The State of Western Australia v Adams
[2013] WADC 186
•28 NOVEMBER 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: KALGOORLIE
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ADAMS [2013] WADC 186
CORAM: GOETZE DCJ
HEARD: 18 NOVEMBER 2013
DELIVERED : 28 NOVEMBER 2013
FILE NO/S: KAL IND 36 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
STANLEY ADAMS
Catchwords:
Grievous bodily harm - Admissibility and relevance of statements by accused in video record of interview with police as to whether the accused was able to leave the scene before the alleged offending - Turns on own facts
Legislation:
Nil
Result:
Video record of interview admissible
Representation:
Counsel:
The State of Western Australia : Mr RP K Soh
Accused: Ms C A McKenzie & Mr W Reid
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: McKenzie and McKenzie
Case(s) referred to in judgment(s):
Nil
GOETZE DCJ:
Introduction
The accused stands charged with one offence that on or about 25 October 2012 at Quairading, he unlawfully did grievous bodily harm to his brother. The alleged offence is said to be aggravated by reason that the accused was in a family and domestic relationship with his brother.
The defence at trial is said to be self‑defence.
On 20 December 2012 at Leonora, the accused took part in a video recorded interview with police.
During that interview, the accused was asked whether he could have left the scene of the alleged offending and having said that he could, he was asked why he did not do so. He gave an explanation.
Counsel for the accused has requested that the video of the interview be edited to exclude this passage of it. The State requires such evidence to be put before the jury.
The transcript
The video recorded interview has been transcribed and at page 27 of the transcription, the following passage appears:
OFFICER O'CONNOR: I just – do you want to add anything, anything further?
CON WHELAN: No.
OFFICER O'CONNOR: There's nothing, no other questions at all?
CON WHELAN: Listen, um, when you and Gary John were fighting, yeah, could you have just walked out the house and left it?
ADAMS: I could of.
CON WHELAN: And why didn't you?
ADAMS: I don't know.
CON WHELAN: Was that – was he stoppin' you from goin' out the door?
ADAMS: Yeah. Oh, yeah.
CON WHELAN: How was he stoppin' you?
ADAMS: He wasn't stoppin' me. He was on the other side in the dart room.
CON WHELAN: Yeah.
ADAMS: And that time, I tried to walk off. He started another argument.
CON WHELAN: Could you just have ignored him and gone?
ADAMS: I could of.
OFFICER O'CONNOR: alright, mate, is there anything you want to add further to it?
ADAMS: No.
OFFICER O'CONNOR: I can see – look, I understand – it's upset ya, you know, talking about it - - -
ADAMS: Yeah.
Defence submissions
Counsel for Mr Adams, Ms C A McKenzie, submitted that the above portion of the transcript of the interview is not probative of the facts in issue. Ms McKenzie identified that earlier in the interview, the accused had informed police that he was arguing with the complainant, who punched him, and then the accused pushed the complainant away. The complainant again came at the accused, who then threw a bottle at the complainant, causing grievous bodily harm.
In these circumstances, Ms McKenzie submitted that whether the accused could retreat or escape from the scene, in the context of the explanation already given by the accused, is simply a diversion without relevance to the facts in issue.
State submissions
Counsel for the State of Western Australia, Mr R P K Soh, submitted that there was nothing impermissible about the abovementioned questioning.
Conclusion
This matter came on in the callover on Monday, 18 November 2013 for the sittings of the court at Kalgoorlie that week. It was a priority 2 trial, due to commence on Wednesday, 20 November 2013. At the callover, I indicated that I would deal with the proposed edits in the video record of the interview prior to the commencement of the trial. In the event, the trial for Mr Adams did not occur by reason that the priority 1 trial ran over time and took up the whole of the week.
The parties have requested that I now deal with this matter on the submissions heard at the callover, limited as they were.
In my view, there is nothing impermissible about the portion of the interview which Ms McKenzie seeks to have edited out. The matters raised are part of the res gestae. The questions asked sought answers which a jury, properly informed, may need to know. The subject passage is relevant to the accused's state of mind. Further, it is relevant to what is said to be the defence to the prosecution, namely self‑defence.
The jury should, of course, be directed that the accused had every right to stand his ground and was not required, as a matter of law, to walk away.
For these brief reasons, the disputed portion of the interview should not be edited from the video and transcript of the interview.
0
0
1