DPP v FB

1. In the afternoon of Friday, 8 September 2023, the accused hit some pedestrians and another vehicle when he was driving his car through the Bourke Street Mall. The driver of the vehicle that the accused hit was killed. The accused has been committed for trial on charges of murder, attempted murder and reckless conduct endangering life. The accused denies that he intended to kill or cause serious injury and intends to rely on the defence of mental impairment contained in s 20(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (being the statutory defence that replaced the common law defence of insanity). That defence requires the accused to prove[1] that at the relevant time he was suffering from a mental impairment that had the effect that he 'did not know the nature and quality of the conduct' constituting the elements of the offence or 'did not know that the conduct was wrong (that is, he... could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).'[2]
2. The prosecution intends to ask the jury to infer that the accused had 'murderous intent' when he drove into other persons and a vehicle that afternoon from the CCTV footage and other evidence of his car's speed and movements together with the following additional facts, which it will seek to establish:

(a) On Thursday, 7 September 2023, the accused entered the terms 'murders in australia' and 'are murders usually committed by strangers' into the Google search engine and visited a webpage about 'Violent Crime by Strangers and Non-strangers' ('Google searches'). This is to be proved by calling a police officer with the necessary expertise who will say that he extracted this information from the accused's phone; and

(b) In the afternoon of 8 September 2023, the accused sent a text message to his employer that said: 'I quit forever, thank you all for doing business, peace'. He then sent another text message inquiring about whether his accrued annual leave would be paid out during the week and apologising for his abrupt resignation. Again, this is to be proved by calling a police officer with the necessary expertise who will say that he extracted this information from the accused's phone;

(c) A witness to the events, Ms Humphries, described the accused's driving into a group of people as 'deliberate';

(d) A person who happened to be there, Mr Wrigley, approached the accused while he was still in his car and the accused asked him: 'Did I kill anyone?';

(e) When being assessed by the psychiatrist Associate Professor Carroll at the request of his own lawyers, the applicant conveyed to Associate Professor Carroll that he knew that he was driving in such a way as would likely to bring about the death of other people; and

(f) At the police station while being assessed by paramedics, when asked why he had driven into people, the accused said: 'People don't listen to me.'

1. The accused objects to the receipt of this evidence. He also objects to certain language used in the prosecution's summary of its opening.
2. The prosecution also states in the summary of its opening that it intends to call evidence that while driving towards the Bourke Street Mall that afternoon, the accused took photographs of hundred dollar notes spread across his lap and sent text messages to various sex workers several of which included the phrase 'need a bitch to fuck, king[applicant's name] coming' and at least some of which attached photographs of the money. It was clarified in argument (if clarification were necessary) that the prosecution was not proposing to rely on this evidence in support of its argument that the accused had murderous intent. This evidence was, instead, relevant only to the defence of mental impairment.

1. The accused criticised the evidence of the Google searches as insufficient to justify an inference of murderous intent and submitted that the Google searches were not relevant and should otherwise be excluded under s 90 or s 137 of the Evidence Act 2008. In support of the submission that the evidence was insufficient to justify an inference of murderous intent, the accused pointed out that:

(a) It seemed that the accused was engaged in these searches for something like 36 seconds;

(b) It was not clear whether certain webpages were visited or were only search results; and

(c) Associate Professor Carroll had opined that it was 'more likely' that the Google searches were 'related to the concerns about his mother that were preoccupying him at that time'. When Associate Professor Carroll asked the accused about the Google searches, the accused said that the police were lying and denied that he had ever made those searches. However, earlier in his report, Associate Professor Carroll had noted that the accused had sent a text message some fifteen minutes earlier to his 'hairdressing teacher' saying:

I don't understand but my mums negative energy is making me choke I can't sleep or breathe properly, she's gonna get me murdered but she'll never murda my soul, and rich meaning dead or alive sooo see you soon

1. I consider that the evidence of the Google searches relating to murder and murdering strangers is a relevant piece of circumstantial evidence. As the prosecution pointed out, the relevance and probative value of evidence in a circumstantial case must be assessed by looking at the evidence as a whole.[3] When coupled with the evidence about how the accused drove his car that afternoon, particularly if considered with the evidence that he asked immediately afterwards whether he had killed anyone, the evidence that he had conducted searches relating to the murdering of strangers the day before is capable of being used by the jury as a reason to infer that he had murderous intent. The fact that there is an earlier text message that refers to the accused's mother getting the accused murdered could be a reason for which the jury might give the Google searches little weight. But that is a matter for the jury.
2. I do not accept that the probative value of this evidence is outweighed by the danger of unfair prejudice to the accused.[4] The fact that there is a possible alternative explanation for the Google searches does not mean that they should be excluded on the basis that admission carries a danger of unfair prejudice let alone a danger of unfair prejudice that outweighs their evidentiary value. The unfair prejudice asserted is that the jury might misuse the evidence or draw inferences that are not properly available. I do not consider that the danger of that occurring outweighs the evidence's probative value.
3. The accused also relied on s 90 of the Evidence Act 2008 which allows a Court to exclude evidence of an admission or evidence to prove a particular fact if 'having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.' I do not consider that this section applies because there is no unfairness to the accused 'having regard to the circumstances in which the admission was made'. Further, it is not suggested that the evidence was improperly extracted from the accused's mobile phone, and there is no unfairness to the accused arising from the fact that the searches were made by the accused in circumstances where there might be other explanations for them.

1. Much the same applies in relation to the evidence that the accused emailed his employer and resigned earlier that day. The accused submitted that the communications to his employer were 'neutral' and 'polite' and gave no indication of any intention to commit a murder and that if the communications are seen in light of earlier communications expressing dissatisfaction with his work no inference of murderous intent could be made from those communications. That may be so if these communications are looked at in isolation, but they are not to be looked at in isolation. The evidence remains relevant because it would be open to a jury to rely on that evidence, even if neutrally and politely expressed and capable of innocent explanation, together with all the other evidence, to infer murderous intent by reasoning that the accused had resigned because he intended not to return to work because he had decided to try to murder people.
2. The prosecution intends to call the accused's employer. If evidence is led that the accused had earlier seemed unhappy at work, a jury might well give the evidence of the resignation little or no weight. But that is a matter for the jury and, as noted above, the evidence remains probative in the sense that it would be open to a jury, acting reasonably, to give it weight and to rely on it in the way identified.
3. There is no reason to exclude it under s 90 or s 137 of the Evidence Act 2008. There is no unfairness to the accused 'having regard to the circumstances in which the admission was made'. The 'unfair prejudice' relied on by the accused was that the evidence might cause the jury to speculate or to give the evidence of his resignation too much weight. I do not consider that if there is a danger of any such unfair prejudice that it outweighs the evidence's probative value.

D. The description of a manoeuvre as 'deliberate'

1. Ms Humphries was a pedestrian on Swanston Street and a witness to the accused's driving of his car. In her statement, she says:

We finished crossing the road, in front of the bins out front of Michael Hill. I heard the car accelerate and I looked at where the noise was. I saw the car drive into a crowd of people as they were crossing the road at the tram stop. I feel like it was deliberate as there were lots of people crossing and you'd think that if you hit someone with your car you would stop and not keep going. He stepped on the accelerator as I heard the car like the sound the tyres make when they don't get traction.

1. The prosecution, in its summary of opening, includes the sentence: 'based on [Ms Humphries'] observations, Ms Humphries concluded that the accused's driving towards the crowd was deliberate.'
2. Ms Humphries description of the accused's actions as 'deliberate' is the expression of an opinion. Unless someone is a suitably-qualified expert, witnesses may only describe what they saw and heard and any opinions they formed are generally inadmissible.[5]
3. There is a limited exception for 'lay opinions' if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event and the evidence of the opinion is necessary to obtain an adequate account or understanding the person's perception of the matter or event.[6] The rationale for the exception, as emerges from the common law position that predated the Evidence Act 2008, is that there are areas of human experience that occur so regularly that people are able to form safe conclusions from many subtle and possibly subconscious or 'evanescent'[7] observations that cannot later be fully described and there will be occasions where it is 'almost impossible to separate the inferences from the primary facts on which they are based, and often it is very difficult to identify and recollect the primary facts themselves.'[8] In those circumstances, without their being able to give their opinions (as to someone's probable age, for example), a witness cannot give an adequate account of their perceptions. The exception allows witnesses to give evidence on matters that would perhaps not ordinarily be recognised as expressions of opinion, such as the identity of someone, how old they are, and whether they were sober or drunk, and even an approximate speed at which a car was travelling.
4. That does not apply to this evidence. The extract from Ms Humphries' statement set out above suggests that she concluded that the accused's driving into the people was deliberate not so much from an impression she formed from a myriad of subtle observations about the way in which the car was controlled or its pattern of movement, but rather as an inference from the fact of the car being driven into people and the accused not thereafter stopping. The legislative test for admissibility of her opinion is not met: her opinion is not necessary to obtain an adequate account or understanding of her perception of the event.
5. Accordingly, Ms Humphries' opinion that the accused's driving into the people was 'deliberate' is inadmissible. She can, of course, otherwise describe what she saw and heard.

1. Mr Wrigley was also a pedestrian on Swanston Street. He heard but did not see the incident, but attended on the accused in his damaged car immediately afterwards. In his statement, he describes the accused as 'responsive, conscious and breathing with no visible injuries'. Mr Wrigley asked the accused if he was in any pain and if he could feel his arms and legs, and the accused answered in the negative and positive respectively. Mr Wrigley says the applicant then said to him: 'Did I kill anyone?'
2. The accused submits that the asking of a question such as this immediately after an accident is entirely unexceptional and cannot support a finding of murderous intent, and thus was irrelevant and inadmissible, alternatively should be excluded under s 90 or s 137 of the Evidence Act 2008.
3. Again, although looked at in isolation the evidence could not support an inference of murderous intent, in a circumstantial case the question is instead whether a jury could rely on this evidence along with all the other evidence in order to infer a murderous intent. When considered with the evidence of the accused's Google searches and his resignation from his employment and the manner in which he drove his car that day, his asking that question is a matter to which the jury could have regard to conclude that the accused was intending to kill because the question might have been asked because the accused wished to ascertain whether he had succeeded. The prosecution case is, if only marginally, stronger if this piece of evidence is added to the factual matrix than if it were not, and, accordingly, this evidence is probative of a fact in issue and thus, unless otherwise excluded, admissible.
4. I do not consider that there is any unfairness to the accused in having the evidence admitted having regard to the circumstances in which the admission was made or that there is a risk of unfair prejudice to the accused that outweighs the evidence's probative value. Mr Wrigley was not in a position of authority over the accused and the accused freely and voluntarily asked Mr Wrigley that question. It is true that the accused was mentally unwell at the time that he asked that question (whether or not his mental state was sufficient to make out a defence of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997) but that does not mean that he is unable make admissions (or implied admissions) or that it is necessarily unfair that admissions be relied upon. The evidence does not establish that his 'unsoundness of mind' meant that 'no account ought to be taken of' any incriminatory aspect of that question.[9] Equally, the fact that he was mentally unwell does not mean that there is unfair prejudice associated with the evidence that outweighs its probative value. Accordingly, the evidence is admissible and it will be a matter for the jury as to what they make of it.

F. An admission to Associate Professor Carroll?

1. The prosecution in its summary of opening states that:

The accused admitted to Dr Andrew Carroll that he knew the nature and quality of the conduct i.e. that he was driving in such a way that was likely to bring about the death of other people.

1. Associate Professor Carroll examined the accused on 8 March 2024. In his report, Associate Professor Carroll stated:

It is clear that [the accused] knew the nature and quality of the conduct, i.e. that he was driving in such a way that was likely to bring about the death of other people.

1. It became apparent in argument that the admission asserted by the prosecution is founded on this paragraph. There was no other passage in his report identified that recorded the accused in fact saying to Associate Professor Carroll that he knew that he was driving in such a way that was likely to bring about the death of other people. In fact, Associate Professor Carroll reported that the accused 'denied thinking that they would die'.[10]
2. In these circumstances, I do not accept that there is any basis for the prosecution opening that the accused made that admission to Associate Professor Carroll. In the absence of some further clarification from Associate Professor Carroll, it seems that this passage of Associate Professor Carroll's report, which is clearly enough directed at the first limb of the defence of mental impairment contained in the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, is an opinion Associate Professor Carroll has formed, rather than the recording by him of an admission to that effect made by the accused.

G. The admission to the paramedics: 'People don't listen to me'

1. The admission to the paramedics is in a different category. The test does not turn on whether the paramedics have acted unfairly, but turns instead on whether the reception of the evidence would be unfair to the accused.[11] Here, the admission was made in circumstances where:

(a) The accused had been arrested and taken to a police station following a serious car accident where he was placed in a holding cell;

(b) It was apparent that the accused was facing or would face serious criminal charges and there were, at the least, concerns about his mental state;

(c) The accused, it seems, had not been cautioned or had not been able to understand any caution attempted to be given;[12]

(d) The paramedics were examining him at the police station sometime after 6:15pm and possibly at about 7:30pm and, I infer, were doing so in their uniforms and thus would have appeared as authority figures in the circumstances;

(e) Two custodial officers were also in the room at the time and, possibly, a detective just outside the room or in the doorway;

(f) The question asked, the answer of which constitutes the admission, was not necessary for the paramedics to perform their function of assessing the accused for physical injuries; and

(g) At approximately 10pm that night, the accused's mental state was found by a medical practitioner who examined him at the request of the police to be such that he was not in a fit state to be interviewed. Quite properly, in accordance with this opinion, the police did not then interview the accused. I am prepared to assume that the accused was, by reason of his mental state, equally not in a fit state to be interviewed when he was assessed some hours earlier by the paramedics and that he was in, at least, a manic state.

1. The discretion given by s 90 of the Evidence Act 2008 to exclude admissions where the circumstances of their making mean it would be unfair to an accused to permit the prosecution to rely on them reflects the role that the right to silence plays in the administration of the criminal law. At its simplest, and as a matter of public policy that advances the administration of justice, to be fairly used an admission should be made voluntarily and in the exercise of a free choice to speak or to be silent;[13] '[t]he right to silence and the privilege against self-incrimination are entrenched in the criminal law'.[14] Putting it another way, it may be unfair to use an admission if obtained in circumstances where the suspect's 'freedom to speak or not to speak is impugned'.[15]
2. Here, the accused was in the hands of the police and suspected of having committed a serious criminal offence, had not yet been cautioned, was not in a mentally-fit state to be interviewed, was answering questions from paramedics who held the authority of their uniformed position and the role, and was doing so in the presence of custodial officers. If the police had asked the question that the paramedics asked, there is no doubt that the answer would be inadmissible. Well-meaning though the arranging of paramedics to assess the accused no-doubt was, those paramedics asked a question that was not necessary to the performance of their duties but was a question that might naturally, and did, extract an admission. These circumstances, in combination, satisfy me that the admission made by the accused was probably made other than in the exercise of a truly free choice to speak or to be silent and that it would be unfair on the accused to use the evidence of the question and his answer against him.
3. Accordingly the question and answer are inadmissible by reason of s 90 of the Evidence Act 2008.
4. The prosecution argued that it would not be unfair because the jury could evaluate the reliability of the admission and relied on Riley v R [2011] NSWCCA 238. That case concerned the admissibility of a draft letter written by an unwell person addressed to but never sent to a doctor. The unfairness that potentially arose in that case was limited to the fact that the accused was in an unwell mental state at the time that the letter was written and so the admissions might not be reliable. It was not a case that raised for consideration any concerns about the right to silence. I accept as general propositions that an admission is not necessarily unreliable if it is made by even a seriously-unwell person[16] and that the extent to which an admission may be unreliable and the jury's ability to assess that reliability may affect whether its admission is unfair for the purpose of the application of s 90 of the Evidence Act 2008, but I do not see these issues as being decisive in the circumstances of this case. In concluding that it would be unfair to the accused to use the evidence of his admission, I have relied on the accused's mental state in evaluating the circumstances in which he came to make the admission, but not separately as a matter potentially affecting its reliability.

1. The accused also objects to the prosecution using the word 'wedged' to describe how the shoe became attached to the grille of the accused's car and the use of the word 'ignore' when describing how the accused drove through a red-light and contends that 'more neutral' language should be used.
2. I do not propose to preclude the prosecution from using these words. A photograph of the shoe attached to the grille of the car was produced. The shoe is 'caught' or 'stuck' in the grille, and I consider that it is open also to describe it as 'wedged' in the grille. Equally, and although the word 'ignore' connotes that the accused noticed that the light was red before driving through it, rather than, say, just driving through it by mistake, that is what, presumably, the prosecution will be asking the jury to infer was the case. The proposed language, although not neutral, is not, in my view, unfair because it is not likely to mislead the jury or to influence them to decide the case on an improper basis.

I. Text messages while driving earlier that day

1. The accused submitted that the text messages by which the accused sought sex from sex workers would not assist the jury to determine whether the accused intended to kill or to cause really serious injury and should therefore be excluded as not relevant. The accused also submitted that there was a 'real risk that this evidence will provoke an irrational or emotional response'. As noted above, however, the prosecution clarified that it was not seeking to rely on the evidence of the text messages sent by the accused to sex workers as part of the evidence from which the jury could infer murderous intent.
2. This raised the issue, then, of the accused's defence of not guilty by reason of mental impairment. These text messages are part of the set of facts referred to by the psychiatrist relied on by the accused, Associate Professor Carroll, who has opined that the accused was at the time 'in a severely psychotic and manic state, afflicted amongst other things by grandiose and religiose delusions' and that the defence of not guilty by reason of mental impairment is open. In order to resolve the dilemma where the accused is seeking to have the messages excluded as irrelevant to the prosecution case but to rely on their existence in his defence, the accused raised the prospect that some agreement be reached with the prosecution that the text messages be referred to without their actual content being put before the jury on the grounds that the text messages are 'a very minor part' when the accused's extensive mental health history is considered. This was to be further discussed with the prosecution.
3. If no agreement can be reached, the matter may be brought back for further consideration.

[1] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21.

[3] R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 637 [46], [48] (Gummow, Hayne and Crennan JJ).

[4] Evidence Act 2008 (Vic) s 137.

[5] Evidence Act 2008 (Vic) s 76.

[6] Ibid s 78.

[7] See Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, 371 [46] (French CJ, Heydon and Bell JJ), quoting from Sydleman v Beckwith (1875) 43 Conn 9 at 12-14 and Cornell v Green (1823) 10 Serg & Rawle 14 at 16 as contained in Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7, pp 12 and 13 s1918.

[8] Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, 370 [45] (French CJ, Heydon and Bell JJ), 382 [77] (Gummow J), 383 [83] (Crennan J).

[9] Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, 338 (Dixon J). See also R v Stiles (1990) 50 A Crim R 13, 22 (Crockett, Murphy and Cummins JJ): 'The condition of schizophrenia does not inevitably involve that statements of a person afflicted with it are incapable of being acted upon.'

[10] Psychiatric report dated 20 March 2024 by Associate Professor Carroll, [211].

[11] Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 18-19 (Deane J); Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, 103 [107] (Gummow and Hayne JJ).

[12] Senior Constable Gelly in his statement says that he was told that the accused had been cautioned but also says that when he tried to caution the accused the accused responded 'genocide' and that Senior Constable Gelly 'was not confident that [the accused] understood the caution and rights due to some sort of mental health issue or mental impairment'. He also said that the accused, when asked his name, responded: 'devil'. Detective Sergeant Bonnici says in his statement that Detective Senior Constable Gelly told him that he had 'attempted' to caution the accused but was 'unable' to interview him and was awaiting an assessment as to whether he was fit for interview. Another officer, First Constable Saboune, said he had 'attempted' to caution the accused at the scene but the accused was 'either drug affected or experiencing a form of mental health episode' and was not acknowledging the caution or showing that he understood.

[13] See, eg, Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 5 (Gibbs CJ), in the context of a discussion of the common law rule that that permitted the exclusion of confessional evidence where it would be unfair to an accused to use it established by R v Lee [1950] HCA 25; (1950) 82 CLR 133.

[14] Director of Public Prosecutions v Myles (a pseudonym) [2021] VSCA 324, [35] (Priest, T Forrest and Walker JJA).

[15] See, eg, Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, 95 [ 78] (Gleeson CJ and Heydon J).

[16] Cf: Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, 338 (Dixon J); R v Stiles (1990) 50 A Crim R 13, 22 (Crockett, Murphy and Cummins JJ).