R -v- SLATER [2003] WASC 171

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 171
Case No:	INS:39/2003	Heard:	28 AUGUST 2003
Coram:	ANDERSON J	Delivered:	29/08/03
No of pages:	5	Judgment Part:	1 of 1
Result:	Ruling
Category:	A
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Parties:	THE QUEEN GRAEME SLATER
Catchwords:	Criminal law Evidence Admissibility of statement by deceased witness
Legislation:	Evidence Act, 107 Justices Act 1902 (WA), s 69
Case References:	Hill v The Queen [2003] WASCA 177 Birch v The Queen (1994) 12 WAR 292 Galea v The Queen (1989) 1 WAR 450 R v Nalberski (1989) 44 A Crim R 434 Seng Boon Tong v The Queen, unreported; SCt of WA; Library No 970087; 12 March 1997 Ugle v The queen (1989) 167 CLR 647

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : R -v- SLATER [2003] WASC 171 CORAM : ANDERSON J HEARD : 28 AUGUST 2003 DELIVERED : 29 AUGUST 2003 FILE NO/S : INS 39 of 2003 BETWEEN : THE QUEEN

Applicant

AND

GRAEME SLATER

Respondent

Catchwords:

Criminal law - Evidence - Admissibility of statement by deceased witness

Legislation:

Evidence Act, 107

Justices Act 1902 (WA), s 69

Result:

Ruling

(Page 2)

Category: A

Representation:

Counsel:

Applicant : Mr K P Bates & Mr T G E Wilson

Respondent : Mr C L Lovitt QC

Solicitors:

Applicant : State Director of Public Prosecutions

Respondent : Laurie Levy & Associates

Case(s) referred to in judgment(s):

Hill v The Queen [2003] WASCA 177

Case(s) also cited:

Birch v The Queen (1994) 12 WAR 292
Galea v The Queen (1989) 1 WAR 450
R v Nalberski (1989) 44 A Crim R 434
Seng Boon Tong v The Queen, unreported; SCt of WA; Library No 970087; 12 March 1997
Ugle v The queen (1989) 167 CLR 647

(Page 3)

1 ANDERSON J: Yesterday I heard an application by the Crown for liberty to adduce evidence in the form of a written statement of a deceased witness, Carla Marie Tulimowski. The application is made pursuant to s 107 of the Evidence Act.

2 Ms Tulimowski was a senior constable and forensic investigation officer attached to the Fingerprint Bureau, Forensic Division, Western Australian Police Service. According to her statement she assisted in a search of the accused's premises on 6 December 2001 in company with other police officers. In her statement she says that she searched the master bedroom and on the top shelf of a side cupboard of a cabinet she found a number of items including a Nokia 3310 Owner's Guide. In her statement she says that she examined the Guide and saw handwriting in blue ink on the back cover of the Guide comprising numbers and letters which she read to be 7LL 700. The Owner's Guide was then photographed by another officer and handed to the exhibit's officer who recorded it as an exhibit. Her statement goes on to detail the manner in which the particular exhibit was later dealt with.

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 Slater

Details

AGLC: R v Slater [2003] WASC 171
Case: [2003] WASC 171
Decision Date

CaseChat Overview and Summary

In the case of R v Slater, the dispute involved the admissibility of a statement by a deceased witness, Carla Marie Tulimowski, who was a police officer. The court had to decide whether the statement, made under section 107 of the Evidence Act, could be admitted as evidence. The case was heard in the Supreme Court of Western Australia by Anderson J. The central issue was whether the statement by the deceased witness, which was crucial to corroborating the prosecution's evidence, should be excluded on discretionary grounds due to its prejudicial effect or fairness concerns.

The court's reasoning involved assessing whether the statement met the requirements of the Evidence Act and the Justices Act 1902 (WA). Anderson J determined that the statement was admissible as it complied with the statutory requirements, forming part of the hand-up brief tendered in the Court of Petty Sessions. The judge also considered the fairness and discretion to exclude the evidence, weighing the potential prejudice against the probative value and the availability of cross-examination. Anderson J concluded that there was no compelling reason to exclude the statement on fairness grounds, as the line of cross-examination proposed by the defence was unlikely to be successful. The judge found that the evidence was highly prejudicial but also central to the case, a factor that weighed in favor of its admissibility.

Ultimately, the court ruled that the evidence should not be excluded on discretionary grounds, allowing the statement to be admitted. This decision was based on the belief that the prejudicial effect did not solely arise from the content being disadvantageous to the accused, and the probative value outweighed the potential prejudice.

Orders