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…

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.

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Details

Case: [2011] SASC 121
Decision Date: 17 June 2011

CaseChat Overview and Summary

In the case of R v Duong, Sem & Huynh, the defendants were charged with the murder of an individual. The court had to determine the admissibility of various pieces of evidence, including hearsay statements, under the res gestae exception. This involved assessing whether the statements were spontaneous and directly related to the events in question, and whether they could be admitted as evidence of the facts they asserted. The court also considered the admissibility of bystander evidence under the res gestae exception.

The legal issues before the court encompassed whether the hearsay evidence could be admitted under the res gestae exception, specifically if it was relevant to the facts of the case and if it could be admitted as evidence of the fact stated in the assertion. Additionally, the court needed to decide if the evidence of a bystander could be admitted under the same exception. The court had to determine if the res gestae exception required the statements to be spontaneous or if there needed to be a connection to the ultimate issues of the case.

The court found that the evidence was admissible under the res gestae exception, as the statements were spontaneous and directly related to the events surrounding the crime. The court held that the hearsay evidence was admissible as evidence of the fact stated in the assertion, and that the evidence of a bystander was also admissible under the res gestae exception. The court's reasoning was grounded in the principle that the res gestae exception relies on the spontaneity of the statement rather than a strict connection to the ultimate issues. Several precedents were discussed, including Thompson v Trevanion, R v Bedingfield, and Teper v The Queen, among others.

The final orders of the court were to admit the evidence under the res gestae exception, allowing the statements to be considered as evidence of the facts they asserted. This decision facilitated the consideration of the full context of the events and allowed the jury to assess the credibility of the statements in determining the defendants' guilt or innocence.

Orders