R v Sahlstorfer

Case [2024] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire)

R v SAHLSTORFER

Criminal Trial by Judge Alone

[2024] SASC 55

Reasons for Ruling of the Honourable Justice Stein  

19 April 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - OTHER MATTERS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - DEPOSITIONS - OF ABSENT WITNESS - PERSONS UNABLE TO ATTEND THROUGH DEATH OR ILLNESS - GENERALLY

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - OTHER MATTERS

The accused is charged with murder.

At trial, the prosecution sought to tender the transcript of evidence of a witness given in a previous trial pursuant to s 34KA of the Evidence Act 1929 (SA). The witness had since died and was the only eyewitness to the events that lead to the victim’s death.

Defence applied pursuant to r 39 of the Joint Criminal Rules 2022 (SA) for the exclusion of the evidence pursuant to s 34KD of the Evidence Act 1929, or alternatively the common law Christie discretion, or the general unfairness discretion. 

Held (refusing the application):

1.The case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, does not substantially outweigh the case for admitting it, taking account of the value of the evidence.

2.The testimony is not more prejudicial than probative to warrant the exercise of the Christie discretion.

3.Admitting the statement would not result in an unacceptable miscarriage of justice so as to enliven the general unfairness discretion.

Joint Criminal Rules 2022 (SA) r 39; Criminal Law Consolidation Act 1935 (SA) s 11; Evidence Act 1929 (SA) ss 34KA, 34KB, 34KC, 34KD, referred to.

R v Christie [1914] AC 545; Mullen v Director of Public Prosecutions [2020] SASC 10, applied.
R v Haines [2016] SASC 96, distinguished.

Kanaan v The Queen [2006] NSWCCA 109; R v Duke (1979) 22 SASR 46; R v Koenig (2013) 229 A Crim R 108; Ames v The King [2023] SASCA 85; Riat v The Queen [2012] EWCA Crim 1509; Horncastle v The Queen [2010] 2 AC 373; Cole v The Queen [2007] EWCA Crim 1924; Adams (a pseudonym) v The Queen; Bradley (a pseudonym) v The Queen [2021] SASCA 147; Ford v The King [2023] SASCA 117, considered.

R v SAHLSTORFER
[2024] SASC 55

Criminal: Voir dire

  1. STEIN J:  Defence applied under r 39 of the Joint Criminal Rules 2022 (SA) for orders that the Crown be prohibited from leading the evidence of out of court statements of Mr Sam Perkins. 

  2. The accused is charged with one count of murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The deceased, Mr Mark Robert Boyce, was attacked by three men on 30 January 2017. He remained unconscious after…

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AGLC
R v Sahlstorfer [2024] SASC 55
Case
[2024] SASC 55
Decision Date

CaseChat Overview and Summary

In the matter of R v Sahlstorfer, the central issue before the court was the admissibility of evidence given by Mr Perkins in a previous trial, where he had testified against another individual, Mr Grant. The prosecution sought to admit this evidence in the trial of Sahlstorfer. The admissibility of Mr Perkins' evidence was contested by Sahlstorfer, who invoked the provisions of s 34KD(1) of the Evidence Act 1929 (SA) and the common law discretion established in Christie, along with the general unfairness discretion.

The court had to determine whether the exclusion of Mr Perkins' evidence was warranted under the statutory provision, which deals with the admissibility of evidence from a person who has died or is unable to attend court due to illness or other reasons. The court also needed to consider the common law discretion and the general unfairness discretion, which permit the exclusion of evidence if it would be unfair to admit it or if it was improperly obtained. The court was particularly attentive to Dr Jules Begg's expert opinion regarding Mr Perkins' mental health, which included a diagnosis of antisocial personality disorder. This diagnosis raised questions about the reliability and credibility of Mr Perkins' testimony.

After careful consideration of the statutory, common law, and general unfairness discretions, the court ruled in favour of excluding the evidence of Mr Perkins. The court found that the unavailability of Mr Perkins to be cross-examined presented a significant risk of unfairness to the accused, given the expert opinion that Mr Perkins' testimony was likely to be self-serving and unreliable. The court concluded that the risk of prejudice to the accused outweighed the probative value of Mr Perkins' evidence. Consequently, the evidence of Mr Perkins was excluded from the trial of Sahlstorfer.

The court ordered that the transcript of Mr Perkins' evidence from the Grant trial would not be admitted as evidence in the trial against Sahlstorfer, affirming the accused's right to a fair trial and the integrity of the judicial process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In his initial statement, Mr Perkins described the attack, including giving a description of the two vehicles. He described the driver of the small car as “Serge” who spoke with an accent. Mr Perkins gave a further signed statement to police on 16 January 2019 and a further statement on 6 June 2019. In a later statement, Mr Perkins said that the driver of the car was the accused. He gave reasons why he had changed his position about the identity of the driver. Evidence in Grant trial Mr Grant was tried by jury on a charge of murder in June 2019. Mr Perkins gave evidence in the trial of Mr Grant and was cross-examined by senior counsel for Mr Grant. Mr Perkins was not asked questions about the identity of the driver of the small car. The identity of the two other men involved in the incident with Mr Grant was received as an agreed fact. Death of Mr Perkins Mr Perkins died after giving evidence and therefore cannot give evidence in the trial of the accused. Prosecution seeks to tender at trial the transcript of Mr Perkins’ evidence in the Grant trial. Prosecution do not seek to tender the previous signed statements. Basis of application for exclusion The accused sought the exclusion of the evidence of Mr Perkins pursuant to s 34KD(1) of the Evidence Act 1929 (SA) (“the Act”) and also the common law Christie[2] discretion and the general unfairness discretion. [2] R v Christie [1914] AC 545.Evidence of Dr Begg Dr Jules Begg, psychiatrist, was provided with, and reviewed, a number of historical documents relating to Mr Perkins including police apprehension reports, social background reports, and psychological and psychiatric reports. Mr Perkins had a prior history of involvement in the criminal justice system and a number of reports had been prepared in that context and in the context of therapeutic treatment. Some previous reports described Mr Perkins as suffering from a depressive illness and substance abuse issues. In 2016, Dr Lorraine Lim, a psychologist with forensic specialisation, prepared a report in which she concluded that Mr Perkins’ presentation was consistent with an underlying antisocial personality disorder, post-traumatic stress disorder and amphetamine use disorder. Dr Begg agreed with the opinion of Dr Lim and opined that Mr Perkins met the criteria for antisocial personality disorder. He explained that the antisocial personality disorder diagnosis applies to people who habitually and pervasively disregard or violate the rights and considerations of others without remorse. Dr Begg further explained that the decisions of persons with this disorder can be seen to be driven by their own desires without considering the needs of others or the negative effect of their actions on others. People with antisocial personality disorder can possess superficial charm and be thoughtful, cunning, and manipulative. Dr Begg said they are able to harm others without remorse or regret. Dr Begg opined that in the materials provided to him, he saw evidence of deception, manipulation, impulsive behaviour, irresponsibility, a lack of remorse, and a disregard for Mr Perkins’ own safety and the safety of others. Dr Begg thought that Mr Perkins’ agenda would almost invariably have been to put himself first and to give a story that would seek to favour his own agenda. Dr Begg said Mr Perkins would have had the capacity to accurately and truthfully relate events, but only if by doing so he was not disadvantaged, and his prime consideration would have been himself. Dr Begg thought Mr Perkins would have been prepared to admit wrongdoing if he knew he was not going to be prosecuted and if he thought that would support the narrative he wished to convey. Dr Begg said that because lying and manipulation of others was an integral part of Mr Perkins’ personality, there may be a disadvantage to the accused in legal proceedings if he were not able to be cross examined to elucidate inconsistencies in his testimony.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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