R v Pp

[2002] VSC 530

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No. 1489 of 2001

THE QUEEN

v

PP

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2002
DATE OF RULING:	29 November 2002
CASE MAY BE CITED AS:	R v PP
MEDIUM NEUTRAL CITATION:	[2002] VSC 530

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Solicitor for Public Prosecutions
For the Accused	Mr B.J. Bourke with Ms A.C. Fox	Haines & Polites

HIS HONOUR:

1. Objection has been taken to questions proposed to be asked by Mr Bourke on behalf of the accused of Constable Jarrod Halley concerning a conversation which he had with a person at the scene of the deceased’s death in the early hours of the morning of 24 August 2001. During the conversation the person handed to  Constable Halley a piece of paper with vehicle registration number NZD-184 written upon it and told the Constable "that the offender who had had an altercation with the boy on the ground had left the scene with some friends in this vehicle".

1. The basis of the objection is that the question enquires as to what the constable was told by the person, and that what the constable was told would be hearsay.

1. Mr Bourke has submitted that although it would be hearsay, it ought to be admitted as part of the res gestae, because he contends it was uttered so shortly after the infliction of the injuries upon the deceased that it is to be regarded as being part of what is referred to in the authorities as the transaction.

1. Mr Ryan, on behalf of the Crown, has submitted that the transaction must be regarded as having concluded significantly before the conversation, because by then not only had the accused and his two friends, Dimi and Dion, departed the scene by car, but help had been summoned from persons standing by, from the security guard from the hotel next door, and from the police and ambulance service. 

1. Mr Ryan further submits that, even if it might be thought that the conversation falls within the transaction and thus would otherwise be admissible as part of the res gestae, there is nothing to indicate that the person who spoke to the constable had first hand knowledge of what they reported, and therefore there is a significant possibility that what they reported was in effect second or even third hand hearsay; not within the res gestae exception.

1. In my opinion it is sufficiently plain that the transaction was concluded by the time the conversation occurred to mean that the evidence could not be regarded as part of the res gestae.  I do not regard it as being either sufficiently spontaneous relative to the infliction of injuries upon the deceased or contemporaneous with the infliction of the injuries to come near to meeting that description.

1. I am also inclined to accept the submission that there is no indication that what was said was necessarily first hand, but in case it matters I record that if the conversation had formed part of the res gestae, I would have been prepared to assume that what was said was first hand and  thus to have admitted it.

1. For the reason, however, that I take the view that it was not part of the res gestae and because no other exception to the hearsay rule has been relied upon, I uphold the objection.

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