R v Flaherty No. Sccrm-02-246 - [2002] SASC 287

R v FLAHERTY
[2002] SASC 287
Reasons for Ruling

Simon Peter Flaherty (“the accused”) was charged with one count of wounding with intent to do grievous bodily harm (s 21 of the Criminal Law Consolidation Act 1935 “CLCA”), one count of common assault (s 39 of the CLCA) and one count of assault occasioning actual bodily harm (s 40 of the CLCA). Each offence was alleged to have occurred at the Federal Hotel at Semaphore in the State of South Australia on 12 April 2001.
The Director of Public Prosecutions (“DPP”) alleged that the accused struck a Mr Andrew David Hughes on the right side of the face with a beer glass and that in doing so he was guilty of the offence of wounding with intent to do grievous bodily harm. The DPP alleged that a short time after this incident the accused punched a Mr Roderick Hamilton Spotswood in the face and in doing so was guilty of the offence of assault. The DPP alleged that a short time after the assault on Mr Spotswood the accused punched a Mr Derek Charles Meadows in the face causing injuries to his mouth and that in doing so he was guilty of the offence of assault occasioning actual bodily harm.
The charges were listed for hearing before a judge and jury in the Supreme Court commencing on 15 July 2002.
On 12 July 2002 the accused issued an application under Rule 9 of the Supreme Court Criminal Rules 1992 seeking a ruling that evidence of certain conversations between the accused and police officers involved in the investigation was inadmissible. No point was taken by the DPP about the fact that the application was issued outside the time period prescribed by the rules. (See rule 9.03).
On 16 July 2002 I delivered a ruling in relation to the accused’s application and indicated that I would deliver my reasons later.
During the course of the trial the accused objected to certain evidence which the DPP sought to lead in relation to the identification of the accused. Again, I heard argument, gave a ruling and indicated that I would deliver my reasons later.
My reasons in relation to each ruling appear below.
The Admissibility of the Conversations Between the Accused and the Police Officers Involved in the Investigation
There are five relevant conversations. All took place on 30 April 2001.
The first conversation involved Senior Constable Hannam, Constable Cooper and the accused. It took place near the Duke of Cumberland Hotel Glanville in the State of South Australia. The accused was arrested shortly after the conversation. Counsel for the DPP told me that Senior Constable Hannam was ill, and that he would not be called as a witness.
The first conversation was recorded in the statement of Constable Cooper dated 15 June 2001 as follows:
“Hannam then had a conversation with Flaherty in my presence. I was present and heard Flaherty reply to Hannam, ‘yeah that’s me I was involved’. Hannam then had…

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 Flaherty No. Sccrm-02-246

Details

AGLC: R v Flaherty No. Sccrm-02-246 [2002] SASC 287
Case: [2002] SASC 287
Decision Date: 21 August 2002

CaseChat Overview and Summary

In the case of R v Flaherty, the defendant was charged with assault and related offences arising from incidents that occurred at the Federal Hotel on 12 April 2001. The prosecution alleged that the accused assaulted three individuals, Messrs Hughes, Spotswood, and Meadows, in a series of attacks during the evening. The primary evidence against the accused was identification testimony from the bar manager, Mr Nikola Marjanovic, and a witness, Mr Hughes, who identified the accused in a photograph and in court, respectively. The accused contested the admissibility of this identification evidence, arguing that it was unreliable and prejudicial. The court was required to determine whether the identification evidence provided by Mr Marjanovic and Mr Hughes was admissible, considering the circumstances surrounding the identifications and the potential for prejudice.

The court examined the circumstances under which Mr Marjanovic identified the accused. Mr Marjanovic had not recognised the accused when he saw him at the hotel a few weeks before the photographic identification on 13 September 2001. The accused's counsel argued that this suggested that Mr Marjanovic identified someone else rather than the actual attacker. However, the court found no evidence of police impropriety and concluded that the probative value of the identification evidence outweighed its prejudicial effect. The court also noted that the weight to be given to the identification evidence was a matter for the jury, and any concerns about its reliability would be addressed through appropriate jury directions.

Following its analysis, the court ruled that the identification evidence provided by Mr Marjanovic and Mr Hughes was admissible. The court determined that the probative value of the identification testimony was not outweighed by its prejudicial effect and that its admission would not be unfair to the accused. The court acknowledged that there were factors that might affect the weight to be placed on the identification evidence, but this was a matter for the jury to consider. The court found that the identification evidence was reliable and relevant to the case, and it would be up to the jury to assess its credibility and weight.

In conclusion, the court ordered that the identification evidence from Mr Marjanovic and Mr Hughes be admitted. The court instructed that appropriate directions would be given to the jury regarding the use of the identification evidence, considering any factors that might affect its reliability. The admissibility of the identification evidence was pivotal in the case, and the court's ruling allowed the prosecution to proceed with its case against the accused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In considering whether it would be unfair to admit the evidence of the fifth conversation I am entitled to have regard to all relevant matters. I think the conversation should be excluded. The accused indicated that he did not want to answer any further questions. What was put to him thereafter was Senior Constable Hannam’s version of the first conversation rather than that of Constable Cooper. As previously mentioned, counsel for the DPP indicated Senior Constable Hannam is not to be called as a witness.The Identification Evidence The principal witness for the prosecution was Mr Nikola Marjanovic who was the bar manager at the Federal Hotel on the night in question. He witnessed the first attack on Mr Hughes and the subsequent attacks on Mr Spotswood and Mr Meadows respectively. He was involved in ejecting from the hotel the man who hit Messrs Hughes, Spotswood and Meadows. In fact, that man and Mr Marjanovic exchanged blows. Mr Marjanovic described the man as a blond or fair headed man. He described the man’s companion as a dark haired man. Messrs Spotswood and Meadows could not identify their attacker. Mr Hughes could identify the person who attacked him, but he did not see the assaults on Messrs Spotswood and Meadows. On 13 September 2001, some five months after the incidents, Mr Marjanovic looked at a number of photographs. He identified the man who struck Messrs Hughes, Spotswood and Meadows on 12 April 2001. It was agreed that the photograph which he identified was a photograph of the accused. It may be noted at this point that the accused had refused to participate in an identification parade. During his evidence in chief, Mr Marjanovic gave evidence about an occasion a few weeks before 13 September 2001 when he saw a person at the hotel he thought to be the accused. He said,“AI didn’t actually recognise him properly, I didn’t actually know who he was, I spoke to someone and then they told me.” This prompted an application by the accused to object to any identification evidence from Mr Marjanovic. I was told by counsel for the accused that a decision had previously been made by those representing the accused that the accused would not object to identification evidence from Mr Marjanovic. Counsel suggested that, by the above answer, Mr Marjanovic implied that someone else had identified the accused to Mr Marjanovic a few weeks before 13 September and that on 13 September 2001 Mr Marjanovic identified the person he saw in the hotel a few weeks before, rather than the man he saw on 12 April 2001. Counsel argued that this made identification evidence from Mr Marjanovic of so little evidentiary weight that I should exclude it. Counsel for the DPP told me that he had understood that identification was in not dispute. He said that he wished to call Mr Marjanovic on the voir dire. He told me that he also wished to re-call Mr Hughes so that Mr Hughes might give further evidence about his sighting of the accused at the Duke of Cumberland Hotel a couple of weeks after the incident and to identify the accused in Court as the person who struck him on 12 April 2001.

Decision

Reasons for decision

There is no evidence of police impropriety in this case. I do not think that in the circumstances the probative value of the identification evidence is outweighed by its prejudicial effect. Nor would its admission be unfair to the accused. There are matters identified by counsel for the accused which may affect the weight to be placed on the identification evidence. However, that is a matter for the jury. In my opinion, the identification evidence of Mr Marjanovic and Mr Hughes is admissible. Depending on how the case develops, it will be necessary for me to give directions to the jury as to the use which may be made of the evidence.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN REASONS1.R v Stafford (1976) 13 SASR 392; R v Wilson (1987) 47 SASR 2872.R v Day (2002) 219 LSJS 348 per Perry J at paras 22 and 353.[2002] SASC 1924.Paras 38, 39 and 405.(1987) 47 SASR 2876.(1999) 203 LSJS 4657.At 4748.R v Britten (1989) 51 SASR 567; R v Hallan and Karger (1985) 42 SASR 126; R v Deering (1986) 43 SASR 252; R v Easom (1981) 28 SASR 1349.At 569 and 57210.At 578

Ratio Decidendi

Legal Principle Established

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