R v L, B

[2012] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire)

R v L, B

[2012] SASC 109

Reasons for Ruling of The Honourable Justice Vanstone

19 June 2012

EVIDENCE - ADMISSIBILITY AND RELEVANCY

Whether evidence of a lie to police as to the accused’s recent whereabouts was admissible and whether it should be excluded as a matter of discretion.

R v Mather [2002] SASC 368; R v Power (1996) 87 A Crim R 407, considered.

R v L, B
[2012] SASC 109

Criminal

Ruling on Rule 9 Notice

1. VANSTONE J:     I have before me two written applications pursuant to Rule 9.  The first was received at the Court on 7 June 2012.  There is no need to make any ruling in relation to that application because paragraph 1 of it has been overtaken by the pleas of guilty of the accuseds Hayes and Langenberg and the prosecution has indicated that it does not propose to lead the evidence the subject of paragraphs 2 and 3.

2. The other Rule 9 Notice does not appear to have been filed or signed but it is dated 15 June 2012.

3. Paragraph 1 is an objection to evidence of the arrest of the accused on 16 November 2010 for illegal interference.  In the course of his apprehension and arrest a short conversation with police took place involving both the accused and Landenberg concerning the period of time in which they had each been in Port Pirie.  The objection extended both to the arrest itself and to that conversation.  In fact, Mr Pearce QC, for the prosecution, indicated that the evidence of the arrest itself would not be led, but that the conversation was a not unimportant aspect of the prosecution case.

4. Mr Morrison, who appeared with Mr Boucaut SC for the accused, argued that the accused’s assertion to police that he had been “here” (meaning Port Pirie) for two days was “unguarded” and was a statement made in the context of being questioned about illegal interference rather than murder.  Mr Morrison conceded that the evidence was admissible, but contended that it was so weak that its probative value was outweighed by its prejudicial effect.  He put that, at its highest, if seen as a lie, it could be a lie going only to credibility and not to consciousness of guilt and that it could be seen to be relevant only to the illegal interference charge.  He referred to R v Mather [2002] SASC 368 and R v Power (1996) 87 A Crim R 407, 409. He further argued that it could only be relevant to credibility if the accused gave evidence and that would not be known until after the prosecution case had closed.

5. I do not agree that the evidence is intractably neutral in the sense of being referable either to the alleged illegal interference or to the alleged murder.  The alleged illegal interference charge related to 13 September and so a statement that he had been in Port Pirie for two days could hardly have been designed to distance himself from those allegations.  Further, I do not consider that the fact that the assertion was made in the context of being spoken to about the illegal interference charge is any impediment to using the assertion in relation to any other charge.  There is no rule that admissions or statements made in one context are quarantined from use in another.

6. If the accused’s assertion that he had been in Port Pirie for two days, that is since Sunday, 14 November were true, then that would mean that he was not at Waterloo Corner on 15 November when Mr Do was murdered.  Plainly the assertion is as to a fact material to the charge of murder.  If it is false, then in my view a jury would be entitled, with the benefit of the appropriate directions, to treat it as a false denial evincing a consciousness of guilt.  I consider the evidence to be admissible and I decline to exclude it in the exercise of my discretion. 

7. Mr Pearce indicates that the evidence the subject of paragraph 2 will no longer be led.

8. Paragraph 3 concerns evidence that upon being approached by police on 17 November 2010 at Port Pirie, the accused initially ran away but then, upon being pursued by a police patrol, stopped and submitted to a conversation with police.  Mr Morrison argued that while strictly admissible this evidence should be excluded in the exercise of my discretion.  He noted that the flight was short in terms of duration and distance and was followed by the accused providing his correct name to the police and submitting to forensic procedures.  It was to be contrasted with the flight involved in leaving a jurisdiction or taking steps to conceal one’s appearance or identity.  He further argued that this was a young person with a police record who had been arrested by police on the night prior.  Mr Pearce initially indicated that he would wish to tender this evidence, but then advised he would like some further time to consider its admissibility, having regard to the accused’s apparent involvement in an offence at Crystal Brook on 15 November 2010.  Later, I was told by Mr Pearce that he would not lead the evidence.

9. Mr Morrison advised me that paragraph 4 of the Rule 9 Notice was not so much an objection to the admissibility of evidence, but was rather a matter that should properly be considered towards the end of the evidence as it related to the proper use of evidence which would be before the jury.  No ruling was required of me at this stage.