The State of Western Australia v Garlett
[2016] WASC 425
•19 DECEMBER 2016
THE STATE OF WESTERN AUSTRALIA -v- GARLETT [2016] WASC 425
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 425 | |
| Case No: | INS:214/2016 | 19 DECEMBER 2016 | |
| Coram: | ALLANSON J | 19/12/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application granted in part | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DAMIEN DARYL GARLETT |
Catchwords: | Criminal law Evidence Application to admit statement of witness who has died Whether admission unfair Turns on own facts |
Legislation: | Criminal Procedure Act 2004 (WA), s 98, sch 3 cl 4, cl 7 |
Case References: | The State of Western Australia v Higgins [2016] WASC 33 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
DAMIEN DARYL GARLETT
Respondent
Catchwords:
Criminal law - Evidence - Application to admit statement of witness who has died - Whether admission unfair - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 98, sch 3 cl 4, cl 7
Result:
Application granted in part
Category: B
Representation:
Counsel:
Applicant : Mr N R Cogin
Respondent : Ms A S Rogers
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Abigail Rogers Barristers & Solicitors
Case(s) referred to in judgment(s):
The State of Western Australia v Higgins [2016] WASC 33
1 ALLANSON J: Damien Daryl Garlett is charged on indictment with one charge of aggravated burglary committed on 2 December 2015. The circumstances of aggravation are that Mr Garlett was:
(1) armed with a tomahawk;
(2) in company;
(3) knew or ought to have known that a person was in the place immediately before the commission of the offence; and
(4) the offence was in a place ordinarily used for human habitation.
2 One of the State witnesses, Nikki Wildish, has now died. This is an application under s 98 of the Criminal Procedure Act 2004 (WA) for orders admitting the statement of Mr Wildish at trial. If admitted, the evidence would be read at trial.
3 Under sch 3, cl 7 of the Criminal Procedure Act a court may admit into evidence a statement of a witness if the statement complies with certain procedural requirements and the witness is now dead. Under cl 7(5) the court may refuse to admit a statement if satisfied that the admission would be unfair to a party.
4 Under cl 7, the court must be satisfied that the statement complies with cl 4, the witness is dead, and the State has given notice of the application. The State gave written notice on 9 December 2016. There is evidence that Mr Wildish has died, although no evidence about the cause of death. The defence does not dispute that the statement of Mr Wildish complies with cl 4 and I am satisfied that it does.
5 The written statement dated 3 December 2015 made by Mr Wildish is thus admissible under cl 7. The only question is whether the court should refuse to admit it on the grounds that its admission would be unfair.
The principles
6 The principles guiding the application of cl 7(5) were recently summarised by Mitchell J in The State of Western Australia v Higgins [2016] WASC 33 [17]. I have omitted his Honour's references to earlier authorities:
1. The unfairness to which cl 7(5) directs attention is that flowing from the fact that the jury is deprived of the opportunity of seeing and hearing the witness give his or her evidence in chief and in cross-examination at trial.
2. The fact that the statement concerns a central rather than a peripheral issue, and is extremely prejudicial to an accused because of its tendency to show that he or she committed the charged offence, is a factor in favour of the admission of the statement rather than its exclusion.
3. The appellate courts assess fairness by reference to the course of the trial. At this stage of the proceedings, I must consider the practical unfairness which would arise from the absence of the witness, given the likely course of the trial. Matters to be considered include whether there are other means of challenging the witness' evidence, and whether the accused is unable to pursue lines of cross-examination to his or her material advantage.
4. In assessing unfairness, it will be relevant to note the opportunity which may be presented to the accused to give evidence concerning or affecting the absent witness without fear of contradiction.
5. The question of unfairness is also to be assessed in a context where the jury will be directed as to the need to treat evidence which cannot be the subject of cross-examination with caution. It is necessary to consider whether unfairness occasioned by the fact that the witness is not called can be negatived by directions given by the trial judge.
Consideration
7 The statement is short. It has 37 numbered paragraphs, most of them being only one sentence.
8 There is no doubt that some of the evidence of Mr Wildish in the statement is significant. It is the only evidence that the offenders were armed and had no permission to enter the house. It includes evidence that Mr Garlett was in company and that he and others took property, although there is other evidence to that effect. It includes some evidence tending to identify Mr Garlett.
9 On 13 January 2016, Mr Garlett participated in an interview with police officers which was recorded. In that interview he admitted that he went to Mr Wildish's house with three others. He said that the two women he was with were not known to him. He had met them recently at the train station. One of them told him it was a friend's house. He denied being armed, or taking anything from Mr Wildish's house.
10 The essential question on this application is whether the unfairness occasioned by the fact that the witness is not called can be negatived by directions given by the judge at trial.
11 The first matter raised on behalf of Mr Garlett is that the defence does not yet know what caused the death of Mr Wildish. It may be relevant to his reliability. Assuming cause of death is relevant, the trial is some months away, and more may then be known. But that is a different question from whether the admission of the statement is unfair.
12 Next, counsel submitted that Mr Wildish's statement that he 'gave them no permission to enter the house', is the only evidence in relation to the entry of the premises and the only evidence that Mr Garlett was there without consent. Mr Wildish's statement is also the only evidence that Mr Garlett was armed with a tomahawk. He denied being armed when he was interviewed by the police, saying he may have been carrying a stubbie of beer but that was all.
13 How the jury will be directed on these issues will depend on the defence, including whether Mr Garlett gives evidence. It may be assumed that they will be directed that, because Mr Wildish was not available, they did not have the opportunity to see and hear him in person and therefore could not use their impression of him in assessing his evidence. They will be directed that the defence has not had the opportunity to cross-examine and fully test the reliability of what he says.
14 Submissions may be made about matters that might go the reliability of the evidence and which would have been put in cross-examination. Even at this stage of the trial, it is possible to make the general observation that some parts of Mr Wildish's statement lack detail. That may operate in favour of Mr Garlett.
15 I do not agree that the fact the statement is the only evidence of a particular factual element necessarily makes its admission unfair. A jury may be more inclined to accept a statement where there is some other evidence supporting what is said. That is, properly warned about the need for caution where the only evidence is the statement of a witness they have not been able to see and hear, and whose evidence cannot be tested, the jury may have a reasonable doubt.
16 Counsel also submitted that the effect of admitting the statement would be to force Mr Garlett to give evidence at trial. I accept that it is likely to be relevant to the forensic decision whether to call the accused. That, in my opinion, is not a relevant unfairness. The same decision would have had to be made were Mr Wildish able to testify in person.
17 Further, counsel referred to evidence, currently unexplained, that when Mr Garlett and those with him entered they were asking for another person, a woman named Tyne. Counsel submits correctly that there is no evidence about who Tyne is or how Mr Wildish knew her. But the evidence regarding Tyne, whether explained or unexplained, is not unfair to Mr Garlett. If anything, it suggests a reason for being there other than the intention to steal and is favourable to Mr Garlett.
18 Finally, counsel referred to particular paragraphs in Mr Wildish's statement regarding the taking of items. Those paragraphs are expressed in such a way that it is not apparent whether Mr Wildish actually saw the items being taken. I agree that it is not possible by cross-examination to test whether those statements are from Mr Wildish's own observations. They are not admissible evidence when expressed that way. For those reasons I ruled pars 31, 36 and 37 inadmissible. There is nothing in my opinion which requires the whole of the statement to be admissible for it to be read into evidence under sch 3. As with other admissible evidence, provided that no unfairness arises from severing inadmissible paragraphs, the statement can be admitted in part.
19 In conclusion, the statement is admissible under the section and, save for those paragraphs which I have identified, may be admitted in evidence against Mr Garlett. I am not satisfied that its admission would be unfair where the jury is properly directed as to its use.
The Digiboard evidence
20 The State also applied to admit a video and documents which record Mr Wildish identifying Mr Garlett from photographs. The recording did not, however, comply with cl 4(5), and the State did not press its application for admission under sch 3, cl 7.