the deceased and the shooting which occurred very shortly afterwards. They were closely associated in place and in time. The way in which the statement came to be made (in a call for the police) and the tone of voice used, showed intrinsically that the statement was being forced from the deceased by an overwhelming pressure of contemporary event. It carried its own stamp of spontaneity and this was endorsed by the proved time sequence and the proved proximity of the deceased to the accused with his gun. Even on the assumption that there was an element of hearsay in the words used, they were safely admitted. The jury was, additionally, directed with great care as to the use to which they might be put. On all counts, therefore, their Lordships can find no error in law in the admission of the evidence. They should add that they see no reason why the judge should have excluded it as prejudicial in the exercise of discretion.
[10] [1972] AC 378 at 391-392.
On any view of the evidence, the shooting in this case occurred during the course of a highly charged, if not dramatic pursuit, in which both vehicles travelled at speeds in excess of 150 kilometres per hour for some 20 to 25 minutes. In each of the 000 calls, the pursuit was continuing. In my view, that is sufficient in all of the circumstances here to determine its admissibility.
Of course it was necessary for the Judge to direct the jury in all of the circumstances how they were to approach any inconsistencies in Walsh’s evidence. It is apparent that the Judge was alive to that when he directed the jury as follows:
The other side of that coin, ladies and gentlemen, is if there were massive inconsistencies between the 000 calls and the evidence you heard you can use that in determining how much you would be prepared to rely upon Mr Walsh’s evidence.
Ladies and gentlemen, you have heard the recordings of the 000 calls. You will make your assessment of what was said and the manner in which Mr Walsh conveyed what was going on. I do not intend to repeat to you what you have heard.
If you conclude that Mr Walsh was genuinely in fear when he was talking to the operator, and that he was genuinely telling the truth, then you must consider how reliable was his description of the events.
When he gave evidence, he told you that he did not have a clear recollection of the detail of what he said or some of the detail of what was occurring at the time. The description he gave of events whilst talking to the police operators was made as those events unfolded. The description is not exactly in accord with what Mr Walsh said in the witness box because you will recall some of the events he just could not remember.
You must consider, first, whether Mr Walsh was making all this up and, secondly, how accurate and reliable was his evidence.
For these reasons I consider that there was no proper basis to exclude the evidence of the 000 calls. Even if the third call, on one view of the evidence, was made after the offending had come to an end, I do not consider that the appellant has suffered any prejudice by the admission of its contents. That is because in the third call the information conveyed to the police merely reiterated and placed in context what Walsh had earlier told them in the first two calls.
I would grant permission to appeal in respect of grounds 4A, 4B and 4C, however I would dismiss those grounds and ground 4.
Ground 5: Verdict unsupported by the evidence
I turn now to the final ground of appeal, the complaint that the verdict is unsupported by the evidence.
The evidence in the trial was not extensive. It consisted principally of the evidence of the witness Walsh and the evidence of the appellant, together with evidence from a ballistics expert who examined the appellant’s gun and cartridges retrieved from the appellant’s vehicle at the time of his arrest.
The forensic evidence in itself was capable of founding an inference that five bullets had been fired from the appellant’s gun. Tests conducted on the appellant’s hands and clothing also were capable of producing an inference that he had fired a gun. A bullet consistent with the ammunition located in the appellant’s vehicle was extracted from the petrol tank of Walsh’s vehicle. In other words, the prosecution were able to prove that the gun had been discharged five times, irrespective of whether the appellant had made the admission which he did.
Walsh was cross-examined about the inconsistencies between the 000 calls he made to the police and the evidence he gave in court. The trial Judge directed the jury to consider those inconsistencies very carefully and they were properly directed that those inconsistencies were matters for them when assessing the credibility and reliability of Walsh.
The issues in the case were correctly identified. The jury was reminded throughout the Judge’s summing up of the defence case in relation to every one of the critical issues which arose for the jury’s determination.
Having carried out my own independent assessment of the evidence I consider that the evidence was sufficient to satisfy the jury beyond reasonable doubt of the appellant’s guilt.
The evidence of Walsh, if accepted, established that the appellant tailgated Walsh before overtaking him on a double white line while going around a bend and slamming on his brakes causing a minor collision. During the high speed pursuit of Walsh which occurred thereafter and in which the appellant and Walsh overtook each other twice, the appellant produced a gun, pointed it at Walsh and fired five shots.
To my mind the firing of not one but five shots from the hand gun at Walsh’s vehicle in those circumstances was capable of founding an inference beyond reasonable doubt that the shooter intended to kill Walsh.
For these reasons I would grant permission to the appellant to appeal in respect of ground 5, however I would dismiss that ground of appeal.
For these reasons I would dismiss the appeal on all grounds.
DOYLE J: I would dismiss the appeal. I agree with the reasons of Kelly J, and with the additional reasons of the Chief Justice.