R v Duong, Sem & Huynh - [2011] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v DUONG, SEM & HUYNH
[2011] SASC 121
Reasons for Ruling of The Honourable Justice Kourakis
17 June 2011
CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS
EVIDENCE - ADMISSIBILITY AND RELEVANCY - RES GESTAE - IN GENERAL
Accused charged with murder – whether hearsay evidence admissible under res gestae exception – whether admissible as evidence of the fact stated in the assertion – whether evidence of bystander admissible under res gestae exception – whether res gestae exception relies on spontaneity only or connection to ultimate issues.
Held: evidence admissible under res gestae exception – statement admissible as evidence of fact stated in assertion – evidence of bystander admissible under res gestae exception – res gestae exception relies on spontaneity of the statement.
Thompson v Trevanion (1693) Skin 402; R v Bedingfield (1879) 14 Cox CC 431; Teper v The Queen [1952] AC 480; Brown v The King (1913) 17 CLR 570; Adelaide Chemical and Fertilizer Company Limited v Carlyle (1940) 64 CLR 514; Ratten v The Queen [1972] AC 378; Walton v The Queen (1998 – 1989) 166 CLR 283; Vocisano v Vocisano (1974) 130 CLR 267; R v Andrews (1987) AC 281, discussed.
Papakosmas v The Queen (1999) 196 CLR 297, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"res gestae", "admissibility of evidence"

R v DUONG, SEM & HUYNH
[2011] SASC 121
Criminal
Ruling in relation to the admissibility of evidence of LN

KOURAKIS J: The accused are charged with the murder of Thea Kheav. Thea Kheav died in the early hours on 2 December 2007 in the front yard of a suburban Adelaide home (the premises). On the night of his death, the occupiers of the premises were hosting a birthday party for their 18 year old son.
The cause of Thea Kheav’s death was a single stab wound to his midriff. The blade of the knife-like instrument which inflicted the wound penetrated his liver, heart and lung. He died as a result of the subsequent blood loss.
I find on the evidence that shortly before the wound was inflicted Thea Kheav was attempting to climb over tall steel gates which stood across the driveway of the premises and separated the front yard from the carport and rear yard. It is improbable that Thea Kheav could have made his attempt to climb over gates if he had already been fatally wounded. There is a body of evidence which describes an attack on Thea Kheav after he was pulled down from the gates which is consistent with the infliction of a stab wound at that time. There is direct evidence from his brother RK that Thea Kheav was stabbed shortly after he was pulled down from the gates.
The prosecution proposes to adduce evidence from LN, the father of the young man for whom the birthday party was being held, that within seconds of Thea Kheav bring dragged from the gates he heard RK call out “Syna and Rotha are stabbing my brother”.
The prosecution contend that the evidence is admissible under the res gestae exception to the hearsay rule. They contend that it is admissible as evidence of the fact stated in the assertion namely that the accused Rotha Sem and Chansyna Duong were stabbing Thea Kheav. I am informed that RK will give direct evidence of those facts, at least in the sense that Rotha Sem was with Chansyna Duong at the time that the latter stabbed his brother. The practical importance of the evidence which the prosecution seeks to lead from LN is that it will provide material support, although not corroboration in the technical sense, of RK’s proposed testimony.
The res gestae exception to the hearsay rule is often traced back to the decision of Holt CJ in Thompson v Trevanion.[1] In the hearing of an action brought for assault and trespass, Holt CJ allowed as evidence “what the wife said immediate upon the hurt received and before that she had time to devise or contrive anything for her own advantage”. It should be remembered that at the time that that case was decided the parties to litigation were not competent witnesses. It was not until the 19^th century that parties became competent witnesses in their own cause.
[1] (1693) Skin 402.
In R v Bedingfield[2] the accused was charged with the murder of a woman with whom he had had a tempestuous relationship. A few minutes before she died the victim ran out of a room holding her throat, shouting “see what Harry has done” as she pointed back to the room. The accused was found in the room with his own throat cut. Cockburn CJ held that the statement was not admissible as part of the res gestae because “it was not part of anything done, or something said while something was being done, but something said after something done. It was not as if, while being in the room, and while the act was being done, she had said something which was heard”. Cockburn CJ contrasted the statement made by the victim, albeit very shortly after the stabbing, with the admissibility of evidence of a plea made by a victim, during the course of an assault, to her attacker to stop.
[2] (1879) 14 Cox CC 431.
In Teper v The Queen,[3] the relevant issue was whether Teper had set fire to his own premises. The prosecution proposed to lead evidence from a police officer who attended the scene of the fire that he had heard a bystander shout out to someone who looked like the accused “your place burning and you going away from the fire”. The evidence was admitted by the Judge. The House of Lords held that the evidence was inadmissible because it was not contemporaneous with the offence. It was not suggested that the evidence was inadmissible because it was given by a bystander and not a victim of the offending.
[3] [1952] AC 480.
In Brown v The King,[4] Isaacs and Powers JJ explained why evidence of a conversation between two men who had been shot, one of whom was at the time fatally wounded but had walked 25 yards from the front yard to the rear yard of a cottage, was inadmissible in this way: [5]
Not only the main transaction, but also every subsidiary incident, so far as related to the act complained of, was at end. The incident offered in evidence was unconnected in causality with the shooting: if it had been so connected – as by flight to escape its continuance – the slight lapse of time and the mere fact of 25 yards distance would not have been sufficient in themselves to have destroyed the natural nexus.
But when there is no natural connection by continuance – which may have liberal connotation – and there is a distinct and appreciable break of time and place, it would in our opinion be going beyond the limit of authority to admit evidence, which is in substance and reality a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main transaction, but arising as an independent and additional transaction.
[4] (1913) 17 CLR 570.
[5] (1913) 17 CLR 570 at 597 per Isaacs and Powers JJ.
In Adelaide Chemical and Fertilizer Company Limited v Carlyle[6] evidence of a statement made by a worker as to the cause of the breakage of a jar containing sulphuric acid was not admitted because it was not sufficiently closely connected to the event. The worker made the statement sometime after the breakage whilst he was showering.
[6] (1940) 64 CLR 514.
In Ratten v The Queen,[7] evidence was admitted of a call made by the victim of the alleged murder to a telephone operator in which she had sounded hysterical and had pleaded “get me the police, please”. The defence was that the gun had discharged accidently. Plainly enough, the fact that the deceased was in fear immediately before she was shot tended to contradict the defence and was, therefore, admissible as direct evidence of the fact of fear. However, the evidence was also left to the jury as evidence containing an implied assertion that the attacker was the accused. For that reason, the Privy Council proceeded to consider whether the evidence properly fell within the res gestae exception. They held that there was a sufficiently “close and intimate connection between the statement ascribed to the deceased and the shooting which occurred very shortly afterwards”.
[7] [1972] AC 378.
Lord Wilberforce emphasised the importance of spontaneity, saying:[8]
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.
[8] Ratten v The Queen [1972] AC 378 at 389.
In Australia, different views have been expressed as to whether the res gestae exception relies purely on the spontaneity or also on a connection with the ultimate issues. Wilson, Dawson and Toohey JJ did not accept that the unlikelihood of concoction was sufficient in Walton v The Queen.[9] In that respect they followed Vocisano v Vocisano.[10] On the other hand. Mason J stated the rule more broadly.[11]
[9] (1988)-(1989) 166 CLR 283 at 304-5.
[10] (1974) 130 CLR 267 at 273.
[11] Walton v The Queen (1989) 166 CLR 283 at 295.
A less strict approach to admissibility currently prevails in England following the decision of the House of Lords in R v Andrews.[12] In that case, M was attacked and robbed in his flat. He subsequently died of the wounds. However, before he died, he made his way to the flat on the next floor down to obtain assistance. Police officers arrived within minutes. M informed them of the identity of his assailants. The evidence was held to be admissible. Bedingfield was overruled. The House of Lords held that: [13]
I do not accept that the principles identified by Lord Wilberforce involved any extension to the exception to the hearsay rule. Lord Wilberforce clarified the basis of the res gestae exception and isolated the matters of which the trial judge, by preliminary ruling, must satisfy himself before admitting the statement. I respectfully accept the accuracy and the value of this clarification. Thus is must, of course, follow that R v Bedingfiled would not be so decided today. Indeed, there could, as Lord Wilberforce observed, hardly be a case where the words uttered carried more clearly the mark of spontaneity and intense involvement. (Citation omitted).
[12] (1987) AC 281.
[13] R v Andrews [1987] AC 281 at 300. See also Papakosmas v The Queen (1999) 196 CLR 297 at 306-7 per Gleeson CJ and Hayne J, at 313-15 per Gaudron and Kirby JJ.
It is, in my view, not necessary to rely on the extended basis for admissibility stated in Andrews to receive the evidence challenged in this case. The distinction drawn, between statements made in the present tense and those expressed in the past tense, by Cockburn CJ in Bedingfield, is much more than grammatical. Words are sometimes uttered as a contemporaneous commentary on the speaker’s own conduct, or the conduct of others, as an exhortation to others to act. When spoken in that way, the words are, for all practical purposes, indistinguishable from the conduct that they accompany. It is because words in that context are spoken to give effect to conduct that the risk of concoction may be so reduced as to allow the statement to be safely received into evidence. Moreover, words spoken while the conduct in question is still continuing are less likely to be concocted because the contemporaneous observations of others of the conduct described are capable of exposing the falsity of the assertion. People are less likely to lie in the face of facts or circumstances which are at the time apparent to those other persons to whom they are speaking.
In this case, the proposed evidence shows that the statement of RK, if it was made, was made in a desperate effort to secure some assistance for his brother who was facing a manifestly lethal attack. There is no real dispute that, at the time of the statement deposed to by LN, Thea Kheav was the victim of a ferocious attack. To falsely identify his brother’s attackers could only serve to confuse any efforts which might be made to save him. Moreover, it is unlikely that a person witnessing such an attack on a sibling would have the inclination, or composure, to falsely identify the attackers when others, who were also in a position to see the attackers, could identify the persons whom RK was accusing.
The fact that RK will not depose to making the statement attributed to him does not render the evidence of LN inadmissible. Plainly enough, in the case of a statement made by the victim of a murder, there will be no evidence from the maker of the statement. Because the principle now under consideration is an exception to the hearsay rule, it can not be a necessary condition to admissibility that the maker of the statement give evidence. The absence of evidence to that effect by RK may undermine the reliability of LN’s testimony but that is a question of weight, not admissibility. Even though it is my judgment that these circumstances warrant the admission of the evidence, it will ultimately be for the jury to determine the reliability, and perhaps more importantly the meaning, of the statement attributed to RK.
For these reasons, I would admit LN’s testimony of RK’s exclamation which, if his evidence is accepted, was a contemporaneous description of the fatal attack on Thea Kheav in circumstances which make concoction unlikely.