R v Deed No. Sccrm-01-371 - [2002] SASC 151

R v DEED
[2002] SASC 151
In the Criminal Jurisdiction : Voir Dire Ruling

Olsson AuJ:
In this matter the accused is charged with having murdered Gerald Stephen Cook at Lyrup on 8 March 2001.
Her counsel has filed an application, pursuant to Rule 9 of the Supreme Court Criminal Rules, for an order that the Crown not be permitted to lead evidence of a conversation said to have been had by the accused with the proposed witness Ronald Andrew Welsh on 1 July 2001.
In order to appreciate the issues arising on the application it is necessary, first, to review the outline facts upon which the Crown will seek to rely, as they emerge from the declarations filed and the evidence on the voir dire.
The accused and Welsh were, initially, jointly presented for trial on an information that, on the occasion in question, they murdered the deceased Cook.
The deceased's body was discovered, on 14 March 2001, in the water near the bank of the River Murray, a short distance upstream from the Lyrup Ferry. At autopsy, the body was found to be in a state of considerable putrefaction and there was evidence of what was described as “heavy post-mortem predation, presumably due to yabbies”. A good deal of tissue was missing in the upper portion of the body.
At autopsy, the pathologist was unable to determine any specific cause of death, due to the state of the body.
The accused Welsh was interviewed by police officers on several occasions.
Initially, he told them that he and his wife had been living with the accused Deed and her son Dan at her home at 48 Sims Parade, Renmark. He said that Dan had been bashed by the deceased on the night of 2nd March, in an incident which had occurred at Renmark, as a result of which the former had been admitted to hospital. Welsh asserted that, on the evening of 8 March, he brought the deceased from Berri to Renmark for the purpose of apologising to Deed and members of her family for some of his conduct on the night of the 2nd and on an earlier occasion late in 2001.
Welsh told the police that the deceased came to the Sims Parade house and duly made his apologies, which, seemingly, were accepted. He maintained that, at about 11 p.m., he and his co-accused drove the deceased to the Shell service station at the main road, where, at Mr Cook's request, they dropped him off. They had not subsequently seen him. They had no idea what happened to him thereafter.
It is the Crown case that Welsh subsequently changed his story.
On the morning of 30 June 2001, Welsh was at the Berri police station, having just been bailed in relation to an unrelated matter. He there spoke with Detective Sergeant Boileau.
Upon the latter asking him "What did happen to Gerry [the deceased]?" The following dialogue is said to have been ensued --

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 Deed No. Sccrm-01-371

Details

AGLC: R v Deed No. Sccrm-01-371 [2002] SASC 151
Case: [2002] SASC 151
Decision Date: 15 May 2002

CaseChat Overview and Summary

In the Supreme Court of South Australia, the accused, Deed, was charged with the murder of Gerald Stephen Cook at Lyrup on 8 March 2001. Deed's counsel applied for an order that the Crown not be permitted to lead evidence of a conversation between Deed and Ronald Andrew Welsh, which occurred on 1 July 2001. The Crown intended to use this conversation as evidence against Deed. The legal issues before the court were whether the conversation was obtained fairly and whether its admission would be unfair to Deed. The court considered the circumstances under which the conversation was recorded and whether it amounted to an interrogation or amounted to any improper conduct by the police. Olsson AuJ concluded that the conversation was not obtained through any improper conduct and was admissible. However, the court noted that if the audio quality of the recording was not sufficiently clear, the transcript of the conversation would not be allowed as evidence. The court also indicated that if any specific content of the conversation was found to be unduly prejudicial, it would consider excluding that content.

Orders