Walker v WA

[2020] WASCA 85

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Hearsay
4. › Res gestae exception
5. › Out-of-court statements
6. › Whether statements made in telephone call to emergency services approximately 4-6 minutes after stabbing were admissible as part of res gestae
7. › Whether possibility of concoction or distortion could be disregarded
1. Criminal Law
2. › Appeal against conviction
3. › Murder
4. › Self-defence
5. › Admissibility of evidence
6. › Whether exclusion of evidence occasioned miscarriage of justice
7. › Criminal Code (WA), s 279

Quick Take

A telephone call to emergency services made approximately 4-6 minutes after a stabbing, in which the caller asserts self-defence, does not fall within the res gestae exception to the hearsay rule where the possibility of concoction or distortion cannot be disregarded. The use of legal labels (such as 'self-defence') rather than spontaneous description of events, selective disclosure of adverse facts, and the existence of a motive to concoct are all relevant factors in the trial judge's assessment. The observations of Gaudron and Kirby JJ in Papakosmas v The Queen at [55] did not relax the established test for the res gestae exception.