R v Dunn
[2005] SASC 336
•8 September 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v DUNN
Reasons for Ruling of The Honourable Justice Anderson
8 September 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - CROSS-EXAMINATION AND INVITATIONS TO COMMENT ON OTHER STATEMENTS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
Accused charged with murder - application to exclude various records of interview - whether accused adequately cautioned - whether s74D(4) of the Summary Offences Act complied with - whether questions inappropriate, in the nature of cross-examination - application by prosecution to lead evidence of accused's alleged prior violent behaviour - application by defence to lead evidence of a threat made against the accused and the deceased - application by the defence to lead evidence of an allegedly false alibi told by Diesel, a person implicated by the accused - application by the defence to lead evidence that the deceased was violent toward a former girlfriend - Held: Interview of 21 April 2004 not admissible - other interviews admissible subject to certain portions being deleted - evidence of both accused's and deceased's alleged prior violence not admissible - evidence of threat against accused and deceased admissible for a limited purpose - evidence of Diesel's alleged false alibi inadmissible.
Summary Offences Act 1953, s 74D, s 74E, s 79A, referred to.
R v Lavery (No 2) (1979) 20 SASR 430; R v Dolan (1992) 58 SASR 501; R v Murphy (1996) 66 SASR 406; Mawaz Khan v The Queen [1967] 1 AC 454; R v Kamleh [2003] SASC 269, discussed.
R v Hanias (1976) 14 SASR 137; R v O'Neill (1987) 48 SASR 51, considered.
R v DUNN
[2005] SASC 336Introduction
The voir dire hearing in this matter commenced on 4 July 2005 and then occupied 12 days of hearing. There were six interviews with the accused which were the main subject of the voir dire hearing, and which were challenged by the defence as being inadmissible.
The accused was charged with murdering Graham Wilks on 3 December 2003 at Davoren Park. At that time, the accused and the deceased were living together in a de facto relationship.
Facts
On 3 December 2003 at 3:06 p.m. Julie Dunn telephoned 000 from Graham Wilks’ mobile telephone. She told the operator that she had been out with her son all day, “come home and … found my partner on the bed. It looks like he’s been bashed…”
An ambulance was dispatched and when the ambulance officers reached the house they found Graham Wilks lying on a bed in the main bedroom. He was unresponsive, his eyes were swollen shut and he was bleeding from the nose, the mouth and the left side of the head. He was conveyed to Lyell McEwin Hospital, and then moved to the Royal Adelaide Hospital. His condition did not improve and he later died on 12 December 2003.
Julie Dunn had at that time been living for approximately six months in a de facto relationship with Graham Wilks in his Housing Trust house at 14 Westbury Street, Davoren Park. She was interviewed a number of times over the next few months, and was eventually arrested and charged with the murder on 21 April 2004.
The interviews which were challenged took place on the following dates:
1.3 December 2003 not long after the bashing which led to the death of the deceased. This took place at the police station.
2.6 December 2003 again at the police station.
3.2 March 2004 again at the police station.
4.24 March 2004 at an address where the accused was then living.
5.21 April 2004 again at that address, and then later at the police station.
6.18 May 2004 at the police station when the accused was brought from custody for the purpose of an interview which was requested by her and her solicitor.
The accused was arrested on 21 April 2004 so that the first four interviews took place before she was arrested, the interview of 21 April 2004 was brief and related to the arrest, and finally the interview of 18 May 2004, as I have already indicated, was after she had been arrested and when she was brought from the custody of the gaol for the purpose of the interview at the police station.
Rulings Following the Voir Dire Hearing
On 18 July 2005 I ruled on the admissibility of a number of video and audio recordings of interviews with Julie Dunn by the police in the course of their investigation of the bashing murder of Graham David Wilks. The defence had sought the exclusion of the whole, or in the alternative parts of each of the interviews.
My ruling on 18 July 2005 was as follows:
1.The interview of 3 December 2003 will be admitted. I have suggested some parts which I think should be omitted from the interview.
2.The interview of 6 December 2003 will be admitted - question in what form - and we will discuss that in due course. That is the video, or the transcript of interview, also referred to as the signed statement or both.
3.The interview of 2 March 2004 will be admitted, subject to the omission of large parts of it which have been suggested by the prosecution, and I will deal with any other submissions as to further parts.
4.The interview of 24 March 2004 will be admitted, subject again to the omissions and again, I will deal with further submissions on that later.
5.The interview of 21 April 2004 will not be admitted.
6.The interview of 18 May 2004 will be admitted and again, I will hear submissions on that.
After argument and then discussion with counsel, large sections of those interviews, which were admitted, were excised. The videos of the interviews were consequently edited to delete those portions.
I excluded the whole of the interview of 21 April 2004 on the basis that it was more prejudicial than probative. In that interview the accused does no more than indicate that, on legal advice, she is electing not to answer any questions. Each of the other interviews was admitted, subject to the exclusion of certain portions. Counsel for the accused, Mr Cuthbertson QC, objected to the admission of the interviews on a number of grounds. These included an alleged failure to adequately caution the accused, an alleged failure to comply with s 74D(4) of the Summary Offences Act 1953, and what amounted to an alleged ‘cross-examination’ of the accused by the interviewing officer in various parts of the interviews.
Inappropriate questioning and cross-examination
Counsel for the accused pointed to various examples of what he asserted was inappropriate questioning of the accused in each of the interviews: see R v Lavery (No 2) (1979) 20 SASR 430; R v Hanias (1976) 14 SASR 137; R v O’Neill (1987) 48 SASR 51. The argument was based in particular on the interviewing officer putting to the accused, at various points during the interview, that she was lying, and then asking the accused to comment on discrepancies between her account of events and that of other witnesses, and inviting her to surmise what possible motives others might have for lying.
In R v Lavery (No 2) (1979) 20 SASR 430 Wells J said at 460 that:
There is no reason, in South Australia, why answers given on interview should not be followed up, and further probed and tested within reasonable bounds; what would amount to cross-examination in England within the meaning of rule 7 [of the Judges’ Rules] would not generally be forbidden in South Australia, unless it was carried to unreasonable lengths, and zealousness overrode discretion.
It is my view that while a number of portions of the interviews were unreasonable or overzealous, these portions were not sufficient to render the interviews inadmissible. As I indicated in my ruling, the interviews where inappropriate questioning occurred were admitted subject to those portions being edited out.
I will deal with the interviews individually.
The First Interview
This interview commenced at 5:37 p.m. on Wednesday 3 December 2003. The bashing which eventually led to the death of Graham Wilks probably took place somewhere between 2 and 2:30 p.m. earlier that day.
The accused was asked to go to the police station for the purpose of assisting the police officers with their inquiry. When the interview commenced, the following discussion took place between a Detective Pengilly and the accused:-
Q.Julie thanks very much for coming to the police station today to speak to us. I had a conversation with you a little while ago at Westbury Street at Davoren Park, we are investigating an incident which occurred this afternoon in relation to Graham Wilks, you may be able to assist us with our enquiries in relation to that. You’re not under arrest in any way, shape or form and feel free at any stage to stop our conversation and you are free to leave. Do you understand that?
A.Yes I do.
Q.Do you understand why we have asked you to come to the police station today?
A.To help you with your enquiries.
Later in that interview, and after a break in the interview of about a half an hour, the following conversation took place:
Q.Okay well I will stop the tape at 18.54. Julie the recording equipment has been activated again to record our conversation the time on the video is 19.23 or 7.23 p.m. once again Wednesday 3rd December, 2003 and having this conversation in the video recording room at the Elizabeth Police Station. Now Julie continuing on from our last conversation I would like to ask you some further questions about what we’ve been talking about today, you don’t have to answer those questions but anything you do say will be recorded and may be given in evidence. Do you understand that?
A.Yes.
Q.Tell me again what you understand by what I’ve just asked or said to you?
A.Whatever I say could be used against me in a court of law.
Q.And you don’t have to answer these questions. Do you understand that?
A.Yep.
The complaint which is made only relates to the latter part of the interview which follows the passage set out above. The complaint is effectively that the police had reasonable grounds to suspect the accused at that stage, and that she should have been given a more appropriate and detailed caution.
It must be remembered that the investigation was less than three hours old at the time this interview commenced. Having observed the accused during this and other interviews conducted on video which I will deal with later, I am of the view that the accused was at all times during this interview keen to continue the interview, notwithstanding that she asked whether she could go home and have a shower before the half hour break that I have referred to. The accused was at all times, in my view, very keen to push her side of the story which started with her 000 call shortly after 3 p.m. In that call, she nominated her ex de facto Greg Havey as having had something to do with this bashing. She continued to push her side of the story to the police, including a statement to the guard at the crime scene. She continued to volunteer information in an attempt to assist her cause. She was taking advantage of an opportunity to clear herself.
It is true that it appears likely that during the half hour delay, the police came into receipt of some further information, which resulted in a new line of questions, but again, the accused was a willing participant in that last part of the interview in attempting to further her cause.
It is my view that the accused in this interview was not a person under suspicion and that no caution was required. Even if she was, then in my view, there is nothing, related to the exercise of any discretion, which would require the exclusion of this interview. There were just too many lines of inquiry which were open to the police in their investigations at that stage. These lines of inquiry all resulted from the accused telling the police about the possible involvement of her former de facto. She was not obliged to go to the police station when invited to do so, and there was no coercion of any form applied by the police. It may have crossed her mind that maybe she could be arrested if she declined the invitation to go to the police station, but that is not the test.
In my view, there was no need at any time before or during that first interview for the police to explain to the accused the rights conferred upon an arrested person under the Summary Offences Act. The circumstances did not bring that Act into operation.
The Second Interview
This interview took place three days after the bashing. The investigation was still in its very early stages. The evidence taken from the police officers in the voir dire hearing indicated to me that the police were seriously following various lines of inquiry including looking closely at the accused’s son, along with other possible suspects, including others in the general area that day, particularly Shannon Lee, also known as Diesel.
The police extended considerable resources in following up the lines of inquiry which related to the accused’s ex de facto and some of his friends who the accused was suggesting might have been the likely culprits. These friends included men known as Snake, Snot, Stretch and others. This was a “Tier Two” investigation, explained to me by the various officers as meaning that there was no immediate obvious suspect. This meant that they had to allocate extra resources because it was all going to take time. The fact is that considerable resources were directed in the area of looking at her ex de facto and his friends, and this was still very much in train at the time of this interview. I accept the evidence of the investigating officers that at the time of the interview of 6 December, there was no immediate obvious suspect.
In the second interview, the accused again took a leading role in pushing her own story, and it is obvious from a lot of the questioning in this interview that she really was being given the opportunity of clearing herself. She took advantage of that opportunity and attempted to put her best foot forward in every respect.
In my view, there is no question that the interview was conducted other than in good faith, and it was not a case where there was any deception on the part of the police in attempting to extract information unfairly.
All that she was told in relation to this interview, after the officers were introduced was:
Q.And I’ve got you to come down here today, Julie to umh, I just want to get a further statement from you in relation to the interview that you had with the Elizabeth detectives on Wednesday night regarding the assault upon Graham Wilks, your de facto, at, at Davoren Park on Wednesday afternoon. So you understand why you’re here, to give us another statement.
A.Yeah…statement.
Like the first interview, it is my view that there was no need to caution the accused on this occasion, as she was neither in custody nor under suspicion.
As I am about to say, the accused must have known that she was being looked at very closely in relation to the murder of Graham Wilks by the time the third interview was reached. However, I am not convinced that at the time of the second interview, that was the case and she continued to use the interview to advance her cause.
The Third Interview
As I have indicated, the accused by this time, that is, 2 March 2004, must have known that she was being looked at closely for the murder of Graham Wilks. Prior to the third interview taking place, it is important to note that several police officers had attended at the place where she was living and conducted a search pursuant to a search warrant. She must have realised that the police were interested in her. The search took some time, and it was following that search that she was asked to go to the police station again to further assist the police with their inquiries.
Before that third interview commenced, I will set out the conversation which took place:
Q.Julie, do you agree that tonight myself, Detective Roberts and a number of other detectives from Major Crime came to your home address and Detective Sergeant Keane spoke to yourself and Greg Havey who, who lives with you at that address.
A.Mm.
Q.And we explained to you that we wanted to search your premises in relation to the murder of Graham Wilks.
A.Yeah.
Q.Is that correct.
A.That’s correct.
Q.And that your premises was searched under the authority of a general search warrant that’s possessed by Detective Keane. And then we subsequently searched the house and we’ve seized a number of items that I’d like to ask you some questions about later on, and then after the search, on video camera, I, I asked you that, I told you that we wished to speak to you here at the Elizabeth Police Station-
A.Yes.
Q.Further in relation to the bashing murder of Graham Wilks.
A.Yeah, yeah.
Q.Okay. And you agreed to come down here. Is that correct.
A.Yes, I did.
Q.And do you understand that you’re not under arrest.
A.Yes, I am
Q.So you’re here voluntarily.
A.Yeah.
Q.And look, Julie, I want to ask you some further questions in relation to the bashing of Graham Wilks. You’re not obliged to answer these questions and anything you do say will be recorded on videotape and can be given in evidence later on.
A.Yes, I know.
Q.Do you understand that.
A.Yes, I do.
Q.Are you happy to answer questions.
A.What I can remember, yeah.
Q.Okay.
A.‘Cos I’ve had a lot going on since then so-
Q.Yes, and it’s nearly, nearly two months ago isn’t it.
A.Yeah, I’ve had a lot of family issues in WA I’ve got to deal with and I’ve just-
Q.All right.
A.I’ve had a breakdown, the doctor told me I had a breakdown so-
Q.Okay. Now I spoke to you on the 6th of December 2003 at the Elizabeth Police Station. Do you agree with that.
A.Yeah.
Q.Okay. Since that time have you had any legal advice at all in relation to it.
A.No.
Q.All right. Are you – Do you wish legal advice or do are you happy to proceed.
A.Legal advice for what?
Q.Oh, in relation to the questions that I’m going to ask you.
A.Depending on the questions.
Q.All right. So you’ll make up your mind as we go.
A.Yes.
Q.Okay. So the option’s there.
A.Yes.
After the cautions which were set out above, the accused indicated a willingness to answer questions and proceeded to do so. Once again, it is my view that having observed this interview in full on two occasions, the accused was attempting to show the police that she was innocent.
It was put in argument by Ms McDonald that:
In one sense, she is attempting to lead these interviews. She is attempting to ensure that they go a certain way so she can get out what she needs to.
I agree with that submission. It is an accurate reflection of how the accused came across in the interviews. Whilst it must have been apparent to her that she was now a potential suspect, she was still being given the opportunity of clearing herself and proceeded to attempt to do just that. She was adequately and appropriately cautioned in my view.
The Fourth Interview
Here again, a caution was administered prior to the interview commencing on 24 March 2004. The background to the interview however is indicative of the accused’s willingness and desire to provide the police with further information when she thought that the provision of that information would assist in clearing her. This time she wanted to implicate Shannon Lee (known as Diesel), and told police about him during a phone call. The original purpose of the phone call was innocuous. The relevant part of the interview is set out hereunder:
Q21.Thanks. All right Julie, um just before we start, um do you agree that I’m here as a result of a phone conversation that I had with you at about 11, about 11.06am on Thursday the 17th of March, you may not remember the date, but I rang here,
A.Yeah to do with Cashy’s
Q22.Yeah to do with Cash Converters
A.Yeah and I mentioned something to you on the phone.
Q23.Yep do you agree that we had a conversation then?
A.Yeah a brief one.
Q24.Yep and er during that time you mentioned um you’ve bumped into Diesel?
A.Oh yeah
Q25.Okay. And er I want to ask you some further questions in relation to that statement that you made, okay you are not obliged to answer these questions.
A.Yeah I can only tell you, I wasn’t really concentrating on what he said cause we were on our way to cashies.
Q26.Okay but anything you do say will be recorded on video and audio tape and can be given in evidence later on, do you understand that?
A.Yeah okay.
Q27.So are you happy to talk without advice from a solicitor?
A.Yep
Q28.Okay, so you fully understand that if you want to get a solicitor you can.
A.Yeah I know
Q29.Okay, and um and, prior to starting that, that it’s correct that you’ve spoken to the police previously regarding the bashing murder of Graham WILKS on the 3rd of December, which was the day Graham was bashed, on the 6th of December, to us. Do you remember that? At Elizabeth and again on the 2nd or March.
A.Not too long ago
Q30.When we took you to Elizabeth
A.Hmm
Q31.And you accompanied us down there, is that correct?
A.Yeah
Q32.Okay, and on those occasions you answered questions is that right?
A.Yeah
Q33.Okay and you understand clearly now that you’re not under arrest now that we’re here and you’ve agreed to speak to us about what you said on the phone
A.Okay
Q34.Okay and I may ask you further questions as well, which again you’re not obliged to answer, but whatever you do say can be given in evidence, so do you understand that?
A.Yes I do
The interview was arranged after the phone call and then finally took place after a delay of about one week to suit the accused’s convenience. It was once again an attempt by her to exculpate herself by implicating someone else. An appropriate caution was administered and there was no coercion applied to the accused.
The Fifth Interview
As already indicated, I excluded this brief interview of 21 April 2004 because it did not add anything and was potentially prejudicial. The accused was arrested on this occasion.
The Sixth Interview
This interview took place on Tuesday 18 May 2004. The accused had already been arrested and taken into custody on 21 April 2004. Therefore approximately one month later, at the request of the accused, she was transported from the women’s prison to the police station for the purpose of an interview arranged in advance and conducted in the presence of her solicitor.
Once again, this interview makes it quite clear that it is the accused who wants to run the interview in relation to putting a version, albeit a completely different version, of events which might attempt to clear her of the crime charged. In this interview she attempts to implicate her son in the murder of Graham Wilks.
Requirements for Caution
Section 79A(3)(b) of the Summary Offences Act provides that:
(3) A police officer must, as soon as is reasonably practicable after the apprehension of a person—
…
(b)warn the person that anything that he or she may say may be taken down and used in evidence.
Because that section only applies where a person has been taken into custody, it is not relevant to the first four interviews. There are, however, occasions when the circumstances are such that a caution must be given, even though a person is not under arrest.
In R v Dolan (1992) 58 SASR 501, at 505 King CJ said that:
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions.
In R v Murphy (1996) 66 SASR 406, at 414 Doyle CJ said that:
In a particular case it might be necessary for a police officer who is questioning a person, not a suspect, to bring to that person’s attention the fact that his or her possible involvement is under consideration. That might be necessary if, for some reason, the person is at a disadvantage because his or her attention has been diverted from the significance of the matter under consideration (for example, by shock or by grief or because of an injury), if the person is not aware of the significance of the occasion (for example, if the person thought that the inquiries related to a minor matter only when in fact they related to a serious matter), or if the person is under the impression that the police are making casual inquiries only, or if the person thinks for some reason that there is no need to give careful consideration to his or her answers. In such a case fairness might well require the police, in one way or another, to alert the person to the fact that the questions being put relate to a serious matter and that they will include matters relevant to the possible involvement of the person questioned.
As indicated, a caution was given towards the end of the interview on 3 December 2003, and not at all in the interview on 6 December 2003. Cautions were given at the commencement of the interviews on 2 March 2004, 24 March 2004 and 18 May 2004. As I have indicated, I am satisfied that in the circumstances there was no requirement that the accused be cautioned in the interviews of 3 and 6 December 2003. At that stage the accused was not under suspicion in any relevant sense. Counsel for the accused also argued that the form of caution given in the later interviews was not sufficient, in that it did not make it clear to the accused that she was under suspicion of murder. I am satisfied that the form of the caution given to the accused was sufficient, and that she was aware of the nature of the likely charges against her from the outset, and in particular from the time that Graham Wilks died.
Mr Cuthbertson argued that if one looked at all the facts known at the time, or more particularly what information was reasonably available to the police force as a whole, then a full caution should have been given as early as the concluding stages of the first interview. He argued that reasonable grounds for suspecting was not limited to the individual police officer conducting the interview.
I disagree with this submission. It would place an impossible onus on those investigating a crime and is not in accordance with the reasoning in either of the cases referred to above.
In any event, there was no evidentiary basis established by the accused to support such a submission.
Section 74D(4) of the Summary Offences Act
Each of the interviews conducted with the accused was videoed, although a part of the interview conducted at the accused’s home on 24 March 2004 was not recorded on video, due to the video recorder’s batteries going flat. That part of the interview was, however, recorded by a listening device installed at that location by the police and that recording completed the part of the interview missing on the video.
In relation to the interview on 24 March 2004, an initial objection that the quality of the video recording was so poor that a full transcript could not be provided was later overcome by the provision by the prosecution of a more accurate transcript and video tape.
Section 74D(4) of the Summary Offences Act provides that:
(4) As soon as practicable after a videotape or an audiotape recording is made under this Part, the investigating officer must give the suspect a written statement of the suspect's right—
(a) if a videotape recording was made—
(i)to have the videotape played over to the suspect or the suspect's legal adviser (or both); and
(ii) to obtain an audiotape recording of the sound track of the videotape;
or
(b)if an audiotape recording (but no videotape recording) of the interview was made—to obtain a copy of the audiotape.
It is not clear on the evidence whether or not this sub-section was complied with in relation to any of the interviews conducted with the accused, that is, that a written statement was given to the accused.
Section 74D(1) provides as follows:
(1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a) if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
…
Because of the words “made under this Part” in s 74D(4) a breach of sub-section (4) would only arise if the recording of the interview was made in compliance with s 74D(1). This would only occur if the interviewing officer suspected, or had reasonable grounds to suspect, that the accused had committed an indictable offence. Where an interview is conducted in circumstances that do not require compliance with s 74D(4), because of the absence of any suspicion, or reasonable grounds to suspect, the mere fact that the interview was in fact videoed is not sufficient to enliven the requirement under s 74D(4).
In relation to the first two interviews, I have already indicated that I am satisfied no relevant suspicion had arisen in relation to the accused, and consequently s 74D(4) was not enlivened. In relation to each of the other interviews, I am not satisfied that any breach of s 74D(4) was established by counsel for the accused. All that the interviewing officer Detective McEachern conceded, in cross-examination, was that he could not recall whether or not he had provided the relevant PD180 form to the accused. The accused did not give any evidence to establish that she was not handed the document on any of the occasions. Neither did her solicitor give any evidence as to whether she had any such documents in her possession.
In any event, if such a breach of s 74D(4) had been established, in my view, the admission of the evidence under s 74E(1)(b) would have been appropriate. The evidence would have been admissible, despite non-compliance with s 74D(4) because in my view the interests of justice would require such a course. Clearly s 74D(4) was enacted to prevent a situation of unfair interrogation of an accused and therefore the interviews were required to be recorded. This type of breach was described by Ms McDonald as an administrative breach. Had it been necessary I would have categorised it that way. It did not go to the unfairness of the interview, and there was no suggestion of any disadvantage to the accused.
Other voir dire rulings
I was also asked to rule on the admissibility of proposed evidence of the accused’s alleged prior violent behaviour. The prosecution proposed to call the accused’s ex-husband Ronald Irwin senior, who had provided a statement as to prior violent behaviour. Counsel for the accused argued that this evidence was more prejudicial than probative and I agreed and ruled that evidence of that nature was not admissible.
Trial Rulings
In the trial, just prior to the completion of the prosecution case, further issues as to admissibility arose. Many of these were resolved by agreement between counsel. The matters that remained in dispute were as follows:
·Evidence from the deceased’s mother Wendy Wilks that she received a telephone call from someone claiming to be Snake, who threatened the lives of the accused and the deceased. Snake was one of the associates of the accused’s ex de facto Greg Havey, who had been implicated in the bashing by the accused;
·Evidence that Shannon Lee’s statement to the police about his whereabouts on 3 December 2003 was false, and that he had asked others to lie to support this false story. Shannon Lee lived in the area, and accompanied the accused to the second interview. In the interview of 24 March 2004 the accused implicated him in the bashing; and
·Evidence from a former girlfriend of the deceased that he had been violent towards her.
In relation to the evidence of Wendy Wilks, I ruled that on a limited basis it was admissible, and indicated that I would give a direction to the jury as to its use. I gave the following ruling:
I have decided that that is evidence and I'll just give you a brief outline of a draft, very much of the sort of thing I would say to the jury but I don't want to be held to this. It will be something along these lines in relation to what use I say they could put the phone call and certainly not as broad as you suggested, Mr Cuthbertson.
I would say something like this ‘There is some evidence in Wendy Wilks' statement which suggests that someone who might be Snake made a threat to the lives of Graham Wilks and the accused. This evidence is not evidence that it was Snake who made the threat or that the threat was genuine. It can be evidence, however, for you to consider in relation to the claims made by the accused on various occasions that threats had been made against both and Graham Wilks. It can be used by you as positive evidence to support a basis for the accused's claims in this respect’.
As it turned out, because there was no reliance on that evidence in the accused’s closing address, I did not include that evidence or my proposed direction in my summing up.
In relation to the evidence of Shannon Lee’s alleged false statement to the police, counsel for the accused sought to lead the evidence without calling Shannon Lee himself. Mr Cuthbertson proposed to lead evidence of the statement from Detective McEachern, who had taken the statement. He argued that the statement was not being lead for a hearsay purpose because it was being lead to prove, not that it was the truth, but that it was false. Nonetheless, I ruled that this evidence, and the evidence of two proposed witnesses to the effect that Shannon Lee had asked them to lie about his whereabouts on 3 December 2003, was not admissible. Its relevance, if any, was slight.
Mr Cuthbertson relied on the cases of Mawaz Khan v The Queen [1967] 1 AC 454 and R v Kamleh [2003] SASC 269. In Mawaz Khan the evidence of one accused was used by the prosecution against another accused to demonstrate that they had both told the same lies. In that respect it was held to be permissible for the interview of one accused to be used against the other. Similarly, in Kamleh, the alibi given by the co-accused Mr Zappia, who received a separate trial, was admitted, not to prove its truth, but to establish that what was said was identical, or almost identical to what Mr Kamleh had said.
It seems that all that happened in Mawaz Khan was that the evidence was admissible because it went towards proving that the two accused were acting in concert when they came up, separately, with the same lies. In Kamleh, the evidence was admitted to show that two prisoners, separately interviewed by the police, came up with the same false story about their movements. I do not think these cases assist the argument advanced by Mr Cuthbertson.
Similarly, I ruled that the evidence of a former girlfriend of the deceased that he had been, on a few occasions, violent toward her was inadmissible. The evidence related to a relationship some twenty years earlier and the circumstances were such that I did not consider it sufficiently probative of any relevant issue. The circumstances were too far removed from the incident in question, and involved a relationship between the deceased, who was nineteen, and the proposed witness, who was sixteen at the time.
Equally important was the fact that the prosecution had statements from two other women who had relationships with the deceased subsequently. These statements revealed that the deceased had not been violent but was merely over protective. Ms McDonald correctly submitted, in my view, that if the proposed evidence was allowed then those other two women would have to be called to present the complete picture and it would effectively create a trial within a trial.
It was my view that the proposed evidence would not assist the jury in determining the relevant issues in the trial, and was far too remote.
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