Director of Public Prosecutions (NSW) v Sullivan

Director of Public Prosecutions (NSW) v Sullivan - [2022] NSWCCA 183 - NSWCCA 2022 case summary — Zoe

[4]

The Crown Case

On 18 August 2017, the Respondent, Mr Summerfield, and two prosecution witnesses, Jordan Morrison and Grant Daniels, were working at a building site and staying at the Vineyard Hotel on Windsor Road, Vineyard. After finishing work, they commenced drinking before travelling to a brothel in Blacktown. They arrived at the brothel at around 8.30pm. Just before 10.00pm the four of them left the brothel and walked towards a service station on Sunnyholt Road.
While at the service station, the Respondent and Mr Summerfield commenced fighting. As the fight ensued Mr Summerfield traversed onto Sunnyholt Road and was struck by a car. The description of the evidence of the service station attendant in the Crown case statement suggests that he saw Mr Summerfield lying on the road as he was struck in the head. He died in hospital two days later.
The DPP alleges that the Respondent's fight with Mr Summerfield involved him committing an unlawful and dangerous act which caused Mr Summerfield's death. One matter said to be significant as to proof of the prosecution's case is whether it can show that it was the acts of the Respondent which forced or at least caused Mr Summerfield to be on the road. There is CCTV footage taken from the service station, but it does not appear to assist in demonstrating how it was that Mr Summerfield came to be on Sunnyholt Road. The description of the evidence of the service station attendant in the Crown case statement suggests that he did not see how Mr Summerfield ended up on the road because his view was impaired. Mr Daniels' statement does not explain how Mr Summerfield came to be on the road either.
Mr Morrison's statement dated 19 August 2022 includes the following: "Soon after it became a bit more serious with some of the punches hitting their mark and they got into a wrestle on the ground. At this stage they were on the driveway of the service station. I remained back. I was standing around 6 metres from the doors to the shop. They were closer to the road fighting. They got onto the main road and continued to fight. They were wrestling each other and then began to be able to exchange punches while they were both on the ground on the road. Jack went over and tried to break it up. He said, 'That's enough.' They had been on the road for around a minute or maybe more. I walked over also and as I got closer, [the Respondent] had gotten the upper hand and had regained his feet. Max was flat on his back. I could see that Max was talking. He put his hands up and said, 'I'm done. You made your point now.' I could see a car coming towards us. I thought it was travelling fast. When I first saw the car I would say it was around 10 seconds away from reaching us. At this very point Sully was walking away. Max was starting to get up off the ground and Jack was moving back off the road now that the fight had ended. I thought surely the car will see Max on the road because he was visible."
Mr Morrison then states that the car struck Mr Summerfield in the head. In a statement made the next day Mr Morrison clarified that, in stating that the Respondent "had gotten the upper hand", he meant to state that he was positioned on top of Mr Summerfield in the roadway and punched him with a closed fist at least twice.
It is reasonably arguable that the above extracts from Mr Morrison's statement are relatively neutral as to whether or not it was the aggressive actions of the Respondent that were responsible for Mr Summerfield entering onto Sunnyholt Road. However, the statement and other evidence appears to provide a basis for inferring that Mr Summerfield's being on the road was a consequence of the Respondent's aggressive acts.

[5]

The ERISP

In part of his ERISP that was not excluded, the Respondent said that he finished work at 3.00pm on 18 August 2017 and then consumed approximately "ten schooners" at the Vineyard Hotel between 4.30pm and when they left the hotel. He immediately clarified that by stating that he and his workmates drank "stubbies" of beer in the front of their rooms before entering the bar at the hotel at around 6.00pm. He said that he drank five "stubbies" outside his room and then had "four schooners … roughly" in the bar. He also said that he consumed a "can of Woodstock" (i.e., bourbon and cola) in the taxi on the way to the brothel and then a second can of Woodstock at the brothel.
After Mr Summerfield was hit by the car, the Respondent rang 000. In the audio recording of the conversation, he is generally incoherent but conveys sufficient information to warrant the police and ambulance attending. An ambulance attended at around 10.23pm. Police spoke with the Respondent at the scene. One officer who spoke with the Respondent observed that he "appeared to be heavily intoxicated, as he was slurring his words, smelt of alcohol and [was] unsteady on his feet". Another police officer recorded that he was "moderately affected by alcohol" and that he said "I can't even remember what the fight was over. I just know, I'm expected to be arrested". In part of his ERISP that was not excluded the Respondent said he was driven by police back to the Vineyard Hotel and drank "four … Jack Daniels and Coke", played on the poker machines and went to his room at around 3.00am on 19 August 2017.
In the meantime, the police made inquiries of the driver and Mr Summerfield's prognosis. At about 3.20am they attended at the Vineyard Hotel and attempted to rouse the Respondent from his sleep. One police officer formed the view that he was "extremely groggy and sluggish, and … still affected by alcohol." He was taken into custody and his intoxication status was reviewed throughout the morning. The ERISP did not commence until 12.31pm on 19 August 2017. It concluded at 1.51pm. The walkthrough was conducted at the service station on Sunnyholt Road at 3.04pm that afternoon and concluded at 3.21pm.
In its written submissions on this appeal the DPP contended that, in the ERISP, the Respondent "made a series of admissions concerning his actions [in] bringing the deceased onto the road prior to him being hit by the car".
Early in the ERISP, the Respondent professed to remember some aspects of his fight with Mr Summerfield but not others. He repeatedly stated that he could not remember how the fight started. He said he did recall "throwing a punch at Max" but missed. He also said that he recalled being punched in the nose but said that "everything's sort of a blur" and "I don't really remember what happened". His assertions as to the limits of his memory and the basis upon which the trial judge excluded portions of the ERISP are best illustrated by the following passage from the ERISP which contains the first and second set of questions and answers that were excluded by the trial judge: "Q155 - - - near the road and tell me what you actually remember. A Ah, I remember throwing a punch at Max. He punched me. And we were in a scuffle and that ended on the road where he was clipped by the car. Q156 O.K. Do you remember throwing a punch at Max? A Yes. Q157 With what hand of yours? A Ah, my right hand. Q158 O.K. And where, where did you get Max? A I missed, missed him with the first punch. Q159 Where were you trying to punch him? A In the face. Q160 … So you missed him. A Missed him. Q161 Yes. A He then punched me in the nose. Q162 O.K. A Ah, the, my nose started bleeding. Q163 Yes. A Ah, I was moving towards Max. He was, like back peddling and we were both throwing punches and it's when it ended on the road where he was hit by the car. Q164 O.K. When you, ah, when you were walking towards Max, throwing punches, were you facing the road or facing the [service station] or - - - A I was facing the road. Q165 And where was Max? A Max was facing the opposite direction. Had his back to the road. Q166 And were you still on the footpath at that point in time? A Um, I think so. Q167 And when you say that Max was back peddling, do you mean he was back peddling onto the road? A Yeah, towards the road, yes. Q168 Towards the road? A Yes. Q169 Did he go onto the road? A I don't think so. Q170 … All right. So how did, how did he end up on the road? A Ah, I'm not sure if it was from me punching him or ah, like sort of tackling him to the ground, I'm not sure how it was, but either one of the two. And that's how he ended up on the ground, from me. Q171 So did you tackle Max, did you? A I, ah, I think so, I don't remember. I don't know if I punched him and he fell or I tackled him, I'm not sure which it was but - - - Q172 What makes you think that you tackled him? A Ah, well, I don't remember, I just remember sort of having a wrestle with him and that's when it all went downhill. Well, it's, it happened so fast I don't remember how. Q173 Yes. A If it was a punch that knocked him out or I pushed him or tackled him, I don't know, I don't remember. Q174 O.K. You're not sure how, how youse ended up on the road, but is it, am I right in saying that, that youse were, were both on the road? A I, ah, I think so or, maybe, we were on the footpath and when he's fell to the ground he's fell on the road or I don't quite remember. I don't have the best memory of how it all happened but it just happened really fast. Q175 All right. And the scuffle that you, that you're referring to, is that on the road? A That's what I mean, I think we were - - - Q176 O.K. A - - - standing on the footpath - - - Q177 Yes. A - - - and when that's happened he's ended up on the road. Q178 O.K. A By either me punching him or pushing him or tackling him, I don't, just don't remember. Q179 All right. And so he's on the road. What are you, what are you doing at that point in time? A Well, that's, he got hit by a car. I, I didn't even see the car coming. It was, I don't know. A180 … How long was he on the road for before - - - A No long. Q180 - - - before that happened? A It pretty much happened straightaway. Q181 O.K. All right. And how far onto the actual road was Max? A Two foot? Not far. His feet could've even possibly still been on the footpath, I don't, I just don't remember. I don't, honestly I don't remember." (emphasis added)
The emphasised parts of this extract were excluded by the trial judge. As I apprehend it, the distinction between those parts that are excluded and those that are retained is that, with the former, the Respondent said he did not recall what happened and is said to be speculating, whereas with the latter he appeared to recall what occurred. From this point of the ERISP to the end, the trial judge excluded those questions and answers about the fight with Mr Summerfield in which the Respondent stated that he could not remember the particular part of the fight that he was asked about. The excluded questions were principally directed to why the fight commenced and what caused Mr Summerfield to be on Sunnyholt Road. Some of the answers reveal that the Respondent had a good recall of the events around or just prior to that time. For example, he was asked a number of questions about his recollection of what occurred at the brothel, most of which he answered with clarity.

[6]

The Walkthrough

In the walkthrough the Respondent identified the location where the fight commenced and then escalated. At one point he is asked: "[Q] Yeah, ha, how did you end up, um, go from here where we are standing over to the road area though? [A] I was walking at Max and he was back peddling towards the road. And I, we both was throwing punches at each other. And then that's, that's when it ended up on the road."
The Respondent then clarified the locations referred to in this answer. Unlike the ERISP, the Respondent does not generally state that he cannot remember the locations where various incidents happened. One part of the walkthrough that might be said to involve speculation on the part of the Respondent as opposed to recollection, is the following: "[Q] OK. When you're in this area here [i.e., the footpath next to Sunnyholt Road] … what was happening? [A] Ah, this is where he got hit by the car. He was on the road just there I think. He must've been, gin, tryin' to get up off the ground. And then that's when the car hit him. I didn't even see it comin'. [Q] Prior - - - [A] So - - - [Q] - - - to the car hitting him - - - [A] Prior - - - [Q] - - - can you think of what was happening? [A] Oh, oh, well, we were both sort of in a bit of a wrestle, um, there was punches thrown. Ah, I must've connected and that's how he ended up on the ground maybe. [Q] OK. And do you remember what positions you were in? [A] Um, ah, not really, no. [Q] OK. Do you remember if you were standing, sitting - - - [A] I was - - - [Q] - - - laying? [A] I was standing. Um - - - [Q] You were standing? [A] Yeah. [Q] And do you remember what Max was doing? [A] He, I, ah, I don't, r, I don't remember. [Q] Can you remember, e, where his feet were, which way he was facing? [A] Ah, his, his head was facing that way."
Immediately after this, the Respondent was asked where Mr Summerfield ended up after he was struck by the car. The Respondent nominated a spot on the footpath where there was a bloodstain. He was specifically asked whether he nominated that spot because of the blood stain. The Respondent said, "I remember him being there, but the blood tells me that's exactly where it was." He was then asked: "[Q] Did you go onto the roadway at any stage? [A] Ah, I don't think so. I, I don't, maybe, I don't remember."

[7]

The Voir-Dire

Before the trial judge, counsel for the Respondent sought the exclusion of the entirety of the ERISP and evidence of the walkthrough under ss 85 and 90 of the Evidence Act. Counsel's written submissions expressly disclaimed reliance on any intoxication of the Respondent at the time of the ERISP and the walkthrough. Instead, the submissions identified the basis for the application as being that the Respondent was "so drunk at the time of the accident and immediately afterwards that he had failed to lay down memory of the relevant events … as outlined in the report of [a pharmacologist] Professor Weatherby". It was contended that the answers given by the Respondent were based on reconstruction in response to suggestions made by the police and that the actions of the police were "coercive". It was also submitted that the Respondent's answers were not relevant for the purposes of s 55 of the Evidence Act. Based on the evidence of the pharmacological expert called by the Crown, Mr John Farrar, the Crown contended that the Respondent's cognition was impaired such that he had a reliable although incomplete recollection of events.
As indicated, the trial judge received evidence from two pharmacological experts, Professor Weatherby and Mr John Farrar. Each provided a report and they gave concurrent evidence. After conferring, they agreed that the Respondent's probable blood alcohol level at the time of the incident with Mr Summerfield was 0.12 grams of alcohol per 100 ml of blood. In his report Professor Weatherby concluded that the Respondent's "inability to remember events during the ERISP and subsequently is caused by the anterograde amnesia in which short term memory fails to be consolidated into long term memory although fragments may be consolidated depending" on the level of blood alcohol concentration. In his reports, Mr Farrar accepted that there was some evidence of possible mild alcohol induced fragmentation of the Respondent's recollection of the altercation with Mr Summerfield. However, he added that it was possible that the Respondent's impaired recollection of events was caused by reduced cognitive function. With the former the person perceives the relevant event but their conversion of that perception from short term memory to long term memory is impaired by alcohol. With the latter the person's impaired cognition means they were not fully aware of what was happening around them and thus cannot remember aspects of what occurred.
In his oral evidence Mr Farrar said that, given the Respondent's likely blood alcohol level, he was "less prone than Professor Weatherby to say that there was fragmented memory" and his lack of memory was "more likely caused by cognitive dysfunction". Given the approach of the trial judge, two particular parts of Mr Farrar's evidence need to be noted.
First, Mr Farrar was asked to explain how anterograde amnesia might present in an interview with police. He answered as follows: "I would expect a person to have how it's defined, a fragmented recollection of the events that transpired during the time of intoxication. That is there would be some things that they would remember, even with some degree of clarity, and there would be - there would be other things that were missing. Now, the thing I didn't mention about fragmentation of memory is that it can be recovered. It can recover spontaneously or it can be recovered by cueing. That is if a person - if he's shown the video, for example, of - of the events, then that may - that may cause the person to actually recover those events that they were - that were missing in their memory."
Second, the Crown Prosecutor asked Mr Farrar about his preferred view that the Respondent's lack of memory of various events was indicative of his memory being affected by cognitive impairment: "CROWN PROSECUTOR: Is it right then that in relation to the cognitive impairment that you've given evidence of Mr Farrar, that it is the case that the memories can in fact be reliable, just incomplete? WITNESS FARRAR: Yes. What is - what is known, assuming a person's being truthful, that's a separate issue of course, is - is reliably retrieved. But as I've said, if a person's cognitively impaired, there are some things that they won't have known about, and can't recover later on as memory. CROWN PROSECUTOR: Is that because at the time of the event in question, it may not have come to their attention, they may not have noticed it because of that impairment-- WITNESS FARRAR: That is exactly-- CROWN PROSECUTOR: --in terms of what they're taking in? WITNESS FARRAR: That is exactly why, yes. CROWN PROSECUTOR: So the position can be under the cognitive impairment suggestion, that memory can be reliable, yet incomplete? WITNESS FARRAR: Yes." (emphasis added)

[8]

The Trial Judge's Judgment

Various aspects of his Honour's findings have already been noted, including the decision to revisit the application to exclude the ERISP and the walkthrough. His Honour noted that it was uncontroversial that the applicant was intoxicated at the time of the fight. His Honour noted that the "essential difference in the opinion of the expert witnesses is not that there was no deficit in the [Respondent's] memory evident at the time of the interviews but rather the cause of the memory deficit". His Honour found that, in the ERISP, the Respondent was "genuinely endeavouring to recall events of the evening before, and in fact gave relatively cogent answers in respect to things that he was able to remember" and that he was "genuinely trying to assist police and recall events of the evening before".
His Honour stated that it is more probable than not that the Respondent was "suffering either anterograde amnesia, that is memory fragmentation or cognitive impairment as referred to by Mr Farrar". However, his Honour focussed this finding by concluding that the Respondent's "memory dysfunction, as is apparent in answers given in both interviews, is the likely consequence of cognitive impairment as described by Farrar". His Honour based this conclusion on the following: "I base that finding on two factors. Firstly the evidence of John Farrar on this point, together with the fact that the accused was able to give relatively cogent answers about some events of the night before, particularly in the ERISP. In his evidence, John Farrar said, … 'I would expect a person to have how its defined, a fragmented recollection of events that transpired during the time of intoxication. That is there would be some things that they would remember, even with some degree of clarity, and there would be other things that were missing.' Secondly, as noted, the accused was able to answer some questions asked of him, particularly in the ERISP. Consistent with him having an actual recollection of those events, but no recall of others. I am satisfied this is more consistent with cognitive impairment as defined and explained by John Farrar in his evidence before the Court. That is the accused did not lay down any memory of specific events in the first place."
This aspect of his Honour's judgment is the subject of complaint under appeal ground 1(a). In relation to cognitive impairment, his Honour found that, if the Respondent suffered cognitive impairment "at the time events were unfolding on the evening of 18 August 2017 at the … Service Station, those events cannot be recalled at a later time because they were never incorporated, even into short term memory in the first place". This finding is the subject of complaint by ground 1(b).
Based on these findings, his Honour found that for those "answers where he has told investigating police he has no specific memory of the actual incident, that he could not remember such answers in fact have no greater status than the accused offering a hypothesis as to what may have happened in the absence of any memory of those specific events". His Honour then identified two further matters affecting the exercise of the power conferred by s 90. The first was that there was no other witness who gave "an account, or depicts the accused pushing, punching or tackling" Mr Summerfield onto the roadway. The second was that the prosecution intended to use the ERISP as admissions that he did so. His Honour concluded that it would be unfair to use them as admissions because the Respondent was "not fully capable of recalling everything at the time of the ERISP". His Honour then excluded those questions and answers from the ERISP that "demonstrate a lack of memory" including the italicised portions of the extract set out above.
In relation to the walkthrough, his Honour found as follows: "In respect to the walkthrough interview, having found it likely and therefore more probable than not that the accused was in a state of cognitive impairment at the time of the altercation, to the extent he was not fully capable of recalling everything. This too, to my mind renders the walkthrough interview as inherently unreliable. Having watched it and having considered the evidence in particular of John Farrar concerning the state of his likely cognitive impairment at the time of the altercation, I am of the view that its admission into evidence would be unfair to the accused. It is apparent throughout the walkthrough interview that the accused is simply endeavouring to reconstruct the specifics of an incident or incidents, about which I am satisfied because of his state of cognitive impairment it is likely he was not able to form any memory of in the first place. Insofar as the walkthrough interview seems to be an effort on the part of the police to reconstruct events from the night before, because of the clearly diminished capacity of the accused to recall the events, the probative value of the evidence is significantly reduced. I anticipate, although it is not entirely clear, that the accused's application in respect to this evidence is that I exercise the general discretion to exclude under section 135 of the Evidence Act as I have previously observed. Having had the opportunity to watch the walkthrough in light of the evidence of each of the experts regarding the accused's state of cognitive impairment likely present at the time of the altercation with the deceased on the prior evening, I am satisfied that it is an appropriate exercise of the Court's discretion to refuse to admit the evidence." (emphasis added)

[9]

Jurisdiction: s 5F(3A) - Substantially Weaken the Crown Case

Section 5F(3A) of the Criminal Appeal Act confers on the DPP a right of appeal against any decision or ruling on the admissibility of evidence "but only if the decision or ruling eliminates or substantially weakens the prosecution's case." Although it was conceded on behalf of the Respondent that this threshold was met, it was necessary for this Court to be satisfied that that was the case.
In making an assessment of the impact of the ruling on the strength of the prosecution case, the Court accepts the probative value of the evidence at its highest and does not assess issues of reliability or credibility (R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [29] and [40]). Even if one accepts the trial judge's findings that Mr Sullivan had no recollection of how Mr Summerfield came to be lying on Sunnyholt Road, his statements to the police on that topic were relevant evidence for the purposes of s 55 and an admission under s 81 of the Evidence Act. An "admission" is relevantly a "representation" by a party that is adverse to their interests. There is nothing in the definition of either phrase that requires the maker to have personal knowledge of the subject matter of the representation (see the Dictionary to the Evidence Act; Brendas v Genter [2018] NSWCA 8 at [37]).
As I understand it, demonstrating that Mr Sullivan's aggressive acts forced Mr Summerfield onto Sunnyholt Road is important to the prosecution establishing that any unlawful act of Mr Sullivan in fighting Mr Summerfield was both "dangerous", in the sense discussed in Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31, and causative of Mr Summerfield's death. Proof beyond reasonable doubt of those matters is essential to distinguishing between a street fight followed by an accident on the one hand and manslaughter on the other.
In this case, the excluded evidence, if accepted, would constitute the only direct evidence in the Crown case that it was Mr Sullivan's aggressive acts during the fight with Mr Summerfield that forced him onto Sunnyholt Road. As noted by the trial judge, there is no witness who gives evidence of that fact, although Mr Morrison's evidence is capable of supporting a finding that Mr Sullivan's aggressive acts significantly contributed to Mr Summerfield being on the roadway. The admissions that were made by Mr Sullivan in his ERISP that were not excluded, and the balance of the evidence, support the drawing of an inference that he forced Mr Summerfield across the area of the service station onto the footpath and then onto the road. Thus, the trial judge's ruling does not eliminate the Crown case. However, I accept that, in this case, by forcing the Crown to seek to prove dangerousness and causation by inference rather than direct proof, the ruling has "substantially weakened" the prosecution case.

[11]

Ground 1: The Trial Judge Allegedly Mistook the Facts

Ground 1 of the DPP's appeal contends that the trial judge "mistook the facts" by: "a) Mistaking the evidence of the effect of anterograde amnesia as evidence of alcohol-induced cognitive impairment; and/or b) Mistaking the expert evidence from Dr John Farrar as to the effect of alcohol induced cognitive impairment."
The reference in this ground to "mistook the facts" is to the statement in House at 505 that if a judge "mistakes the facts" then that is one of the bases for concluding that a judicial discretion has miscarried. That said, it was accepted that, to the extent that the trial judge made findings of fact that were challenged, then it had to be shown that those facts were not open (or at least reasonably open) to his Honour.
In relation to ground 1(a), the DPP's complaint concerns the reasoning set out at [29]. The DPP contended that, in making a finding that the Respondent's memory dysfunction was the likely consequence of cognitive impairment, the trial judge erroneously referred to the evidence given by Mr Farrar on the rival theory of anterograde amnesia, set out above at [26]. This was conceded by Senior Counsel for the Respondent, Mr Odgers, and can be accepted. However, it must be remembered that a finding that the Respondent was cognitively impaired was Mr Farrar's preferred view and was contended for by the DPP. The balance of the judgment makes it clear that the trial judge accepted Mr Farrar's opinion about cognitive impairment in preference to Professor Weatherby's evidence of memory fragmentation as a consequence of anterograde amnesia. That finding was clearly well open on the evidence. The Respondent contended for a finding of memory fragmentation resulting from anterograde amnesia because that may have warranted the rejection of the entirety of the ERISP or at least so much of the ERISP that addressed the fight with Mr Summerfield, and not just those parts which his Honour excluded.
Ground 1(b) of the DPP's appeal concerns the finding noted in [30] above. In its written submissions, the DPP referred to the evidence of Mr Farrar about the effect of cognitive impairment including the passage set out above at [27]. The Crown contended that the evidence conveyed the difference between a "complete memory with focus on all details (sights, sounds order of events etc) and a memory that, while reliable … lacks that same detail". The DPP contended that Mr Farrar's evidence did not support his Honour's assertion or finding that "there is simply no memory of an event". It was contended that it was not open to the trial judge to find that the Respondent "had no memory of the altercation".
However, contrary to the DPP's submission, the primary judge did not find that the Respondent "had no memory of the altercation" with Mr Summerfield. If his Honour had found that, then his Honour would have rejected all of the ERISP that touches upon the altercation. Instead, his Honour only rejected those parts of the ERISP where the Respondent made it clear that he could not recall that part of the altercation he was asked about, including the immediate sequence of events during which Mr Summerfield went from the footpath onto Sunnyholt Road.
The critical finding of the trial judge was that, in respect of those questions to which the Respondent replied by stating he could not remember, the answers he proceeded to give "have no greater status than the accused offering a hypothesis as to what may have happened in the absence of any memory of those specific events" (see [31]). It was this finding that supported his Honour's conclusion of unfairness for the purposes of s 90. This finding was based on his Honour's determination that the Respondent was "genuinely endeavouring to recall events" of the evening before as well as his Honour's acceptance that the Respondent was affected by cognitive impairment and the balance of Mr Farrar's evidence. This finding was not contradicted but was in fact supported by the extracts from Mr Farrar's evidence that the DPP relied on, including the portion set out in [27] above. In that extract Mr Farrar repeatedly accepted that the memory of someone cognitively impaired by intoxication would be "reliable, yet incomplete". The trial judge's findings and rulings were consistent with his Honour differentiating between the Respondent's answers which reflected an actual (and reliable) memory of some aspect of the altercation and those answers which did not reflect an actual memory of some aspect of the altercation, being the "incomplete" part of his memory. Subject to the point considered next, his Honour's findings were well open.
During the course of argument, counsel for the DPP pointed to the rejected answer to Question 170 set out above (at [18]) as indicative of the trial judge's error. It was contended that, in that answer, the Respondent was conveying that he had an actual memory of causing Mr Summerfield to move onto Sunnyholt Road even though he could not state whether that was the result of a punch or a tackle. Mr Odgers contended that the answer must have been speculation on his client's part in that, if he cannot recall how he caused Mr Summerfield to be on the road, he necessarily cannot recall whether he did so. It is unnecessary to address that latter contention. I understand each of the answers in the ERISP that his Honour rejected to be instances of his Honour's critical finding that, with some answers, the Respondent was only "offering a hypothesis as to what may have happened". Having viewed the Respondent's answer to Question 170 and bearing in mind the answers that follow, I consider his Honour's finding and ruling on that answer were well open.
I would reject grounds 1(a) and 1(b).

[13]

Section 90

In Em The Queen (2007) 232 CLR 67; [2007] HCA 46 ("Em"), it was emphasised that the operation of s 90 cannot be described exhaustively (at [56] per Gleeson CJ and Heydon J; and at [109] per Gummow and Hayne JJ). The onus of invoking s 90 lies on the accused (Em at [63]). Of necessity, these matters require a close consideration of the case for exclusion made by an accused based on s 90 (R v Tarantino (No 6) [2019] NSWSC 1174 at [207]; "Tarantino (No 6)").
The Respondent's case for exclusion under s 90 did not necessarily depend upon a finding that, at the time of the interview, he was affected by anterograde amnesia, nor was it dependent upon establishing any impropriety on the part of the investigating police. Instead, it focused on the alleged unreliability of all or some of the admissions made about the altercation on the basis that the relevant answers did not involve the Respondent conveying an actual recollection but only involved him speculating or hypothesising about the altercation with Mr Summerfield. The trial judge partially accepted that contention but only to the extent that he explained or indicated in the interview that his answers were not based on an actual memory. This approach reflected his Honour's finding that those answers were in fact unreliable because the Respondent was hypothesising and was also consistent with so much of s 90 that refers to the "circumstances in which the admission[s] [were] made". If, for example, the admissions had been rejected because it was found that the Respondent did not have an actual memory of the events, but no indication of that was given at the time the admissions were made, then a different analysis may have been warranted.
In considering the reliability of the admissions in this case, one constraint upon the Court was s 189(3) of the Evidence Act which provides: "In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant."
This "issue" was not introduced by the Respondent, that is the "truth or untruth" of the admissions was not raised by the Respondent before the trial judge. Hence neither his Honour nor this Court were asked to consider whether the excluded admissions made in the ERISP were reliable or unreliable because of the truth or otherwise of what the Respondent stated.
In EM, there was (possibly) a difference of approach amongst the majority judgments as to the relevance of a doubt about the reliability of the relevant admission to the exercise of the discretion conferred by s 90. Gummow and Hayne JJ described s 90 as a "safety net" provision which only fell to be considered after the other, more specific provisions of the Evidence Act had been addressed (at [109]). Their Honours noted that, where the evidence of the admissions fell within s 85 and the application of that provision was resolved adversely to an accused, then a consideration of reliability has "no part to play in the operation of s 90", although the position may be different if s 85 was not applicable (at [112]). In this case, although s 85 was raised before the trial judge, it was not addressed so this restriction on the operation of s 90 was not engaged. Gleeson CJ and Heydon J held that the reliability of the confession the subject of the application for exclusion is clearly a factor relevant to the exercise of the discretion to exclude (Em at [73]). Their Honours described "reliability" both by reference to whether the admission was in fact made and whether it was likely to be true, although it must be remembered that Em was a case more directed to the unfairness of the means by which the admissions were extracted than reliability per se.
The first sense in which "reliability" was discussed by Gleeson CJ and Heydon J in Em is not engaged in this case. There is no doubt that the Respondent said the words attributed to him. Instead, the concern about reliability is that identified by the trial judge in that his Honour found as a fact that the relevant statements involve the Respondent only hypothesising about certain aspects of his fight with Mr Summerfield and that was something he indicated during the ERISP. In circumstances where, despite those findings, the prosecution seeks to rely on those statements as direct evidence of two elements of the offence, then I accept that it was not only open to the trial judge to conclude that, having regard to the circumstances in which the admission was made, it would be unfair to the Respondent to "use" the evidence of his admissions but that his Honour was correct to make this finding.
It does not follow from this that s 90 can be successfully invoked on each occasion that an accused person prefaces an answer in an interview with some doubt about their recollection or later contends that their answers do not represent their actual memory. The unfairness found in this case arises from the combination of an actual finding of a lack of recollection, an indication by the Respondent during the ERISP of that lack of recollection, and the use which the prosecution sought to make of the admission. In many, perhaps most, cases it can be expected that a trial judge may not be satisfied that the accused had such a lack of recollection in which case the factual foundation for the exercise of s 90 will not arise and instead the weight to be attached to the admission will be a matter for the jury (see Em at [73]). Further, as noted, regard must be had to the "circumstances in which the admission was made".
The DPP's submissions in relation to ground 2 contended that his Honour's finding of unfairness was predicated on an incorrect assessment of the unreliability of the Respondent's answers, a contention I have already rejected. They also contended that the absence of any direct evidence of the Respondent causing Mr Summerfield to be in Sunnyholt Road, and the prosecution's intention to use the admissions to prove that, were, contrary to his Honour's reasoning (see [31]), "largely neutral" so far as the exercise of power under s 90 is concerned. I disagree. Section 90(b) refers to unfairness in relation to the "use" of the evidence. In this case, the evidence was sought to be used as admissions as to the truth of the statements made. This went to the heart of the unreliability that his Honour found. If, for example, the prosecution had only intended to "use" the evidence for some other reason such as to prove a "particular fact" such as the Respondent's level of intoxication or tiredness at the time of the interview then a question may have arisen as to whether that "use" was unfair or could be ameliorated by imposing a limitation on the use of the evidence under s 136 of the Evidence Act.
This leaves the DPP's principal contention in relation to this ground, which is that the trial judge did not consider the degree to which the unfairness could be mitigated if the evidence were admitted. When pressed on how that unfairness could be mitigated, it was contended that it could be done by allowing the jury to determine the reliability of the ERISP in light of the evidence from Professor Weatherby and Mr Farrar.
I accept that, in a particular case, it may be relevant to the exercise of the power conferred by s 90 to consider the extent to which the relevant unfairness can be mitigated if the evidence is admitted. Whether that is so will depend on the relevant facts found that are said to occasion unfairness, the relevant use to which the evidence will be put, and whether there exists a means to alleviate the unfairness. I have already referred to an example of where the alleged unfairness may be alleviated bearing in mind the "use" to which the evidence is sought to be put (at [55]).
In Riley v R [2011] NSWCCA 238 ("Riley") at [155] to [158], McClellan CJ at CL rejected a suggestion of unfairness in circumstances where his Honour concluded that the jury would be able to assess and evaluate the reliability of the admission having regard to any appropriate directions from the trial judge. In that case the admissions were made in a letter said to reveal "a troubled individual with a rambling and incoherent recollection of many events" (at [149]). However, unlike Riley, in this case his Honour made a positive finding resolving the inquiry as to the reliability of the statements at the stage of determining admissibility. Having made that finding, it is no answer to the exclusion of the evidence to conclude that a jury was capable of forming its own view on the same topic.
I would reject ground 2.

[14]

Ground 3: The Walkthrough

Ground 3 of the appeal provides: "His Honour erred in determining to exclude the walkthrough interview pursuant to s 135 Evidence Act … by: a) Erring in his assessment of the probative value of the walkthrough interview; and/or b) Failing to make an assessment of the danger of unfair prejudice to the Accused, the extent to which it would be misleading or confusing or that it might cause an undue waste of time."
The trial judge's reasoning in relation to the walkthrough is set out above. As this ground indicates, his Honour relied on s 135 of the Evidence Act to exclude the evidence of the walkthrough interview. Section 135 provides: "135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might-- (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time."
The DPP submitted that his Honour's approach to the exercise of this power was erroneous for a number of reasons. First, his Honour failed to make any overall assessment of the probative value of the evidence. Second, to the extent that his Honour considered the probative value of the evidence, his Honour erred in that issues of reliability should be disregarded when assessing probative value (IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [39]). Third, his Honour made no finding to the effect that the admission of the evidence would be unfairly prejudicial much less identify what the prejudice was. Fourth, and consequentially, his Honour did not attempt to weigh the probative value of the evidence against the danger of unfair prejudice.
The Respondent accepted this was so. However, the Respondent submitted that the first part of the extract in [32] above suggests that his Honour also excluded the evidence under s 90. Whether that is so or not is unclear but on any view his Honour should have addressed s 90 as that was the principal basis of the Respondent's application to exclude the evidence of the walkthrough and the necessity to consider its application arose from his Honour's findings in relation to the ERISP. Even so there is an inconsistency in the findings in the first paragraph of the extract set out in [32] above. His Honour relied on the evidence of Mr Farrar and noted that the Respondent was "not fully capable of recalling everything" and so his Honour concluded that the entirety of the walkthrough was unreliable. However, his Honour had only excluded those parts of the ERISP that were prefaced by the Respondent indicating he had a lack of memory for the particular aspect of the altercation with Mr Sullivan.
Further, to the extent that the trial judge might be taken as having found that the walkthrough involved the Respondent reconstructing the entirety of the fight with Mr Summerfield, then there was no evidence to support that conclusion. Mr Farrar's evidence does not support that, nor does a view of the recording of the walkthrough. Similarly, there is no evidence to support his Honour's finding that the walkthrough was an "effort on the part of the police to reconstruct events" if that was meant to suggest that the police were deliberately attempting to have the Respondent reconstruct what occurred by hypothesis rather than from his actual memory (although I do not think it was meant to suggest that). The passage described in [22] demonstrates that is not so.
The Respondent accepted that there was an inconsistency in his Honour's approach and submitted that the appropriate order was to remit the question of whether the walkthrough should be excluded under s 90 of the Evidence Act to the trial judge. I agree. This was reflected in the order made which endeavoured to make it clear that the trial judge is to address the evidence of the walkthrough interview in the same manner as the ERISP.

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