Walker v The State of Western Australia [2020] WASCA 85

In brief:
The appellant was convicted of murder at trial. The appellant appealed on the basis that the trial judge erred in his application of the res gestae rule by excluding statements made by the appellant in an emergency services phone call which took place some minutes following the occurrence. The appellant argued that the excluded statements supported his claim of self-defence. The Court of Appeal found that the trial judge did not err and therefore dismissed the appeal.

In a joint judgment, Buss P and Mazza JA set out seven reasons why the statements were not admissible as part of the res gestae. Of particular interest is that the statements were not uttered with approximate contemporaneity to the relevant occurrence – their honours noting the passage of time and movement of space between the occurrence and the statements ([98]-[99]). Their honours also reasoned that the possibility of concoction or distortion could not be disregarded because the appellant had a motive to concoct or distort and ‘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’ ([102]).

Similarly, Mitchell JA noted that the context indicated a ‘real prospect that the appellant concocted or distorted his account of the altercation with the deceased to his own advantage’ ([121]. His honour also found it relevant that the statements were not made spontaneously, but in response to a question asked by the emergency line operator ([117]).

The outcome of this case is unsurprising and a relatively straightforward application of the principles from R v Andrews [1987] AC 281, Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514, and other leading authorities on res gestae. Nonetheless, this case is an interesting application of those principles to a case where the utterance was made not by the victim, but by the person standing trial.

The judgment:
The judgment was delivered on 28 May 2020. You can access it here. See especially paragraphs [93]-[105] (Buss P and Mazza JA); [106]-[121] (Mitchell JA).