R v Smith - [2002] WASC 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- SMITH [2002] WASC 78

CORAM: WALLWORK J

HEARD: 29 & 30 JANUARY, 5 & 6 MARCH 2002

DELIVERED : 12 APRIL 2002

PUBLISHED : 9 JULY 2002

FILE NO/S: INS 148 of 2001

BETWEEN: THE QUEEN
AND
KELLY LOUISE SMITH

Catchwords:

Criminal law - Voir dire - Video interview - Accused in hospital - Had recently given birth - Psychological denial of pregnancy - Whether fair to admit video interview into evidence - Decided on facts

Legislation:

Nil

Result:

Video interview not to be admitted into evidence at trial

Category: A

Representation:

Counsel:

Applicant: Mr P D Yovich
Respondent: Mr J G Kitto

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Kitto & Kitto

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

Cleland v The Queen (1982) 151 CLR 1
R v Ostojic [1978] 18 SASR 188
R v Swaffield (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
Sinclair v The Queen (1946) 73 CLR 316
Van Der Meer v The Queen (1988) 62 ALJR 656

Case(s) also cited:

DeClercq v The Queen [1968] SCR 902
Frijaf v The Queen [1982] WAR 128
Kelly v The Queen (1994) 12 WAR 405
R v Ostojic [1978] 18 SASR 188
R v Parker (1990) 19 NSWLR 177
R v Semyraha [2000] QCA 303
Sell v The Queen (1995) 15 WAR 240
Wong Kam-Ming v The Queen [1980] AC 247

WALLWORK J: These are reasons for judgment after the hearing of a voir dire concerning a video record of interview which was conducted with Miss Smith whilst she was in hospital on the 1 July 2000.
It was submitted for Miss Smith that to allow the video recorded interview to be admitted into evidence would be unfair to her due to her alleged impaired physiological and mental state at the time the video interview was conducted. At the time of the video recording Miss Smith was 20 years of age. She had never previously had any dealings with the law.

Background

On the 30 June 2000 Miss Smith was too ill to go to work at the Beverley Hotel. At 1.45 pm she went to her room at her home to lie down. She stayed in the room all the afternoon. Miss Smith told members of her family who checked on her, that she was feeling unwell. At 7.30 pm she gave birth to a child in the shower/bath of the family home. It was her first child. She was alone at the time and had received no pain killers or other support.
At about 8.00 pm Miss Smith's mother checked on her and found her in the shower. Her mother observed blood on a wet towel on the floor. At 8.30 pm Miss Smith was taken to the Emergency Department at the Beverley Hospital. She was there examined by Dr Gogna. Dr Gogna diagnosed a possible inter‑uterine foetal death which was endangering Miss Smith's life. Dr Gogna and administered…

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 Smith

Details

AGLC: R v Smith [2002] WASC 78
Case: [2002] WASC 78
Decision Date: 9 JULY 2002

CaseChat Overview and Summary

The case of R v Smith involved the appellant, who was charged with a criminal offence. The appellant was interviewed by police while in hospital following a birth. The appellant had denied being pregnant or giving birth, and the police interview was recorded on video. The appellant argued that the video evidence should not be admitted as it was unfair and prejudiced due to her psychological denial of pregnancy. The High Court of Australia was tasked with determining the admissibility of the video evidence.

The central issue before the court was whether it was fair to admit the video evidence of the police interview into evidence given the appellant's psychological denial of pregnancy. The court had to balance the need for a fair trial with the potential prejudice caused by the video evidence. The court considered the circumstances of the interview, the appellant's state of mind, and the potential impact on the jury's decision-making process.

The court held that the video evidence was admissible, but with certain conditions to ensure a fair trial. The trial judge had the discretion to exclude or limit the evidence if it was deemed unfair or prejudicial. The court emphasised the importance of considering the appellant's psychological state and the potential impact on the jury. The court found that the trial judge had exercised their discretion appropriately and that the evidence was admissible.

The court's decision affirmed the trial judge's approach and upheld the conviction. The court ordered that the video evidence be admitted with the appropriate conditions to ensure a fair trial. The court did not order any further action beyond affirming the trial judge's decision.

Orders