The State of Western Australia v Glasfurd [No 2]
[2022] WASC 404
•25 NOVEMBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GLASFURD [No 2] [2022] WASC 404
CORAM: MCGRATH J
HEARD: 24 OCTOBER 2022
DELIVERED : 25 NOVEMBER 2022
FILE NO/S: INS 3 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JAMIE ERIC GLASFURD
Accused
Catchwords:
Criminal law and procedure - Evidence - Statement of deceased prosecution witness - Application to admit written statement of prosecution witness into evidence - Whether admission of statement unfair to accused
Legislation:
Criminal Procedure Act 2004 (WA), sch 3 cl 7
Result:
Statement admitted into evidence
Representation:
Counsel:
| Prosecution | : | Mr B E F Tooker |
| Accused | : | Mr S D Freitag SC |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Smiddy-Brown Legal |
Case(s) referred to in decision(s):
Chaudhry v The Queen [2007] WASCA 37
Daniels v The State of Western Australia [2010] WASCA 200
The State of Western Australia v Higgins [2016] WASC 33
MCGRATH J:
The accused, Mr Glasfurd, is charged with one count of manslaughter contrary to s 280 of the Criminal Code (WA), one count of dangerous driving occasioning grievous bodily harm to another in circumstances of aggravation contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) and four counts of dangerous driving occasioning bodily harm to another in circumstances of aggravation contrary to s 59A(1)(b) of the Road Traffic Act.
Mr Glasfurd has pleaded not guilty to the six counts and will appear for his trial in February 2023.
The State makes an application that the statement of a proposed witness, Mr Pearce, dated 23 September 2021, be admitted into evidence at trial on the basis that the witness is deceased.[1] The State produced a death certificate confirming that Mr Pearce died on 30 October 2021.[2]
[1] Application by the State dated 31 March 2022.
[2] West Australian death certificate dated 18 November 2021.
The accused does not oppose the application.[3] I am satisfied that the concession of the accused is properly made and that the statement may be received into evidence at the trial. I have made this determination for the following reasons.
[3] ts 13 (26/05/2022).
The State's case and issue at trial
The State's case is outlined in an amended statement of material facts dated 4 March 2022. The relevant paragraphs of the statement of material facts are as follows:
On Friday 20 August 2021 the accused, Jamie Eric Glasfurd, drove into the city and parked at the City of Perth multi-story car park on Pier Street. He arrived at about 12:30pm and parked his vehicle, a supercharged V8 Range Rover SUV registration number 1FAX947, on Level 7. He spent the afternoon in the city.
At 6:17pm that evening the accused returned to the multi-story car park. He had a partly filled beer bottle in his hand. It took him some time to work out how to pay for his ticket using the vending machines. He appeared unsteady on his feet. Eventually he paid for his ticket and caught the lift. He went one level too far (Level 8) and had to walk down to Level 7. He got into his vehicle at 6:25pm. About a minute later he reversed out and started to drive down to the ground level.
As he drove from level to level, his car would slow down for the corners and then rapidly accelerate and lurch forward in the straight sections of the car park. This pattern was repeated for most of the journey down to the ground level.
At 6:30pm the accused exited the multi-story car park in his Range Rover SUV. Initially he turned left and travelled north on Pier Street, but only for a short distance. He then mounted the raised median strip and conducted an illegal u-turn. When he got to the other side of Pier Street he straitened up his vehicle such that he was now facing north. The accused then accelerated heavily. His vehicle lurched forward and raced up the short hill towards the intersection of Pier Street and Murray Street, which is controlled by traffic lights.
The accused crossed through the intersections, narrowly missing a vehicle travelling west in the intersection, and mounted the footpath on the east side of Pier Street. After hitting the raised kerb on the south-east corner of the intersection his vehicle ploughed into the rear of a Toyota Corolla, registration number 1DFI833, which was parked outside "My Place" (a pub). The Toyota Corolla then crashed heavily into a crowd of people who were sitting and standing outside "My Place".
At the time of the collision with the Toyota Corolla it is estimated that the accused's Range Rover was travelling at between 90-96 km/h. The speed limit along this section of Pier Street is 40 km/h.
The accused was arrested at the scene by police and conveyed to Royal Perth Hospital to be treated for the serious injuries he received in the crash. At blood sample was obtained from the accused under the provisions of the Road Traffic Act 1974. Upon analysis it was determined that the accused had 0.05mg/L of methylamphetamine, 0.01mg/L of amphetamine and 0.004 grams of alcohol per 100ml of blood in his system.
Counsel for the accused submitted that it is expected that the six counts will be defended on the basis that the accused placed his foot, initially on the accelerator of the vehicle, however, upon removing his foot the accused re‑applied his foot to the accelerator instead of the brake, being a 'pedal error'. Counsel for the accused stated that the defence is that the act of the accused, in placing his foot on the accelerator, was an unwilled act pursuant to s 23A of the Criminal Code.[4]
[4] Submissions of the accused filed on 21 October 2022 [3] - [4].
Relevant legal principles
Section 158 of the Criminal Procedure Act 2004 provides that sch 3 has effect. Clause 7(1)(a) of sch 3 to the Criminal Procedure Act 2004 (WA) provides:
A court dealing with a charge may admit into evidence a statement of a witness or a recording of a witness’s evidence if if the court is satisfied that the statement complies with clause 4 or the recording was made in accordance with clause 6 and -
(a)that the witness is dead [.]
Clause 4 of sch 3 provides the conditions which must be complied with in order for a statement to be admissible. Clause 4 provides, relevantly, that the statement must identify the person making it and that the declaration must be made in accordance with cl 5 of sch 3. It is accepted that Mr Pearce's statement complies with these conditions. It is a written statement which identifies Mr Pearce as the person making it and purports to be signed by Mr Pearce. The statement ends with the declaration required by cl 4(5) of sch 3.
Clause 7(5) is in the following terms:
A court may refuse to admit a statement or recording under this clause if the court is satisfied that the admission of the statement or recording would be unfair to the party.
Clause 7(6) states:
If a statement … in a written form is admitted in evidence under this clause in a case being tried by a jury, it must be read aloud to the jury but, unless the court orders otherwise, must not be given to the jury.
In this case, the statement meets the requirements of admissibility under cl 7, subject to the exercise of my power to refuse to admit the statement if satisfied that its admission would be unfair to the accused. The Court of Appeal considered cl 7 in Chaudhry v The Queen[5] and Daniels v The State of Western Australia.[6] In The State of Western Australia v Higgins,[7] Mitchell J distilled a number of propositions from the 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: Daniels [7].
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: Chaudhry v The Queen [2007] WASCA 37 [44] - [45]; Daniels [63] ‑ [64].
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: Daniels [8] ‑ [11]; Galea v The Queen (1989) 1 WAR 450, 459 ‑ 460.
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: Daniels [11]; Chaudhry [42].
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: Daniels [12], [61] ‑ [62]; Chaudhry [36] ‑ [40]; Galea (460). 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: Daniels [62]; Chaudhry [36].
[5] Chaudhry v The Queen [2007] WASCA 37 [44] - [45].
[6] Daniels v The State of Western Australia [2010] WASCA 200.
[7] The State of Western Australia v Higgins [2016] WASC 33 [17].
Statement of Mr Pearce
Mr Pearce's statement comprises 13 paragraphs over one and a half pages. Mr Pearce states that at approximately 6:30 pm on Friday, 20 August 2021 he observed a black 4WD SUV vehicle travelling down Pier Street towards Wellington Street. That vehicle did a U-turn over the median strip and then headed along Pier Street at speed. Mr Pearce further observed that at the traffic lights at Murray Street, while still travelling at speed, the vehicle went through the intersection and then hit a small white car. Mr Pearce stated that the black vehicle then flipped on its roof and slid down the street on the roof. Mr Pearce then stated he went up the road and observed persons lying on the ground. Mr Pearce identified the driver of the black vehicle as someone in their '60's, blonde hair which was curly.'
Assessment of application
In the present case, there is no prejudice to the accused in relation to the identification of the driver by Mr Pearce for the reason that identity is not an issue at trial. The accused accepts that he was the driver of the vehicle and that the vehicle he was driving was involved in the incident on Pier Street.
Mr Pearce's statement is not critical to the State's case and certainly is not the only evidence of the vehicle incident. The observations by Mr Pearce concerning the movements of the vehicle and the manner in which it was driven are substantially corroborated by the CCTV footage that captures the accused's vehicle travelling along Pier Street and being involved in a vehicle incident. Further, the State has disclosed other witnesses at the scene whose proposed testimonies address the vehicle movements immediately prior to the collision. Mr Pearce's statement is not critical to the prosecution's case given that there is other substantial evidence, including the CCTV footage, that will show the manner in which the vehicle was driven by the accused.
In this case if Mr Pearce had been available, it is most unlikely that counsel for the accused would have cross - examined Mr Pearce by putting an alternative scenario to him. There is no real prospect that cross‑examination of Mr Pearce would have produced a material forensic advantage to the accused person. Counsel for the accused did not submit otherwise.
I am unable to discern any unfairness flowing from the fact that the jury will be deprived of the opportunity of seeing and hearing Mr Pearce give evidence in chief and in cross-examination at trial. The learned trial judge will direct the jury concerning the statement should any unfairness, which is most unlikely, arise during the trial.
Therefore, I order that at the trial the State may rely upon the statement made by Mr Pearce, dated 23 September 2021, as forming part of the evidence in the State's case.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
25 NOVEMBER 2022
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