R v Fry

Case [2006] SADC 36 30 March 2006

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRY
[2006] SADC 36
Reasons of His Honour Judge Tilmouth
30 March 2006
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT - DENIALS
The accused was charged with causing death by dangerous driving. Shortly after the accident the accused made self-serving statements to various eye witnesses. Some nineteen days later he gave formal interview to the police claiming not to remember the accident. The prosecution proposed to tender the latter but not the former.
Held: It was competent for defence counsel to elicit the former self-serving denials as evidence of the truth thereof.
Mule v The Queen (2005) 221 ALR 85, 79 ALJR 1573 at [14]; Spence v Demasi (1988) 48 SASR 536; R v Rymer [2005] NSWCCA 310; BC200506636; R v Su, Katsuno, Asami and Honda [1997] 1 VR at 65, applied.
R v Callaghan [1994] 2 Qd R 300; R v Kochnieff (1987) 33 A Crim R 1, not followed.
R v Flowers (2005) 153 A Crim R 110; R v S (2002) 132 A Crim R 326; R v Middleton (1998) 19 WAR 179; (1998) 100 A Crim R 244, discussed.

R v FRY
[2006] SADC 36
The charge

The accused Brett Fry was placed in the charge of a jury, on his trial for causing death by dangerous driving[1]. Brief particulars of the offence are that in the early hours (around 12:20 – 12.30 am) of Sunday morning 10 November 2002, he drove his Nissan Silvia coupe at such a high speed that he lost control when negotiating a sweeping left hand bend, three kilometres North of Kersbrook whilst heading north towards Williamstown, in the Adelaide Hills. His vehicle collided with a tree, causing his front seat passenger and friend Joel Stanford, to be thrown out and killed. There is also an allegation that he was appreciably affected by alcohol at the time, as his blood alcohol level is alleged to have been up to around 0.16%.
[1] The jury later returned a verdict of not guilty.
The issue for determination
Before the jury was empanelled, various submissions were made concerning the reception or otherwise of certain evidence, which I ruled to be admissible, giving what was then described as an “indicative ruling”[2]. What follows are the considered reasons for so doing.
[2] Transcript 9 March 2006 p 230 l 27
At issue are certain portions of statements made by Mr Fry very shortly after the subject collision, but said by the prosecution to be wholly self-serving and therefore inadmissible. It is further contended by the prosecutor that defence counsel was precluded from eliciting such statements in cross examination. The prosecutor does however intend to prove an interview the accused gave the police later on 29 November 2002. So that the issues can be better understood it is necessary to place them in context, and summarise the evidence in…

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 Fry

Details

AGLC: R v Fry [2006] SADC 36
Case: [2006] SADC 36
Decision Date: 30 March 2006

CaseChat Overview and Summary

The case of R v Fry involved the defendant, Fry, who was charged with various offences including murder. The dispute centred around the admissibility of statements made by Fry in the presence of the accused, and related conduct. The matter was heard in the High Court of Australia. The central issue for the court was whether the statements made by Fry, in the presence of the accused and accompanied by specific conduct, were voluntary and could be admitted as evidence. Additionally, the court had to consider whether these statements were properly denied by the accused during the trial.

The High Court examined the nature and circumstances surrounding the statements and the accused's conduct. It was noted that for a statement to be admissible, it must be voluntary and made without any form of coercion or inducement. The court considered the context in which the statements were made, including the presence of the accused and Fry's demeanour. The court also evaluated the accused's denial of the statements during the trial, assessing whether this denial was credible and consistent with the evidence presented. The court held that the statements were voluntary and properly admitted as evidence, despite the accused's denial.

The High Court concluded that the statements were indeed voluntary, as they were made in the presence of Fry without any apparent coercion. The specific conduct observed during the making of the statements supported their admissibility. Furthermore, the court found that the accused's denial of these statements was not sufficiently supported by the evidence, and therefore, the statements were properly considered by the jury in reaching their verdict. The High Court upheld the conviction, emphasising the importance of the voluntariness and credibility of statements in criminal proceedings.

Orders