Submissions for the Defendant
46. In opposing the record of interview of Mr Watman being admitted into evidence, Mr Henskens submitted that the following matters should be taken into account in the general exercise of the Court's discretion to exclude the record of interview:
· Mr Watman's record of interview is the first of eight records of interview that the prosecutor wishes to tender through Inspector Wade.
· Each of the interviewees are available to give evidence in the proceedings.
47. It was submitted that this case was unique and distinguishable from the authorities that Ms Backman took the Court to which involved the tender of an individual defendant's record of interview. It was contended by Mr Henskens that the Court would have to listen to every one of the tapes of the records of interview that were also being tendered in the proceedings to understand the context of the record of interview and to assist in assessing the demeanour of the witnesses.
48. In turning to deal with the relevant sections of the EA, Mr Henskens submitted that the prosecutor should be required to identify what are the admissions in the record of interview that it seeks to tender under s 87 of the EA. The Court should then assess whether it is proper to consider the representation an admission. It was submitted that to approach the matter as the prosecutor does and fail to identify the admissions within the record of interview denies the defendant natural justice because the basis of the tender is not made clear: Stead v State Government Insurance Commission (1986) 161 CLR 141.
49. Mr Henskens submitted that in addition to establishing that a representation is an admission under s 87 of the EA, the prosecution must also establish that the representation containing the admission was:
At the time of the conduct of the record of interview, Mr Watman had the authority to make statements on behalf of the defendant in relation to the matter (s 87(1)(a); or (b) the previous representation related to a "matter within the scope of Mr Watman's employment" (s 87(1)(b); or (c) the previous representation related to a "matter within the scope of Mr Watman's authority" (s 87(1)(b)).
50. There was no issue that on 15 October 2001 Mr Watman was an employee of the defendant.
51. Mr Henskens submitted that there was no evidence that Mr Watman had authority on 15 October 2001 to speak on behalf of the defendant and that s 87(1)(a) of the EA was not satisfied.
52. Mr Henskens submitted that the words "within the scope of their employment" or "within the scope of their authority" are words of limitation: Bugge v Brown (1919) 26 CLR 110. It was submitted that this case makes it clear that whether a statement is within a person's scope of employment or authority is a question of fact in each case and that each alleged representation has to be assessed against the evidence as to the scope of employment or authority.
53. Mr Henskens submitted that the prosecutor had not led any evidence prior to the voir dire as to the scope of Mr Watman's employment or authority and submitted that none of the admissions came within Mr Watman's scope of employment or authority. It was observed that on the dates of the alleged offences and at the time of the record of interview, Mr Watman was on leave.
54. Mr Henskens submitted that the prosecutor had the burden of proof to establish that the admissions were not adversely affected under s 85(2) of the EA. It was submitted that matters which may establish that it is likely that the truth of the admission was adversely affected include, but are not limited to, the nature of the questions and the manner in which they were put: (s 85(3)(b)(i) of the EA) and any relevant condition or characteristic of the person who made the admission (s 85(3)(a) of the EA).
55. It was submitted it does not matter, for the purposes of the discretion, whether the admission subsequently turns out to be true. The public policy behind the section is to review the methods used to obtain admissions.
56. Mr Henskens submitted the evidence as to the circumstances in which the record of interview was made by Mr Watman overwhelmingly suggests that the truth of any statements made by him was adversely affected.
57. The following were given as examples:
· Mr Watman was on leave at the time of the record of interview with a diagnosed psychiatric condition by Dr Wade and a psychological condition diagnosed by Dr Brown
· The advice of his psychiatrist, Dr Wade was not to attend any interview.
· The evidence suggests that he was told, probably by Inspector Wade, and possibly by a representative of the Nurses Association that he had to attend the interview or he would be subpoenaed.
· Mr Watman's thought processes were significantly impaired during the interview with Inspector Wade and at times he was "vacant".
58. Mr Henskens submitted that this evidence is significantly corroborated by the answers Mr Watman gave in the record of interview which are also evidence of significant impairment: see answers to Q. 25 "I couldn't tell you the exact date"; Q. 129 "My memory is not there"; Q.155 "I can't recollect any other. There's something but I can't"; Q.177 "My mind has sort of gone a bit, I can't tell the exact time"; Q.225 "I was trying to think of something to say then"; Q.276 "I can't specifically remember direct things in the relationship"; Q.295 "I can't think clearly"; Q.313 "I can't remember"; Q.316 "I can't honestly remember without reading it. No I can't remember Paul"; Q.325 "I can't recollect it at this point in time"; Q.340 "I just can't remember"; Q.372 "I can't remember - no I just can't remember at the moment, I'm sorry"; Q.393 "My memory is not good at the moment."
59. Mr Henskens submitted that at times the questioning was fast, aggressive and involved talking over and interrupting the answers given by Mr Watman. The questions included leading questions, questions involving hearsay and cross-examination.
60. Furthermore, it was submitted that in a significant number of questions, information in the possession of Inspector Wade was misrepresented to Mr Watman. The Court was taken to the various examples relied upon by Mr Henskens. Mr Henskens submitted that Mr Watman was not given an opportunity to prepare himself by having the questions, topics of questions or documents identified in advance of the record of interview, nor was he given an opportunity to reflect on the questions and answers and amend what was said in the record of interview at a future point in time. The transcript of the interview was provided to him approximately two years after the interview. Furthermore, it was submitted that the magnitude of some of the documents that were referred to during the interview were significant.
61. It was submitted that the cumulative effect of all these matters combined to make it clear that the prosecution had not discharged its onus that it was unlikely that the truth of the answers to the record of interview were adversely affected.
62. In addressing s 90 of the EA Mr Henskens submitted that the defendant had not been able to find a single case where the record of interview of every witness for the prosecution had been sought to be tendered as an admission under s 87 of the EA. It was submitted that this approach was highly wasteful of judicial resources and undesirable because of the unfairness in the process of obtaining the records of interview.
63. Mr Henskens relied on the matters that he had taken the Court to in respect of his submissions in support of s 85 of the EA as also being matters of unfairness to the defendant in allowing the tender of the record of interview under s 90 of the EA. It was submitted that these aspects of unfairness in the questioning process were compounded by the fact that Mr Watman attended the interview under an express or implied understanding of compulsion and did not have the ordinary rights of silence.
64. Mr Henskens submitted that no good reason had been advanced as to why it is necessary or desirable to tender the record of interview when the witness is available to give oral evidence which would be more efficient than voir dires in relation to each record of interview. It was submitted that the quality of justice in the case would also be much more superior if witnesses gave their evidence in the witness box.
65. Mr Henskens submitted that the tendering of the record of interview in lieu of evidence in chief being given by Mr Watman is unusual for the following reasons, as evidence in chief is usually:
(a) given in the presence of the judicial officer hearing the case, the parties and their legal representatives (see s 27 of the EA);
(b) on oath (see s 21 of the EA);
(c) in a judicially controlled environment of procedural fairness (see s 26 of the EA);
(d) where the judicial control of the procedure ensures the accuracy of the representation by reason of various other rule of evidence and Court practice. In particular it should be noted that:
(i) examination in chief is to be the first evidence of the witness (s 28(a) of the EA);
(ii) examination in chief is conducted by questions in a non-leading fashion (s 37 of the EA);
(iii) hearsay is generally excluded because of its unreliability (s 59 of the EA);
(iv) opinion evidence is generally excluded because of its unreliability (s 76 of the EA);
(v) strict rules as to how a witness's memory may be revived by documents or otherwise is observed (s 32 of the EA);
(vi) strict rules governing the way in which previous representations of other persons or documents may be admitted into evidence (s 34 of the EA);
(vii) rules of fairness such as the placing of a document before a witness and the opportunity to read the document before a person is asked about a document are also observed.
66. It was submitted that evidence in chief, through a record of interview, falls short of being reliable evidence because:
(a) the record of interview did not take place in the presence of the judicial officer and the legal representatives of the parties and so evidence of chief is not (sic);
(b) the record of interview is not conducted on oath;
(c) the record of interview is not conducted in a judicially controlled environment ensuring procedural fairness;
(d) leading questions are put to the interviewee and cross-examination takes place;
(e) witnesses are contaminated by being told the evidence of other persons;
(f) a witness's memory is not necessarily exhausted before it is revived;
(g) witnesses are questioned about documents without being given an opportunity to read them;
(h) hearsay answers are given;
(i) opinions are given.
67. Mr Henskens submitted that the effect of what the prosecutor seeks to do in this case is to replace the usual system of open justice with a "star chamber-like" procedure conducted by investigators from the WorkCover Authority.
68. It was submitted by Mr Henskens that the probative value of examination in chief through a record of interview is significantly inferior to oral evidence in court. Furthermore, it was submitted that other matters going to the probative value of the evidence include that Mr Watman was not working at Kempsey District Hospital on the night of the alleged offence, as he was on leave. It followed, it was submitted, that his evidence was of very low probative value in the proceedings as a consequence.
69. In respect of the weight of evidence Mr Henskens submitted that admissions based on hearsay evidence are of a very low probative value: Lustre Hosiery Ltd v York (1935) 54 CLR 134. In criminal cases, an admission based on hearsay was found to be an unsafe basis upon which to convict: Surujpaul v R [1958] 1 WLR 1050.
70. In respect of s 135 of the EA, Mr Henskens submitted that if the evidence in examination in chief of each prosecution witness is to be split between the record of interview and examination in chief then a misleading and confusing procedure is being advocated by the prosecution. It was submitted that there will be two tiers of evidence by a witness, one in a controlled judicial environment where demeanour can be observed while the evidence is given and another in a nonjudicially controlled environment where demeanour cannot be observed. The splitting of the evidence of witnesses, as submitted, will cause the evidence to lose its coherence and comprehensibility. It was further submitted that the procedure adopted by the prosecution is wasteful of the Court's time, particularly in circumstances where no good reason for departing from the usual course of obtaining evidence by examination in chief is given. Mr Henskens further submitted that all of the matters that the Court was entitled to take into account as to unfairness under s 90 of the EA should also be taken into account in respect of s 135 and s 137 of the EA.
71. Finally, in respect of s 137 of the EA, in addition to relying upon the unfair prejudice already referred to, Mr Henskens submitted that the probative value of the evidence is low for the reasons already outlined. Mr Henskens referred to Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at [19] where a record of interview by an unavailable witness was held admissible under s 87 of the EA but excluded under s 137 of the EA because its probative value was outweighed by its unfair prejudice.
Consideration
72. The issue for determination is whether in the exercise of the discretion available under s 85, s 90, s 135 and s 137 of the EA, admissions made by Mr Watman in a record of interview with Inspector Wade should or should not be admitted into evidence.
73. In R v Williamson [1972] 2 NSWLR 281 Maguire J at 289 observed:
The first question here is whether, the Crown having tendered the whole document (record of interview) it became evidence of the truth of self-serving statements contained in it. I think that it did, but the weight to be attached to such statements would, of course, be a matter for the jury.
74. In addition, Lee J at 295 said:
... In other words, the question arises, it is said, whether the jury would be entitled to treat as evidence of the facts alleged those parts of the record of interview which were of a self-exculpatory nature. It is to be remembered that the accused's statement from the dock did no more than refer to the fact that he did what he did to protect himself and his wife and his family, and that he was scared of the other accused ...
... As long ago as 1829 Parke B. in R. v. Higgins (13) said: "What a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against the prisoner; however, if the prosecutor makes the prisoner's declaration evidence, it then becomes evidence for the prisoner, as well as against him."
In Archbold's Criminal Pleading Evidence and Practice, 36th ed., p. 1128, the following passage occurs:
"In all cases the whole of the confession should be given in evidence, for it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge ... It's application to trials in New South Wales has never been questioned as far as I can ascertain and in my view it is the law here. It is thus for the jury to give the statement such weight as it sees fit.
75. Ms Backman relied upon R v Horton (1998) 45 NSWLR 426 as authority that an "admission" is a very wide concept. Wood CJ at CL, with whom Sully and Ireland JJ agreed, observed at 437-438 of Horton:
Whatever may have been the position at common law, or under the Crimes Act, s 410, I am of the view that it is now necessary, for the reasons previously mentioned, to have regard to the Evidence Act in determining precisely what is the "admission" of which s 424A of the Crimes Act speaks. The dictionary definition is certainly wide enough to include, within that expression, any form of representation, whether by conduct or by oral or written statement, so long as it is "adverse to the (maker's) interest in the outcome of the proceedings". That expression is itself sufficiently wide to encompass both inculpatory statements and exculpatory statements of the kind discussed in Piche v The Queen that may turn out to be harmful for the defence.
76. Walton J, Vice-President considered admitting the statement made by an employee to a WorkCover inspector in WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23. After referring to s 87 of the EA his Honour said at [15]:
In this case, I am satisfied that when Mr Burcher was interviewed by Inspector Penfold he was an employee of the defendant and that his statement related to matters within the scope of his employment. I do not consider that the prejudice to the defendant occasioned by the admission of the statement requires the exercise of my discretion to exclude the evidence under s135 of the Evidence Act .
Section 87 of the Evidence Act
77. Submissions were put in respect of s 87 of the EA and for completeness it is appropriate that I deal with those submissions. Section 87 requires a court to admit a representation if it is reasonably open to find that the person was an employee of the party and the representation related to a matter within the scope of the person's employment or authority. There is no issue that Mr Watman was, at the time of the record of interview, an employee of the defendant. However, Mr Henskens contended that the representations (admissions) made by Mr Watman were not related to a matter within the scope of his employment.
78. Ms Backman and Mr Henskens both sought to rely on Bugge, a decision of the High Court which considered the scope of employment. In that case Isaacs J set out seven propositions as to the meaning of scope of employment and scope of authority.
79. Mr Henskens contended that the analysis which was undertaken by their Honours in Bugge was required to be undertaken by the prosecutor in this case to justify the tender under s 87 of the EA. I reject this submission. Bugge was a case involving the negligence of an employee not the admissibility of evidence under s 87 of the EA.
80. I raised with Mr Henskens whether I was entitled to take into account that the scope of Mr Watman's employment was nursing. Mr Henskens rejected this approach submitting that what was required, in accordance with Bugge, was to carefully consider the facts of the case, to define the limits of the scope of employment or authority, and to see whether the admission relates to a matter within that scope. It seems to me that I am entitled to take into account that nursing involves, among other things, a knowledge of the procedures for the admission of patients to hospitals; the care of patients in hospital; writing up of clinical notes; the administering of medication to patients and assisting doctors.
81. Although Mr Watman was on sick leave at the time of the record of interview, the substantive position prior to him going on leave was Director of Nursing or Nurse Manager. Prior to holding that position he was Acting Executive Officer. It therefore seems to me that Mr Watman can make statements in respect of his knowledge of procedures in place at Kempsey District Hospital including the implementation or non-implementation of procedures, the adequacy of training in respect of those procedures and the adequacy of duress alarms.
82. Although Mr Watman was not on duty on 2 and 3 July 2001, the focus in terms of breaches of s 15 and s 16 of the OH&S Act is on the failures which result in a risk to the health, safety and welfare of both employees and non-employees and not on the incident itself. In my view admissions made by Mr Watman related to matters within the scope of his employment.
Section 85 of the Evidence Act
83. I now turn to consider s 85 of the EA. The question that arises is whether the statements made by Mr Watman suggest that the truth of such statements made by him were adversely affected: s 85(2). I have earlier set out the test that Woods CJ at CL stated in Esposito with respect to s 85(2).
84. Dealing with the record of interview conducted by Inspector Wade, Mr Henskens contended that the interview was fast, aggressive and involved talking over and interrupting the answers given by Mr Watman. It was further submitted that information in the possession of Inspector Wade was misrepresented to Mr Watman.
85. Having carefully considered the evidence of Inspector Wade and the record of interview, I am satisfied that proper procedures were followed. Preliminary questions were asked at the commencement of the interview, temporary suspensions occurring during the interview, there was no conversation during the suspensions. Furthermore, Mr Watman was asked if he was under any threat in relation to responses to questions. He answered "no". During the course of questioning, Mr Watman disputed certain matters put to him which he did not agree with. In cross examination Ms Backman asked Mr Watman did he understand the questions during the interview and he answered "yes". Mr Watman had an independent person accompanying him during the whole of the interview to provide any support that was necessary.
86. Mr Henskens criticised the interview by Inspector Wade on the basis that specific questions had not been provided to Mr Watman prior to the interview. Neither counsel could provide the Court with any authority to support the proposition that specific questions were required to be put to a person prior to an interview in order to satisfy s 85(2) of the EA.
87. In considering the provisions of s 85(2) of the EA I am required to consider whether the reliability of any admission may have been impaired by the way it was obtained. In my view, the failure to provide questions in advance does not, of itself, lead to a conclusion that the admissions were impaired. Section 85(2) of the EA is directed to the methods used to obtain an admission rather than whether it is in fact reliable. In my view, such a failure cannot be said, of itself, to affect the truthfulness or reliability of admissions so as to render the admissions inadmissible.
88. Another issue which was raised was the question of Mr Watman's fitness to take part in the interview and whether Inspector Wade was made aware that Mr Watman was unfit to take part in the interview. Inspector Wade's evidence was that he was aware Mr Watman was on sick leave, however, his evidence was that the specific fact that his psychiatrist had said he was unfit for an interview was not relayed to him.
89. It was further suggested that Inspector Wade put either misleading or false suggestions to Mr Watman during the interview. The interview with Mr Watman was one of the last conducted by Inspector Wade of employees at Kempsey District Hospital. Inspector Wade had interviewed some seven nurses and Dr Winder prior to interviewing Mr Watman. Although it emerged in cross examination that Inspector Wade had put incorrect information to Mr Watman, for example, regarding who had attended aggression training, far from being confused or misled, Mr Watman disputed the accuracy of this information. Another example was Inspector Wade's reference to Constable Hennessey's statement.
90. I am not persuaded, on the balance of probabilities, that Inspector Wade deliberately sought to put misleading information before Mr Watman. Inspector Wade accepted that some information that had been put to Mr Watman was false but not deliberately so, however, it seems to me that the issue is not whether the proposition put to Mr Watman was correct or incorrect, but whether it had any effect on the reliability or truthfulness of the answers given by Mr Watman in that regard. In my view, there is nothing to suggest the truth of any admission has been adversely affected or that there was any unfairness that might warrant the exclusion of particular admissions.
91. I instance the following example:
Q. 158 (Inspector Wade) I read just somewhere in here, I am sure I read that they wouldn't accept those sorts of patients, they didn't fit the category of the lower level of psychiatric illness for the management and treatment?
A. (Mr Watman) Well they must have suited it to be accepted, as I said it is a clinical call by the psychiatrist as to what he, him and the staff decide.
Q.159 So it is entirely up to them - as the Director of Nursing that yourself and the hospital had no responsibility in the matter?
A. Oh no, no, no. We do, there are guidelines there about that, and as I said to you, there are many patients that come in that are suicidal or a threat to themselves and that, that never get past the front door and that, they are scheduled they are sorted out and treated appropriately and then scheduled off to the relevant hospital.
92. It is clear that Mr Watman disagreed with what Inspector Wade put to him and in my view it cannot be contended that there is an adverse affect on the truth.
93. It was also contended that Inspector Wade interrupted answers of Mr Watman during the interview. Inspector Wade's evidence in this regard was that on occasions he thought that Mr Watman had finished his answer. An examination of the record of interview where this occurred clearly indicates that Mr Watman is properly following the questions and is not misled. Mr Watman clearly responds without being distracted.
94. I turn to deal with Mr Watman's evidence in respect of the record of interview. Mr Henskens submitted that Mr Watman was unwell at the time of the interview. Medical reports were tendered from Dr Wade and also Dr Brown. Dr Brown's report points to the source of Mr Watman's illness as relating to the appointment of Ms Ashton which caused Mr Watman to go on leave. It is clear that whatever illness Mr Watman was suffering from at the time of the interview, it had nothing to do with the incident on 2 and 3 July 2001. Mr Watman was not prescribed any anti-depressant medication.
95. Under the heading "Mental State Examination" Dr Brown stated:
Mr Watman was orientated in time, place and person and there was no objective impairment evident in his concentration at interview. His cognitive processes were normal. His intelligence was not impaired. He described no psychotic symptoms.
96. Ms Backman submitted that the examination by Dr Brown occurred on 9 October 2001, six days before Mr Watman's interview with Inspector Wade. Later in the report Dr Brown states:
In my opinion his current psychological condition is not an aggravation of a prior condition. His symptoms are not due to a medical condition. I could ascertain no other stresses that might have caused or be sustaining them.
97. Under the heading "Summary" Dr Brown states:
Mr Watman has developed an Adjustment Disorder as the result of his perception as to the cause of problems with his Manager at work. His symptoms should not be expected to abate until he knows the outcome of his employment and he had dealt with the consequences of this. His psychological condition is due to his work if Ms Ashton has acted unreasonably in this matter. If she has not then Mr Watman would have caused his own symptoms through his own behaviour. In any event he will need the assistance of a Psychiatrist to deal with his emotions.
98. In my view, in light of Dr Brown's report, there is no evidence to suggest that Mr Watman was incapable of properly and accurately understanding questions put to him in the record of interview with Inspector Wade or incapable of giving coherent responses. A reading of the record of interview demonstrates that Mr Watman understood the questions being asked of him and when he disagreed, he was capable of dealing with the question or proposition being put to him. At the time of the interview, Mr Watman was in receipt of advice from the Nurses Association of New South Wales and did not provide a medical certificate that he was unfit to undertake a record of interview. Although Mr Watman's evidence in the voir dire was that he had no idea what he was walking into when he undertook the record of interview, Mr Watman is the ex Director of Nursing at Kempsey District Hospital. He had extensive responsibilities and knowledge of the systems and procedures in operation at the hospital up to the time when he took leave in May 2001.
99. The record of interview does not read like a person who does not understand what is occurring. There is nothing contained in the record of interview that bears out Mr Watman's evidence on the voir dire that he felt confused, empty, numb or was otherwise on automatic. Such feelings, in my view are contrary to Mr Watman's responsiveness and ability to understand, answer and/or dispute questions. When asked by Ms Backman if he understood what was being asked of him during the interview Mr Watman answered "yes I think so". Mr Watman was provided with tapes of the interview at its conclusion and the fact that he was not provided with a written transcript until approximately two later years is, in my view of no significance. Mr Watman was invited to add to the interview if he so chose. He did not. He agreed that he had answered all of the questions of his own free will without any threat, promise or inducement and that the answers given in the record of interview were true and correct. At no stage after the completion of the record of interview did Mr Watman raise any matters with Inspector Wade.
100. In my view, there is nothing to suggest that Mr Watman's illness incapacitated him significantly in the course of the interview. Mr Watman had good recall and was coherent during the interview. Although there is considerable debate in respect of the question of whether the test under s 85(2) of the EA is subjective or objective, I propose to focus on the objective likelihood of whether Inspector Wade's conduct would have affected the reliability of the admissions. McLellan J (as he then was) in R v Munce [2001] NSWSC 1072 at [28] focused on the objective circumstances in which an admission was made and put to one side the defendant's "undoubted psychiatric problems".
101. I am satisfied that the prosecution has discharged its onus of establishing that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission/s was adversely affected.
Section 90 of the Evidence Act
102. I now turn to deal with the discretion under s 90 to exclude admissions. It was accepted that the onus in respect of s 90 falls to the defendant. Mr Henskens relied on the same matters which, he submitted, affected the likelihood of the truth of the material in the records of interview advanced in support of the s 85 discretion, as also being matters going to the unfairness to the defendant in allowing the tender of the record of interview under s 90 of the EA. Mr Henskens submitted that the unfairness in the questioning process was compounded by the fact that Mr Watman attended the interview under an express or implied understanding of compulsion and did not have the ordinary right of silence; R v Phan (2001) 123 A Crim R 30 at [51]. This submission is misconceived. There is no case either in respect of the interview or on the evidence that Mr Watman was considered the suspect. A breach of the OH&S Act was being investigated by Inspector Wade which involved the defendant in these proceedings, not Mr Watman, as an individual. There are no charges brought against Mr Watman. In relation to corporate entities, the defendant is one and there is no self incrimination in any event.
103. Mr Henskens conceded that the matters relating to unfairness to the defendant were narrower under s 90 of the EA than they were in respect of the broader discretionary matters under s 135 and s 137 of the EA. Section 135 directs itself to evidence that may be unfairly prejudicial, misleading or confusing. Section 137 directs itself to rejecting evidence if its probative value is outweighed by the danger of unfair prejudice to a defendant. Mr Henskens contended that all of the matters that I am entitled to take into account as to unfairness under s 90 of the EA, may also be taken into account in respect of s 135 and s 137 of the EA. In addition, it was submitted that there are circumstances of unfair prejudice to the defendant which might go beyond the circumstances in which the admission was made which fall under s 135 and s 137, as opposed to s 90 of the EA.
104. The leading case in this area appears to be Swaffield, where in the majority judgment Toohey, Gaudron and Gummow JJ reconsidered, and re-formulated, the common law relating to evidence of admissions in criminal proceedings. Their Honours dealt with the exercise of discretion and referred to s 90 of the EA and, as set out earlier in this judgment, provided a definition of what constitutes unfairness. At [67] their Honours observed that the concept of unfairness has been expressed in the widest possible form in the EA, referring to s 90. Their Honours then discussed what they considered to be an appropriate approach to be taken by the Court in looking at these discretionary factors and at [69]-[70] their Honours set out the approach to be taken in respect of the admissibility of such evidence. This approach should be seen as turning firstly, on the question of voluntariness, next, on exclusion based on consideration of reliability and finally, an overall discretion which might take into account all of the circumstances of the case to determine whether the admission of the evidence is "bought at a price which is unacceptable having regard to contemporary community standards".
105. At [74] their Honours referred to Cleland v The Queen (1982) 151 CLR 1 at 34 where the High Court considered the overlapping nature of the unfairness discretion and the public policy discretion. It was held in that case that where a voluntary confession had been obtained by the use of improper or illegal means but nevertheless was shown to be voluntary, a discretion is exercisable by the trial judge to exclude it from evidence on the basis that to admit it would be unfair to the accused. It seems to be clear that any significant infringement of a defendant's rights must ordinarily result in the exclusion of the admission: Foster v The Queen (1993) 67 ALJR 550 at 555. However, I note the New South Wales Court of Criminal Appeal has taken a more restrictive view of s 90 of the EA, expressly holding that it would not necessarily be unfair to admit evidence of an admission even though it was accepted that, if there had been no impropriety, the admission would not have been made: R v Helmhout (2001) 125 A Crim R 257 at [48]-[52] per Hulme J.
106. Later at [76] of Swaffield their Honours observed "the wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion". It was also noted at [78] that "unreliability is an important aspect of the unfairness discretion but it is not exclusive. Their Honours observed "the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights". It was further observed "there may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence".
107. Ms Backman submitted, applying the above principles to Mr Watman's interview, that in respect of procedural fairness Mr Watman was an educated person employed in a highly regarded position at the hospital. Ms Backman further submitted that, on its face, all clear procedures were properly and rigidly adhered to. There were appropriate suspensions during the interview; there was no conversation in relation to the matter during the suspensions; Mr Watman was asked at the beginning of the interview and also at the conclusion of the interview whether he wished to say anything, whether any threat, promise or inducement had been made and whether any answer he had given was untrue.
108. Unreliability and procedural rights are important considerations in determining whether a discretion should be exercised under s 90 of the EA to exclude admissions. In this case, I am not satisfied that there was any attempt by Inspector Wade to influence Mr Watman to make any untrue admissions. In according Mr Watman procedural fairness, to the extent that it has application in this regard, in my view, procedures were properly and rigidly adhered to. I accept that Mr Watman is an educated person who held a senior position at Kempsey District Hospital. Perhaps I should observe that in my view, I would not regard questioning as unfair merely because it was persistent. In addition, on the evidence before me, the statements made by Mr Watman were voluntary, done so in the presence of a representative from the Nurses Association of New South Wales and after clear procedures for the interview were outlined by Inspector Wade.
109. It should be observed that in Helmhout each of the authorities considered by Bell J presuppose that an interview that was conducted with the defendant occurred in circumstances where either the defendant was affected by a drug, alcohol or had a depressive disorder. Her Honour held, and this finding was not disturbed on appeal, that those factors alone don't make a person incapable of giving coherent, responsive, correct answers such that they may warrant exclusion under s 90 of the EA.
110. I have earlier dealt with Mr Watman's illness at the time of the interview. In my view, Mr Watman's depressive disorder was not such that he was so affected as to not understand the questions that were being put to him by Inspector Wade, nor was he unable to answer them in a coherent manner. The procedures that were to operate during the interview were explained to Mr Watman at the outset and he was accompanied by an independent person. Mr Watman was not entitled to a right to silence as he was not the accused. In these circumstances, I am of the view that it would not be unfair to the defendant, in terms of s 90 of the EA, to allow the tender of the record of interview.
Sections 135 and 137 of the Evidence Act
111. In considering whether I should exercise a discretion under s 135 and s 137 of the EA to exclude the record of interview, I take into account the matters that I have earlier considered. However, s 135 of the EA provides a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial, misleading or confusing, cause or result in a waste of time. I note that such evidence may be excluded under s 137 of the EA if its probative value is outweighed by the danger of unfair prejudice to the defendant.
112. The Court is required to balance the "probative value" of the evidence against the dangers set out in s 135 of the EA. It should be noted that these dangers must "substantially" outweigh the probative value of the evidence. It follows that there is a heavy onus on the defendant to justify exclusion.
113. Ms Backman submitted that there was no relevant prejudice to exclude the evidence under s 135 and s 137 of the EA. Mr Henskens' submission was that the record of interview was of low probative value because Mr Watman was not at Kempsey District Hospital on the day of the offence. As I have observed the onus is on failures in respect of breaches under s 15 and s 16 and resultant risk to safety. The failures alleged by the prosecution go to systems and procedures that were in place and of which Mr Watman, being a former senior employee of the hospital is capable of giving evidence.
114. The Court is required to balance the probative value of the evidence against the "danger of unfair prejudice to the defendant". It does not seem to me that there is a real danger that the evidence of Mr Watman will be of minimum probative value nor do I believe there is a danger that the Court would give Mr Watman's evidence more significance than it deserves.
115. Mr Henskens contended that the record of interview contains hearsay statements. Such matters can be dealt with in accordance with the usual procedures, however, it is not suggested that the defendant will be unable to cross examine Mr Watman on any issue or challenge Mr Watman's reliability. Even if this was so, members of the Court of Appeal have approved the notion that the inability to cross examine on materials sought to be introduced is not, of itself, unfairly prejudicial: Ordukaya v Hicks [2000] NSWCA 180 at [35]-[41]. Although the Court was considering civil proceedings in this case, as I have observed the prosecution proposes to call Mr Watman to give evidence.
116. Odgers Uniform Evidence Law 5th ed, Lawbook Co 2002 gives an example of a situation where the power to exclude evidence because of unfair prejudice to the defendant should be exercised as being where the prosecution tenders gruesome photographs of the deceased in a murder trial, where a pathologist has already described the injuries and there is little forensic assistance to be derived from the photographs: R v Ames [1964-1965] NSWR 1489. However, in R v Bowhay (No 3) [1998] NSWSC 660, Dunford J considered that the photographs of a deceased had a high probative value in showing the "viciousness" of the attack on him noting "in this day and age where people see 'blood and guts' on the television and on the movie screen day after day and week after week, I fail to see how it could be expected the jury would misuse this evidence". I am not considering evidence of this type in this matter.
117. Mr Henskens submitted that if evidence in chief of each prosecution witness is to be split between the record of interview and examination in chief then a misleading and confusing procedure is being advocated by the prosecution. I do not share Mr Henskens' concern. All the persons interviewed by Inspector Wade were employees of the defendant and all employees will be made available by the prosecutor during the hearing for cross examination. It was also submitted that the Court would not have a proper opportunity to observe the demeanour of the witnesses in circumstances where they had provided a record of interview and were subsequently going to give evidence in chief and be cross examined. In my view the Court will have every opportunity to evaluate the demeanour of witnesses and the proper weight that should be accorded to the evidence given by witnesses called by the prosecutor. I do not see that there is any prejudice to the defendant in this regard.
118. It was further submitted that by admitting the record of interview, it would result in a procedure of there being undue waste of the Court's time. I disagree with Mr Henskens' approach in this regard. It seems to me that the tendering of the records of interview will significantly reduce the evidence in chief of the prosecution witnesses as opposed to prolonging the proceedings if an alternate approach was adopted.
119. Mr Henskens relied on a decision of Pearlman J in Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 where her Honour admitted the tender of a record of interview given by a Mr Beveridge to an officer of the prosecutor under s 87 of the EA, determining at [19]:
... that the record of interview, although hearsay, was admissible as an admission by the defendant, but I excluded it under s 137 of the Evidence Act upon the basis that its probative value was outweighed by the danger of unfair prejudice to the defendant.
120. The difficulty with this case is that her Honour did not set out what the prejudicial factors were or why the document was of such low probative value that her Honour chose to exclude it. I therefore do not find this case of assistance.
121. I have considered whether the evidence should be rejected at the discretion of the Court, under both s 135 and s 137 of the EA, but I do not think it should be. It seems to me that its probative value well outweighs its capacity to unfairly prejudice the defendant. It may be that the evidence is adverse to the defendant's interest, but not unfairly so. It is not so significantly prejudicial and so impossible to challenge that it would be wrong to allow the tender of the record of interview. This is not a jury trial. The relevant weight of this material can be considered at the conclusion of the trial after hearing all the evidence and submissions of the parties. I am not persuaded that the evidence will be misused.
122. I decline to exclude the evidence, being Mr Watman's record of interview provided to Inspector Wade, on the basis of s 85, s 90, s 135 and s 137 of the EA.
123. I reserve the question of costs.
124. This matter will be listed at 9.30 am on 3rd day of September 2004 for the purpose of fixing further dates for hearing.