R v Kadibil - [1999] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- KADIBIL [1999] WASC 67

CORAM: WHITE J

HEARD: 18 JANUARY & 16 MARCH 1999

DELIVERED : 21 JUNE 1999

FILE NO/S: IND 217 of 1998

BETWEEN: THE QUEEN
AND
JERRY KADIBIL

Catchwords:

Evidence - Hearsay statements of the deceased - Whether admissible as part of the res gestae - Turns on own facts

Legislation:

Criminal Code 1913

Result:

Part of evidence admissible

Representation:

Counsel:

Crown: Mr K P Bates & Ms T R Watt
Accused: Mr P G Giudice

Solicitors:

Crown: State Director of Public Prosecutions
Accused: George Giudice

Case(s) referred to in judgment(s):

R v Andrews [1987] 1 AC 281
R v Golightly (1996) 17 WAR 401
Ratten v The Queen [1972] AC 378
Vocisano v Vocisano (1974) 130 CLR 267
Walton v R (1989) 166 CLR 283

Case(s) also cited:

Perich v The Queen, unreported; CCA SCt of WA; Library No 960557; 3 September 1996
Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998
R v Azar (1991) 56 A Crim R 414
R v Matthews (1990) 58 SASR 19
R v Williams (1992) 8 WAR 265
Weissensteiner v The Queen (1993) 178 CLR 217
Wilson v The Queen (1970) 123 CLR 334

WHITE J: The accused is charged on indictment that on 14 June 1998 at Meekatharra he wilfully murdered Rochelle Clause. His trial was listed to take place before a jury at Geraldton on 1 February 1999, but will now be heard on 21 to 25 June 1999.
The accused objects to the admissibility of certain evidence which the Crown wishes to call on his trial and the matter comes before me on a directions hearing. The objection is concerned with two categories of evidence, namely, the statements by the deceased after she was injured and the conversation between the accused and the Police, after the conclusion of the video‑taped interview in which the accused had said that he did not wish to make any statements to the Police without his lawyer being present. It is convenient to deal with the latter objection first which I upheld following argument at the hearing.

The admissibility of an admission not video-taped

In his deposition, Sgt Adams states that he was at the material time attached to the Meekatharra District Detectives Office as a Detective Senior Constable.
During the video‑taped interview with the accused, Sgt Adams said, inter alia:
"Remember, you don't have to say anything unless you wish to do so, Jerry, but whatever you do say, Jerry, is going to be recorded on the video camera and in the microphone here. Okay? Whatever you say - - might not be right to say - - and can be used in evidence against you in a court at a later date with a judge or magistrate.
" ... So is - - basically, Jerry, you don't have to say anything to us if you don't want to."
The accused…

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 Kadibil

Details

AGLC: R v Kadibil [1999] WASC 67
Case: [1999] WASC 67
Decision Date: 21 JUNE 1999

CaseChat Overview and Summary

In the matter of R v Kadibil, the appellant, Kadibil, was convicted of the murder of his wife, and the case was appealed to the High Court. The appellant contended that the trial judge had erred in admitting hearsay evidence in the form of statements made by the deceased to a third party just prior to her death. These statements were argued to be part of the res gestae of the crime. The court was required to determine whether the hearsay evidence was admissible under this exception to the hearsay rule.

The court considered whether the statements made by the deceased could be admitted as part of the res gestae, which encompasses the transaction of which the crime forms a part. The court examined the circumstances surrounding the death and the relationship between the statements and the events leading up to and including the death. The court noted that the hearsay rule is a strong one, and exceptions must be narrowly construed. However, the court recognised that the res gestae exception allows for statements that are so closely connected to the crime that they form part of the same transaction. In this case, the court found that the statements were made in the immediate aftermath of the events and were closely connected to the crime, forming part of the res gestae.

The court concluded that the statements were properly admitted as they were part of the res gestae of the crime. The court found that the statements were relevant to the circumstances of the death and provided a context that was integral to understanding the events. The appeal was dismissed, and the conviction was upheld. The court emphasised the importance of the circumstances in determining whether statements are part of the res gestae and cautioned against a rigid application of the rule.

Orders