R v Anderson - [2014] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ANDERSON
[2014] SASC 99
Reasons for Ruling of The Honourable Justice Sulan
5 August 2014
EVIDENCE - ADMISSIBILITY AND RELEVANCY - RES GESTAE
Application by the accused to exclude evidence of phone calls to police made by the complainant.
The accused is charged with attemtped murder and aggravated endangering life arising from an incident while driving and firing shots from a handgun at the complainant. During the incident, the complainant made three '000' calls to obtain police assistance. The accused submits that the phone calls were made subsequent to the alleged offending and therefore did not form part of the res gestae. It is further submitted that their contents would cause prejudice to the accused. Counsel for the prosecution submits that the phone calls and the alleged offending were part of the same unfolding incident.
The statements in the phone calls were spontaneous and contemporaneous with the unfolding incident involving the alleged offending. There is no risk of concoction or fabrication of the statements by the complainant. The phone calls are admissible for their testamentary effect as part of the res gestae. Declined to exercise discretion to exclude the evidence on the basis that it is more prejudicial than probative.
Held: Application dismissed.
Ratten v The Queen [1972] AC 378; R v Duong (2011) 110 SASR 291, applied.
R v Sumner; R v Fitzgerald (2013) 117 SASR 271, discussed.
Vocisano v Vocisano (1974) 130 CLR 267; Pollitt v The Queen (1991-2) 174 CLR 558, considered.

R v ANDERSON
[2014] SASC 99
Criminal

SULAN J: The accused, Michael Craig Anderson, is charged with the attempted murder and aggravated endangering life of Zephatali Tom Walsh. Prior to the empanelment of a jury, the accused applied to exclude evidence of three phone calls made by Mr Walsh to police on 12 July 2013 at about the time of the alleged offending. I made a ruling admitting the evidence and indicated I would provide reasons later. These are those reasons.
Background
Mr Walsh was driving along Eyre Highway between Kimba and Iron Knob on 12 July 2013 when he noticed a vehicle a short distance behind him. There is no dispute that the accused was the driver. A series of events took place involving multiple overtaking manoeuvres and a minor collision occurred. During the course of those events, the accused fired a number of shots from a handgun. The prosecution case was that the shots were fired at Mr Walsh, or at his vehicle, with an intention to kill him. Whilst the events were unfolding, Mr Walsh called ‘000’ using his mobile phone to obtain police assistance. The phone reception was intermittent, and the line dropped out resulting in three separate calls. Counsel for the prosecution sought to lead evidence of the calls and to tender a disc containing the audio recording of the conversations. The contents of the phone calls describe an unfolding car chase between the accused and Mr…

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 Anderson

Details

AGLC: R v Anderson [2014] SASC 99
Case: [2014] SASC 99
Decision Date

CaseChat Overview and Summary

The case of R v Anderson is a criminal proceeding in the Supreme Court of South Australia, where the accused, Michael Craig Anderson, is charged with attempted murder and aggravated endangering life against Zephatali Tom Walsh. The key issue before the court was whether evidence of three phone calls made by Mr Walsh to the police during the incident should be excluded. The defence argued that the phone calls were made after the alleged offending and therefore were not part of the res gestae, and their contents would cause prejudice to the accused. The prosecution argued that the phone calls were part of the same unfolding incident, were spontaneous and contemporaneous, and were not at risk of being concocted or fabricated. The court considered the legal principles established in Ratten v The Queen and other cases, which provide that statements made as part of the res gestae are admissible if they are spontaneous, contemporaneous, and there is no risk of concoction. The court found that the phone calls were part of the ongoing incident and were made in a spontaneous and contemporaneous manner, without any risk of concoction or fabrication. Therefore, the phone calls were admissible for their testamentary effect as part of the res gestae. The court declined to exercise its discretion to exclude the evidence on the basis that it was more prejudicial than probative. The application to exclude the evidence was dismissed.

The court's decision was based on the legal principles established in Ratten v The Queen and other cases, which provide that statements made as part of the res gestae are admissible if they are spontaneous, contemporaneous, and there is no risk of concoction. The court found that the phone calls were part of the ongoing incident and were made in a spontaneous and contemporaneous manner, without any risk of concoction or fabrication. The court declined to exercise its discretion to exclude the evidence on the basis that it was more prejudicial than probative. The application to exclude the evidence was dismissed, and the evidence of the phone calls was admitted.

Orders