R v Slater
[2003] WASC 171
R -v- SLATER [2003] WASC 171
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 171 | |
| Case No: | INS:39/2003 | 28 AUGUST 2003 | |
| Coram: | ANDERSON J | 29/08/03 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Ruling | ||
| A | |||
| PDF Version |
| 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
- 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.
3 The evidence is of significance in that it provides corroboration of the evidence of the main prosecution witness, Mr Reid, concerning the involvement of the accused in the placing of an explosive device in the motor vehicle belonging to the deceased, Mr Lewis, the registration number of which was 7LL 700.
4 Exactly how the evidence corroborates that part of the evidence of the witness Reid need not be gone into.
5 I have no doubt that the statement of Ms Tulimowski is admissible under s 107. The statement formed part of the hand-up brief tendered in the Court of Petty Sessions at Perth pursuant to s 69 of the Justices Act 1902 (WA). I am satisfied the statement complies with s 69(2) and s 69(4). By s 69(7a) and s 69(8) the statement is admissible as evidence before this Court to the like extent that a deposition of Ms Tulimowski would have been admissible notwithstanding that it was not signed by the magistrate to whom it was tendered.
6 Section 107 of the Evidence Act is the section which enables depositions to be given in evidence at the trial of the person against whom the deposition was taken. Section 69 of the Justices Act and s 107 of the Evidence Act together enabled Ms Tulimowski's statement to be received in evidence as if it was a deposition.
(Page 4)
7 There is of course a discretion to exclude the evidence. The Court always has a discretion to exclude evidence the prejudicial effect of which outweighs its probative value or because the receipt of it would be unfair to the accused.
8 On behalf of the accused Mr Lovitt QC submitted that I should exercise my discretion to exclude the statement on fairness grounds. He put his submission unambiguously on the footing that had Ms Tulimowski been available for cross-examination he would have cross-examined her on the basis that her evidence as to the finding of the Nokia Owner's Guide was fabricated in as much as that piece of evidence was a police "plant" as she well knew, alternatively that Ms Tulimowski had herself brought the item to the premises and falsely asserted that she had found it on top of the cupboard during the course of the search.
9 I have examined the various statements comprising the Crown brief which cover the search of the premises and I can find no indication at all that the proposed line of cross-examination would have met with any success. As to this Mr Lovitt QC said that he would have relied on the fact that in her statement Ms Tulimowski asserted that she immediately appreciated the significance of the characters 7LL 700, which, he submitted, does not ring true. I do not find this submission persuasive. The Crown brief reveals that Mr Lewis' vehicle was subjected to extensive forensic examination in which Ms Tulimowski participated and it is to be expected that the registration number would have been in the mind of investigation officers involved in the case. In my opinion, it is of particular significance that the search of the accused's premises took place an appreciable time before the witness Reid provided the police with his confessional statements. It is to be observed also that Ms Tulimowski was only one of a number of police officers involved in the search, most if not all of whom are available to be called and cross-examined. In this way the veracity of Ms Tulimowski's statement as to the circumstances under which she came to be in the master bedroom and as to her conduct with respect to the discovery of the item in question can be explored to a very considerable extent.
10 The evidence is of course extremely prejudicial to the accused but this is because it goes to a central issue. I think this is a factor which weighs in favour of rather than against allowing the evidence to be admitted: Hill v The Queen [2003] WASCA 177 per McLure J at [82]. As her Honour pointed out in that case (in a judgment with which Murray and Wheeler JJ agreed) the prejudicial effect to justify exclusion cannot
(Page 5)
- arise solely from the fact that the content of the evidence is to a defendant's disadvantage.
11 I am not persuaded that the evidence should be excluded on discretionary grounds.
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