A BURGLAR who was shot by a policeman after pointing a replica gun at him has failed in his bid to appeal one of his convictions.
Cameron Francis Kelly was sentenced to 18 months' jail in October for assaulting a public officer, in addition to the three-and-a-half years he was already serving for burgling a home in the Perth suburb of Canning Vale in February 2011.
Kelly sought leave to appeal the assault conviction on the ground that the primary judge at his trial wrongly excluded evidence of an exculpatory statement that he had made while being arrested.
Police had been called by the home owner who had returned to see Kelly burgling his home.
The altercation that ensued was filmed for the television program The Force, which was following the officers that day.
At trial, the court heard Kelly pointed a replica pistol at one of the officers when confronted and threatened to shoot him.
Kelly moved in a way that alarmed the officer, who believed his life was in imminent danger and fired three shots at him, striking him once in the arm and once in the stomach.
It was later discovered the pistol was a replica.
Kelly claimed he had not pointed the gun at the officer, but was instead bending down very slowly to put it down as he had been told to do.
The footage showed Kelly saying, "I don't know", when asked why he pointed the gun at the officer.
Asked a second time a little later, he said: "I didn't point the gun, I was putting it down."
But Supreme Court judges Carmel McLure, Robert Mazza and David Newnes dismissed his application to appeal.
"The appellant had been lying on the ground having his wounds attended to by police officers for some four and a half minutes when the statement was made, and it was not in any sense a spontaneous utterance," they said.
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