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 Walsh at speeds of up to 180 kilometres per hour. Mr Walsh described seeing the accused pointing a large handgun towards his car and hearing what he thought sounded like a bullet hitting the side of his car shortly after. He makes a number of references to being shot at while he is speaking on the phone. It is alleged that the accused fired a total of five shots during the incident. When the accused was arrested, police seized a Smith & Wesson revolver from the accused’s car. Five rounds had been fired from the revolver. A bullet consistent with ammunition used by a Smith & Wesson revolver was recovered from the petrol tank of the victim’s car. Counsel submits that the evidence is admissible for its testamentary effect on the ground that it is part of the res gestae.
Defence submissions
Counsel for the accused advance two grounds in support of his application. He submitted that the phone calls are not part of the res gestae and are therefore inadmissible as hearsay for proving the truth of their contents. Counsel submitted that the description of the driving is not contemporaneous or sufficiently connected with the alleged offending. It is submitted that, once the shots had been fired, any subsequent description of the events fall outside the res gestae. On the accused’s version of the facts, two shots were fired followed shortly by a volley of three shots in response to Mr Walsh reversing his vehicle in the direction of the accused at a significant speed. It is submitted that the phone calls were made after Mr Walsh had sped off in the direction of Port Augusta, followed by the accused who intended to make a complaint to police in Port Augusta. It was submitted that the statements were descriptive of events which had occurred and were not part of the res gestae.
Further, counsel submitted that even if the phone calls were part of the res gestae, their contents are so prejudicial to the accused that they should be excluded in the exercise of my discretion. It is submitted that, irrespective of the reliability and accuracy of the allegations made by Mr Walsh, his highly distressed demeanour may unfairly influence the minds of the jury. Counsel contended that inconsistencies between the phone calls and the statement Mr Walsh later gave to police reveals a possibility of distortion of the incident as it was recounted while driving.
Submissions by the Prosecution
Counsel for the prosecution submitted that the phone calls cannot be divorced from the alleged offending as the car chase was part of an unfolding incident involving the accused firing shots. Therefore, it is relevant to the trier of fact to understand the surrounding circumstances of the offending and provide a basis for assessing the state of mind of the accused. As a matter of law, it is submitted that the calls were contemporaneous with the alleged offending to form part of the res gestae. It is further submitted that any prospect of concoction by Mr Walsh is removed due to the proximity of the calls to the alleged offending and the continuing state of fear demonstrated by Mr Walsh until the accused was apprehended. Counsel submitted there is no relevant prejudice to the accused by admitting the phone calls. It is a matter for the jury to assess the reliability and accuracy of the conversations.
Discussion
The starting point for a consideration of the admissibility of statements made as part of the res gestae is Ratten v The Queen.[1] Mr Ratten was convicted of the murder of his wife by shooting her with a shotgun. The defence was that the shooting was an accident when Mr Ratten was cleaning his shotgun. Evidence of a telephone operator who spoke to the deceased was admitted. The operator’s evidence was that she had received a call from the phone at the residence at which the deceased lived. The caller was a distressed female who became increasingly hysterical who said, “Get me the police”. The caller hung up before the operator could connect her to the police. The accused objected on the ground that the content of the call was hearsay. The Court of Appeal and Privy Council dismissed the appeal. Lord Wilberforce, who delivered the decision of the Privy Council on behalf of Lord Reid, Lord Hodson, Lord Diplock and Lord Cross of Chelsea said:[2]
The expression “res gestae”, like many Latin phrases, is often used to cover situations insufficiently analysed in clear English terms. In the context of the law of evidence it may be used in at least three different ways:
1. When a situation of fact (e.g. a killing) is being considered, the question may arise when does the situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife, without knowing in broader sense, what was happening. Thus in O’Leary v. The King (1946) 73 C.L.R. 566 evidence was admitted of assaults, prior to a killing, committed by the accused during what was said to be a continuous orgy. As Dixon J. said at p. 577:
“Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.”
2. The evidence may be concerned with spoken words as such (apart from the truth of what they convey). The words are then themselves the res gestae or part of the res gestae, i.e., are the relevant facts or part of them.
3. A hearsay statement is made either by the victim of an attack or by a bystander – indicating directly or indirectly the identity of the attacker. ...
[1] [1972] AC 378.
[2] [1972] AC 378 at 388-89.
His Lordship expounded the test of admissibility as follows:[3]
The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statement made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. ...
[3] [1972] AC 378 at 389.
In Vocisano v Vocisano, Barwick CJ, with whom Stephen and Jacobs JJ agreed, said:[4]
The question of whether statements form part of a res gestae is fraught with difficulty at any time. In the present case, the learned trial judge relied upon the views expressed by the Privy Council when giving its advice in Ratten v. The Queen. This is not an appropriate occasion, it seems to me, to discuss whether any change in the established law, and if so its precise extent, was intended by their Lordships in expressing their views in that case. A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable : but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility. In Ratten’s Case, Lord Wilberforce seems to have regarded the relevant occurrence as the “drama” which began when it may be supposed a threat to kill his wife was made by the appellant in that case and which ended with her death. So regarded, the telephone call was necessarily involved in the occurrence and the deceased’s statement to the telephonist clearly contemporaneously identified with it.
[Footnotes omitted.]
[4] (1974) 130 CLR 267 at 272-73.
The spontaneity and contemporaneity of the statement which excludes the possibility of concoction or distortion is the basis upon which evidence is admitted in furtherance of the res gestae rule.[5]
[5] See Pollitt v The Queen (1991-2) 174 CLR 558 at 582 per Brennan J, 596 per Deane J and 610 per Toohey J.
Counsel for the prosecution contends that it is artificial to separate the continuing car chase from the firing of the gun when the former is part of the same unfolding incident. The dispute over the number and timing of the shots is a question of fact to be determined by the jury. Whether all the shots were fired prior to the phone calls or some were fired during the subsequent pursuit is irrelevant to the issue of admissibility. Indeed, evidence of the phone calls assist the jury in assessing the reliability of the witness, which is particularly relevant when there are competing versions of the incident.[6]
[6] See R v Duong (2011) 110 SASR 291 at 17.
In R v Sumner; R v Fitzgerald,[7] a ‘000’ call made by a bystander shortly after a violent assault in a house was held to be part of the res gestae. In that case, the bystander was still in the vicinity of the assailants in a heated and chaotic environment. The Court rejected the suggestion that the ‘000’ call was an historical account. The Court was satisfied that the drama had assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was occurring and that it ought to have been received as part of the res gestae.[8]
[7] (2013) 117 SASR 271.
[8] (2013) 117 SASR 271 at 69.
Ruling
The phone calls made by Mr Walsh were made during an evolving situation which did not come to an end until the accused was apprehended by police. Even if it can be conclusively ascertained that the accused had fired all shots prior to Mr Walsh contacting police, Mr Walsh remained in the proximity of the accused who continued to pose a threat to his safety. It is plain that the phone calls made during the high speed chase were part of a continuation of the incident involving the alleged offending.
I am satisfied that, in addition to the contemporaneity of the statements with the alleged offending, there is no risk that the descriptions given by Mr Walsh were concocted or fabricated. The imperfect phone reception which caused gaps in the narration meant that Mr Walsh gave an account of what had occurred a short while ago. That does not detract from the spontaneous and contemporaneous nature of the phone calls in relation to the unfolding incident. Mr Walsh was clearly distressed and attempting to obtain police assistance and escape from the accused.
The three calls were made contemporaneously with the events as they were unfolding. In my view, there was no risk that Mr Walsh was concocting his description of the events. He was genuinely distressed and panicked in the situation he was describing.
I concluded that the evidence is admissible, and I declined to exclude it on the ground that its prejudicial effect outweighs its probative value.