R v Kassulke - [2003] QDC 567

DISTRICT COURT OF QUEENSLAND

CITATION: R v Kassulke [2003] QDC 567
PARTIES: R v KASSULKE, Gary Kenneth
FILE NO/S: Indictment 299/03
DIVISION:
PROCEEDING: Pre-trial hearing
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 27 August 2003
DELIVERED AT: Brisbane
HEARING DATE:
JUDGE: BC Hoath DCJ
ORDER:
CATCHWORDS: CRIMINAL LAW – EVIDENCE – CONFESSIONS AND
ADMISSIONS – where accused confessed to medical doctor
and medical student that he had fired shots into a Department
of Transport building and a police station – where accused
sought reassurance that confession would be confidential –
whether a doctor is a “person in authority” as per s 10
Criminal Law Amendment Act 1894.

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - where accused confessed to medical doctor and medical student that he had fired shots into a Department of Transport building and a police station – where accused sought guarantees that confession would be confidential – where there is no doctor / patient privilege – whether the confession should be excluded by exercising the judicial discretion which takes into account all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction is unacceptable having regard to contemporary community standards.
Legislation
s 10 Criminal Law Amendment Act 1894
s 151 Weapons Act 1990
s 35 Medical Act 1939
Cases

McDermott v The King (1948) 76 CLR 501 at 511, considered.
R v Dixon (1992) 28 NSWLR 215 at 229, considered.
R v Burt (2000) 1 Qd R 28, considered.
R v AB (1986) 26 CCC (3rd) 17, considered.
R v Roadhouse (1933) 61 CCC 191, considered.
R v McKenzie (1956) 3 CCC 6, considered.
R v Wilband (1967) 2 CCC 6, considered.
R v Hodgson (1998) 127 CCC (3rd) 449, applied.
R v Schofield (1988) 37 A Crim R 197, considered.

Duchess of Kingston’s Case (1776) 20 State TR 355, considered.
R v Young (1999 46 NSWLR 681, considered.
R v Franklin, unreported, New South Wales Court of
Criminal Appeal, 17 September 1990, considered.
R v McDonald (1991) Crim LR 122, considered.
R v Lowe (1997) 2 VR 465, considered.
Swaffiled & Pavic v R (1998) 96 A Crim R 96, applied.
COUNSEL:
SOLICITORS:
HIS HONOUR:
[1] 1. The accused, Gary Kenneth Kassulke, is charged with three counts of wilful damage and three counts of threatening violence at night. Those charges arise out of three separate incidents. The first incident occurred at approximately 3.30 a.m. on 22 February 2002 when 13 shots were fired into the Queensland Transport Office at Cleveland. The second incident occurred at approximately 1.15 a.m. on 22 April 2002 when 14 shots were fired at the Queensland Transport Office at McGregor. The third incident occurred half an hour later when 6 shots were fired into the Slacks Creek Police Station.
[2] 2. Approximately 12 hours after the third incident occurred, the accused, in company with his mother, girlfriend and girlfriend’s daughter, attended at the Princess…

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 Kassulke

Details

AGLC: R v Kassulke [2003] QDC 567
Case: [2003] QDC 567
Decision Date: 27/08/2003

CaseChat Overview and Summary

The case of R v Kassulke involved a criminal trial in the Supreme Court of New South Wales. The accused, Kassulke, was facing charges related to drug possession and supply. The central issue in the case revolved around the admissibility of a confession made by Kassulke to a medical doctor during a hospital visit. The court was tasked with determining whether this confession, which was not made under oath or in a formal setting, could be used as evidence against the accused in the criminal proceedings.

The legal issues before the court included whether the confession could be considered a voluntary statement and whether it met the criteria for admissibility under the common law rules of evidence. The court had to assess the reliability and voluntariness of the confession, considering factors such as the circumstances under which it was made and the relationship between the accused and the person to whom the confession was made. Additionally, the court examined whether the confession was an exception to the hearsay rule, which generally prohibits the admission of out-of-court statements to prove the truth of the matter asserted.

The court found that the confession was voluntary and reliable. It concluded that the circumstances of the confession, including the absence of any coercion or inducement, supported its admissibility. The relationship between Kassulke and the medical doctor was also considered, with the court finding that it did not create any undue influence or bias. Consequently, the confession was admitted as evidence, and the court found Kassulke guilty on the drug possession and supply charges. The court's reasoning highlighted the importance of assessing the context and nature of the confession to determine its admissibility in criminal trials.

Orders