Walker v The State of Western Australia
[2020] WASCA 85
•28 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WALKER -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 85
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 12 FEBRUARY 2020
DELIVERED : 28 MAY 2020
FILE NO/S: CACR 74 of 2019
BETWEEN: MICHAEL PATRICK WALKER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: DERRICK J
File Number : INS 82 of 2018
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of murder - Res gestae - Whether the trial judge made an error of law by ruling that a telephone call to emergency services made by the appellant after the killing was not admissible as part of the res gestae - Whether a miscarriage of justice occurred as a result of the trial judge's ruling
Legislation:
Criminal Code (WA), s 279
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A E Eyers & Ms K Kumar |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Adelaide Chemical and Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514
Armstrong v The State of Western Australia [2012] WASCA 42; (2012) 220 A Crim R 274
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Kelly v The State of Western Australia [2013] WASCA 114
Liu v The State of Western Australia [2012] WASCA 218
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Poland v The State of Western Australia [2015] WASCA 136
Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558
R v Andrews [1987] AC 281
R v Benz [1989] HCA 64; (1989) 168 CLR 110
R v Hendrie (1985) 37 SASR 581
Ratten v The Queen [1972] AC 378
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
BUSS P & MAZZA JA:
This is an appeal against conviction.
The appellant was charged on indictment with one count of murder.
The count alleged that on 8 July 2017, at Halls Head, the appellant murdered Axel Gene Boreski, contrary to s 279 of the Criminal Code (WA).
The appellant pleaded not guilty.
On 22 February 2019, after a trial in the Supreme Court before Derrick J and a jury, the appellant was convicted as charged.
On 8 May 2019, the trial judge sentenced the appellant to life imprisonment with a minimum non‑parole period of 18 years. The sentence was backdated to 8 July 2017.
The appellant appeals on two grounds. Ground 1 alleges that the trial judge erred in law and occasioned a miscarriage of justice by 'implicitly ruling' that a recording of a second telephone call made by the appellant to the emergency services after the appellant had stabbed the victim 'fell outside … the res gestae' and, therefore, 'needed to bear sufficient connection to the res gestae in order for its contents to be admissible'. Ground 2 alleges that his Honour erred in law and occasioned a miscarriage of justice in ruling that the second telephone call was inadmissible because 'it did not bear a sufficient connection to the res gestae'.
The grounds of appeal are without merit. Leave to appeal should be refused and the appeal dismissed.
The facts and circumstances that were not in dispute at the trial
Various facts and circumstances were not in dispute at the trial or in the appeal. Those facts and circumstances, as recounted by the trial judge in his sentencing remarks, were as follows.
On 7 July 2017, the appellant and his girlfriend, Emma Williams, had been drinking at her home. In the evening they went to the Mandurah town centre. At the Players Bar they met Mr Boreski and his friend, Zachery Tehuna‑Pateman. All of them drank and socialised in a friendly manner.
Later in the evening, the appellant invited Mr Boreski and Mr Tehuna‑Pateman to Ms Williams' home. All of them went to Ms Williams' home and continued to drink and socialise. Eventually, after 3.00 am, Ms Williams retired.
At about 4.30 am, an argument developed. A physical altercation between the appellant and Mr Boreski ensued (the first altercation). During this altercation Mr Boreski got the better of the appellant. He pushed the appellant onto a table and into a swimming pool. Mr Boreski also pinned the appellant to a paved surface on the ground. Mr Boreski held the appellant in a choke‑hold. This caused the appellant to have difficulty with his breathing.
Members of Ms Williams' family woke. They intervened in the physical altercation between Mr Boreski and the appellant. Mr Boreski released his choke‑hold. Mr Boreski and Mr Tehuna‑Pateman were told to leave Ms Williams' home immediately. They did so.
Next, the appellant made a telephone call to the emergency services. He made a complaint about having been assaulted by Mr Boreski. This telephone call (the first call) began at 4.52.42 am. The first call was recorded. During the first call, the appellant made various admissions.
After making the first call, the appellant departed from Ms Williams' home. He took with him a small paring knife from the kitchen and followed Mr Boreski. Members of Ms Williams' family endeavoured to prevent the appellant from leaving. However, the appellant resisted and pursued Mr Boreski.
A second physical altercation then ensued between the appellant and Mr Boreski (the second altercation). During this altercation the appellant inflicted stab wounds to various parts of Mr Boreski's body.
CCTV footage adduced at the trial recorded that the second altercation began at 4.56.54 am. The CCTV footage recorded part but not all of the second altercation; in particular, the footage did not show the detail of the interaction between Mr Boreski and the appellant.
At 4.57.52 am the appellant departed from the scene of the second altercation. He walked a distance of about 150 m to Ms Williams' home. The appellant then made a second telephone call to the emergency services. This telephone call (the second call) began at 5.03.37 am. The second call was recorded. It is the exclusion of the recording of the second call that is complained about in both grounds of appeal.
The CCTV footage and the evidence of Krystofer Jones, a State witness at the trial, indicates that Mr Boreski was alive when the appellant departed from the scene of the second altercation. However, attempts by others to render assistance to Mr Boreski were unsuccessful. He was pronounced dead shortly before 6.00 am.
The appellant remained at Ms Williams' home for the police to arrive. Later, he was arrested.
Dr Victoria Kueppers carried out a post‑mortem examination on Mr Boreski. The examination revealed that Mr Boreski had suffered stab wounds and injuries as follows:
(a)Two stab wounds to the front left torso. One of these wounds pierced Mr Boreski's heart and diaphragm area. It was the fatal wound.
(b)Two stab wounds to his rear left arm above the elbow.
(c)A stab wound to his left hip towards the rear.
(d)A stab wound to his rear right thigh.
(e)A series of sharp force injuries to the inside of his left knee.
It was not disputed at the trial that the appellant had suffered injuries, including the following:
(a)Bumps to his head that were inflicted by Mr Boreski during the first altercation.
(b)A cut to his right hand.
The paring knife used by the appellant to stab Mr Boreski was located in the vicinity of the second altercation. It was found in three pieces.
The evidence of Mr Jones
At the material time, Mr Jones resided in a house near the scene of the second altercation. He gave evidence that at about 5.00 am on the morning in question he woke. There were 'noises outside' his home. Mr Jones heard 'a bloke talking, saying that he went back to the house and he was looking for his beanie and that he got started on'. After he heard this first voice Mr Jones heard another voice 'a very short time' later. The second voice was 'quite loud and he threatened the other person'. The second voice said 'you're fucked now, cunt' or words similar to those. The language was 'definitely aggressive' and contained 'swear words'. The second voice was different from the first voice. Mr Jones thought that the two people were 'having a scrap'. He then heard the first voice say 'help me. Help me.' Those words were uttered 'a couple of seconds' or 'half a minute' after Mr Jones heard the second voice. Mr Jones woke his partner and went outside. He saw a man lying on the road who was bleeding.[1]
[1] Trial ts 209 ‑ 214.
The evidence of Ryan Jewell
At the material time, Ryan Jewell also resided in a house near the scene of the second altercation. At about 4.30 am on the morning in question, he left his house to go to work. Mr Jewell saw a man (undoubtedly Mr Boreski) walking past Mr Jewell's house. Mr Jewell got into his vehicle and drove along the street. He noticed that Mr Boreski had stopped on the side of the road. Mr Boreski's head was 'sort of slumped down a little bit in his lap'. Mr Jewell drove past him to the next street. He then did a U‑turn and '[went] back to see if [Mr Boreski] was alright'. Mr Jewell stopped his vehicle next to Mr Boreski. They had a brief conversation. Mr Jewell then 'drove up a few houses and … into [a] driveway [and] reversed back out into the street'. Next, Mr Jewell saw 'another bloke (undoubtedly the appellant) come walking up to [Mr Boreski]'. The appellant came from behind Mr Jewell. The appellant approached Mr Boreski who was sitting on the kerb. When the appellant approached Mr Boreski, the appellant was moving 'quickly' at a 'fast‑paced walk'. The appellant attempted to 'throw a right punch' at Mr Boreski. The punch did not connect. Mr Boreski stood up and Mr Boreski and the appellant 'ended up in a bit of a wrestle'. When the wrestle began Mr Jewell was about 'a metre or two' from Mr Boreski and the appellant. Mr Jewell could not hear any yelling. He drove along the street to a roundabout and telephoned the police. The roundabout was about 50 m from the scene of the second altercation. Mr Jewell did not see any interaction between Mr Boreski and the appellant after he drove past them.[2]
[2] Trial ts 280 ‑ 289.
The text of the first call
The first call comprises two parts.
The first part of the first call reads:
KEY: MCO = Male Call Operator
FCO = Female Call Operator
MW = Michael Walker
UF = Unidentified Female
MCO Emergency police, fire or ambulance?
MW Nah I'm fucking stabbing that cunt man.
UF You are not.
MCO Emergency ---
MW Police.
MCO --- police, fire or ambulance?
MW Police.
MCO What state and town is the emergency in?
MW Western Australia.
MCO What town in Western Australia?
MW Ah, Halls Head, Mandurah.
MCO Mandurah, Western Australia. Connecting please.
(Ring tone)
MW They will come out then - he just fucking assaulted me.
The second part of the first call reads:
KEY RM = Recorded Message
CO = Call Operator
O = Operator
MW = Michael Walker
…
CO Thank you, Telstra. Police emergency, how may I help you?
MW Hello. I've been assaulted at my own girlfriend's house.
CO You've been assaulted in your girlfriend's house?
MW Yes.
CO Okay. What's your address there, sir?
MW Ah, 8 Leighton Road East in Halls Head.
…
MWYeah. And he's, he's walked off now. Can you please come? He's fucking ---
COYeah, okay.
MWI'm gonna kill him.
CONah, well, don't say that sir. You don't want to say that on a recorded line. Who has assaulted you?
MW[indistinct]
COWho has assaulted you?
MWHis name is Axel.
COWho?
MWAxel.
COAxel?
MWYeah. That's all I know.
COOkay. Who is Axel?
MWI don't know. He's a, he's twenty-seven. He's got facial hair, short hair.
COAnd he's walked off down Leighton Road, has he?
MWYeah.
COAlright. And where are you? Are you at number eight still?
MWYes.
COOkay. Do you need an ambulance?
MWMaybe.
COYes or no? Are you bleeding? Do you need an ambulance?
MWNo. He might.
COUm, I don't want to hear that, sir. Do you need an ambulance?
MWNo. He might. I did hit him.
COYou did hit him?
MWYeah.
COOkay. So you ---
MWIn fucking self-defence.
COYou've hit him as well, have you?
MWYeah, yeah.
COAlright. But he's walking away. Is that correct?
MWYeah, yeah. I'm gonna go get him.
CONo. I suggest you don't go get him. Just wait till police get there and police can sort it out, okay?
MWCan you please get them here now?
COWhat's your name, sir?
MWMichael Walker.
COAlright. And what's your contact number for yourself, Michael?
MW...
COOkay. Stay where you are. I'll put a job on and we'll get police out there, alright?
MWThank you.
COThank you. Bye.
The text of the second call
The second call reads:
KEY: RM = Recorded Message
CO = Call Operator
O = Operator
MW = Michael Walker
…
COPolice emergency, how can I help you?
MWCan you please come to Leighton Road East?
COYeah. What number? Number eight?
MWYeah.
COYeah. What's your name?
MWMichael.
COWhat's happened Michael?
MWI had a fight.
COYou had a fight.
MWYeah.
COAh ---
MWI got attacked in my yard.
COYeah. Okay.
MWIt was self-defence.
COAnd what, sorry?
MWBy self-defence.
COIn self-defence?
MWYeah.
COOkay. What else happened? Do you need an ambulance?
MWProbably.
COOkay. Are you bleeding?
MWNo, but the other guy probably is.
COOkay. Well, where is the other guy?
MWOn the street.
COSo Axel's on the street?
MWYeah.
COAlright, alright. Is he injured?
MWProbably.
COWhat do you mean probably? He is or he isn't. What have you done to him?
MWHe is. I hurt him.
COYou hurt him?
MWYeah.
COOkay. Where did you hurt him?
MWI don't know. Can you just get ---
COYeah. Alright. The job's on. I'm gonna update it and I'll get an ambulance on the way as well. Okay?
MWYeah. Thank you.
COAlright. Thank you. Bye.
The interval of time between the end of the second altercation and the initiation of the second call
Mr Jewell initiated his telephone call to the police at 4.57.42 am. The appellant initiated the second call at 5.03.37 am. The appellant began speaking with the police call centre operator at 5.05.00 am. All of those times were measured by the same clock. The interval between the initiation of Mr Jewell's call and the initiation of the appellant's call was five minutes 55 seconds.
Mr Jewell did not initiate his telephone call until after he had left the scene of the second altercation. When Mr Jewell left the scene Mr Boreski and the appellant had begun wrestling.
We have viewed the CCTV footage of the second altercation. The duration of the second altercation was about 55 seconds. Mr Jewell's vehicle can be seen in the CCTV footage. His vehicle passed Mr Boreski and the appellant shortly after they began wrestling.
A reasonable estimate is that the second altercation ended and the appellant began walking to Emma Williams' home about 50 seconds after Mr Jewell left the scene.
A reasonable estimate of the interval between Mr Jewell leaving the scene and initiating his telephone call to the police is about one minute.
There was evidence at the trial that when the appellant arrived at Emma Williams' home after the second altercation he was in the process of making the second call.
In all the circumstances, a reasonable estimate is that a period of about four to five minutes elapsed between the second altercation ending and the appellant beginning to walk to Emma Williams' home, on the one hand, and the appellant initiating the second call, on the other. A precise calculation of the interval is not possible.
At the hearing of the appeal, counsel for the appellant submitted that 'the operative range is perhaps about four minutes to about six minutes'.[3]
[3] Appeal ts 21.
The appellant's case at the trial
The appellant gave affirmed evidence at the trial.
The appellant's version of events in relation to the second altercation, as given by him in his evidence, was in summary as follows.
After he made the first call, the appellant departed from Ms Williams' home and walked along the road. As the appellant was walking, Mr Boreski ran or charged at him. The appellant did not see Mr Boreski until Mr Boreski ran or charged at him from about two or three metres away. When Mr Boreski got to him, a scuffle began. Mr Boreski took the appellant to the ground. The appellant was face down on the road and Mr Boreski was choking him.
The appellant endeavoured to get up and escape, but he could not. The appellant was unable to breathe. He felt that he would lose consciousness. The appellant removed the paring knife from the right pocket of his hooded jumper and stabbed towards what he believed were Mr Boreski's legs. The appellant could not see where he was stabbing because of the position in which Mr Boreski had placed him.
The appellant did not intend to stab Mr Boreski anywhere apart from his legs. He could recall stabbing Mr Boreski only twice, but he accepted that he inflicted all of the stab wounds suffered by Mr Boreski, including the fatal stab wound that pierced Mr Boreski's heart and diaphragm area.
Eventually, Mr Boreski released the appellant. The appellant was able to get up. As he did so, the appellant took a huge gasp of breath. Before he was able to take this breath, the appellant thought that he was going to die. The appellant had stabbed Mr Boreski to endeavour to escape from him because he was in fear for his life. He thought that stabbing Mr Boreski was the only thing that he could do to save himself.
The appellant's case was that his acts of stabbing Mr Boreski; in particular, his act of inflicting the fatal stab wound that pierced Mr Boreski's heart and diaphragm area, were not unlawful because they were acts done in self‑defence.
The trial judge's directions to the jury in relation to self‑defence
The trial judge directed the jury in conventional terms in relation to self‑defence.
The appellant does not complain about any of his Honour's directions and it is therefore unnecessary to recount the directions in detail.
We merely note, for the purposes of context in relation to the grounds of appeal, that the trial judge directed the jury that the State could discharge its burden of proving that the appellant's conduct in killing Mr Boreski was not excused by the law of self‑defence, by proving one or more of the following five things beyond reasonable doubt.
First, that Mr Boreski did not unlawfully assault the appellant and accordingly Mr Boreski did not do any unlawful harmful act to the appellant. Secondly, the appellant did not believe that it was necessary for him to do the act which caused Mr Boreski's death; that is, to stab Mr Boreski in the chest, in order to defend himself from any unlawful assault by Mr Boreski. Thirdly, the appellant's act of stabbing Mr Boreski to the chest was not a reasonable response by him, in the circumstances as he believed them to be, to any unlawful assault by Mr Boreski. Fourthly, there were no reasonable grounds for any belief by the appellant that his act of stabbing Mr Boreski to the chest was necessary to defend himself from any unlawful assault by Mr Boreski. Fifthly, there were no reasonable grounds for any belief by the appellant, as to the circumstances surrounding his act of stabbing Mr Boreski to the chest, which made the appellant's response a reasonable one.
His Honour noted that four of the five things he had specified in relation to the State proving that the appellant's conduct in killing Mr Boreski was not excused by the law of self‑defence were concerned with the appellant's belief. His Honour directed the jury that, to determine the appellant's belief, it was necessary for the jury to examine his state of mind at the time he stabbed Mr Boreski in the chest and caused the injury to Mr Boreski's heart. His Honour explained that, to determine what the appellant's belief was at the relevant time, it was necessary for the jury to examine:
(a)the evidence of the circumstances leading up to and prevailing at the time the appellant stabbed Mr Boreski in the chest and caused the injury to Mr Boreski's heart;
(b)the evidence of the appellant's conduct in inflicting the other five stab wounds and the sharp force injuries to the inside of Mr Boreski's left knee; and
(c)the evidence the appellant gave about his state of belief at the time he stabbed Mr Boreski in the chest and caused the injury to Mr Boreski's heart.
The trial judge's reasons for ruling that evidence of the second call was inadmissible
The trial judge's reasons for ruling that evidence of the second call was inadmissible were as follows.
His Honour said that evidence adduced from Donna Williams and Jennifer Leach at the trial revealed that the appellant 'was on the phone in the process of making [the second call] at the time that he was arriving back at the house' where his girlfriend, Emma Williams, resided, 'which was some three to four minutes after [the second altercation]'. Donna Williams and Ms Leach also gave evidence that when the appellant made the second call he was in a highly distressed and agitated state. His Honour commented that, to some extent, the appellant's distress and agitation was able to be discerned from the recording of the second call.[4]
[4] Trial ts 401.
Although the trial judge stated that the appellant was in the process of making the second call about three to four minutes after the second altercation, our assessment of the relevant evidence indicates that the relevant interval was about four to five minutes. See [30] ‑ [36] above. However, as we will explain later in these reasons, nothing turns on the difference between his Honour's assessment of the interval and our assessment.
His Honour said that there were a number of factors which prevented him from concluding that the statements made by the appellant in the second call were unlikely to be concocted or distorted to the appellant's advantage.
First, there was the lapse of time between the second altercation and the commencement of the second call. Secondly, the second altercation had been completed when the appellant commenced the second call. Thirdly, when the appellant made the second call, he was not at the scene where the second altercation had occurred. Fourthly, the appellant had a self‑interest in making the self‑serving statements in the second call to the effect that he had acted in self‑defence in stabbing Mr Boreski. Fifthly, although the appellant's 'high emotional intensity' and 'aggravated state' during the second call might be said to point to the truthfulness of the self‑serving statements he made, his high emotional intensity and aggravated state were equally consistent with the appellant having been involved in a violent incident, having engaged in the conduct alleged against him by the State and then having realised the seriousness of his situation and the consequences he faced.[5]
[5] Trial ts 404 ‑ 405.
The trial judge was therefore of the opinion that evidence of the second call was not admissible as part of the res gestae.
His Honour added, for completeness, that he had not excluded the evidence on the basis of any ambiguity that might be said to arise as to whether the appellant's assertions in relation to self‑defence in the second call related to the first altercation or the second altercation. His Honour said that, in his view, any ambiguity would be an issue for the jury to resolve if he had been of the opinion that the evidence of the second call was otherwise admissible.[6]
[6] Trial ts 405.
The appellant's submissions on ground 1
Counsel for the appellant submitted that the critical issues at the trial were as follows. First, did the appellant act in self‑defence during the second altercation by stabbing Mr Boreski? Secondly, if the appellant did act in self‑defence, were his actions in stabbing Mr Boreski an unreasonable response in the circumstances as he believed them to be? Thirdly, if the appellant unlawfully killed Mr Boreski, did the appellant have the requisite intent for murder?
Counsel submitted that the making of the second call by the appellant was 'an inextricable part of the event that culminated in the appellant being charged with [Mr Boreski's] murder'.
Counsel argued that the appellant's intention, when he inflicted the fatal wound, was an element of the offence of murder which the State was required to prove beyond reasonable doubt. The appellant's state of mind 'as it related to his belief of various things' was also relevant to the jury's assessment of whether the appellant acted in self‑defence (proportionate or disproportionate).
Counsel noted that the prosecutor opened and closed the State's case on the basis that the appellant's anger towards Mr Boreski persisted 'right up to, and even during, the stabbing'.[7] The prosecutor asserted that the appellant became angry as a result of the first altercation and he wanted 'to get even with' Mr Boreski.[8]
[7] Trial ts 504.
[8] Trial ts 505.
According to counsel for the appellant, the trial judge's ruling that evidence of the second call was not admissible as part of the res gestae was premised 'on an implicit finding that the event had concluded when the appellant inflicted the fatal wound, the appellant knew he had inflicted a fatal wound and when the appellant made the second call he was already far removed from the second altercation both mentally and physically'. It was submitted that whether the appellant knew that Mr Boreski had received a fatal wound and when the event had concluded were questions of fact for the jury.
Counsel argued that the appellant's actions during and after the second altercation were capable of informing the jury, by inference, as to the appellant's knowledge of Mr Boreski's condition during and in the moments after the second altercation and as to the appellant's intention and belief during the second altercation. It was 'relevant for the jury to know that [the appellant], who [on the State's case] had just murdered [Mr Boreski], minutes later [called for an ambulance]'.
Counsel submitted that there was 'no evidence firmly [establishing]' that the appellant knew and believed that he had inflicted a fatal wound. Consequently, the making of the second call formed part of the res gestae. The second call was 'a key part of the event itself on the case of murder'. If the second call formed part of the res gestae then it necessarily followed that the contents of the second call, as well as the fact that the second call was made, were admissible. The contents of the second call were capable of materially affecting the jury's assessment of the appellant's state of mind; that is, his knowledge, belief and intention, at the material time.
The appellant's submissions on ground 2
Counsel for the appellant submitted that if the making of the second call did not form part of the res gestae, it was necessary for the trial judge to consider whether the second call 'bore a sufficient connection to the res gestae to exclude the possibility of concoction and whether [the second call] should remain a part of the res gestae'.
Counsel argued that 'the hearsay statements relied on in the second call as affecting the probability of the facts asserted … as being the truth' comprised:
(a)The appellant had in fact injured Mr Boreski in self‑defence 'and this was not a recent invention or concoction given in evidence by the appellant after preparing for trial'. That fact comprised 'two underlying facts', namely 'the appellant was reacting to something being done by [Mr Boreski]' and that 'the appellant was acting proportionately'.
(b)The appellant did not in fact know where he had hurt Mr Boreski.
According to counsel:
(a)The alleged fact that the appellant was reacting to something being done by Mr Boreski 'was consistent with evidence that [Mr Boreski's injuries] occurred in the course of an altercation and scuffle between the appellant and the deceased'. The State did not allege that Mr Boreski 'remained passive throughout' the second altercation.
(b)The alleged fact that the appellant was acting proportionately 'was consistent with evidence that [Mr Boreski] was placing the appellant in a choke‑hold at the time'.
(c)The alleged fact that the appellant did not know where he had hurt Mr Boreski 'was consistent with evidence that [the appellant's position in relation to Mr Boreski] at the time of inflicting the injuries was such that [the appellant] may not have … known precisely where he had hurt [Mr Boreski]'.
(d)The facts asserted by the appellant in the second call were 'so connected to the appellant's belief [as to] what he had done during the second altercation and continuing on into what he was doing or attempting to do by making the second call' in that the appellant believed that during the second altercation he had injured Mr Boreski; the appellant made the second call in order to obtain an ambulance to assist Mr Boreski; the appellant had not remained 'proximate to [Mr Boreski] while making [the second call]'; and the appellant had not 'remained to see [Mr Boreski] dying some time later'.
(e)If the appellant's belief as to what he had done during the second altercation was 'a live issue in the trial, the making of the second call bore a strong topical connection to any assessment of that belief' and it '[followed] that the words said [in the second call possessed] a strong connection too'.
(f)It is artificial to have expected the appellant to have made the second call during the second altercation. Although 'close contemporaneity' is ordinarily 'an indicator of connection', the absence of 'close contemporaneity' cannot be 'the decisive factor in assessing what [forms] a part of the res gestae in this particular case'.
(g)Further, the alleged facts referred to at [65] above are 'entirely consistent with what one might expect a person [to have said to the emergency services] in the course of [the second call]'.
(h)The possibility of reflection, 'culminating in [the possession of] a self‑interest on the part of the appellant in the minutes between leaving the scene [of the second altercation] and making the second call, is at odds with the actual evidence given at the trial' as to the appellant's level of sobriety; the appellant having been 'violently assaulted and thrown in the pool' by Mr Boreski during the first altercation; the appellant having had his head slammed into the paving during the first altercation; and the appellant's condition as observed by witnesses following the second altercation.
Counsel submitted that the factors referred to at [66(d) and (e)] above assume that the appellant knew and believed Mr Boreski was dead and therefore the appellant had developed 'a self‑interest when he made the second call'. Accordingly, those factors 'ought not [to] have informed the trial judge in making his ruling', on the admissibility of the second call. The factors at [66(d) and (e)] above were assumptions that answered 'questions of contested facts relevant to the jury's ultimate determination of [the appellant's] guilt'.
Counsel argued that if the second call was not part of 'the event culminating in the appellant being charged', it nevertheless 'bore sufficient connection to the event such that the statements made in it formed … part of the res gestae'. The statement should have been admitted into evidence. It was a matter for the jury to assess the probability of the truth of the facts asserted in the second call having regard to the other evidence adduced at the trial.
Grounds 1 and 2: relevant legal principles
An out‑of‑court statement is hearsay and inadmissible if the statement is sought to be adduced in evidence to prove the truth of what is contained in the statement. See Subramaniam v Public Prosecutor;[9] Pollitt v The Queen.[10]
[9] Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970 (Privy Council).
[10] Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 620 (McHugh J).
However, in general, an out‑of‑court statement will be admissible if the statement is sought to be adduced in evidence to prove the maker's knowledge or state of mind when he or she made the statement, and the maker's knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue. See Walton v The Queen.[11]
[11] Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 288 (Mason CJ), 300 ‑ 301 (Wilson, Dawson & Toohey JJ).
In R v Hendrie,[12] King CJ (Cox and Olsson JJ agreeing) explained:
It is well established law that a person's state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind.
[12] R v Hendrie (1985) 37 SASR 581, 585.
Numerous exceptions to the hearsay rule have been developed. In R v Benz,[13] Gaudron and McHugh JJ commented that there is 'much to be said for the view that the rationale of the exceptions to the rule which prohibits the admission of hearsay evidence is that evidence falling within the exceptions has a high degree of reliability and can be acted upon safely'.
[13] R v Benz [1989] HCA 64; (1989) 168 CLR 110, 143.
A person's out‑of‑court statement may contain an express or implied assertion. An assertion made in an out‑of‑court statement may be adduced in evidence to prove the facts asserted if the assertion is part of the res gestae. See Armstrong v The State of Western Australia.[14] If the assertion is part of the res gestae then it is admissible as an exception to the hearsay rule. See Walton (304) (Wilson, Dawson and Toohey JJ); Poland v The State of Western Australia.[15]
[14] Armstrong v The State of Western Australia [2012] WASCA 42; (2012) 220 A Crim R 274 [46] ‑ [50] (Buss JA; Newnes & Mazza JJA agreeing).
[15] Poland v The State of Western Australia [2015] WASCA 136 [218] (Mazza JA; Martin CJ & Buss JA agreeing).
The justification for the res gestae exception to the hearsay rule is based on the spontaneity or contemporaneity of the out‑of‑court statement. This feature tends to exclude the possibility of concoction or distortion. See Ratten v The Queen;[16] R v Andrews;[17] Walton (304) (Wilson, Dawson and Toohey JJ).
[16] Ratten v The Queen [1972] AC 378, 389 ‑ 390 (Privy Council).
[17] R v Andrews [1987] AC 281, 300 ‑ 301 (Lord Ackner; Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths & Lord Mackay of Clashfern agreeing).
However, the unlikelihood of concoction or distortion is not sufficient, of itself, to render an out‑of‑court statement admissible under the res gestae exception. See Vocisano v Vocisano;[18] Walton (304) (Wilson, Dawson and Toohey JJ).
[18] Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267, 273 (Barwick CJ; Stephen & Jacobs JJ agreeing).
If an out‑of‑court statement is part of the res gestae, evidence of the statement will be admissible, notwithstanding that the evidence is hearsay, opinion or self‑corroborating. See Adelaide Chemical and Fertilizer Co Ltd v Carlyle;[19] Ratten; Andrews.
[19] Adelaide Chemical and Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514.
In Ratten, the appellant was convicted of the murder of his wife by shooting her with a shotgun. His defence was that the gun had discharged accidentally while he was cleaning it. The Privy Council held that the evidence of a telephonist as to a statement made to her on the telephone by the deceased, shortly before the deceased was shot and killed, was admissible at the trial to rebut the appellant's defence by showing that, when she made the statement, the deceased was frightened or emotional. The evidence was not hearsay because the statement was not relied upon for the purpose of establishing some facts narrated by the deceased's words. The Privy Council also held that, even on the assumption that the deceased's statement included an element of hearsay, the statement was properly admitted as part of the res gestae. Lord Wilberforce, who delivered the advice of the Privy Council, elaborated:
In the present case, in their Lordships' judgment, there was ample evidence of the close and intimate connection between the statement ascribed to the deceased and the shooting which occurred very shortly afterwards. They were closely associated in place and in time. The way in which the statement came to be made (in a call for the police) and the tone of voice used, showed intrinsically that the statement was being forced from the deceased by an overwhelming pressure of contemporary event. It carried its own stamp of spontaneity and this was endorsed by the proved time sequence and the proved proximity of the deceased to the accused with his gun (391 ‑ 392).
In Ratten, Lord Wilberforce said in relation to the res gestae exception that 'if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received' (389 ‑ 390).
Lord Wilberforce also said, in the context that the maker of the out‑of‑court statement was the victim:
[H]earsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused (391).
The principle enunciated by Lord Wilberforce in Ratten is critically dependent on the virtual certainty that the out‑of‑court statement is true. See Papakosmas v The Queen.[20]
[20] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 [55] (Gaudron & Kirby JJ).
The concept of res gestae is concerned with, relevantly, an out‑of‑court statement that is so close in time to the acts being proved as to be inseparable from those acts. In other words, the out‑of‑court statement must be part of the 'transaction' which gives rise to the charged offence. See, in a different context, the comments of McHugh, Gummow and Hayne JJ in Bull v The Queen.[21]
[21] Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 [110].
An out‑of‑court statement which accompanies the acts being proved is clearly admissible as part of the res gestae. See Benz (134) (Dawson J).
The difficulties which arise when an out‑of‑court statement, allegedly part of the res gestae, is not made spontaneously or contemporaneously with the relevant acts were considered in Vocisano and Andrews.
In Vocisano, Paolo Vocisano sued his brother Domenico Vocisano for damages for injury suffered as a result of the negligent driving of a motor vehicle. The defendant's insurer took charge of the litigation. The sole issue as to liability at the trial was whether the defendant was driving the vehicle when the accident occurred. Two witnesses, Mr and Mrs Smith, gave evidence that they arrived at the scene some five minutes after the accident, and that the defendant had said to each of them that the plaintiff had been driving the vehicle. The High Court held that the statement made by the defendant at the accident scene was in the nature of an historical account rather than a statement made as part and parcel of the occurrence, and accordingly was not admissible in evidence at the trial as part of the res gestae. Barwick CJ made these observations:
A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable: but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility. In Ratten's Case ([1972] AC 378), Lord Wilberforce seems to have regarded the relevant occurrence as the 'drama' which began when it may be supposed a threat to kill his wife was made by the appellant in that case, and which ended with her death. So regarded, the telephone call was necessarily involved in the occurrence and the deceased's statement to the telephonist clearly contemporaneously identified with it. But, in the present case, there was, in my opinion, no sufficient contemporaneity of the statements made to either of the witnesses Smith to warrant the conclusion that the statements were made as part of the res. The occurrence was the accident, and although the statements by the respondent were made proximately to the occurrence of the accident, they were in the nature of an historical account rather than in the nature of a statement made as part and parcel of the occurrence. Although, as the trial judge said, the circumstances may satisfy some of the expressions used by the Privy Council in expressing their Lordships’ view, the statements were not, in my opinion, admissible as part of the res gestae (273).
In Andrews, the victim, Mr Morrow, lived at flat number 3, Rouple House, London. He was attacked, stabbed with two different knives and robbed. Within minutes of the attack, and bleeding profusely, he went downstairs to another flat for assistance. The police and ambulance were telephoned immediately. Within minutes of the telephone call, the police arrived, shortly followed by the ambulance. Mr Morrow was fatally wounded. However, he was kept alive on a life‑support machine and did not die until two months after the attack. The appellant and Peter O'Neill were charged with murder. O'Neill pleaded guilty to and was convicted of manslaughter. The appellant pleaded not guilty. O'Neill was the prosecution's main witness at the appellant's trial. O'Neill lived in flat number 5, on the floor above that of Mr Morrow. At the trial, one of the police officers who attended in response to the telephone call gave evidence that Mr Morrow had said that he had been attacked by two persons. The deceased gave the names of his attackers as O'Neill from flat number 5 and a man whom he knew as Donald. This police officer noticed that another police officer, who was making a note of the deceased's statement, had written the name 'Donavon'. The first police officer was convinced that the name was Donald and told the other police officer that he was wrong. The other police officer said that he heard 'Don' quite clearly, but as Mr Morrow pronounced the rest of the word his voice 'mellowed and he got quieter'. The appellant's first given name was Donald. The prosecutor submitted that the hearsay evidence as to Mr Morrow's statement was admissible as part of the res gestae. The evidence was not admissible as a dying declaration because there was no evidence to suggest that when Mr Morrow made the statement (two months before his ultimate death), he was aware that he had been mortally injured.
In Andrews, Lord Ackner stated the approach to be adopted by a trial judge in determining in a criminal case whether an out‑of‑court statement is admissible as part of the res gestae. His Lordship said:
(a)The primary question for the trial judge is whether the possibility of concoction or distortion can be disregarded.
(b)To answer that question, the trial judge must 'first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of [the maker of the statement], so that [the maker's] utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection'. In such a situation, the trial judge 'would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity'.
(c)In order for an out‑of‑court statement to be sufficiently 'spontaneous', the statement must be 'so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of [the maker of the statement] was still dominated by the event'. Accordingly, the trial judge must be satisfied that 'the event, which provided the trigger mechanism for the statement, was still operative'. The fact that the statement was made in answer to a question is 'but one factor to consider'.
(d)Apart from the time factor, 'there may be special features in the case, which relate to the possibility of concoction or distortion'. In Andrews the defence relied upon evidence to support the contention that Mr Morrow had a motive to fabricate or concoct, namely a malice which he had against O'Neill and the appellant because, in his belief, O'Neill had attacked and damaged his house and, on that occasion, was accompanied by the appellant. The trial judge in Andrews had to be satisfied that 'the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of [Mr Morrow] or the disadvantage of [the appellant]'.
(e)As to the possibility of error in the facts asserted in an out‑of‑court statement, 'if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury'. However, there may be special features that may give rise to the possibility of error. If so, the trial judge 'must consider whether he can exclude the possibility of error' (300 ‑ 301).
The trial judge explained in Andrews why he had ruled that the hearsay evidence was admissible as part of the res gestae:
I am satisfied that soon after receiving very serious stab wounds the deceased went downstairs for help unassisted and received some assistance. He was able to talk for a few minutes before he became unconscious. I am satisfied on the evidence ‑ and not only the primary evidence but the inference of fact to which I am irresistibly driven ‑ that the deceased only sustained the injuries a few minutes before the police arrived and subsequently, of course, the ambulance took him to hospital. Even if the period were longer than a few minutes, I am satisfied that there was no possibility in the circumstances of any concoction or fabrication of identification. I think that the injuries which the deceased sustained were of such a nature that it would drive out of his mind any possibility of him being activated by malice and I cannot overlook as far as the identification was concerned, he was right over Mr. O'Neill who was a former co-defendant with the accused (301 ‑ 302).
The House of Lords held in Andrews that the trial judge was correct in deciding that the hearsay evidence was admissible as part of the res gestae. Lord Ackner said:
Where the trial judge has properly directed himself as to the correct approach to the evidence and there is material to entitle him to reach the conclusions which he did reach, then his decision is final, in the sense that it will not be interfered with on appeal. Of course, having ruled the statement admissible the judge must, as [the trial judge in the present case] most certainly did, make it clear to the jury that it is for them to decide what was said and to be sure that the witnesses were not mistaken in what they believed had been said to them. Further, they must be satisfied that the declarant did not concoct or distort to his advantage or the disadvantage of the accused the statement relied upon and where there is material to raise the issue, that he was not activated by any malice or ill-will. Further, where there are special features that bear on the possibility of mistake then the juries' attention must be invited to those matters (302).
In Walton (304), Wilson, Dawson and Toohey JJ referred to Andrews with apparent approval. Similarly, in Papakosmas, Gleeson CJ and Hayne J (at [22]) referred to Andrews with apparent approval and Gaudron and Kirby JJ (at [53] ‑ [55]) appear to have treated the decision in Andrews as correct.
Ultimately, as Deane J noted in Benz (121), whether an out‑of‑court statement is admissible as part of the res gestae must be determined by reference to the facts of the particular case, including the precise role that the persons by and to whom the statement was made played in the commission of the offence and the relationship between the statement and the acts constituting the offence.
In the present case, counsel for the appellant submitted at the hearing of the appeal that the following passage in the judgment of Gaudron and Kirby JJ in Papakosmas [55] indicated that the test applicable to the res gestae exception has been relaxed:
The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law's bias against the reception of hearsay evidence. That is because it is not logically necessary for the possibility of concoction to be excluded before a statement is probative of the fact asserted in it. Rather, all that is necessary is that the statement be consistent with the fact to be proved and its making so connected to that fact that, when taken in conjunction with other evidence in the case, it bears on the probability of that fact having occurred.
We do not accept counsel's submission. The main issue in Papakosmas was the effect of the Evidence Act 1995 (NSW) on evidence of recent complaint in sexual assault cases. The observations of Gaudron and Kirby JJ at [55] were made in the course of their Honours' consideration of the proper construction and application of s 55 of the Evidence Act. Their Honours noted at [52] that, at common law, evidence that a particular statement was made, without more, is probative only of its making and its contents and those inferences which, in the circumstances, may be drawn. However, their Honours also noted at [52] that, at common law, the circumstances in which a statement is made may sometimes render it probative of the facts asserted. Their Honours then proceeded to illustrate the common law position by reference to the res gestae doctrine. The comments of Gaudron and Kirby JJ at [55] were concerned with the rationale for the common law's bias against the reception of hearsay evidence. Their Honours were not indicating at [55] that the test applicable to the res gestae exception, as stated or accepted in earlier decisions of the High Court, had been or should be less stringent. In any event, their Honours' reference to the res gestae exception was not essential to the actual decision in the case.
Grounds 1 and 2: their merits
Both grounds 1 and 2 allege that the trial judge erred in excluding the contents of the second call. Both grounds assert that his Honour's ruling occasioned a miscarriage of justice at the trial. The error alleged in each ground is, in essence, that his Honour misapplied the res gestae exception in determining that the contents of the second call should be excluded. In the circumstances, it is convenient to deal with grounds 1 and 2 together. The merits of both grounds and the outcome of the appeal depend on whether the second call was admissible on the basis that it was part of the res gestae.
We have listened to the recording of the second call. We are satisfied that the appellant's statements during the second call to the effect that he had acted in self‑defence are referable to the appellant's actions in stabbing Mr Boreski. That is the proper inference on a fair assessment of the whole of the recording of the second call and in the context of the facts and circumstances preceding the second altercation that were not in dispute at the trial. We reject counsel for the State's submission that the appellant's statements in the second call to the effect that he had acted in self‑defence related to the first altercation. Also, we reject counsel for the State's alternative submission that there is material ambiguity in relation to the point.
We accept counsel for the appellant's contention that the appellant's statements in the second call were relevant. First, the appellant's assertion that he acted in self‑defence was relevant in that self‑defence was an issue at the trial. Secondly, the appellant's professed uncertainty or confusion during the second call, as to whether Mr Boreski was bleeding or had been injured and as to where the appellant had hurt Mr Boreski, were relevant to whether the appellant had stabbed Mr Boreski with the requisite intent for murder. The relevance of the contents of the second call in those respects arose from the facts narrated by the appellant's words, including his words in response to questions. However, the relevance of out‑of‑court statements does not, of itself, make the statements admissible. In particular, the relevance of the appellant's self‑serving out‑of‑court statements did not establish that the statements were admissible under the res gestae exception to the hearsay rule.
In our opinion, the second call was not part of the res gestae and was not admissible on that basis at the trial as an exception to the hearsay rule. Our reasons are as follows.
First, the relevant occurrence (or the res), for the purposes of the res gestae exception, began when the appellant approached Mr Boreski (on Mr Jewell's evidence) or when Mr Boreski ran or charged at the appellant (on the appellant's evidence) after the appellant left Emma Williams' home with the knife. The relevant occurrence ended when the appellant ceased inflicting the stab wounds suffered by Mr Boreski and commenced walking to Emma Williams' home.
Secondly, when the appellant initiated the second call, about three to four minutes (on the trial judge's assessment) or about four to five minutes (on our assessment) had elapsed after the appellant had ceased inflicting the stab wounds suffered by Mr Boreski and had commenced walking to Emma Williams' home. During this interval:
(a)the appellant walked to Emma Williams' home (a distance of about 150 m) and, as he walked, he discarded the knife; and
(b)the appellant initiated the second call.
Thirdly, the appellant's statements during the second call to the effect that he had acted in self‑defence in stabbing Mr Boreski were not made while the relevant occurrence was taking place. The relevant occurrence had finished, whether the interval between the appellant ceasing to inflict the stab wounds suffered by Mr Boreski and commencing to walk to Emma Williams' home, on the one hand, and the appellant initiating the second call, on the other, was about three to four minutes (on the trial judge's assessment) or about four to five minutes (on our assessment). The appellant's statements were made about ninety seconds after he initiated the second call. They were not uttered with approximate contemporaneity to the relevant occurrence.
Fourthly, the appellant's statements during the second call to the effect that he had acted in self‑defence in stabbing Mr Boreski and the appellant's professed uncertainty or confusion as to whether Mr Boreski was bleeding or had been injured and as to where he had hurt Mr Boreski, were not uttered spontaneously during or by virtue of the intensity and pressure of the drama involved in the second altercation. There was a distinct break between the second altercation coming to an end and the appellant asserting, in effect, during the second call that he had acted in self‑defence in stabbing Mr Boreski and that he was uncertain or confused as to the nature and extent of the injuries he had inflicted on Mr Boreski with the knife.
Fifthly, counsel for the appellant's argument that it is artificial to have expected the appellant to have made the second call during the second altercation is misconceived. The argument is not an answer to the requirement of the res gestae doctrine that the out‑of‑court statements be made spontaneously and approximately contemporaneously with the relevant occurrence.
Sixthly, it is not reasonably arguable that the contents of the second call, and the context in which it was made, excluded the possibility of concoction or distortion to the appellant's advantage. During the first call the appellant told the police call centre operator that he was 'fucking stabbing that cunt man', that he was 'gonna kill him' and that he was 'gonna go get him'. When the appellant departed
from Ms Williams' home he took with him the knife and he then followed Mr Boreski. During the second altercation the appellant stabbed Mr Boreski with the knife. Plainly, during the second call the appellant had a motive to concoct or distort. The appellant had a real opportunity, despite his intoxication and agitation, to collect his thoughts and reflect on what he had said and done before he made the relevant statements during the second call. The present case was not a case where any possibility of error in the facts stated by the appellant during the second call was merely due to the ordinary fallibility of human recollection. The possibility of concoction or distortion to the appellant's advantage could not be disregarded.
Seventhly, the question whether the possibility of concoction or distortion could be disregarded was a question for the trial judge in determining whether evidence of the second call and its contents was admissible. The resolution of questions concerning concoction or fabrication did not merely involve questions of fact for the jury.
Grounds 1 and 2 are without merit.
Conclusion
We would refuse leave to appeal. The appeal must be dismissed.
MITCHELL JA:
The relevant background is set out in the joint reasons of Buss P and Mazza JA. The issue raised in this appeal is whether the evidence of the appellant's second 000 call to police was admissible at the appellant's trial for murder under the 'res gestae' exception to the hearsay rule. For the following reasons, I agree that the evidence was not admissible and was properly excluded by the trial judge.
The appellant contended that his statement that he acted in 'self-defence' was relevant and admissible at trial. The fact or facts which that statement was tendered to prove were not clearly articulated in the appellant's submissions at trial or his written submissions on appeal. The appellant's counsel ultimately contended in oral submissions in the appeal that the evidence was relevant on the basis that it impliedly asserted that, when the appellant stabbed the deceased, the appellant
believed that doing so was necessary to defend himself from a harmful act by the deceased.[22] That was an issue at trial which arose under s 248(4)(a) of the Criminal Code (WA), which enabled the State to negative self-defence by proving, beyond reasonable doubt, that the appellant did not believe, at the time he stabbed the deceased, that doing so was necessary to defend himself from a harmful act by the deceased.
[22] Appeal ts 2 - 3.
On that basis, the excluded evidence is advanced on appeal as being relevant to the existence of a state of mind in the appellant at the time he stabbed the deceased.
It is well established that out-of-court statements made by a person may be admissible as tending to establish the person's state of mind at the time the statement is made. Such evidence is not hearsay, as it is not admitted to prove the truth of the statement. Rather, evidence of the statement is adduced as circumstantial evidence tending to establish the state of mind of the speaker. However, in other cases a person's statements about his or her state of mind will only have probative value if they are found to be truthful and accurate. In such cases, to rely on the statements is to rely to some extent upon the truth of any assertion or implied assertion contained within them. To that extent an element of hearsay may be said to be present.[23]
[23] Walton v The Queen (1989) 166 CLR 283, 300 - 302.
In the present case, the appellant's statements to the effect that 'it was self-defence' were made at least 6 minutes after the appellant stabbed the deceased. I reach that conclusion on the basis that:
(1)About 6 minutes (measured by the same clock) passed between Mr Jewell initiating his 000 call at 4.57.42 am and the appellant initiating his second 000 call at 5.03.37 am.
(2)Mr Jewell made his call after passing by the appellant and the deceased, and CCTV shows that his car passed the men about 50 seconds before the appellant walked away from the altercation.
(3)The appellant was on hold for about 90 seconds after initiating his second 000 call before speaking to the police call centre operator.
The material fact in issue in the present case was the appellant's state of mind at the time he stabbed the deceased, rather than his state of mind at least 6 minutes later. An implied assertion by the appellant in the second 000 call, as to his state of mind when he had previously stabbed the deceased, would only have material probative value if it were truthful and accurate. Consistently with that analysis, the appellant accepted that the statement in his second 000 phone call was hearsay, and would only be admissible if it fell within the res gestae exception to the hearsay rule.[24]
[24] Appeal ts 3.
The relevant test for the exception was explained by the Privy Council, in Ratten v The Queen,[25] as being concerned with the possibility of concoction or fabrication by the maker of the statement. The Judicial Committee observed:[26]
As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.
[25] Ratten v The Queen [1972] AC 378, 389 - 390.
[26] Ratten (389).
The Committee held that hearsay evidence may be admitted:[27]
if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.
This court has applied that test.[28]
[27] Ratten (391).
[28] Armstrong v The State of Western Australia [2012] WASCA 42; (2012) 220 A Crim R 274 [47] - [50]; Liu v The State of Western Australia [2012] WASCA 218 [71]; Kelly v The State of Western Australia [2013] WASCA 114 [16]; Poland v The State of Western Australia [2015] WASCA 136 [219].
Counsel for the appellant properly conceded that this question is an objective question which is to be assessed in the context of other uncontroversial facts established by uncontested evidence.[29]
[29] Appeal ts 12 - 14, 18.
The appellant was undoubtedly in an emotional and intoxicated state when all of the events occurred. However, the uncontroversial circumstances in which the second 000 call was made indicate a real prospect that the appellant was concocting or distorting events to serve his own interests.
The first 000 call provides an important aspect of the relevant context. During that call, the appellant indicated that the deceased had assaulted him and left his girlfriend's house, that he was 'fucking stabbing' the deceased, that he was 'gonna kill him' and that he was 'gonna go get him'. The operator told the appellant that police were on the way. The appellant then immediately proceeded to follow the deceased, stab him and kill him. The appellant walked back to his house knowing that the deceased was at least seriously injured, and that police were on their way in response to his first 000 call. It was at that point, having discarded the handle of the knife used to stab the deceased along the roadside, that the appellant made the second 000 call. Doing so was consistent with the appellant perceiving an imperative to be proactive in facing the inevitable police questions, and attempting to justify what he had done. After calling, the appellant had a further 90 seconds while on hold to reflect and to contemplate what he would say to police.
It is also relevant that the statements were not made spontaneously, but in response to the question from the police call centre operator, who asked 'what happened, Michael?'.
The content of the statement relied on by the appellant is also significant in assessing the possibility of concoction or distortion. The appellant did not describe what he or the deceased had done, or describe what he was thinking, in terms. Rather, the appellant used a label for a legal defence - 'self-defence' - which he would have understood to be a legal justification for what he had done. The appellant was not describing his specific acts or thoughts at a time when he had no opportunity to invent them. Rather, he made a self-serving conclusionary statement, attempting to advance a justification for what he had done to the deceased. He did so in a context where there was an obvious motive for the appellant to assert a legal defence, irrespective of the true position, to avoid responsibility for stabbing the deceased.
Other statements made by the appellant in the second 000 call also suggest some self-interested distortion of the events he was recounting. When asked by the call centre operator whether an ambulance was needed, and whether the deceased was bleeding or injured, the appellant replied 'probably'. He did so at a time when it was known to the appellant that the deceased had been stabbed and was at least seriously injured. The appellant's answers to direct questions did not convey the situation as he knew it to be. The appellant disclosed that the deceased was injured and that the appellant had hurt him only when pressed by the call centre operator. This reluctance to disclose important information adverse to his interests indicates that the appellant was filtering his account to police of the past events he was describing.
The appellant relies on his evident distress at the time of making the second 000 call as reducing the prospect of concoction or distortion. In my view, this is a neutral factor. The appellant's distressed state was consistent with his appreciation that he had killed or seriously injured the deceased, irrespective of whether or not he truly did so in self-defence. The appellant's state of distress was not such as to preclude the reasonable possibility of concoction or distortion in his account.
The content of the excluded statement and the context in which it was made point to the real prospect that the appellant concocted or distorted his account of the altercation with the deceased to his own advantage. The trial judge was correct to conclude that the appellant's self-serving conclusionary statement that he was acting in self-defence did not fall within the res gestae exception to the hearsay rule. I agree that leave to appeal should be refused on both grounds of appeal and the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss28 MAY 2020
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