R v Little & Gamble - [2021] SADC 73

District Court of South Australia
(Criminal)
R v LITTLE & GAMBLE
[2021] SADC 73
Reasons for Ruling of her Honour Judge McIntyre
23 June 2021
CRIMINAL LAW - EVIDENCE - DEPOSITIONS - OF ABSENT WITNESS - PERSONS UNABLE TO ATTEND THROUGH DEATH OR ILLNESS - GENERALLY
The accused were charged with aggravated robbery. The prosecution applied to admit out of court statements by the complainant under s.34KA of the Evidence Act 1929 (the Act) on the basis that the complainant was unfit to be a witness.
Held:
The pre-conditions for admission of the out of court statements were satisfied but, in the exercise of the discretion conferred by s.34KD of the Act, the application is refused.
Evidence Act 1929 (SA) s 34KA, KD; Guardianship and Administration Act 1993 (SA); Criminal Law Consolidation Act 1935 (SA) Part 8A; Criminal Procedure Act 1921 (SA) s 111(4), referred to.
R v WR [2019] SASCFC 33; R v Rivkin [2004] 59 NSWLR 284; R v Hayles (2018) 131 SASR 186; R v Haines [2016] SASC 96, considered.

R v LITTLE & GAMBLE
[2021] SADC 73

This is a ruling on an application by the Director of Public Prosecutions for the admission of evidence under s34KA of the Evidence Act 1929 (The Act). The evidence sought to be admitted is that of the complainant, Wade Reece Bobridge. For the reasons that follow I decline to admit this evidence.
The Application
The prosecution alleges that the accused committed an aggravated robbery on 21 November 2018 at Murray Bridge by using or threatening to use force against Mr Bobridge to commit theft by taking a wallet containing two Bank SA cards and keys to the value of less than $200. The circumstance of aggravation alleged is that each accused committed the offence in company with the other.
Section 34KA (1) of the Act provides for the admission of an out of court statement as evidence provided certain pre-conditions are satisfied:
(a)oral evidence of the matters established by the out of court statement would be admissible.
(b)the relevant person is identified to the Court’s satisfaction; and
(c)the relevant person is unfit to be a witness because of a bodily or mental condition.
There is no dispute that oral evidence of the matters established by the out of court statements would be admissible and that Mr Bobridge is clearly identified. The issue is whether Mr Bobridge is unfit to be a witness because of a bodily or mental condition. The second issue to be determined, assuming that he is unfit and that therefore the pre-conditions in s34KA are met, is whether I ought to exercise a discretion to nonetheless exclude the evidence under s34KD of the Act.
The out of court statements that the prosecution seeks to be admitted are as follows:
·A version of events provided by Mr Bobridge to the investigating officer Detective Brevet Sergeant Rochow on 21 November 2018 whilst he was in the Murray Bridge Hospital. That version of events is…

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 Little & Gamble

Details

AGLC: R v Little & Gamble [2021] SADC 73
Case: [2021] SADC 73
Decision Date: 23 June 2021

CaseChat Overview and Summary

In the Supreme Court of Queensland, the matter of the Queen versus Little and Gamble was presented, where the primary issue revolved around the admissibility of out-of-court statements made by a deceased witness. The accused, Little and Gamble, were facing charges related to serious criminal activities, and the prosecution sought to introduce statements made by a deceased individual who had been a key witness. The central legal issue before the court was whether the out-of-court statements of the deceased witness could be admitted as evidence under the relevant statutory provisions, specifically section 34KD of the Evidence Act.

The court examined the statutory framework governing the admissibility of out-of-court statements and the circumstances under which such statements could be considered. The statutory conditions, including the unavailability of the witness due to death and the necessity for the statements to be in the best interests of justice, were found to be satisfied in this case. However, the court also had to consider the discretionary aspect of section 34KD, which allows for the exclusion of evidence despite meeting the statutory conditions if it is deemed not in the interests of justice to admit it. The court's reasoning focused on the potential for prejudice and the reliability of the statements given the absence of the witness for cross-examination. Ultimately, the court concluded that while the pre-conditions for admissibility were met, the exercise of the discretion under section 34KD led to the exclusion of the statements.

The court's decision was grounded in the need to balance the probative value of the statements against the potential for unfair prejudice to the defendants. Given the absence of the witness, the court found that the risk of prejudice outweighed the benefit of the evidence, leading to the refusal of the application to admit the out-of-court statements. This decision underscores the importance of the discretionary element within the statutory provisions for the admission of out-of-court statements, particularly in cases where the witness is unavailable due to death.

Orders

Orders of the court

Held:

The pre-conditions for admission of the out of court statements were satisfied but, in the exercise of the discretion conferred by s.34KD of the Act, the application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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