On 5 March 2018, Gary Clifford Blackman (the accused) was arraigned on a count of murder in the Supreme Court sitting at Lismore. The proceedings were a special hearing, not a criminal trial, because the accused was unfit to stand trial. Because neither party had sought to have the proceedings conducted before a jury, the special hearing proceeded before me alone.
A lengthy voir dire was conducted with regard to the admissibility of a number of admissions the accused had allegedly made with regard to having fatally assaulted Ms Nicole Weate (the deceased) at the relevant time.
This judgment constitutes my reasons for excluding all of those admissions at the conclusion of the voir dire.
[2]
Various aspects of the proceedings and of this judgment
A number of logistical and procedural aspects can conveniently be noted at this stage.
First, the majority of the evidence placed before me was expressed to be on the voir dire alone. Some of it, however, was expressed to be received in the special hearing. That was done to avoid the inconvenience of some witnesses possibly needing to be called twice. The parties (each of whom was represented by counsel extremely experienced in criminal law) were agreed that all of the evidence received in the special hearing could be taken into account in the voir dire. In due course, as necessary, evidence on the voir dire could be "re-tendered" in the special hearing. The transcript makes perfectly clear which evidence was tendered on the special hearing and in the voir dire.
Secondly, it will be understood that all of the admissions are merely alleged to have been made. For the convenience of the reader, however, I shall not repeatedly refer to them in this judgment as "alleged admissions"; it will be understood that every reference to an admission is merely to an allegation thereof that the tribunal of fact in the special hearing would need to determine in due course.
Thirdly, a significant portion of the evidence-in-chief of witnesses of both parties on the voir dire was placed before me by way of statements, and without any cross-examination. I have proceeded on the basis that, with regard to any such witness, opposing counsel conceded the correctness of the contents of the statement of that witness.
Fourthly, I have referred to all police officers by their ranks as at the time when they gave evidence. The exception to that is if the officer gave evidence by way of a written statement.
Fifthly, although I received evidence from a large number of medically qualified persons, in this judgment I have used the term "medical experts" to refer to such persons who provided me with expert medical evidence but who did not treat the accused.
[3]
Undisputed facts
I commence by setting out, in generally chronological form, the circumstances and events that I understand to be undisputed between the parties.
[4]
The property and its occupants at mid-March 2014
As at mid-March 2014, a number of persons were living in semi-rural premises of about three acres at 904 Tomewin Road, Tomewin ("the property"). The property was located some distance out of the Northern Rivers town of Murwillumbah, close to the Queensland border. It had been purchased some years before by the accused and his sister, Ms Jennifer Smith, with funds inherited from their grandfather. The property was part of some form of community title. It had been purchased with an eye to exploring the concept of permaculture, which I understand to be an alternative approach to cultivation that places emphasis on sustainable environmental practices, in particular by way of focusing upon cultivating vegetables rather than raising livestock.
The property featured a block that sloped away from the road, and a semi-circular driveway. There were two buildings on the property: a basic cabin closer to the road and encircled by the driveway that was referred to in the proceedings as "the shed", and a substantial three-storey house that was adjacent to the furthest part of the driveway from the road, and therefore down the hill from the shed. The front door of the home led onto its second level, due to the slope of the property. There was also a veranda attached. During the proceedings, the house was referred to as "the big house".
Turning to the persons living there, the accused was then aged 61 years. Born in the inner northern suburbs of Sydney, he had enjoyed an unremarkable upbringing. He had completed an apprenticeship as a mechanic, and had worked in that role for a few years before working as a labourer. He had led an itinerant lifestyle, and travelled around Australia. Regrettably, he had been a heavy drinker from an early age, and as long ago as February 2002 he had been spoken of in medical records as a person who had abused alcohol, and who suffered from a damaged liver and memory loss. His life had also been a lonely one, in that he had had only one short-lived romantic relationship, and that was in his early 20s. Notably, he had suffered cognitive impairment as a result of his chronic abuse of alcohol, and was also suffering Hepatitis C. Having said that, in his day he had been a fit, strong man, and had spoken of being a boxer in the past.
Also living at the property was the deceased. At the time, she was aged 53 years. Born and raised on the northern beaches of Sydney, she had developed emotional problems from an early age, due in part to the fact that she did not fit the then-prevalent stereotype of a blonde haired, blue-eyed surfer. Sadly, she had abused heroin for many decades by 2014, and had worked as a sex worker in Kings Cross as long ago as the late 1970s. It seems that she had suffered some form of brain damage or cognitive impairment as a result of a brain disease in 1987. Although she had experienced periods of sobriety, her life had been severely damaged by abuse of prohibited drugs, not least the fact that many members of her family had cut themselves off from her decades before.
As at early March 2014, the deceased was in some sort of intimate relationship with the accused, they having met in a hotel in Murwillumbah approximately twelve months before. A significant aspect of their relationship was drinking very heavily together.
A third resident of the property as at mid-March 2014 was Mr Thomas Miringaorangi. He had known the deceased decades before, when she had been a sex worker. He had been living in the Northern Rivers with the adult son of the deceased, and came to meet her and the accused in Murwillumbah in a park or a hotel. Very soon after meeting them, he moved to the property. By mid-March 2014, he had been living at the property for a number of weeks.
Mr Miringaorangi had a lengthy record for violence in New Zealand and a number of Australian jurisdictions. In 1993, he had been sentenced to a head sentence of imprisonment for four years, with a non-parole period of 12 months, for a sexual offence. He had served a sentence of six years imprisonment with a non-parole period of four years, relating to what appears to have been a "home invasion," that commenced in 2005 and expired in 2009. On occasions, he had been diverted from the criminal justice system on the basis that he was mentally ill. His criminal record also supported the proposition that he had been a long-standing abuser of prohibited drugs.
Also living on the property was Ms Billie Rose Bignell. At the time she was aged 23 years. She had been invited to live at the property by an old friend, Mr Ian Wolfe, who himself had recently been invited to stay there by Mr Miringaorangi some weeks beforehand. By mid-March, she had been living there for perhaps two or three weeks. Living with her was her young son, whom I shall call by the pseudonym Jack, who attended primary school. On occasions, Mr Andrew Johnson, the boyfriend of Ms Bignell, would also stay over at the property.
As at mid-March 2014, those four persons were staying at the big house. None of them was paying rent to the accused or his sister; their general position was that the accused had permitted them to stay on the property rent free, so long as they did various maintenance jobs, and kept the place clean.
Earlier in 2014, Ms Bignell had spent time in a mental hospital after a serious disagreement with her mother. At around that time, she had been using a large amount of drugs.
As I understand it, apart from Mr Andrew Johnson and the boy Jack, none of the persons living or staying at the property was in paid employment, studying, or otherwise leading a life that had any structure to it. Many of them were abusing prohibited drugs or alcohol or both. Notably, as at mid-March 2014, Mr Miringaorangi and the deceased were injecting crystal methylamphetamine ("ice"). Ms Bignell did not inject it, but was in the habit of smoking it.
Ms Jennifer Smith, the sister of the accused and co-owner of the property, was not living at the property at that time. She had visited in the past, but did not get on at all well with the deceased. Ms Smith gave evidence that she had seen the accused at the property not to be in the habit of wearing shoes, not only because of the informal standard of dress that was adopted there, but also because his feet were swollen and scabrous.
Speaking generally, the property was not well cared for. Although the big house was a substantial edifice, nothing was well maintained. To give but one example, there was no garbage service at the property. However, it seems that waste was neither transported to a tip, nor buried, nor composted. Bags of rubbish were simply thrown onto a large pile in the vicinity of the shed. One can infer that that pile was a magnet for all kinds of vermin.
There was also a crop of cannabis of indeterminate size and sophistication growing on the property. The upper level of the big house, referred to as the loft, was used to dry harvested cannabis plants.
Various neighbours whose homes were part of the community title knew the accused, and had met the other persons at the property.
Mr Brent Gallagher had known the accused for six years as at mid-March 2014 and spoke of him as being the "most agreeable man" he had ever met. They were in the habit of playing chess together.
Mr Bruce Freeman, a neighbour, had met the accused five years previously. He described him as being "overly trusting to the point of being stupid".
In about 2013, Mr Perry Phillips, a friend of Mr Gallagher, had visited him and met the accused. He described the accused as a "seasoned drinker", and the state of the property as "disgraceful". He had also met the deceased, and had seen her smack the accused in the head open-handedly more than once.
Mr Liam Emzin lived in Queensland, but visited the community often. He had known the accused for quite some time. He had met the deceased about seven months before March 2014, and felt that she was "perfect" for the accused.
Mr Bruce Freeman had also noted the arrival of the deceased at the property about six months previously. He described her as the "new drinking buddy" of the accused. He said that the accused "almost came across as a simpleton".
Many neighbours had also met Mr Miringaorangi by mid-March 2014. He had introduced himself by the nickname of "Tom Tom". Mr Gallagher, Mr Phillips, Mr Freeman and Mr Emzin all found Mr Miringaorangi to be an intimidating person, who was in the habit of ordering around other persons at the property, including the deceased. Mr Gallagher felt that Mr Miringaorangi was also "standing over" the accused. Others, including Ms Bignell and Mr Wolfe, gave evidence in their statements describing Mr Miringaorangi in similar terms.
Mr Gallagher had also noted that, recently, the relationship between Mr Miringaorangi and the deceased became closer. He thought that they may have been sleeping together, and enquired of the accused whether a three-way sexual relationship had developed. The accused ignored this question and denied to Mr Gallagher that Mr Miringaorangi was standing over the accused.
Ms Smith had come to visit her property approximately six weeks prior to April 2014, and stayed overnight. Ms Smith felt frightened of Mr Miringaorangi, as "if you didn't listen to him singing and started talking he would start saying all these things he'd done, like, talked about killing and guns."
The following morning, Ms Smith recalls seeing Mr Miringaorangi, the deceased and the accused. The accused and Mr Miringaorangi said they were both sleeping with the deceased, and the deceased then sat on the lap of Mr Miringaorangi and passionately kissed him. After kissing Mr Miringaorangi, the deceased then sat on the lap of the accused and passionately kissed him.
Ms Bignell described the relationship between the accused and the deceased as including yelling at times. On one occasion, the deceased spoke to her of the accused having inflicted a black eye upon the deceased. When Ms Bignell looked at the face of the deceased, she could not see any such injury.
In short, living in the shed were the accused and the deceased. Living in the big house were Mr Wolfe, Ms Bignell, her son Jack, and staying over on occasions was Mr Andrew Johnson.
Where Mr Miringaorangi was living as at mid-March 2014 is a matter of dispute. His evidence was that, by that stage, he had moved from the shed to the big house. The position other witnesses is that he had remained living in the shed.
[5]
Events of late March 2014
Turning now to the events at the property of late March 2014, it will be appreciated that, due to the unstructured lifestyles that were lived at the property, combined with abuse of prohibited drugs and alcohol, many witnesses were incapable of providing firm dates and times of events.
Many witnesses spoke of a decline in the health of the accused in late March 2014. That included a precipitous loss of weight. It also seems that the scabs, sores and blisters from which he suffered got worse. At some stage, Ms Bignell saw him lying in his own faeces.
More than one witness spoke of the understanding that the accused - who had abused alcohol, cannabis, and morphine in the past - was introduced to intravenous ingestion of ice at some stage in March 2014, perhaps by Mr Miringaorangi or the deceased.
Ms Bignell gave evidence that both the accused and Mr Miringaorangi would speak of the belief that the deceased was having sex with other men who would visit the property. Ms Bignell rejected that belief as fantastic (it is to be recalled that, at the least, Mr Miringaorangi was injecting ice, and the accused was a chronic alcoholic).
In late March, Mr Wolfe pinched the nipple of the deceased through her clothing. She took exception to that, and slapped him in the face. At around the same time, Mr Miringaorangi spoke to Mr Wolfe of his ability to sleep with Ms Bignell whenever Mr Miringaorangi wished, because he would simply pay her. That led to an argument between Mr Miringaorangi and Mr Wolfe, with Ms Bignell in tears. Because the atmosphere was deteriorating, Mr Wolfe decided to leave. He announced his departure at the shed to the accused, the deceased and Mr Miringaorangi. The accused became enraged, and a struggle developed between him and Mr Wolfe. The accused threatened to kill Mr Wolfe, and spoke of burying him. Eventually, Mr Miringaorangi grabbed hold of the accused and started to pull him off Mr Wolfe, who then left the property.
On Friday, 28 March 2014, Mr Kip Johnson came to stay at the property, as he had done previously. At that stage, he was aged 39 years. He was an old friend of Ms Smith, had led a nomadic lifestyle, and regarded himself as something of a healer. He stayed at a location on the middle level of the big house.
On Saturday, 29 March 2014, Ms Bignell and Mr Kip Johnson left the big house and went to the shed. At the shed, Mr Kip Johnson was offered heroin and ice by Mr Miringaorangi, but he refused. Mr Miringaorangi spoke to Mr Kip Johnson about "all the people he's killed" and other stories about Mr Miringaorangi's past. Mr Kip Johnson said to Mr Miringaorangi that Ms Smith would not "be happy with Billie living here", to which Mr Miringaorangi replied "Don't worry about it, we'll leave her under a tree. Martha's law".
Later that same evening, both the accused and Mr Miringaorangi, accused Mr Kip Johnson of sleeping with the deceased. According to Ms Bignell, that accusation was consistent with the general belief of the accused and Mr Miringaorangi that other men were sleeping with the deceased. Mr Miringaorangi said to Mr Kip Johnson that, if it were proven that Mr Kip Johnson had slept with the deceased, Mr Kip Johnson would have to give Mr Miringaorangi his car. Mr Kip Johnson gave Mr Miringaorangi the car keys, not to admit to sleeping with the deceased, but to appease Mr Miringaorangi, as Mr Miringaorangi was "a standover dude" and a "really powerful person". Mr Kip Johnson described the appearance of the accused that night as "covered in these like lesions and weird scaly skin" and "looked nearly dead". Mr Kip Johnson then returned to the big house for the night.
On Sunday, 30 March 2014, Mr Kip Johnson was at the big house with Ms Bignell, Mr Andrew Johnson and Jack. Mr Miringaorangi came by the big house. Ms Bignell and Mr Miringaorangi told Mr Kip Johnson that Ms Bignell was Mr Miringaorangi's daughter. Later in the evening, Mr Kip Johnson could hear the accused yelling out from the shed "you're sleazy," which was directed to Mr Kip Johnson. The yelling continued for approximately 20 minutes until Mr Kip Johnson yelled back at the accused "shut up, there's people here." The accused was then quiet for the rest of the evening.
On Monday morning, 31 March 2014, Mr Kip Johnson did some gardening around the property. He went to the shed to give the accused some healing leaves, and saw Mr Miringaorangi and the deceased sleeping together on a low mattress. Mr Miringaorangi yelled at Mr Kip Johnson "really loudly" to "get out of here", that the house is "not yours anymore" and shouted he was a paedophile. Mr Kip Johnson was worried that Mr Miringaorangi was dangerous. The accused also yelled at Mr Kip Johnson "Get out of here. Fuck off. You're sleazy. You're a paedophile." Mr Kip Johnson left two explanatory notes for Ms Bignell before leaving the property.
The accused spent most of that weekend pulling out weeds. His hands and legs became grossly blistered and infected as a result.
[6]
Events of early April 2014
On Tuesday, 1 April 2014 at about lunchtime, Mr Chris Lawler, a neighbour who had lived on Tomewin Road for many years, was driving into Murwillumbah. He saw the deceased standing by the side of the road with Mr Miringaorangi, and gave them a lift into that town. During the trip, Mr Miringaorangi said words to the effect of "Gary's really sick, he can't get out of bed".
On Wednesday, 2 April 2014, Ms Bignell put her son Jack on the school bus at Tomewin Road early in the morning. Whilst walking back to the big house, she saw spots of blood. She followed the trail, and came across a large, thick puddle of blood. She used buckets of water to wash it. She noticed that blood had splashed up against a wall. She had a dog with her, and it located something in the bushes. The deceased appeared from the bushes. Her clothes, face and head were covered in blood, some of which was fresh and some of which had dried. Ms Bignell insisted that the deceased accompany her to the big house. The deceased replied "I can't come to your house. I was told not to come to your house". The deceased told Ms Bignell that the deceased was infected with Hepatitis C, with the result that Ms Bignell took care not to touch her.
Eventually, the two women entered the big house. Ms Bignell assisted the deceased to clean herself up. Ms Bignell noted that the injuries of the deceased were severe. Ms Bignell recorded that "half of her face looked like someone had booted it". Ms Bignell spoke of her own experience of domestic violence, and advised the deceased to leave the property.
The evidence of Ms Bignell in her statement of Saturday, 5 April 2014 was that the deceased refused to say who had assaulted her. In contrast, during a "video run around" with police of Monday, 7 April 2014, Ms Bignell said that the deceased had repeatedly spoken of the injuries as having been inflicted by "both of them". I interpolate that the Crown prosecutor made it clear to me that the Crown case is that the accused committed the offence alone, and was not part of a joint criminal enterprise.
At about 1 or 2 pm on the Wednesday, Mr Miringaorangi came to the big house. He said repeatedly to the deceased in the presence of Ms Bignell "You know that I didn't do this to you". The deceased responded to that proposition by nodding.
Ms Bignell spoke of the deceased being given a lift into town so that she could stay with her sister, Ondine, and her family. Mr Miringaorangi said that that was impossible, because the deceased had had an affair with the husband of her sister, and was therefore unwelcome in that home. I interpolate that the evidence by statement of Ms Ondine Weate was that no such thing had occurred.
The deceased and Mr Miringaorangi remained on the lower level of the big house, whilst Ms Bignell went to the kitchen on the middle level. She could hear the deceased and Mr Miringaorangi talking, and on occasions his tone got louder. More than once, Ms Bignell went downstairs and told Mr Miringaorangi to "[l]ose your tone".
At about 4pm, the boy Jack returned from school. He was shielded from the brutalised appearance of the deceased.
Later in the evening, at about 6 pm, the accused appeared. Ms Bignell permitted him to speak to the deceased. He also spoke to the deceased in the presence of Mr Miringaorangi. The deceased nodded to Ms Bignell that she was content for both men to be in the room with her. Ms Bignell did not hear anything that the accused, the deceased and Mr Miringaorangi spoke about.
Later again, at about 7.30 or 8 pm, Mr Andrew Johnson returned to the big house. At the request of Ms Bignell, Mr Andrew Johnson offered to take the deceased into town. She declined. In the absence of the accused and Mr Miringaorangi, Ms Bignell confirmed with the deceased that she did not wish to leave the property. The deceased replied "No it is okay, I want to stay. Tom has more self-control than Gazza".
Eventually, the deceased, the accused and Mr Miringaorangi all left the big house. Ms Bignell, Jack, and Mr Andrew Johnson all went to bed. Ms Bignell did not hear anything, including any noises from the shed, that evening.
At about 8 pm on the Wednesday, Mr Emzin popped in to the property. He had not seen the accused for approximately two weeks. Mr Miringaorangi came out to the front of the shed and welcomed him inside. The accused was not there. Mr Miringaorangi told Mr Emzin that the accused was at the big house, and was not walking at the time due to a spider bite. Mr Miringaorangi said that his daughter (that was how he spoke of Ms Bignell) was at the big house looking after the accused.
Mr Emzin took a seat inside the shed. Mr Miringaorangi asked the deceased to come out from the bedroom within that structure. She declined. The request was repeated, and again declined. Mr Miringaorangi ordered the deceased out of the room. At the time, his tone was stern and intimidating. The deceased appeared, and Mr Emzin saw immediately that she had significant injuries to her face. The deceased apologised for her "attire".
Mr Miringaorangi obtained a belt from a wardrobe in the shed that Mr Emzin described as having holes in it, dark, and being of significant width. In the presence of Mr Emzin, Mr Miringaorangi wrapped the belt around his fist and said to the deceased "You like my games don't you Nikki".
Mr Emzin was afraid, and wanted to leave the shed. Whilst Mr Miringaorangi was momentarily out of the shed, Mr Emzin took the opportunity to do so. Mr Miringaorangi followed him, and spoke of the possibility of Mr Miringaorangi buying the property. Mr Emzin left and visited Mr Gallagher, and told him what he had seen.
During a "video run around" with police of Monday, 7 April 2014, Ms Bignell stated that she made a coffee for the accused on the morning of Thursday, 3 April 2014, and delivered it to the accused, who was lying on the bed in the loft of the big house. At this time, Ms Bignell described the accused as "in pain," as "his hands were extreme," with infectious blisters on them. Ms Bignell placed the coffee on the bedside table because she did not want her hands to be near the hands of the accused. She left the loft saying "I have to get [Jack] ready for school".
Later on the morning of Thursday, 3 April 2014, Mr Gallagher went to the property with Mr Phillips. The two of them alighted from a car and walked towards the shed. Mr Miringaorangi was sitting on a chair near the front door. He stood up and said "You can't go in there". Mr Gallagher and Mr Phillips disregarded him, and found a way in through a side entrance.
Mr Gallagher noted that blankets had been placed up against the interior of the windows of the shed, thereby blocking any view from the outside. It was dark inside the shed. Mr Gallagher called out to the accused, who answered from a small, low bed on which he was sitting. The accused was naked and drinking from a beer stubbie. The witness feared that the accused had been bashed by Mr Miringaorangi. Mr Gallagher saw that the accused had scabs and sores all over his hands and legs. Mr Miringaorangi spoke of the accused having suffered a spider bite. He also spoke incoherently of somebody "[l]ooking at the girl through the bushes. Had to touch up".
Mr Gallagher saw the deceased lying on the bed in the bedroom. She was lying in a neat position, and had a blanket drawn up to her chin. Although her head looked bigger than usual, Mr Gallagher did not notice injuries to her head. Mr Miringaorangi or the accused said "Leave her. She is resting". I interpolate that one can infer that the deceased was dead by that time.
Mr Gallagher did not focus on the welfare of the deceased, because he was concerned about the welfare of the accused. He said that he would return the next morning and, if there were no change to the condition of the accused, Mr Gallagher would call an ambulance. Mr Gallagher and Mr Phillips left.
Mr Phillips gave evidence confirmatory of the above. He described the accused as looking like the inmate of a prisoner of war camp (I infer that he meant a camp maintained by the Japanese Army during World War II). After the two men had left the shed, Mr Phillips spoke to Mr Gallagher of the possibility of obtaining an ambulance right away. Mr Gallagher expressed concern about the cannabis plants that were growing on the property being discovered by the authorities.
Meanwhile, on the same morning, Ms Bignell had walked Jack up to the road in order to put him on the school bus. She had gone back to bed, and slept in for a time. Later, at about 2.30 pm, she was visited at the big house by both the accused and Mr Miringaorangi. They both told her that "Nikki is gone. We put her on a bus". Ms Bignell thought that was a positive outcome, because she was disgusted by the injuries inflicted upon the deceased. Ms Bignell inferred that the deceased had travelled by bus back to her hometown, Sydney.
The undisputed evidence of Ms Bignell was that the Thursday evening was quiet. She slept in the big house and heard nothing from the shed.
On the morning of Friday, 4 April 2014, Ms Bignell put her son on the school bus in accordance with usual practice. She decided that she would like to have a day away from the property, and spoke to her friend Melanie, who agreed to a day out. Mr Miringaorangi dropped round to the big house, and she told him of her planned day out. Mr Miringaorangi asked for a lift.
At about 9.30 am, the female friend of Ms Bignell arrived in her car at the property. The friend Melanie, Ms Bignell and Mr Miringaorangi travelled towards Coolangatta. Mr Miringaorangi was quiet. He was dropped off on the main street of Coolangatta.
Ms Bignell enjoyed her day out with her friend. She returned to the property at 3.40 pm. Mr Miringaorangi was already at the big house; the arrangement had been that he would make his own way home from Coolangatta. On arrival, Mr Miringaorangi told Ms Bignell "I took Gazz to the Murwillumbah Hospital". Mr Miringaorangi subsequently helped Ms Bignell clean the kitchen.
On the same morning, the Friday, Mr Gallagher had returned to the shed with his friend Mr Phillips. Mr Miringaorangi was not present. The two men climbed in the same window, and saw the accused in the same position as the day before. Mr Gallagher expressed to the accused the need for an ambulance to be called. The accused said "No. Don't call the ambulance". According to Mr Gallagher, the accused kept talking but was not making sense. He was speaking of "The Kip the Kippa. You know the paedophiles downtown. You know the double jeopardy". The evidence of Mr Gallagher was that the accused was "ranting".
The evidence of Mr Phillips was that the accused was babbling, his eyes were wide open and rolling around in his head and flashing, and he was speaking of double jeopardy, paedophiles and "the kipper".
An ambulance was called, and Mr Phillips and Mr Gallagher waited for it at the main road. Whilst they were waiting, Mr Miringaorangi turned up in a taxi. Mr Phillips thought that was unusual, because of the expense involved. The ambulance arrived shortly thereafter. Mr Phillips and Mr Gallagher left, and took some items to a rubbish tip that had been at the property of Mr Gallagher.
Ambulance officers Quinn and Nye arrived at 12.46 pm. According to Officer Quinn, they were met by two men, who one can infer were Mr Gallagher and Mr Phillips. At the shed, they met Mr Miringaorangi. He took them to the accused, and remained in the shed the whole time.
The accused had a swollen left leg that was painful to the touch and hot. He was conscious and speaking. He gave a history of having been bitten by a spider one week before whilst out on the grass. He spoke of his leg having been swollen for three days and being unable to bear weight on it. His speech was continuous and he obeyed commands. Cuts to his hands were noted, and he explained that he had been handling glass whilst weeding. He was cooperative and answered all questions asked of him.
The accused stood with assistance and was able to hop to the door of the shed. Mr Miringaorangi remained at the shed, and was standing outside when the ambulance drove off with the accused. The ambulance arrived at Murwillumbah Hospital at 1.35 pm.
According to Officer Nye, Mr Miringaorangi seemed quite concerned about the accused. Mr Miringaorangi said that he himself lived nearby.
Officer Nye described the accused as conscious, oriented, communicative, and not intoxicated. She also noted the history given of the leg becoming swollen and unable to bear weight about three days previously. She saw numerous lacerations to the arms legs and feet of the accused, which she opined were not from the Friday but were not particularly old either. Because the lacerations travelled up the arms of the accused, she did not regard the history of handling glass as being consistent with them.
Her evidence was that the accused seemed to wish to cover his legs with a blanket, rather than - perhaps as one might expect - his genitals in the presence of the two female ambulance officers. He was transported to the ambulance in the cradle carry. On his departure, Mr Miringaorangi said that he would look after the property.
[7]
Events after the accused was admitted to Murwillumbah Hospital
Ms Kristy Hughes, a triage nurse, spoke of the accused being brought into the emergency department of Murwillumbah Hospital at 1.50 pm on Friday, 4 April 2014. She was the first nurse to look after him. He had a swollen and painful left leg, and blisters and sores on his arms and hands. He had a high temperature with pain in his left leg. She gave him morphine for pain relief. He said something about having been bitten by a spider and having crawled through broken glass. She described him as dishevelled, unkempt and "vague however compliant with my questioning".
The next nurse to care for the accused was Ms Susan Lu. She saw him in the emergency department at about 2 pm on Friday 4 April. The accused had a swollen left leg and a fever. He spoke of being a pumpkin farmer who lived at Tomewin Road. The accused appeared dishevelled, unclean, and weak both physically and mentally. He was blinking slowly and with his eyes wide. He did not appear intoxicated.
He answered the questions of Ms Lu, but did not volunteer information and used simple language in his answers. Ms Lu thought that he may have been cognitively impaired.
The accused was given anti-inflammatories and a non-prescription analgesic at 1.55 pm. At 2 pm he was given antibiotics. At 2.05 pm and 2.25 pm, morphine was administered. At 3 pm he was given another antibiotic. At 3.55 pm, the accused was given more morphine.
Dr Polong saw the accused in the emergency department at about 2.30 pm. He examined the accused for about 30 to 45 minutes. The accused gave a history of having been crawling in the dark on the ground in order to pull out tall grasses about two days previously. He also spoke of living alone. He complained of itchy eyes.
Dr Polong noted multiple abrasions on the hands and legs of the accused that were forming scabs. His left leg was moderately swollen. No abnormality was detected in the eyes of the accused. The left leg was diagnosed as suffering from cellulitis. Antibiotics were prescribed, and eye drops were given.
Dr Polong was of the opinion that the liver of the accused may have been working sub-optimally. There was also an indication that the accused was malnourished.
At 4.40 pm, the accused was transferred from the emergency department to the medical ward. It was difficult moving the accused, because he had trouble walking. There, the accused was handed over to Nurse Goehring.
Nurse Goehring made notes on the admission of the accused to the medical ward. She spoke of the accused looking unkempt, having a swollen left leg that he was unable to bend and could only lift with difficulty, and a rash over his entire body. She was told at the handover of the patient that he was a pumpkin farmer. The accused said that he lived with and looked after a dog. The record of the admission of the accused into the ward at 4.40 pm was completed 20 minutes later.
Nurse Goehring recorded that the accused said that he lived alone. He spoke of drinking six stubbies of beer a day and spoke of smoking daily. His speech was recorded as being normal. There was no record of the accused being seen to be disoriented, or intellectually disabled. He denied using amphetamines or drugs of dependence. The accused answered in the negative with regard to questions designed to elicit issues with mental health. He answered questions in simple language and did not initiate conversation. Although he was recorded as being oriented with regard to person and place, he could not answer questions with regard to the date, month or year.
Nurse Vicki Dale commenced work at about 1 or 1.30 pm on the Friday in the medical ward. She did not record the time when she first saw the accused. Nurse Dale regarded him as unable to walk. When she first saw the accused, he was filthy, and looked like he may not have showered for six months.
Nurse Dale recalled receiving a call from a woman who identified herself as the niece of the accused at about 9 pm on the Friday. I interpolate that I understand that the parties agree that that person was in fact Ms Bignell. The purported niece told Nurse Dale that the accused would be difficult to shower, was "vague", and had no clean clothes.
Ms Stacey Byrnes was working as a nurse in the medical ward. She did not have anything to do with his admission, but knew he was on the ward.
Ms Joy Wade was working as a nurse at the hospital as well. She began her shift in the medical ward at 9.30 pm on Friday, 4 April. She made notes about the accused at about 6 or 6.30 am on Saturday, 5 April 2014. She described the accused as very vague or confused, and not making sense. He was picking at many of his scabs, and plucking out body hair. Nurse Wade asked him to stop picking at his scabs. In her opinion, the accused had a cognitive impairment. He was unsteady in his movements. He was polite and thankful for his medical care.
Meanwhile, back at Tomewin on the Friday evening, Mr Emzin spoke to Mr Freeman, and told him that the accused had gone to hospital. Mr Emzin also told Mr Freeman that Mr Emzin had been to the property on the Wednesday night and seen the bruises to the face of the deceased. He also spoke of Mr Miringaorangi having wrapped the belt around his hand. Mr Emzin expressed the opinion to Mr Freeman that Mr Miringaorangi had beaten the deceased. Mr Freeman and Mr Emzin consumed a few beers, and decided to go to the property that night.
They drove there and parked near the shed. All was in darkness. Mr Freeman was yelling out "Nikki, turn on the lights". Mr Freeman went to open a sliding door of the shed. Mr Freeman was punched to the right side of the head. There was a struggle, and Mr Freeman hit his head on the concrete. The other person disappeared into the darkness. Mr Emzin pulled Mr Freeman from the ground. The latter was dazed. They left the property. Mr Emzin stayed at the home of Mr Freeman until about 5 am on the Saturday. On the Saturday morning, Mr Freeman woke up with numerous injuries.
The evidence of Ms Bignell about the events of the Friday evening at the property was as follows.
Because it was a Friday night, Jack was allowed to stay up late, and went to bed at about 10 pm. Mr Miringaorangi was down at the big house, and sat outside on the veranda playing his guitar.
At about 10.40 pm, Ms Bignell heard a car come down the driveway and park near the shed. Mr Miringaorangi was still at the big house at that stage. He came into the house and asked Ms Bignell to turn all the lights off. Ms Bignell armed herself with a machete from the big house. She heard the voices of Mr Emzin and Mr Freeman. One of the voices spoke of killing one or more of the occupants of the shed. The vehicle that she had heard departed, but returned five minutes later. Again, men were shouting and speaking of killing.
Mr Miringaorangi hid under the veranda of the big house. In the opinion of Ms Bignell, he was paranoid, and believed that people were outside even after the vehicle was heard to depart a second time, and Ms Bignell was confident that no one else was present. Ms Bignell put the state of mind of Mr Miringaorangi down to his abuse of ice. She herself smoked a small amount of ice in order to calm her nerves that evening. It was only at 5 am on the Saturday that the episode came to an end, with Ms Bignell going down to the lower level of the big house and retiring to bed.
Ms Bignell woke up at about 9.30 am on the Saturday. Mr Miringaorangi came down to the lower level of the big house. He continued to believe that intruders were on the property, and accused Ms Bignell of being part of it. Mr Miringaorangi used his own mobile phone to call the police, and then put Ms Bignell on the phone to them. She asked the police to attend the property. She saw a police car drive slowly past the entrance to the property, but it did not stop.
Jack was ready to go into town by way of a lift from Mr Andrew Johnson. Mr Miringaorangi insisted upon being given a lift himself. Mr Andrew Johnson agreed and said he would do two trips, with Mr Miringaorangi as the first passenger. Mr Miringaorangi asked Mr Andrew Johnson to drop him at the police station in Murwillumbah. It was not until 1.30 or 2 pm on the Saturday that Ms Bignell, Mr Andrew Johnson, and Jack drove into town.
Returning to Murwillumbah Hospital, on the Saturday morning Nurse Dale was caring for the accused again. She arranged a shower for him, and took the step of providing antiseptic for use in the shower. The accused talked about bringing Nurse Dale a pumpkin.
The accused, in the opinion of Nurse Dale, generally showed no emotion at all. He always seemed flat, neither happy nor sad. He was, in her opinion, quiet and vague.
Later, Nurse Dale saw that the accused was sitting on a veranda of the ward. She saw a man with dark skin walk over to the accused; there was no dispute between the parties that that was Mr Miringaorangi. Nurse Dale had a recollection of seeing Mr Miringaorangi coming up to the medical ward with a hammer. She recalled approaching him and taking the hammer from him. Nurse Dale could hear Mr Miringaorangi talking loudly, but she could not understand what he was saying. She could hear the accused saying "No. No. No" over the voice of Mr Miringaorangi. She did not believe a fight was going to occur, and if she had held that belief she would have phoned security.
Nurse Stacey Byrnes was working in the medical ward on Saturday 5 April. She saw a colleague, Ms Sue McIntyre, with Mr Miringaorangi. Ms McIntyre had a hammer in her hand. Nurse Byrnes saw the supervisor arrive, and saw her to be standing in the entrance to the office with Mr Miringaorangi. Twenty minutes later, Nurse Byrnes saw Mr Miringaorangi walk towards the women's section of the ward. He was talking to another male. Ms Byrnes was concerned about the safety of patients, but could not hear what the two men were saying. Later that day, Nurse Byrnes saw a household hammer with a wooden handle on a desk at the hospital.
Ms Carolyn Brodbeck was also working as a nurse at Murwillumbah Hospital in April 2014. She was working in the medical ward and was caring for the accused. She made note of his blisters and wounds. He gave a history of injuring himself whilst gardening, which Nurse Brodbeck thought was unlikely.
To her recollection, one or two days after speaking to the accused she heard people whispering on a veranda near to where she was. She heard the phrase "fucking cunt" being yelled. She saw a person of dark complexion literally standing over the accused, who was seated. Again, there is no dispute between the parties that that person was Mr Miringaorangi. Mr Miringaorangi was pointing at the chest of the accused. The accused was observed by Nurse Brodbeck to push himself back in the chair and appeared "very frightened". Nurse Brodbeck could not hear what was said by Mr Miringaorangi other than swear words. The accused was listening and not talking back to Mr Miringaorangi.
Nurse Brodbeck asked that the bad language cease. Mr Miringaorangi and the accused looked at her. Mr Miringaorangi took a few steps back. It was then that Nurse Brodbeck noted another gentleman in company with Mr Miringaorangi. She described him as a man with a tanned complexion whom she regularly saw around Murwillumbah, who seemed to be engaging in arguments with himself. When she first saw him he was standing up against the door jam, but when she involved herself he walked off the veranda into the hallway.
Nurse Brodbeck stayed there for a few minutes. Mr Miringaorangi stayed talking to the accused for about five or 10 minutes, but not "in his face". After that, Mr Miringaorangi and the other man left. After Nurse Brodbeck involved herself, she heard no more yelling from either Mr Miringaorangi or the accused.
Ms Patricia Casson was also a nurse who cared for the accused on the Saturday. She recalled seeing a man whom she thought could have been a Maori with another, white male.
On the Saturday, Dr Wellm saw the accused in the medical ward. Dr Wellm queried whether the accused was suffering from septic arthritis, and changed the antibiotic. When asked about the medical records of the accused created by Dr Wellm, Dr Polong agreed that a doctor in the medical ward would be provided with more time and information about a patient than a doctor in the emergency department.
Nurse Casson was also present with Dr Wellm when he made his medical notes. Her evidence was that the accused was unable to walk very well, and had damaged his knees. The accused was dishevelled, and vague as to how he obtained his injuries.
Whilst the accused was in hospital at Murwillumbah, he was monitored for symptoms of alcohol withdrawal. Speaking generally, he did not suffer from notable adverse symptoms. There was a spike in his level of anxiety, which I shall discuss later.
After having visited the accused at the hospital, Mr Miringaorangi attended Murwillumbah police station. Although there is no direct evidence from any police officer about that attendance, one can infer that Mr Miringaorangi spoke of there being a body at the property. He travelled from Murwillumbah police station to the property with uniformed police officers. He showed them the body of the deceased lying on the bed in the bedroom of the shed.
Inspector Telfer was at that time attached to Tweed Heads Police Station. On the afternoon of Saturday, 5 April, he was the supervisor of general duties police officers. At about 2 pm he heard many radio broadcasts about a person having taken police to a body at Tomewin. He drove a police vehicle with a colleague to the property and saw the deceased there. Numerous other police officers attended. A crime scene warrant was handed to Inspector Telfer.
At 2.15 pm, Detective Sergeant Frost spoke with a police inspector about the possibility of a dead body being at the property. In due course, Detective Sergeant Frost became the officer in charge of the investigation. He arrived at the property at 3.05 pm. He inspected the scene. No clothes were found on the floor of the shed. No shoes were found with a triangular pattern on the sole. A belt was located in the wardrobe of the shed. One vehicle at the scene was later swabbed for DNA. None was found.
Detective Sergeant Frost and his colleague Detective Senior Constable Hughes thereafter engaged in an electronically recorded interview with Mr Miringaorangi. The interview extended over 90 minutes, only a portion of which was tendered in evidence on the voir dire. The detectives drew attention to a number of injuries on the hands of Mr Miringaorangi. He explained at least one of them on the basis that he had been working on a vehicle at the property, and the bonnet fell onto his hand. At around the time of the interview, police divested Mr Miringaorangi of a Medicare card that was in the name of the accused.
In his electronically recorded interview, Mr Miringaorangi implicated the accused in the murder of the deceased. At the conclusion of the interview, Mr Miringaorangi signed a separate statement to the effect that he was prepared to give evidence in accordance with his interview. A number of forensic procedures were subsequently carried out on Mr Miringaorangi.
Detective Sergeant Frost was aware that the accused was currently in hospital in Murwillumbah. He believed that there was sufficient evidence to arrest the accused for the murder of the deceased. Detective Sergeant Frost asked Detective Senior Constable Straume to speak to the accused at the hospital, place him under arrest, and to audio record their interaction. Detective Sergeant Frost did not ask Detective Senior Constable Straume to provide the accused with his "Part 9 rights," pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). Detective Sergeant Frost directed Senior Constable Holiday, who had been the custody manager earlier that day, to read those rights to the accused. Subsequently, Senior Constable Holiday did not comply with the direction of Detective Sergeant Frost in that regard because of "operational requirements".
In accordance with the direction of Detective Sergeant Frost, Detective Senior Constable Straume and Sergeant Amos attended Murwillumbah Hospital. They spoke to the accused. Detective Senior Constable Straume asked most of the questions. The interview was audio recorded. It commenced at 7.20 pm and concluded at 7.30 pm on Saturday, 5 April 2014.
At the start of the interview, Detective Senior Constable Straume warned the accused that he was not required to say anything unless he wished to do so; and that anything he did say or do would be electronically recorded. She did not warn the accused that anything he said could be used in evidence against him. The accused gave generally monosyllabic answers to the introductory questions of Detective Senior Constable Straume.
When asked about any incident at the property, the accused spoke of having been defending the property of his Uncle Jack. He spoke of the property as belonging to his uncle. He also spoke of his uncle having fought on the Kokoda Track, and having been a prisoner of war in Japan. I interpolate that the sister of the accused, Ms Smith, gave evidence that the uncle in question had indeed served in the Pacific in World War II, but had nothing to do with the property at Tomewin.
The accused admitted that he knew the deceased. The following passed between him and Detective Senior Constable Straume:
"Q16 What can you tell us about her?
A I hit her.
Q17 What else can you tell us about that?
A Badly.
Q18 You hit her badly? Where did you hit her?
A In the face.
Q19 In the face? When did you hit her?
A Two or three nights ago now."
When asked why things had come to that, the accused spoke of the deceased bringing paedophiles to the property who had tried to get in and take the property. He spoke of the deceased being "somewhere on the property".
The accused spoke of having collapsed, and having been in agony for about seven days as a result of his leg.
When questioned further about the location of the deceased, he said that she was currently in the shed.
When asked by Sergeant Amos how the deceased was when the accused saw her, he replied "I punched her and broke her eye socket and hosed her off I done her in". At that stage the accused was crying.
Detective Senior Constable Straume then place the accused under arrest for the murder of the deceased.
When asked by Sergeant Amos how many times he had hit the deceased, the accused replied "about eight or nine times, I think", and later said "I broke her eye socket in the last punch". He said that he had hit her with his right hand.
As for motive, the accused told Detective Senior Constable Straume that he had hit the deceased because he had tried to give her a chance and she had said she would do the right thing for 12 months; she spoke of changing her ways; he gave her half the property; but the deceased lied to him, and still wanted to take the property.
He said that when he last saw the deceased she was "no good". He said that when he last saw her she was in bed, not saying anything. When asked whether she was still alive at that stage, the accused replied in the negative. He spoke of having picked up the deceased and "hosed her off".
When asked why medical assistance had not been obtained for the deceased, the accused spoke of having no phone because it had been stolen. He said that he was unable to drive because he owed a fine. In answer to a question of why he did not drive the deceased to hospital in light of her medical emergency, the accused explained that he could not walk. In answer to a question as to whether anyone else at the property could have driven the deceased to hospital, he posited that no one else had a license. When asked whether anybody else at the property had a phone, he said that they had been stolen, and spoke of "these paedophile people". When asked to explain that reference, he spoke of people coming to the property, raping the deceased there whilst the accused was working, and doing terrible things to her. The accused spoke of an old friend, "my mate Tom", having pointed out what was occurring.
The accused went on to say "I did the damage" and "I warned her I said if you ever played up I'll smash your face in and you won't be able to do it anymore. I did it, I killed her." At that stage the accused can be heard to be crying on the audio recording. Near the conclusion of the recording the accused said "I did it. I'm sorry."
In the rest of this judgment, I shall refer generally to the things said by the accused between 7.20 and 7.30 pm on Saturday, 5 April 2014 to Detective Senior Constable Straume and Sergeant Amos to be found in voir dire exhibit A (with regard to which MFI 10 is an aide memoire) as "the first admissions".
Neither Detective Senior Constable Straume nor Sergeant Amos at any stage advised the accused about any of his rights to a support person, a lawyer, and so forth, in accordance with Part 9 of LEPRA.
On their way out of the hospital, the two police officers took possession of the hammer that the nurses had seized from Mr Miringaorangi earlier that morning.
Ms Bignell gave a written statement to police on Saturday, 5 April. Thereafter, very many witnesses, civilian and police, commenced to give signed statements to police about the events in question.
At 7.30 pm on the Saturday, Senior Constable Curtis was directed to take over the guarding of the accused at Murwillumbah Hospital. Whilst doing so, Senior Constable Curtis maintained a log, and made contemporaneous notes.
At 9.30 pm, the accused woke up and said "you know a bloke for nine years and he has sex with your wife" and "he took my soul, he took my soul away from me".
At 11.15 pm, Senior Constable Holiday arrived at the hospital, and, according to Senior Constable Curtis, fulfilled the role of a custody manager by reading his rights to the accused, and allowing the accused to read a summary of Part 9 of LEPRA.
Senior Constable Holiday gave evidence that he was the custody manager from 6 pm on the Saturday until 6.30 am on the Sunday at Tweed Heads Police Station. At 8.30 pm on the Saturday, somebody gave him a field arrest form, and informed him that the accused had been arrested at 7.25 pm at Murwillumbah Hospital. Senior Constable Holiday updated the custody management record, backdated it to 7.25 pm, and noted nothing unusual in it. I interpolate that that was a rather pointless exercise, in that, at that stage, the custody manager had not seen or spoken to the accused.
The custody manager drove to Murwillumbah Hospital to advise the accused of his Part 9 rights, but due to "operational requirements" only arrived at 11.15 pm on the Saturday. The accused was asked whether he understood the rights read to him and whether he could read. The accused answered in the affirmative, and appeared to read the document. He was asked to sign his name, and did so.
It was at 12.42 am on the Sunday that the custody manager updated the custody management records to show that the accused was advised of his rights at 11.24 pm on the Saturday evening.
At 11.55 pm, Senior Constable Robinson commenced undertaking forensic procedures upon the accused. The accused incorrectly repeated that the date was 7 April. In response to a question of whether the accused wanted to see a lawyer, the accused said he did not need one. The forensic procedure was being recorded, however there was a battery failure at 12.07 am. The forensic procedures concluded at 1.31 am.
Returning to the evidence of medical practitioners, Nurse Wade recorded that she gave the accused Panadol at 10 pm on the Saturday. At midnight she gave him antibiotics. The accused was polite, and more coherent than he had been the night before.
At 1.55 am on Sunday, 6 April 2014, Nurse Wade gave the accused morphine for pain. She gave him antibiotics at 6 am. Her evidence was that the accused needed assistance in being able to access the toilet. Nurse Wade believed that she had been told at the shift handover that the accused had said that he wanted to commit suicide. No symptoms of withdrawal from alcohol were noted.
Separately, a "spike" in the anxiety level of the accused is recorded in the alcohol withdrawal record as having occurred at 7.30 pm; that is, very shortly after the accused had been told that he was under arrest for the murder of the deceased. The alcohol withdrawal assessment was discontinued on the Sunday, on the basis that it was unnecessary.
Meanwhile, people connected to the property began to be aware that the body of the deceased had been located there by police.
On the Saturday, Mr Gallagher was informed of the presence of police at the property. He thought it was the accused who had died. He also had a conversation with Mr Freeman, who told Mr Gallagher of having been king hit during his visit to the property the evening before. Mr Gallagher saw swelling to the face of Mr Freeman.
Ms Smith was told on the Sunday morning that the deceased was dead and that the accused had been taken to hospital by ambulance. She commenced to drive from Queensland to the hospital, and dropped into the property on her way.
Returning to Murwillumbah Hospital, on the Sunday morning, Ms Catherine Rogers cared for the accused in her role as a nurse. She commenced her duties at 7 am. She described the accused as "unkempt but calm". He did not engage in conversation unless prompted. When prompted, he would do what he was asked. Whilst being showered on a chair, the accused was physically incapable of reaching the showerhead. He was agitated, and was rubbing his hands on the skin of his arms and legs. He drew blood from his scratching, but when asked to stop he did so. When returned to bed he was no longer agitated. He was administered morphine at 11.55 am and 12.40 pm on the Sunday.
Ms Stacey Byrnes was also one of the nurses caring for the accused in the medical ward of Murwillumbah Hospital on the Sunday. She recalled helping Nurse Rogers getting the accused into the shower chair. She described the accused as chatting and not making much sense. He seemed to her to be in a confused state, though he would comply with basic directions.
On Sunday, 6 April 2014 at 6.45 am, Senior Constable Keller went to Murwillumbah Hospital in order to guard the accused. He was on duty with Senior Constable Woods. Senior Constable Keller took over from Senior Constable Curtis.
The accused was calm and content, but distressed by pain in his leg. Senior Constable Keller saw that one of the legs of the accused was grossly swollen, and also saw a number of small sores over the body of the accused. Mr Gallagher attended the hospital in order to visit the accused, but was not permitted to do so. Detective Senior Constable Hughes spoke to Senior Constable Keller, and asked him to obtain details of the medical condition of the accused. He also asked Senior Constable Keller to make sure that any visitor of the accused did not whisper with him.
Later, Ms Smith telephoned and indicated that she would visit the accused. At about 11.15 am on the Sunday, she arrived along with her son, Mr Ben Blackman, and his wife.
Senior Constable Keller heard the accused say to his sister "I did the job I killed her". He also heard the accused say "I'm guilty I did it, she shouldn't have done the wrong thing, you know what I'm like when I get angry she shouldn't have done it." Each of Senior Constable Keller and Senior Constable Woods signed a notebook record of Senior Constable Keller to that effect.
Later, when the accused was speaking to his nephew, the accused said "Yeah I did it". He spoke of having used his fists. When asked by Mr Ben Blackman why, the accused said "So she could see it was me". When Mr Ben Blackman asked "Was it Tom?", the accused replied "Not Tom". Mr Ben Blackman subsequently signed the notebook of Senior Constable Woods, although in evidence on the voir dire he suggested that the words recorded there were slightly different from the words the accused had actually used.
According to the evidence of Ms Smith on the voir dire, when she visited the accused on the Sunday, one of his legs was grossly larger than the other. The accused appeared to her to have lost a lot of weight, to be drugged, delirious, shaking, and repeating himself. A police officer asked the two of them to stop whispering. The accused said to her words to the effect of "I did it, I hit her with my fists". He also said that he wished to die, and that the love of his life was dead. He said that Mr Miringaorangi was his mate; that he had not done "it"; and that Mr Miringaorangi had "done his time". The accused also spoke of having already "done a statement".
According to the evidence of Mr Ben Blackman on the voir dire, the accused was very different from how he had previously appeared. He was gaunt, unhealthy, aggressive, and agitated. Normally, the accused was very submissive, but on this occasion he was direct and angry. In the opinion of Mr Ben Blackman, the accused had lost 15 kilograms.
Mr Ben Blackman said in evidence that the accused had not used the exact words "I just use my fists", but rather had said "knuckled her". His recollection was also that, in fact, the accused had not spoken of doing so in order for the deceased to see the accused. Mr Ben Blackman noted that the accused was missing a fingernail on one of his little fingers.
In the remainder of this judgment, I shall refer to the things said by the accused to his sister and his nephew collectively as "the second admissions".
At 11 am, Inspector Telfer, the supervisor of general duties police, attended the Murwillumbah Hospital and spoke to Senior Constable Keller and Senior Constable Woods about the second admissions. He asked them to make a note of what they had heard. Later, those two officers spoke to Detective Sergeant Frost about the same topic.
[8]
Events after the accused was admitted to Tweed Heads Hospital
At 1.15 pm, the accused was transferred by ambulance to Tweed Heads Hospital. Senior Constable Keller and Senior Constable Woods followed in a police vehicle. They were the guards of the accused at that latter hospital until 5 pm on the Sunday.
Meanwhile, back at the property, at about 11.45 am, Detective Sergeant Frost spoke to Ms Bignell, and found the two farewell notes left by Mr Kip Johnson. Later that day, the officer-in-charge informed Ms Ondine Weate of the death of her sister.
Senior Constable Dutton was rostered to work at Byron Bay Police Station at 3.30 pm on Sunday 6 April. On arrival, she was asked to attend Tweed Heads Hospital and perform guard duties with regard to the accused. There she relieved Senior Constable Woods. She had her laptop with her in order to do some police work.
At 6.15 pm Senior Constable Cecil, who was to work with her, arrived. At 7.15 pm a nurse came into the room, and spoke with Senior Constable Dutton. The advice given was that Mr Miringaorangi had come to Tweed Heads Hospital. Senior Constable Dutton was shown CCTV footage from Murwillumbah Hospital said to depict Mr Miringaorangi. Mr Miringaorangi had no contact with the accused at Tweed Heads Hospital.
About 8.30 pm on Sunday 6 April, Dr Saeed Baboli examined the accused at Tweed Heads Hospital. He noted that the accused presented with "5 days of left knee swelling". Fluid was taken from the knee of the swollen leg of the accused. In the opinion of Dr Baboli, the swelling did not seem to be a septic condition, but rather some kind of inflammation. Accordingly, the treatment with antibiotics was stopped and the accused monitored.
At 8.30 pm, the accused urinated in his bed. Shortly after that, a male nurse came to change the sheets. The nurse suggested that the accused must have done something wrong to have police officers with him. The accused said "Yeah I've done something alright". After that, the accused said that he had told the truth. Senior Constable Dutton typed into her laptop what she heard the accused saying.
At about 5 am on Monday 7 April, Senior Constable Dutton heard the accused claim that he had given the deceased the same tablets as he had been given. Senior Constable Dutton believed that the accused had been given endone. The accused became upset and started crying. He said "I shouldn't have done what I'd done", and "I am all fucked up." He said that he should not have looked at the phone. He also said "I couldn't stand it any longer, just finish it. Dragged her outside and hosed down, turned her over and she died from the pain".
A little later, he spoke of the last form of defence; going in and out of consciousness; the swelling in his leg never going away; being able to breathe a bit; and having no strength left.
A little after 5.31 am, in answer to a question as to whether he was all right, the accused said "Yeah I'm alright, my eyes are better. Closure." He spoke of being unable to make a full confession until he got his "eyesight back". A little later, he said "I went through all the pain to get the truth. I didn't know what to do to get the answers." He indicated to the police officers that he had no pain in his leg, but then asked "Do you reckon I should cut my leg off?" Senior Constable Dutton dissuaded him.
Senior Constable Dutton made contemporaneous notes in her laptop as the accused spoke. Later, she transcribed those notes to her notebook. She and Senior Constable Cecil adopted the contents of the notebook.
Although the accused was being treated with eye drops through the night, there was no suggestion from any witnesses that his ability to see was compromised at any stage.
I shall refer to the things said by the accused in the presence of Senior Constable Dutton and Senior Constable Cecil as "the third admissions".
On Monday 7 April, Detective Sergeant Frost and Detective Senior Constable Hughes attended at Tweed Heads Hospital. They spoke to a doctor about the condition of the accused. The doctor advised that the accused had oxycodone in his system, and that it would not be advisable to speak to him at that stage.
[9]
Events after the accused was in custody at Tweed Heads Police Station
The accused was released from hospital at 3.45 pm, and taken to Tweed Heads Police Station. Detective Sergeant Frost directed the custody manager, Senior Constable Jones, to read the accused his rights.
Detective Sergeant Frost spoke to the accused in the charge room at 4.15 pm in the presence of Detective Hughes. The conversation was recorded on an audio recorder. It concluded at 4.20 pm.
During that conversation, the accused said "I can let you know everything you want to know…" He also spoke of "full response of my guilt". When asked how his leg was, he said that it was "just like a knife in me leg for about 12 days".
Detective Sergeant Frost then had the custody manager explain the rights of the accused to him. Detective Sergeant Frost was told that the accused wished to see a solicitor, and one was arranged for him. After that, Detective Sergeant Frost was informed that the accused did not wish to answer any questions, on legal advice.
At approximately 5.19 pm the recording device was reactivated. Detective Sergeant Frost said "But you've indicated to me that you don't wish to answer any questions at this point. Is that right?" The accused replied "Yes, because I don't remember very much of what happened…"
Detective Sergeant Frost administered the so-called "special caution" to the accused, in accordance with section 89A of the Evidence Act 1995 (NSW). When asked by Detective Sergeant Frost to "tell me back what was your understanding", the accused replied "I understand anything I might say that might implicate me in… (Indistinct)… My defence… Yeah, yeah - - - I guess. All right."".
The recording ceased at 5.22 pm.
The accused was thereafter charged with the murder of the deceased. During the charge process, the accused was distraught, crying and upset.
Detective Sergeant Frost returned to duty at about 7 am on Tuesday, 8 April 2014. He read an email from Inspector Telfer, who had been the supervisor on the Monday evening. The email from Inspector Telfer indicated that the accused may wish to speak further with investigators.
At about 8.05 am on the Tuesday, Detective Sergeant Frost went with Detective Senior Constable Hughes to the cell in which the accused was located. The accused was having breakfast. In a nutshell, he asked the police to come back when he was more properly awake.
The police returned at 9.51 am. By that stage the accused had consulted a second solicitor. He was forceful in exercising his right to silence. In explaining what he had been told by his solicitor, the accused said "and she advised me not to speak to anybody or out loud, any, any, like any statement - - - may incriminate me for, for, for, for anything." The interview concluded at 9.52 am.
I shall refer to the things said by the accused to Detective Sergeant Frost and Detective Senior Constable Hughes - in particular, the claim to acceptance of responsibility - as "the fourth admissions".
In between those interactions between the accused and the two detectives, he also spoke to Inspector Telfer on the evening of Monday 7 April. Inspector Telfer had become the custody manager sometime after 6 pm on that evening. As I have said, the accused had arrived at Tweed Heads Police Station in the afternoon.
At about 9.15 pm, Inspector Telfer consulted the accused about his position with regard to bail. Inspector Telfer said words to the effect of "Gary what are your thoughts on bail?" He did not read anything formally to the accused.
The accused said "What do you do, I don't want bail, I just want to face the music, I've done what I've done and it's time for me to face up to it". Inspector Telfer said "Do you mean the lady?" The accused replied in the affirmative, and repeated a number of times the proposition "I'm fucked now I'm going to do a long stretch". Only a portion of that interaction was recorded by Inspector Telfer in the custody management record.
Inspector Telfer gave evidence that the accused was difficult to understand. When the accused was speaking to him, the accused was looking at the ground and sighing heavily.
At about 10.15 pm on that Monday evening, when his fingerprints were taken, Inspector Telfer made observations of the accused that suggested that he had been crying.
Inspector Telfer informed the custody manager who relieved him of the things the accused had said.
I shall refer to the admissions made to Inspector Telfer as "the fifth admissions", whilst appreciating that they are in fact interleaved between the conversations that the accused had with Detective Sergeant Frost.
On Monday 7 April, Ms Bignell engaged in a "video run-around" with police at the property. What she said to police was generally consistent with the summary I have provided of her statement, except for the reference to the deceased having spoken on the Wednesday about having been severely injured by "both".
She also confirmed that she had seen Mr Miringaorangi drinking alcohol on more than one occasion.
She told police that, by the Thursday, the accused was screaming in pain each time he took a step and placed weight on his swollen leg.
She described his hands as being in "atrocious" condition, and spoke of an occasion when they were bleeding freely when the accused was chopping up cannabis leaves.
She also spoke of Mr Miringaorangi on the Saturday morning having changed out of the boots that he was in the habit of wearing, and into a pair of running shoes before he left the property (that is, before Mr Miringaorangi visited the hospital and thereafter attended the police station).
[10]
Events after the accused was incarcerated
By Wednesday, 9 April 2014, the accused was in custody in Grafton Gaol. The following day, Thursday 10 April, he was taken to Grafton Hospital because he was suffering from delirium and hallucinations. To give one example, he believed that he had been cleaning a picture of Julius Caesar off the wall of his cell.
There was no dispute between the parties that, from that point on, the accused became manifestly divorced from reality.
On 15 April, he consulted a Justice Health psychiatrist by video link, who spoke to him for 30 minutes. That was after the psychiatrist had been contacted by a mental health nurse with an eye to determining whether the accused should be diagnosed with delirium.
On Wednesday, 16 April 2014, the accused was admitted to Port Macquarie Hospital from Kempsey Correctional Centre for treatment of septic arthritis in his left knee.
On Thursday, 17 April 2014, the accused was reportedly "severely agitated and aggressive", which was suggested to be due to ice use or withdrawal. The staff at the hospital administered several doses of various medications to settle the accused. Two further episodes of agitation were recorded on 23 April 2014. The accused was also found to have septic arthritis, and was commenced on antibiotics. The accused was also reported to occasionally engage in "bizarre conversation". He told the staff at Port Macquarie Hospital that the sores on his fingers and legs were "from a fire in the back of the police van". He was discharged from that hospital and returned to prison on 24 April 2014.
On 29 and 30 April 2014, the accused was seen by Justice Health psychiatrist Dr Simonelli. The accused spoke of having been in custody since late February or early March (although in fact he had been in custody since 9 April 2014). He spoke of living at the property alone. The doctor was aware that the accused had served short sentences in Australian jurisdictions for offences such as car stealing and the like. The accused spoke of the past two months (that is, since approximately late February 2014) as having been very painful due to a knee injury.
On 29 April, the accused spoke to the psychiatrist of his awareness of having been charged with murder, but said "I didn't do it". He also said that he "admitted to murder because…", but never completed that sentence.
The accused told Dr Simonelli that he tried ice once, had smoked cannabis every day, and had drunk about six beers a day.
Dr Simonelli noted "bizarre facial gesturing". The accused spoke in bursts, and his words were unclear and not fully articulated. He was agitated and picking at scabs. He spoke of "fighting the devil for the past two months" and said that he had "died a few times and came back to life".
Dr Simonelli expressed the opinion that the accused was not aware that his beliefs were not in keeping with reality. He also felt that the accused had probably suffered cognitive impairment from his abuse of alcohol. Dr Simonelli prescribed anti-psychotic medication, combined with a suicide prevention plan which included a nurse observing the accused every 30 minutes.
On 30 April, when seen again by Dr Simonelli, the accused spoke of the devil; a black moon with no light for two hours; and the end of the world. He also referred to heart attacks that had been caused by the devil, and the accused being a dragon who could drain water out of people so that they had no fire in them to fight the accused.
He said "I did not kill that girl". The accused also spoke of having "gotten rid of all the evil", and said that "It's gone back to the year 000 not 2014". He spoke of his struggle with the devil as being beneficial to society.
The impression on that occasion was psychosis featuring delusions, and cognitive impairment secondary to alcohol abuse and possible previous head injuries.
Ms Jennifer Smith gave evidence that she received a phone call from the accused while he was in custody, however was unsure whether he was calling from Kempsey Correctional Centre or Long Bay. Ms Smith asked the accused "Should I be scared?" The accused told Ms Smith that Mr Miringaorangi told the accused "Any trouble with your sister I'll plant her under a tree". The accused told Ms Smith he was changing his plea to not guilty and that "he had to say that to protect me [that is, Ms Smith] and the kids".
On 2 May 2014, psychiatrist Dr Chan saw the accused. He was gesturing bizarrely, rambling, and speaking of a dragon that was fighting the devil. Dr Chan diagnosed delirium, with a possible diagnosis of chronic psychosis.
Medical records of 10 May 2014 show that the accused had calmed, and there seemed to be no psychotic symptoms. The impression was that the functioning of the accused decreased as the day progressed (a phenomenon known as "sundowning"). The accused was noted to be incontinent.
On 12 May 2014, the accused spoke of needing to "camouflaged plants" as paedophiles would come around. He claimed to have seen them rape his girlfriend, although that was not against her will. He said that there were 19 of them. He claimed that a scar on his body was caused by him having been tasered.
Ms Smith gave evidence that, in December 2014, she visited the accused. Ms Smith gave evidence that the accused had told her "Tom Tom dragged him [the accused] up to the shed and said "She wouldn't shut up so I [Mr Miringaorangi] had squashed her head, stomped on her head till her eye socket fell out."
Subsequent to the events of March and April 2014, Mr Miringaorangi was convicted more than once of offences of violence.
Thereafter, forensic psychiatrist Dr Nielssen, forensic psychologist Dr White, and forensic psychiatrist Dr Sheehan saw the accused on his behalf. Professor Greenberg saw the accused on behalf of the Crown. I shall summarise their evidence in more detail later in this judgment; suffice to say all of them were of the view that the accused was not fit to stand trial, but their opinions differed about the question of the reliability of the five sets of admissions.
On 16 June 2016, an MRI brain scan was performed upon the accused. In a nutshell, it showed physical signs of changes to his brain, most likely caused by chronic abuse of alcohol.
On 26 February 2018, Dr Fu, forensic pharmacologist and toxicologist, prepared a report at the request of the Crown. Her focus was upon the various medications that had been provided to the accused whilst he was in hospital, and the effect they may have had on him (it will be recalled that that medication included morphine and endone). In a nutshell, Dr Fu was of the opinion that the medication with which the accused had been treated would have been unlikely to have affected the reliability of what he had said to various persons.
[11]
Summary of the evidence of Mr Miringaorangi
That concludes my chronological summary of the undisputed evidence.
Because of its importance to my decision on the voir dire, it is necessary to set out the evidence of Mr Miringaorangi in quite a bit of detail.
It is to be noted that, for reasons of convenience, the evidence was received on the trial. As I have said, the joint position of the parties, which I accept as entirely orthodox, was that all of the evidence tended in the trial was available to me on the voir dire.
[12]
Evidence-in-chief of Mr Miringaorangi
The witness gave evidence that he is a New Zealander by birth. He is 66 years of age.
He confirmed that he was living at the property in April 2014.
He claimed that it was he who put the accused on the ambulance.
He gave uncontroversial evidence about the layout of the property.
He claimed that he had been living at the property for about six weeks, having met the accused and the deceased in a hotel in Murwillumbah. He moved to the property that very evening. When he moved to the property he was sleeping in the shed. Whilst he slept in the shed, the accused and deceased slept in the bedroom. He only slept in the bedroom of the shed when the accused and the deceased were away.
After about three weeks, he moved to the big house. He moved because of the strange behaviour of the accused. The accused and the deceased were using ice very heavily. So was Mr Miringaorangi.
The accused had a "phobia" about the deceased cheating on him sexually, which was not incorrect. Mr Miringaorangi, however, was not sleeping with the deceased. The two of them had "never" been involved sexually together. He had known the deceased back in the 1980s in Sydney, when she was a sex worker.
When he moved to the big house, Mr Miringaorangi lived in the loft. The loft was being used to dry cannabis. There was a crop growing at the property.
After Mr Miringaorangi moved to the big house, he did not talk much to the accused, because the accused had "gone mental". There were frequent arguments between the accused and the deceased.
Although the accused never accused the witness of cheating with the deceased, Mr Miringaorangi believed that the accused thought that to be the case.
The witness recalled going to the police station on Saturday, 5 April 2014, after he went to the hospital to tell the accused. That was because Mr Miringaorangi was not a "dog", and would not simply go to the police station and let the accused be arrested.
The witness recalled a fight between the accused and Mr Wolfe, but he was not sure whether it occurred on Sunday, 30 March or Monday, 31 March 2014. The fight between the two men took place in the shed. When asked who was in the shed at the time, Mr Miringaorangi replied "me, Nicole and Gazza. Ask Gazza, he'll tell you." (TT 57.40)
He recalled that the fight took place around midday. The accused and the deceased had been drinking, but not the witness. Mr Miringaorangi denied that he drank. The accused referred to Mr Wolfe as a "fucking cunt", and accused him of having sex with the deceased.
After that, there was a big argument between the accused and the deceased. The witness made clear that he was unable to recall dates and days of the week with precision. His evidence was that the accused bashed the deceased. He used the heels of his shoes to do so. Mr Miringaorangi was upset because that event interrupted him being injected with a prohibited drug.
At that stage of the proceedings, the transcript records the following:
"ACCUSED: It's not true.
WITNESS: Who said that, how do you know it's not fucking true I was there.
HIS HONOUR: Just a moment, sir. Just answer the questions that the prosecutor asks and then we'll get through the process.
WITNESS: It's fucking true, Gary.
HIS HONOUR: Just a moment.
WITNESS: It's so fucking true, you gronk.
HIS HONOUR: Just a moment, sir. We can't have people yelling out in court, neither you nor him, otherwise we are not going to get through the process.
WITNESS: Fucking murdering cunt.
HIS HONOUR: Take a moment and then we'll--
WITNESS: I should have fucking killed you too you cunt." (TT 62.30 - 63.50)
Returning to the assault of the accused upon the deceased, the witness recounted that he remonstrated with the accused. He described the deceased spitting blood. He appeared to become upset in the witness box about the fact that he had not acted to protect the deceased. He swore repeatedly in Court.
He was asked whether that was the last time he had anything to do with the deceased or the accused. He replied:
"On talking terms yeah. I, I went to see them in hospital to tell them I'm not a fucking gronk and you know I'm going to the police and "fuck you". (TT 64.13)
His evidence was that, after he witnessed the accused use his heel to assault the deceased, he heard them yelling all night from the shed. He had contact with them the next day. The deceased was walking around like nothing had happened. That was the Monday or the Tuesday. The deceased had come down to the big house in the morning, and the accused followed her. That was the Tuesday morning. On either the Tuesday or the Wednesday, the witness went up to the shed, where the accused told him to clean up the blood.
On reflection, Mr Miringaorangi believed that the fight between Mr Wolfe and the accused had happened on the Tuesday evening. He had caught a bus to go shopping in Murwillumbah on the Wednesday during the day.
Later, Mr Miringaorangi expressed his confidence that he had seen the accused assault the deceased on the Tuesday, and that Mr Miringaorangi had cleaned up on the Wednesday.
During this part of his evidence, the witness continued to swear freely. He was speaking agitatedly and aggressively. When asked about a particular form of alcohol that he claimed the accused and the deceased were drinking, he replied "Ask Gary, he knows what it is".
At one stage, the witness stated that the question of the Crown prosecutor was "stupid", and I asked him simply to answer the questions directly.
When Mr Miringaorangi caught the bus into town on the Wednesday, he walked up to the main road with Ms Bignell and Jack. Mr Miringaorangi took Jack to school that morning. The three of them waited for the bus together. Just after the bus pulled away, Mr Miringaorangi saw the deceased appear from the bushes on the property. That was close to the intersection of Tomewin Road and the southern entrance to the driveway of the property.
During the evidence that I have summarised above, the Crown prosecutor and others (including me) had difficulty understanding what Mr Miringaorangi was saying. At one stage, Mr Miringaorangi said to the prosecutor "Are you deaf?" Again, I asked him simply to answer the question.
When the witness saw the deceased appear from the bushes, it appeared that she had just woken up. He did not really see anything noteworthy about her physical appearance.
He returned from shopping at about 3 pm. No one was in the shed when he dropped groceries off there. He went down to the big house, and saw the deceased, Ms Bignell and the accused. The accused was "upstairs in my room". Ms Bignell and the deceased were taking drugs. Mr Miringaorangi saw that the deceased had bruising under her eye, and a swollen lip. The witness did not bring that up in conversation. The deceased asked Mr Miringaorangi whether he would obtain more drugs, and he agreed. They were delivered at about 5.30 or 6 pm. The drugs were for everyone present. The others used ice, and the witness injected heroin.
On the Wednesday evening, Mr Miringaorangi cleaned up the blood in the shed. The deceased came later, and helped him clean up her own blood. The blood was "everywhere".
On the same evening, Mr Emzin visited the shed. Mr Emzin and the deceased had a couple of beers. Mr Emzin asked the deceased what had happened, and she replied "Gary's trying to kill me the fucking prick" (TT 82.41).
The accused attended later after Mr Emzin had left. He was angry, and Mr Miringaorangi left the shed and went to the big house. The yelling and arguing of the accused and the deceased from the shed made it impossible to sleep. Ms Bignell asked Mr Miringaorangi to quieten things down. Mr Miringaorangi went up to the shed and spoke to the accused and asked him to keep the noise down, bearing in mind the presence of the young boy in the big house. The accused was outside the shed and "punching the trees". Mr Miringaorangi returned to the big house.
The following morning, the Thursday, Mr Miringaorangi rose at about 6 am. He went into the bush and fired two 45 calibre pistols that he possessed. He also inspected the crop of cannabis that was growing at the property.
He returned to the big house at about 10.30 am. With regard to the deceased, his evidence was that "Yes somebody, in my mind, someone told somebody that she's gone to Sydney" (TT 89.29). The last time Mr Miringaorangi had seen the deceased was the previous evening when they had been cleaning up the blood in the shed together.
Later, on the Thursday evening, the witness went to the shed. He saw the deceased and the accused. The accused was sitting on a lounge yelling. The witness did not notice anything about the health of the accused. He was moving around normally.
The deceased was lying on the floor. When he entered, the witness saw her there. He immediately tried to revive her. The accused said words to the effect of "Fuck she's a slut, don't worry about it". The deceased was naked. She appeared to have bruising around her eyes and blood on her face.
Mr Miringaorangi asked the accused "What the fuck happened to you you know". The accused said words to the effect that it was over and done with now, and asked the witness to bury the body of the deceased in a hole. The witness said yes, but did not comply with the request. He picked the body up and put it on the bed. He wiped the blood off the face of the deceased.
No outsider came to the shed on the Thursday. The witness spent the Thursday night at the big house. He did not tell anybody, including Ms Bignell, what he had seen at the shed on the Thursday evening.
On the Friday morning, the witness travelled to the Gold Coast with Ms Bignell and her friend. Ms Bignell had asked him to go with her. The witness agreed, because he wanted to obtain some more ice. He did not believe that he had told Ms Bignell on the Friday morning about the death of the deceased.
The witness returned to the property by bus. At first he suggested that he had come back at about 7 or 7.30 pm. When reminded that the accused had been taken to hospital by ambulance on the Friday at about 12.45 pm, he gave evidence that he was there at the time, and must have been back by then. He gave evidence that Ms Bignell and her friend dropped him back by car.
At that stage, Mr Gallagher and Mr Phillips were at the property. When asked whether he knew them as Brent and Terry, Mr Miringaorangi replied:
"Q. You knew them as Brent and Terry?
A. I knew them as the guy who was running his big mouth off saying he's a good chess player and he played me and I beat him in about five second.
Q. All right?
A. I had him check-mated in five seconds, he didn't know what hit him." (TT 99.10 to 99.15)
Mr Miringaorangi gave evidence that he was aware at that stage of the accused having a mental problem, but at no stage of that week was he aware that the accused had a medical problem.
On the Friday night, Mr Miringaorangi rang the hospital to check on the welfare of the accused. In fact, it was Ms Bignell who rang on behalf of Mr Miringaorangi.
On the Friday evening, people came to the property. According to the witness, they wanted to know why Mr Miringaorangi had not buried the body. It was Mr Gallagher whom Mr Miringaorangi informed that, far from secretly burying the body, Mr Miringaorangi had changed his mind and would be going to the police instead. The witness believed that the people who came on Friday night were the people who had been at the property on the Friday morning.
After the visit on the Friday evening, the witness spent the night in the bush. When the men turned up on the Friday evening, the witness had been in the shed obtaining clothes. The body of the deceased was still there. There were two visits on the Friday evening. A number of vehicles, including a van, a car, and a truck, came to the property.
Things did not settle down until 6 am on the Saturday morning. At that stage, the witness walked down to the highway and hitchhiked into town from there. By that stage he had been "on the ice for a few days".
Before going to the police, the witness went to see the accused in hospital. He did that in order to inform him that he, Mr Miringaorangi, was going to the police. He took with him a hammer tucked into the belt of his trousers. When asked why he had taken a hammer with him when visiting the accused, the witness replied "I told them - the guys were after him, ask Gary he will tell you." According to the witness, he had the hammer with him in order to protect the accused from the persons who visited the property the night before. The witness was going to give the hammer to the accused, but a nurse divested him of it.
The witness was alone when he visited the accused. They discussed his swollen leg. Mr Miringaorangi told the accused that Mr Miringaorangi was going to the police. The visit by Mr Miringaorangi was a matter of courtesy to the accused. Mr Miringaorangi agreed that he might have been angry at the time of the visit. He said to the accused that, if Mr Miringaorangi were a younger man, he would do "your time for you", because Mr Miringaorangi was used to spending time in gaol. The accused told Mr Miringaorangi that the accused would go to the police on Monday and see them, but as he walked away the witness thought that he, Mr Miringaorangi, should go to see them that day.
The witness arrived at the police station at about 1.40 pm. After that, he went out to the property with police officers, and showed them the body. After that, he engaged in a very lengthy recorded interview with detectives.
As the Court adjourned for morning tea, the witness said "If it's any confidence to you Gazza, I didn't mean to ..(not transcribable).." (TT 108.26). I asked Mr Miringaorangi not to make statements in court.
[13]
Cross-examination of Mr Miringaorangi
In cross-examination, defence counsel suggested that the witness had spent more like nine weeks at the property, rather than six weeks. The witness claimed that he could tell the length of his stay by way of the number of cheques that he received for his military service in New Zealand.
The witness agreed that he had the key card of the accused in his possession, that he used it to obtain money of the accused, that he spent it, and that he enjoyed doing so.
He agreed that the accused lost 6 to 10 kilograms of weight in the weeks leading up to his hospitalisation.
The witness at first said that he had just been released from prison before moving to the property. Later, he explained that he had been living in a house at Byron Bay. He agreed that after meeting the accused and the deceased, he went to their home and did not leave.
He confirmed that his position was that he had never had sexual intercourse with the deceased, although he agreed that he had met her back in the 1980s. He was read a portion of his electronically recorded interview of Saturday, 5 April 2014, in which he said:
"She, I was having a relationship with Nicky and Gazza too. We both knew about it. We both talk about it fine, Nicky wanted it, I wanted it, Gazza wanted it. So we were living together. She was the wife and we were the husbands, you know and that worked out good until Gazza came to me, he brought it to the table, he said, told me 'listen I love you brother, I love you and then sitting around bro you know what fucking go', oh yeah, I said 'bro I can't, you can
have her'. He said he gets green with jealous, fucking he's married, agreed to it, so what I had to do, I had to. Listen I know I don't want to hurt you, so I said to him 'From now on Nicky is your missus, she's my mate, you know, I won't touch her brother, I promise, I won't touch her again' and I never did. I kept my word. I'm a man of my word." (TT 114.44 to 115.6)
Thereafter, the following exchange occurred in cross-examination:
"Q. Now do you remember saying that to the police in the recorded--
A. Yes I do--
Q. --interview?
A. Yes I do.
Q. You're telling the police officers there aren't you that after you moved into 904 Tomewin Road you commenced a sexual relationship with Nicky?
A. We weren't talking about sex. While we were at the table we were saying brother, we were talking about his jealousy.
Q. You are indicating to them that he was expressing jealousy about you and
her having sex?
A. No it wasn't about me and her having sex, it was just me being her husband. You see it was meant to be him the husband in the sleeping department and me the husband in the cleaning department because I was the cleaner of the place, I was the worker.
Q. He was jealous of that?
A. No he was jealous of the relationship that Nicky and I had, it was a bit different than what they had, but it worked.
Q. Your relationship was based on you cleaning and working?
A. She loved me.
Q. Is that what you are telling us?
A. Eh?
Q. You were telling the police, weren't you, that you'd commenced a sexual relationship and that caused Gazza to get jealous so he asked you to stop and you agreed, correct?
A. I agreed to something that was never happening in the beginning." (TT 115.7 to 11 5.39)
He agreed that, in fact, the last time he had been in gaol before April 2014 was when he was released from Long Bay in 2012. He did not recall telling the police whilst driving to the property that he had had sex with the deceased twice after meeting her many years ago.
He agreed that the son of the deceased had been living with him at the previous home in Byron Bay.
Mr Miringaorangi agreed that he had been using ice intravenously whilst living at the property. When defence counsel suggested that he was also drinking at the property, he swore at defence counsel. He took great exception to the proposition that he had been a drinker at the property, and swore repeatedly.
Turning to the Thursday evening, he was asked whether he had given the deceased chest compressions. The witness replied "I can't remember but perhaps Gary might - he saw me".
He was taken to a statement that he had signed in the presence of police about six months after his interview, on 11 November 2014. Defence counsel suggested to him that he had said that he had met the accused for the first time in a park, not a hotel. He also said that it was the accused who asked him to stay at the property, not the deceased. The witness could not recall saying to police in that statement that he had never met the deceased or the accused before meeting them in the park at Murwillumbah. He claimed that when he made the statement he had been using ice.
The position of the witness was that he is illiterate, and accordingly cross-examination on the statement was truncated to a degree.
Mr Miringaorangi confirmed that Mr Wolfe had moved out of the big house before Mr Miringaorangi moved from the shed to the big house. When asked whether Mr Wolfe moved out on the day of the altercation between Mr Wolfe and the accused, the witness replied "Yes Gary will tell you". When defence counsel suggested to the witness that, if Mr Wolfe moved out of the big house the day before the assault by the accused on the deceased, then the asserted timing of the move of Mr Miringaorangi from the shed to the big house could not be correct, the witness became upset and swore repeatedly. When I asked him to control himself and not to swear in court, he continued to swear.
The witness was taken to evidence that he had given in chief that, after he saw the accused assault the deceased in the shed, he asked to be permitted to sleep that evening in the big house. It was put to him that that was inconsistent with him having already moved out of the shed to the big house some weeks before. When the topic was explored he said "I'm going to ask them, prosecutor did you ask me that question?" I asked the witness not to ask the barristers questions, and simply to answer their questions as best he could. He replied "What if he's telling us fucking bullshit."
Thereafter I spoke of the possibility of the witness being charged with contempt of court if he continued to swear, the possibility of him being sentenced to imprisonment, and the possibility of him spending time in gaol bail refused pending determination of that charge. After that, in answer to the next question of defence counsel, the witness said "I can't recall. I going to tell you I can't recall because I can't recall nothing now. You just blew it." (TT 133.25)
Thereafter, for quite some time, the witness answered every question with "I can't recall". Eventually, he became responsive again.
As for the delivery of drugs on the Wednesday, the witness gave evidence that they were consumed intravenously at the big house, the needles having been brought down there from the shed.
Prior to that, on the Wednesday, Ms Bignell had told the witness that the deceased had already told Ms Bignell that it was the accused who had assaulted and injured the deceased. In response to the question whether he had said to the deceased "You know I didn't do this to you and if you agree with that I'll get you more drugs", the witness replied to the effect that, in truth, he had been the doormat of the deceased.
He confirmed that, on the Wednesday evening, the deceased complained to Mr Emzin at the shed that the accused had tried to kill her. It was put to him that on 11 November 2014, in his statement to the police, Mr Miringaorangi had spoken of the accused coming to the shed whilst Mr Emzin was still present. He denied having said to Mr Emzin on the Wednesday evening that the accused was incapable of walking. He denied that, in the presence of Mr Emzin, he produced a belt from the wardrobe in the shed. He agreed, however, that there was a belt at the property that was regularly used as a tourniquet when injecting prohibited drugs. It was usually kept in the wardrobe in the shed. He denied producing it on the Wednesday evening and wrapping it around his fist in the presence of Mr Emzin.
His position was that, when Mr Emzin left, he needed to be guided out of the property in his car by Mr Miringaorangi and the deceased, the latter of whom would have been visible to Mr Emzin in his headlights.
He denied that he spent the Wednesday evening in the shed with the deceased.
As for the events of the Wednesday night, it was put to him that at the committal, he had given evidence that, when Ms Bignell complained of the noise from the shed, he had in fact done nothing, as opposed to remonstrating with the accused at the shed.
With regard to the Thursday morning, his position was that he awoke at about 6 am in the loft of the big house. Although he heard Ms Bignell on the middle level, he said nothing to her. He denied the proposition that, on the Thursday morning, Ms Bignell took a cup of coffee to the accused, who was in fact the one who had slept in the loft. He denied the proposition that, in his evidence, he was deliberately distancing himself from being in the shed with the deceased on the night she died.
His position was that, on the Thursday morning, he had gone off into the bush in order to engage in some shooting practice. He explained that it was not necessarily the case that others in the house would have heard him, because he possessed two silencers, one for each pistol. The following exchange occurred:
"HIS HONOUR
Q. He is just asking you though to tell us please where you normally kept them?
A. In my bag.
WATTS
Q. When you say your bag is that your backpack that the police eventually took from you?
A. Yeah.
Q. It is that backpack?
A. Yeah.
Q. You kept the guns in there?
A. Yeah.
Q. What did you do with them before you went to the police station on Saturday?
A. Hid them.
Q. Where did you hide them?
A. I'm not saying.
HIS HONOUR
Q. Well he is asking you and it is important, I think you should answer it sir, otherwise there might be a problem, answer it please if you will?
A. Well I threw them away in the river, in the - in the Murwillumbah River.
WATTS
Q. Why did you throw them away in the river?
A. Because I didn't want to get caught with them.
Q. Why did you think you would get caught with them?
A. Well I didn't want the police finding, the police was going to be snooping around." (TT 152.50 to 153.37)
When asked about the Thursday, the witness said that the accused had a sore leg, but that was on the Friday, not the Thursday. On the Thursday, the accused was "walking around tending the crop as well." He confirmed that the accused did not have a sore leg on Thursday.
The witness denied saying anything about the deceased catching a bus away from the property to Ms Bignell on the Thursday morning.
As for the daytime visit of Mr Gallagher, the witness recalled an occasion when he told him that he was not permitted to go into the house. He was unable to remember the precise day. He gave evidence that it was in fact the accused who sent Mr Miringaorangi out to tell the visitor that he was not permitted to enter the shed. His position was that Mr Gallagher did not enter the shed, and stayed outside. His position was that Mr Gallagher would have been physically incapable of getting past Mr Miringaorangi. He denied that there had been conversations between the accused, Mr Gallagher and the witness in the shed, on the fundamental basis that Mr Gallagher never entered the shed on the Thursday.
He agreed that Mr Andrew Johnson used to stay some nights of the week with Ms Bignell in the big house. He denied that, earlier in the week, he had spoken to Mr Andrew Johnson of needing a lift in order to get the accused into town because the accused needed to see a doctor.
He rejected the proposition that, having been given a lift whilst hitchhiking on the Tuesday, he told Mr Lawler that the accused was really sick.
When asked by defence counsel about the visit of Mr Gallagher on the Thursday, and whether the accused left the shed on that occasion or not, the following exchange occurred:
"Q. They were talking with Gazza. He didn't say anything to me. He just told me to keep them out of the house, out of the shed?
A. Hmm.
Q. Now do you recall giving that evidence?
A. Yes, with you walking around.
Q. So
A. You was outside talking to them.
Q. Okay?
A. Walking around quite good.
Q. So now you're indicating that
A. Like you were on a marathon." (TT 185.32 to 185.46)
It was put to him that, at the committal on 7 June 2015, he had given evidence of the accused being outside the shed on the Thursday, but had given evidence that the accused had a sore leg on that day, and was "hopping". He did not recall giving evidence at the committal that, on the Thursday, he had "stopped him [that is, Mr Gallagher] coming in because he would have saw all the blood".
When read a portion of his evidence at committal in which he had been unable to remember the names of the neighbours, the witness said in court "What was his name, Gazza?"
It was put to the witness that, in his electronically recorded interview, he had said that the accused was incapable of using a toilet to defecate or urinate. The witness agreed, but said that he was referring to the situation when the accused was intoxicated, not his state of physical health.
The witness was shown some photographs of cardboard beer containers at the property, but firmly maintained the position that he merely obtained alcohol, he did not consume it.
It was put to the witness by defence counsel that, in his statement of 11 November 2014, he told police that he had gone down to the big house from the shed and told Ms Bignell that the deceased was dead. It was also put that he had told police that Ms Bignell told him to "put her in the wheelbarrow and put in the well". He had no recollection of saying such a thing. Thereafter he denied saying that to police. His position was that it was the accused who had spoken in those terms. When defence counsel explored the proposition, the witness said:
"A. No, I never said that to the police, never. I never said that to the police at all. I said Gary told me that which Gary did tell me that, didn't you Gary, you told me about the tin, didn't you." (TT 194.34)
When taken to a portion of his statement of 11 November 2014, the witness recalled singing a song to the deceased as a form of farewell. He maintained the position that, on the Thursday night, he had travelled from the shed to the big house and told Ms Bignell that the deceased was dead. She told him to ring the police, but the witness declined, on the basis that it was "Gazza's call".
He was reminded of evidence he had given at committal to the effect that he had spent the Thursday evening in Murwillumbah, having caught a taxi or hitchhiked there. His response was that he may well have been mixed up with regard to a different evening, and referred to his chronic abuse of ice.
He agreed that, on the Friday, Ms Bignell and her friend had dropped him at Coolangatta, where he purchased ice. He maintained the position that, on his return, Mr Gallagher said to him "Thank God you're here". He denied the suggestion that, far from being thankful, Mr Gallagher was critical of Mr Miringaorangi for having done nothing for the accused. He could not recall whether he had told Mr Gallagher that he had obtained antibiotics for the accused. He agreed that the accused on the Friday was in the same position as the Thursday, and suggested that that was a matter of choice on the part of the accused.
His position that, whilst waiting for the ambulance, he gave the accused "a shot of ice, cleaned him up a bit". His position was that he wanted to tell the authorities about the body, but he was waiting for the accused to do so, and would not inform upon him.
His position was that he did not own black or dark coloured boots whilst living at the property, but merely a white pair of running shoes. He did accept that he had been given, and had worn, a pair of black shoes or boots of the accused. He agreed that all of the clothing he owned had remained in the shed, but maintained the position that he was living in the big house.
Mr Miringaorangi agreed that he travelled to the shed on the Friday night to retrieve his clothing from the wardrobe. It was then that he had the altercation with the visitors. His position was that some of his clothing was on the floor of the shed when he returned on the Saturday to the property in the company of police officers. The witness spoke of using one of the police officers with him on that occasion as a witness, and said to defence counsel "I'm assuming you will find out who the officer is".
The witness agreed that, at the committal hearing on 11 June 2015, he had given evidence that he had not seen the accused get up and walk around on Thursday, and on that day the accused had had a sore leg. He had also given evidence that, on that day, he had been carrying the accused around.
As for the visitation on the Friday evening, he insisted that the screen door of the shed had been kicked in. He denied that one of the visitors was Mr Emzin, and insisted that they were "bikies". He maintained the position that a large number of people turned up at the property on the Friday evening.
As for the visit to the hospital on the Saturday, he agreed that he went there with another man. When asked why he had repeatedly said that he went there alone, he replied "Well, I did go in by myself, I just got a lift there". He could not recall whether he had been at the hospital from about 11.42 am until about 1.20 pm on the Saturday. He rejected the proposition that the other man was present when Mr Miringaorangi was speaking to the accused.
He maintained the position that he took the hammer to the hospital in order to give it to the accused. When it was put to him that, at the committal hearing, he had given evidence that he had taken the hammer "to use if necessary against Gary", he denied the correctness of the committal transcript.
He agreed that the two of them were whispering when they first spoke, but explained that on the basis that they were discussing a murder. He agreed that he had asked the accused to "turn himself in", but denied that the accused rejected the idea on the basis that it was in fact the witness who killed the deceased. His evidence was that the accused simply agreed to go and see the police on the following Monday. When questioned more deeply about that, he addressed the accused in Court and said twice "Isn't that what you said, Gazza?"
He agreed that, because the accused was compliant (in the sense of agreeing to confess on the Monday), there was no need for Mr Miringaorangi to get angry, and indeed he did not get angry. He denied literally standing over the accused and pointing a finger into his chest. He agreed that he may have called the accused a "cunt". He denied that he told the accused that, if the accused did not go to the police and confess to the murder, Mr Miringaorangi would kill the accused and his sister, Ms Smith. He denied having previously said in conversation out of the property that if Ms Smith "got in the way" Mr Miringaorangi would "put her under a tree".
Thereafter a portion of his electronically recorded interview with detectives on the Saturday was tendered and played in court. The witness agreed that he was experiencing paranoia and psychosis induced by ice when he was at the hospital, and when speaking to the police on the Saturday.
Mr Miringaorangi denied that it was his plan to intimidate the accused first and direct him to confess falsely to the crime before the witness attended the police station. In answer to the suggestion that he always knew that the accused was very agreeable with what the witness suggested or told him, Mr Miringaorangi replied "No, he's his own man". He agreed that in the interview, he had told police that it was he, Mr Miringaorangi, who had provided Mr Wolfe with accommodation and food at the property.
He agreed that, when speaking to the accused at the hospital, Mr Miringaorangi had spoken of himself returning to gaol, but maintained the position that that was simply on the basis of sympathy for the accused, not guilt on the part of Mr Miringaorangi. He agreed that, by the Saturday, the accused was "physically and mentally decrepit".
He maintained the position that, on the Friday evening, the visitation by a large number of people was real. He also maintained the opinion that Ms Bignell had arranged for those people to come to the property and steal the crop of cannabis.
He agreed that, in the interview with police, he had spoken of telling Ms Bignell that the deceased was dead, and inviting her to come to the shed to farewell her. He maintained that that had actually occurred.
He agreed that, in the interview, the police noted a number of injuries to his hands. Mr Miringaorangi maintained the position that they were the result of working on one of the cars at the property, combined with the struggle on the Friday evening.
The witness insisted in cross-examination that he was not in the habit of wearing rings. I interpolate that in voir dire exhibit 14, photos from the forensic procedures conducted upon Mr Miringaorangi on 5 April 2014, he is seen in photos 2, 3 and 4 to be clearly wearing a ring.
Mr Miringaorangi agreed that Mr Kip Johnson had stayed at the property for a weekend. He also agreed that he had asked Mr Kip Johnson to leave, but said that that was at the request of the accused. He denied having demanded of Mr Kip Johnson that he give the witness his motor vehicle.
He denied that there was a connection between his visit to the accused in hospital and his attendance at the police station immediately thereafter. He maintained the position that the accused had asked him to bury the body before the accused had been taken from the property in the ambulance. He agreed that it was possible that Mr Wolfe had left the property weeks before the weekend of Saturday 26 March 2014. He denied that, when living at the property, he was in the habit of telling people that he had murdered a number of people. He denied having spoken to Mr Kip Johnson of dealing with Ms Smith by leaving her "under a tree".
He denied accusing Mr Kip Johnson of sleeping with the deceased, and demanding his car. When asked about his interactions with Mr Kip Johnson, he said that Mr Kip Johnson was saying that he, Mr Kip Johnson, would kill the accused. Thereafter the witness said in Court "Isn't that right Gazza."
He agreed that Mr Kip Johnson may have seen the deceased and Mr Miringaorangi sleeping on a mattress on the floor, and said that the deceased "had a tendency of getting out of bed and come and lying down on my bed".
Mr Miringaorangi agreed that he had met the sister of the accused, Ms Smith, a number of times at the property. He agreed that there may have been an occasion, about six weeks before early April 2014, when Ms Smith and a female friend spent the night of the property. He could not recall speaking of just having been released from gaol, after serving a sentence for murder, on that occasion.
When asked whether everyone at the property knew him as "the ex-standover man gangster", he replied "I do not know, you'll have to ask them".
He could not recall telling Ms Smith that he, the deceased and the accused were in a three-way sexual relationship. He denied that, in the presence of Ms Smith, the deceased sat on the lap of Mr Miringaorangi and kissed him passionately on the mouth.
He denied having told Mr Wolfe that Mr Miringaorangi was the "alpha male" around the property, and said "No, that was Gary's the boss". He denied that the accused was incapable of standing up to Mr Miringaorangi, because he was a "simple basic cognitively impaired man".
When asked about having said in Court to the accused "I should have killed you too, you fucking cunt", he explained that he meant that he should have killed the accused before the accused killed the deceased. He denied that saying those words in the courtroom during his examination-in-chief was a slip-up on his part.
When asked about Mr Brent Gallagher, he repeated the boast of having "smashed" him in a game of chess. He suggested that Mr Gallagher did not like Mr Miringaorangi and the deceased, because she refused to continue having sex with Mr Gallagher. Again, he spoke of having thrashed Mr Gallagher in a game of chess.
Finally, Mr Miringaorangi agreed with aspects of his criminal record. With regard to his diversion to hospital pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) in 2013, he explained that he had been diagnosed at that time with schizophrenia. He could not recall the diagnosis that had led to similar diversions in 2002 and 2003.
[14]
Re-examination of Mr Miringaorangi
With regard to not letting Mr Gallagher and another man into the shed on the Thursday because there was blood on the floor, Mr Miringaorangi maintained that he had been told to do so by the accused.
His position was that, on the Saturday, he had used ice about half an hour before attending the hospital. He was using ice chronically at that time.
He was read a part of his evidence at the committal to the effect that, although he had spoken of taking the hammer to hospital "to use if necessary against Gary", he went on to explain at that time that he "was going there to warn him about those guys over and me going to the police". He confirmed that that evidence from the Local Court was correct.
[15]
Disputed matters
That concludes my summary of the entirety of the evidence of Mr Miringaorangi.
As my summary of undisputed evidence above demonstrates, very few facts were in dispute between the parties on the voir dire. The areas of dispute may be summarised as follows.
First, the evidence of Ms Smith that, when she ended her visit with the accused at Murwillumbah Hospital on Saturday, 5 April 2014, he fixed her with an "eagle eye" and said "Don't worry, you and the kids are safe" was disputed by the Crown prosecutor.
Secondly, the Crown prosecutor accepted that the combined operation of s 65 and s 66 of the Evidence Act 1995 (NSW) meant that the recounting by Ms Smith of protestations of innocence made by the accused in telephone calls from various gaols was admissible. He queried, however, the reliability of that account, and submitted that I would approach that hearsay evidence with considerable caution.
Thirdly, how Mr Miringaorangi behaved towards the accused during the hospital visit on the Saturday was disputed; in particular, the Crown prosecutor queried whether I could safely infer that he had indeed threatened the accused.
Fourthly, there was something of a dispute between the medical experts about how I should approach the admissions, although as I remarked to counsel during addresses on the voir dire, I believe that that was more a matter of emphasis or shades of meaning rather than true dispute.
[16]
Resolution of disputes
Turning to deal with those matters, I put to one side the evidence of Ms Smith that the accused said "Don't worry, you and the kids are safe" on her departure from the hospital on the Saturday. I do so because no mention was made in her statement of 6 April 2014 of that noteworthy remark of the accused. Nor was there any evidence that she had brought that to the attention of any person in authority before giving evidence on the voir dire on 20 March 2018.
Separately, Ms Smith made it clear in her evidence that she believed, and had always believed, that her brother is innocent of the murder of the deceased. I think that one can readily see how a woman in such circumstances may honestly come to persuade herself that such a thing had been said by her brother when she visited him in hospital. That is especially the case when she was called upon, on the voir dire, to give evidence of things said by her brother that were, prima facie, admissions to the grave crime of which she believed he was innocent.
Secondly, and in the same vein, I approach the evidence of Ms Smith of things said by her brother in telephone calls from gaols with considerable caution. The point is soundly made that the Crown prosecutor was unable to cross-examine the accused about such calls. As well as that, there was no dispute between the parties that, after 10 April 2014 at the latest, the accused was grossly delusional. Although cautious about that evidence, however, I do not put it aside entirely.
And in any event, that caution of mine is of no great moment, for the simple reason that it was undisputed between the parties that, no later than 30 April 2014, the accused told the psychiatrist Dr Simonelli that he was innocent, and had falsely confessed to the murder as a result of some unstated factor.
[17]
Summary of opinions of medical experts
Turning now to the question of the opinions of medical experts, because of my approach to it, it does not need to be discussed in great detail. I shall first provide a concise summary of their positions.
It will be recalled that Professor Greenberg, forensic psychiatrist, and Dr Fu, pharmacologist and toxicologist, were qualified on behalf of the Crown. Dr Neilssen, forensic psychiatrist, Dr White, forensic psychologist, and Mr Sheehan, forensic psychologist, were qualified on behalf of the accused.
No point was taken about the ability of any of those witnesses to give opinion evidence within their area of expertise.
Nor, as I understand it, has there ever been any real dispute between the parties that the accused has been unfit to stand trial.
Nor was there dispute between any psychiatrist or psychologist that, after 10 April 2014, the accused became frankly delusional.
[18]
Professor Greenberg
In his final report of 6 September 2017, Professor Greenberg made it clear that he left the question of whether the admissions were deliberate falsehoods on the part of the accused - whether through fear, or a desire to protect a friend, or for any other reason - to me as the tribunal of fact.
Professor Greenberg maintained his previous diagnosis of alcohol use disorder, and neuro-cognitive disorder, the latter as a result of the damage seen on the MRI, alcoholism and boxing injuries.
Professor Greenberg placed emphasis on the acute deterioration that occurred in the condition of the accused after the admissions had been made. He drew a significant distinction between his functioning at that stage (10 April 2014 and thereafter) and the functioning of the accused over the crucial three days.
Professor Greenberg undertook a detailed analysis of the medical records of the accused. He placed emphasis on the absence of any suggestion in the medical records from 4 April 2014 until 7 April 2014 of delusion, hallucination, or general disconnection from reality.
He noted that the accused was described more than once as orientated, and able to respond to simple commands, although the Professor accepted that there were also times when the accused was noted to be confused and incoherent.
Professor Greenberg did not discern any sign of misbehaviour on the part of the police, in the sense of them overbearing or threatening or cajoling the accused when speaking to him.
The Professor ruled out confabulation, in the sense of filling in gaps in one's memory with falsehoods that are honestly believed, as an explanation for the admissions.
Whilst suggesting that expert pharmacological opinion be obtained (as was duly done), the Professor did not see any sign of medication, including the morphine, having played a role in the making of the admissions.
Speaking generally, the Professor invited attention to the generally rational nature of the admissions, and his opinion that they were not surrounded by fantastical statements.
In summary, Professor Greenberg invited attention to the fact that the admissions were repeated, and generally consistent. They were voluntary in the sense of not being the subject of direct or indirect pressure on the part of the police. They had a degree of detail to them. They were attended by appropriate emotion on the part of the accused. And they were made to a number of persons, including members of his family.
In short, the opinion of Professor Greenberg tended towards the reliability of the admissions.
[19]
Dr Neilssen
The report of Dr Neilssen dealt with a number of questions, including that of fitness to stand trial. The report culminates with the following opinion "His confusional state may have affected both the reliability of his memory of the events, and also the reliability of any statements he made around that time." In other words, it can be seen that Dr Neilssen was not expressing a rigid or extreme opinion; he spoke in terms of possibilities.
In a nutshell, the position of Dr Neilssen was that it is true that the mental state of the accused became significantly worse after 10 April 2014. But it is to be recalled that the accused was seen to be incoherent at the property on the morning of Friday 4 April 2014; that is, before the admissions.
Dr Neilssen agreed with Professor Greenberg to the extent that he did not think that the admissions were confabulations.
Dr Neilssen interpreted some things said by the accused over the crucial weekend as being at the least confused, whilst Professor Greenberg regarded them as possibly true. Whilst accepting that the accused had not spoken of the gross delusions that troubled him later in the month, Dr Neilssen felt that the medical records painted a picture of significant confusion.
Dr Neilssen spoke of delirium as being a fluctuating state of consciousness. In other words, I understood him to suggest that merely because, on occasions throughout the weekend, the accused seemed to be functioning satisfactorily, one should not infer that he was doing so at all relevant times.
[20]
Dr White
The report of Dr White focused upon the level of cognitive functioning when she saw the accused, and she made it clear that she is not a psychiatrist qualified to diagnose mental illness.
Her report culminates with the following statement "Whilst I cannot comment as to whether the admissions made by Mr Blackman to Police and family members were true I am of the opinion that there is evidence to suggest that his mental and cognitive state may have been altered at such time as to draw into question the reliability of such statements." In other words, Dr White did not speak rigidly or inflexibly either; she raised a possibility.
Her opinion was based on the suggestion in the medical records of confusion at certain times and psychotic delusions at others. Although accepting that the accused became much worse after 10 April 2014, she expressed the view that that was not completely unconnected to his state from 4 to 7 April 2014.
[21]
Mr Sheehan
Mr Sheehan spoke of the reliability of the statements of the accused as follows "In my view there is ample evidence to doubt the reliability of Mr Blackman's early statements to police". Yet again, Mr Sheehan spoke not only of the level of cognitive functioning of the accused, but also of the possibility of confabulation, the unreliability of the accused as a historian about surrounding circumstances, and his eventual descent into psychosis.
[22]
Dr Fu
Dr Fu provided a detailed analysis of the medications with which the accused had been treated, including morphine and endone. Based upon the timing of their administration and the dosages, she expressed the opinion that the medication was unlikely to have played a role in the making of, or the content of, the admissions.
[23]
Resolution of "disputes" between medical experts
Turning to state my own view of the mental state of the accused between Friday, 4 April 2014 and Tuesday, 8 April 2014, my summary above shows that, in my opinion, there were no truly significant disputes between the medical experts. Rather, each of them had emphasised different aspects of the undisputed evidence, and placed different shades of emphasis on how he or she assessed the mental state of the accused.
My findings may be summarised as follows.
First, I accept the opinion of Dr Fu that, perhaps contrary to the expectation of a layperson, the powerful painkillers with which the accused was treated did not play any significant role in the admissions or their making.
Secondly, despite the note of caution raised by Mr Sheehan, I accept the opinion of Professor Greenberg and Dr Neilssen that the admissions were not confabulations.
Thirdly, it is undeniable that the mental state of the accused deteriorated sharply as at and after 10 April 2014, and perhaps a little before.
Fourthly, the undisputed evidence of two laypersons is that the mental state of the accused was grossly compromised at the property on the morning of Friday 4 April 2014.
Fifthly, the underlying state of physical health that underpinned the mental functioning of the accused remains, in my opinion, unclear. I am unable to say whether, in truth, the gross swelling to the leg of the accused that led to his hospitalisation on the Friday was the result of some serious infection (which I accept could have caused delirium) or some other cause.
Sixthly, it is true that the admissions are not inherently preposterous, and have a degree of consistency to them.
Seventhly, it is also true that, whilst in the two hospitals, the accused responded to simple commands, and was not hallucinating at the critical time. Having said that, many persons noted confusion, vagueness, and incoherence on his part.
Eighthly, I think there is force in the propositions of Dr Neilssen that one should think of fluctuations in consciousness, and also that one should avoid binary analysis along the lines of the accused being either completely engaged and on his guard with the police, or completely divorced from reality. States of mind are more complex than that.
Ninthly, I think it is important that it was only a few days - not a few months or a few years -after the crucial weekend that the accused became very mentally ill. Bearing in mind his presentation on the Friday morning, I think one is entitled to reason backward to a degree, albeit cautiously.
Tenthly, some of the things the accused said to police did have their bizarre aspects. He spoke discursively of needing to defend the property of his Uncle Jack, the funds of whom he seemingly believed had played a role in its purchase; as I have said, his sister denied that proposition on oath. He spoke of having lost his eyesight, when in truth he merely had itchy eyes. Most notably, he asked Senior Constable Dutton whether, in her opinion he should cut his leg off, despite the fact it was no longer causing him pain. Other, less extreme, examples can be brought to mind.
In short, I am satisfied on the balance of probabilities that, over the crucial three days, the accused was not confabulating when he spoke to the police.
I am also satisfied that he was not hallucinating or grossly delusional.
Having said that, I do accept on the balance of probabilities, taking into account the evidence of the medical experts, the oral and written evidence of doctors and nurses, the medical records, and the evidence of civilians, that the accused was confused and disoriented to a reasonably significant degree at the time when the admissions were made.
[24]
Determination about the hospital visit on Saturday 5 April 2014, and its effect
Having set out my resolution of disputed matters, and my findings of fact about the mental state of the accused at the crucial time, I now provide my findings of fact about the visit by Mr Miringaorangi to the accused at Murwillumbah Hospital at about lunchtime on Saturday 5 April 2014.
As can be seen, the following findings are central to the determination of the voir dire.
On my ruling, I am affirmatively satisfied that, when Mr Miringaorangi visited the accused in the hospital, Mr Miringaorangi threatened the accused with violence unless he confessed to murdering the deceased. Furthermore, I am affirmatively satisfied that that threat of violence operated on the mind of the accused. I come to those states of satisfaction for the following reasons.
First, as I have shown by my summary above, the evidence of Mr Miringaorangi was inconsistent on countless points with the evidence of many other witnesses whose evidence was not in dispute between the parties. The most important of those witnesses were Ms Bignell, Mr Gallagher, and Mr Emzin, but there were many others.
I do not accept that those inconsistencies were the result of failure of recollection, or distorted memory caused by chronic abuse of ice, or mental illness on the part of Mr Miringaorangi. I believe that much of what Mr Miringaorangi had to say was a deliberate lie on oath.
To give an important example from early in his cross-examination, I firmly reject the proposition that the witness was merely the "cleaning husband" of the deceased, and was not engaged in a sexual relationship with her at the property.
Second, I accept the evidence of many witnesses that, at the property, Mr Miringaorangi presented himself in countless ways as an intimidating and threatening person.
Third, that is precisely how Mr Miringaorangi presented himself in Court before me. I have provided many examples of that general proposition above, and there is no need to repeat them. Indeed, as is often the case, the transcript by no means captures the atmosphere in the courtroom when Mr Miringaorangi was giving evidence. In other words, in his evidence itself, Mr Miringaorangi displayed a tendency to threaten and abuse other persons, including other persons in authority.
Fourth, to focus more specifically on the presentation of Mr Miringaorangi in Court, as I have shown by my summary, he repeatedly asked the accused to confirm the self-exculpatory things that Mr Miringaorangi was saying. In other words, in his evidence itself, Mr Miringaorangi showed a tendency to call upon the accused to agree with him about the circumstances surrounding the murder. That was, of course, highly corroborative of the proposition that that was precisely what occurred during the hospital visit.
In similar vein, he also displayed a tendency to "big-note" himself, in accordance with the evidence of many witnesses about his behaviour at the property; his repeated insistence on his abilities as a chess player springs readily to mind.
Fifth, in the extract that I have provided above, it can be seen that Mr Miringaorangi was perfectly content to make threats of death against the accused in the courtroom, even in the presence of the legal teams, numerous sheriffs, and me. Again, that was highly corroborative of the central proposition.
Sixth, his extended criminal record both before and after April 2014 shows that Mr Miringaorangi is a person of violence and, on occasions, serious violence.
Seventh, many of the falsehoods told by Mr Miringaorangi can be interpreted as efforts on his part to distance himself from the death of the deceased. Of course, I am not making any determination at this interlocutory stage of the proceedings about whether there are rational alternative hypotheses to the proposition that the accused murdered the deceased. Nor am I making some sort of affirmative assessment about whether Mr Miringaorangi has told lies inside and outside of the witness box motivated by consciousness of guilt.
Nevertheless, the fact is that Mr Miringaorangi insisted that he had been sleeping in the big house as opposed to the shed (that is, the location at which one can safely infer the deceased suffered her injuries) for weeks by the time of the death of the deceased.
He denied that he was in a sexual relationship with the deceased at the time of her death, or indeed at any time.
He maintained the position that he slept in the loft of the big house on the Wednesday night.
He denied that, on the Thursday, he spoke of the deceased having caught a bus away from the property.
He spoke of the accused being quite well at times when he patently was not.
In similar vein, Mr Miringaorangi provided a pretext as to why the injured deceased could not be alone with her own sister.
All of that was inconsistent with undisputed evidence from other witnesses. And I consider that it is available to my analysis as to whether Mr Miringaorangi undertook yet another distancing of himself from the death of the deceased, by threatening the accused at the hospital on the Saturday.
Eighth, in my opinion, it is significant that the undisputed evidence of Ms Bignell is that, before departing for Murwillumbah on the Saturday morning, Mr Miringaorangi changed out of the boots that he was in the habit of wearing, into white runners (which are to be seen in the photos of the forensic procedures conducted upon Mr Miringaorangi). It will be recalled that Mr Miringaorangi spoke of the accused "heeling" the deceased, and Ms Bignell spoke of the face of the deceased looking like it had been "booted". That act could be regarded as a considered decision taken before he presented to Murwillumbah police station. It supports the proposition that Mr Miringaorangi took another considered decision in attending the hospital and speaking to the accused.
Ninth, it is surely of significance that Mr Miringaorangi attempted to have in his possession a large hammer when he visited the accused. As for his explanation for that state of affairs, I do not accept that he believed that the accused required protection from the real or imagined visitors of the preceding evening, bearing in mind that the accused was by that stage in a hospital some distance from the property.
Tenth, it is not to be forgotten that Mr Miringaorangi attended the hospital with another man, whose presence he at first denied. It is also noteworthy that that other man was at first hidden from view of one of the nurses, and when she approached he retreated from the veranda to the hallway of the hospital.
Eleventh, what the nurses saw and heard of the interaction was not consistent with a gentle request by Mr Miringaorangi of the accused that the latter confess to his own crime. It was much more consistent with a powerful overbearing of the accused by Mr Miringaorangi.
Twelfth, it is to be recalled that Mr Miringaorangi was sufficiently motivated to see the accused for him, on Sunday, 6 April 2014, to arrive at Tweed Heads Hospital, presumably having travelled there from the property. I do not accept that that attempted visit was merely as a result of a desire to check further on the well-being of the accused.
Thirteenth, whilst I do not accept that the accused was frankly delusional or psychotic from his admission to hospital on the afternoon of Friday, 4 April through until the morning of Monday, 7 April 2014, I certainly accept that he was suffering from a significant degree of confusion. As I have said, that is not only because on the morning of Friday 4 April he was seen by two undisputed witnesses, Mr Gallagher and Mr Phillips, to be "babbling", and no later than 10 April 2014 he was suffering from frank visual hallucinations. It is also because, taken as a whole, the medical records and the evidence of doctors and nurses speak of a man who was confused, chattering, rambling, vague, and disoriented.
The relevance of that finding of mine to this question is that one can readily infer that a person in a state of significant confusion is vulnerable and susceptible to threats.
Fourteenth, it is to be recalled that the last admission relied upon by the Crown was to Inspector Telfer on the evening of Monday 7 April at about 9.45 pm. That is significantly less than 72 hours after the visit of Mr Miringaorangi to the hospital.
Fifteenth, I do not believe that the effect of the crucial hospital visit dissipated after the making of the first admission at about 7.20 pm on the Saturday. To the contrary, the making of the first set of admissions, significantly less than 12 hours after the hospital visit, may well have led the cognitively impaired and confused accused to feel "locked in" to maintaining that position. In other words, I think it quite possible that the hospital visit not only had the direct effect of causing the accused to speak from fear, it also indirectly could have led to a "chain reaction" of admissions.
Sixteenth, I accept that by April 2014 the cognition of the accused was impaired by his chronic abuse of alcohol.
Whilst one should be cautious in reasoning backwards chronologically, it is not irrelevant that, as at March 2018, and for many months before the special hearing, he had been unanimously assessed to be unfit to stand trial.
The evidence of almost every witness except for Mr Miringaorangi is that the accused was not only a very simple person, but also a passive and agreeable one.
Finally on this point, although the accused does have a criminal record, what I know of it stands in stark contrast to that of Mr Miringaorangi. Those attributes of the accused made him amenable to being threatened, and amenable to acting on the threat.
Seventeenth, some of the things the accused said may be interpreted as not inconsistent with him confessing falsely. To give one example, his reference to Inspector Telfer to "doing a long stretch" was in itself just as consistent with a false confession as a true one.
In similar vein, it is quite true that the accused spoke to police with emotion on occasion. But I think that that could have been consistent with having been born of the pressure that he was under, combined with a (limited) appreciation of the enormity of what he was doing, and its inevitable consequences.
Eighteenth, it is noteworthy that the accused said nothing to any person - whether an ambulance officer, nurse, doctor or anybody else - implicating himself in the murder between his retrieval by the ambulance officers at 12.46 pm on the Friday, and before the visit of Mr Miringaorangi on the Saturday.
Nineteenth and finally, it is significant that, despite his cognitive deficit and deteriorated mental state, it was not months or years after making the admissions that the accused first alleged that they were false and had been motivated by some unknown factor; on the contrary it was as early as 29 April 2014.
In summary, I am affirmatively satisfied on the balance of probabilities that, when Mr Miringaorangi visited the accused at Murwillumbah Hospital at around lunchtime on Saturday, 5 April 2014, Mr Miringaorangi threatened the accused with violence if the accused did not confess to the murder of the deceased.
Furthermore, I am affirmatively satisfied to the same standard that that threat played a significant role in the inculpatory things the accused subsequently said.
[25]
Overview of objections taken
I turn now to discuss the bases of exclusion relied upon by defence counsel.
It will be recalled that five sets of admissions were the subject of objection. For the convenience of the reader, I shall restate them.
The first set of admissions were to Detective Senior Constable Straume and Sergeant Amos at Murwillumbah Hospital between 7.20 and 7.30 pm on Saturday, 5 April 2014. They were electronically recorded.
The second set of admissions were to the sister of the accused, Ms Smith, and the nephew of the accused, Mr Ben Blackman, at Murwillumbah Hospital between 11.15 am and 1 pm on Sunday, 6 April 2014. They were overheard by Senior Constable Keller and Senior Constable Woods. Although noted, they were not electronically recorded.
The third set of admissions were overheard by and made to Senior Constable Dutton and Senior Constable Cecil at Tweed Heads Hospital between 8.35 pm on Sunday, 6 April 2014 and 5 am on Monday, 7 April 2014. Although noted, they were not electronically recorded.
The fourth set of submissions were made to Detective Sergeant Frost and Detective Senior Constable Hughes at Tweed Heads Police Station from 4.15 pm on Monday, 7 April 2014 until 9.51 am on Tuesday, 8 April 2014 (unless I am mistaken, the accused in fact said nothing adverse to his interests on the Tuesday morning). The interactions between the police officers and the accused were electronically recorded.
The fifth set of admissions were made to Inspector Telfer at about 9.15 pm on Monday, 7 April 2014 (as I have said, it can be seen that the fifth admissions are chronologically interleaved between the two interactions between the accused and Detective Sergeant Frost and Detective Senior Constable Hughes). Although Inspector Telfer made a brief note in the custody record, they were not electronically recorded.
Defence counsel took a large number of objections to those admissions; in the case of some of them, many objections were made in the alternative. (A foreshadowed objection pursuant to s 86 of the Evidence Act to the tender in the special hearing of notebooks that had not been adopted by the accused became otiose when the Crown prosecutor made it clear that, even if otherwise admissible, no such evidence would be placed before me).
Rather than seeking to explain in words the complex structure of the multifarious objections to five separate sets of admissions, I think that the easiest way for the reader to understand is for me to annex to this judgment a table based upon the one the defence counsel kindly provided me with during his final address on the voir dire ("Table 1").
[26]
Section 84 of the Evidence Act
As can be seen from the table annexed, all five sets of admissions were the subject of objection pursuant to s 84 of the Evidence Act. That section is as follows:
84 Exclusion of admissions influenced by violence and certain other conduct
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b) a threat of conduct of that kind.
(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
It is noteworthy that, once evidence raises the question, it is incumbent upon the tendering party, in this case the Crown, to prove the negative proposition contained in the section on the balance of probabilities, in accordance with s 142 of the Evidence Act.
In accordance with my resolution of disputed facts above, I do not consider that the Crown has disproven the proposition to the requisite standard. Indeed, I am satisfied of some aspects of the proposition opposite to the one in the section on the balance of probabilities.
For convenience, I shall very briefly summarise my reasons for that finding; of course, much of my reasoning is to be found in my determination of disputed facts above, in particular with regard to the hospital visit.
First, I am satisfied on the balance of probabilities that Mr Miringaorangi made a threat of violence towards the accused at about lunchtime on Saturday, 5 April 2014 at Murwillumbah Hospital. There is a plethora of evidence to that effect, and I shall not repeat it.
Secondly, I am satisfied that that threat of violence was expressed to be operative unless the accused confessed to the murder of the deceased. Again, there is much evidence to that effect; apart from anything else, the timing of the visit, and the circumstances preceding and following it, leads comfortably to that conclusion.
Thirdly, I am not satisfied that the Crown has proven, on the balance of probabilities, that that threat of violence did not influence the admissions. Nor am I satisfied that the making of the admissions was not so influenced.
To recap: the first of the admissions were made less than 12 hours after the hospital visit. The last of the admissions was made less than 60 hours after the hospital visit (as I have said, as opposed to, for example, 60 days or 60 weeks thereafter). No admissions had been made by the accused before the hospital visit. The threats were made to a man who was cognitively impaired and very agreeable to the desires of others. He was also, at that time, confused and thereby suggestible. He was also physically quite unwell. The threats were made by a very intimidating person. They were delivered forcefully, in terms of body language, volume and tone of voice, the use of harsh language, and the presence of a third person. Having made the first admissions, I think it likely that the accused subsequently felt "locked in" by them. By adopting the broad concept of "influence", Parliament has not required a direct or single causal link between the threat and the admissions and the making thereof.
For all of those reasons, the possibility of the threat having influenced the admissions and their making has not been disproven on the balance of probabilities.
In short, in my opinion, the Crown has not negatived the excluding proposition in the section with regard to any of the admissions. It follows that there is no question of the exercise of a "discretion" or further evaluative judgment on my part: s 84 is clear that it follows from my basal finding that all of the admissions are rendered inadmissible.
That finding is the primary basis upon which my ruling is that all of the admissions are rejected for tender in the special hearing proper.
As against the possibility, however, that I have erred in my analysis with regard to the exclusion of all of the admissions pursuant to s 84 of the Evidence Act, in accordance with the request of the parties and curial convenience, I shall proceed to determine all of the other objections made by defence counsel. Because all of the following is contingent, however, I shall deal with these further objections rather concisely.
[27]
Section 85 of the Evidence Act
Again, all of the admissions were the subject of objection pursuant to s 85 of the Evidence Act. That section is as follows:
85 Criminal Proceedings: reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or
(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Note. Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put, and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
Defence counsel did not submit that s 85(1)(b) was engaged. Accordingly, the first question to be determined is whether any admission subject to objection was made by the accused in the circumstances set out in s 85(1)(a) of the Evidence Act.
Breaking that subsection down into its components, the Dictionary of the Evidence Act defines an investigating official as including "a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior)". All of the persons who gave evidence of the admissions were police officers, and none of them were acting covertly.
Furthermore, all of the admissions were allegedly made either "to, or in the presence of" those police officers.
The real question is whether the police officers were, at the time of the making of the sets of admissions, "performing functions in connection with the investigation of the commission, or possible commission, of an offence".
As for the first set of admissions, in my opinion there is no doubt that Detective Senior Constable Straume and Sergeant Amos were doing so. It will be recalled that they cautioned the accused, questioned him, arrested him, and recorded the whole process electronically.
The same may be said of the fourth set of admissions, which were made to Detective Sergeant Frost and Detective Senior Constable Hughes. I did not understand the Crown prosecutor to submit to the contrary.
The question is more difficult with regard to the second set of admissions, the third set of admissions, and the fifth set of admissions.
It will be recalled that, with regard to the second set of admissions, Senior Constable Keller and Senior Constable Woods were merely guarding the accused after his arrest at the hospital, and overheard what he said to his sister and his nephew.
With regard to the third set of admissions, Senior Constable Dutton and Senior Constable Cecil were fulfilling the same function, and did not question him except to ask him to repeat certain things.
With regard to the fifth set of admissions, Inspector Telfer was merely fulfilling the role of a custody manager, and enquiring of the accused about his approach to bail.
Turning to my determination of this question, in my opinion, in a highly attenuated sense, the second set of admissions, the third set of admissions, and the fifth set of admissions were made to police officers who were performing functions in connection with the investigation of the commission or possible commission of an offence against the deceased.
But I do not consider that Parliament intended that concept to be interpreted so broadly. In a sense, to the extent that an over-arching function of the police is to investigate offences, almost any function undertaken by any police officer could be said to be "in connection with" the investigation of the commission or possible commission of an offence. I cannot accept that Parliament intended that any function of a police officer - including merely guarding a person who had been arrested and was being detained in a hospital due to his or her poor health - is to be captured by that concept.
Without engaging in a more detailed analysis, I believe that the distinction drawn by Hidden J in R v Donnelly (1997) 96 A Crim R 432, (albeit with regard to an earlier version of the section) and Howie J in R v Naa (2009) 76 NSWLR 271; NSWSC 851, (albeit with regard to a different but similar section) are supportive of my approach.
In short, I do not consider that Senior Constable Keller and Constable Woods were performing such functions at the time of the second admissions. In my opinion, they were guarding a person who had been arrested and needed to be in hospital. They were not investigating the offence that he had allegedly committed.
The same may be said about Senior Constable Dutton and Constable Cecil at the time of the third set of admissions.
And the same may be said about Inspector Telfer at the time of the fifth set of admissions.
It follows that I would not contingently exclude the second set of admissions, the third set of admissions, or the fifth set of admissions pursuant to s 85 of the Evidence Act, because a pre-condition of its application has not been engaged.
Turning to analyse the evidence in terms of the section with regard to the first set of admissions and the fourth set of admissions, again it can be seen that s 85(2) calls upon the Crown to establish a negative proposition.
For all of the reasons I have given above in setting out the evidence, resolving disputes in the evidence, and determining the global objection under s 84, I am not satisfied that the Crown has proven on the balance of probabilities that the circumstances in which any of the five admissions were made were such as to make it unlikely that the truth of the admission was adversely affected.
I say that for the simple reason that those circumstances include the cognitive impairment of the accused, his confused mental state, and, most importantly, the threat that I am satisfied had been made to him by Mr Miringaorangi at about lunchtime on the Saturday.
Focusing on s 85(3)(b)(i), there is nothing to suggest that the nature or manner of any questioning by police affected the reliability of the admissions. That is a part of what needs to be considered by me, but no more than that.
As for s 85(3)(b)(ii), I believe that the nature of the threat that I am satisfied Mr Miringaorangi made to the accused included the fact that it was forceful, explicit, frightening, and, on what the accused knew of the speaker, to be believed.
Separately, I did not understand it to be disputed between the parties that s 189(3) of the Evidence Act had been engaged by defence counsel, and therefore I am entitled to reflect on the truthfulness or otherwise of the admissions.
For a plethora of reasons - I shall refrain from repeating them - there is in my opinion serious cause to doubt the truthfulness of the statements of the accused that he and he alone assaulted the deceased.
Indeed, there is a significant body of evidence that another person may have done so.
To give one example, there is significant reason to believe that the accused was completely physically incapable of administering a brutal beating to the deceased on the Tuesday or Wednesday evening.
And to give another, the most natural reading of the last line of the extract from the trial transcript that I have provided above at paragraph 243 speaks for itself.
In short, if I be wrong with regard to exclusion pursuant to s 84, I would exclude the first set of admissions, and the fourth set of admissions pursuant to s 85 of the Evidence Act.
[28]
Section 90 of the Evidence Act
The second alternative global objection of defence counsel to all the admissions was pursuant to s 90 of the Evidence Act. That section is as follows:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
Note. Part 3.11 contains other exclusionary discretions that are applicable to admissions.
Two relevant contrasts may be drawn between s 90 on the one hand, and s 84 and s 85 on the other. The first is that s 90 is expressed as a true discretion, by way of the use of the word "may". In contrast, sections 84 and 85 mandate exclusion of the evidence as inadmissible, unless a negative proposition is established. The second point of contrast is that, in s 90, the "onus" for exclusion falls upon the accused; in sections 84 and 85, the onus of establishing the negative proposition is upon the tendering party, in this case the Crown.
In summary, if I be wrong in my analysis with regard to s 84 and s 85, I would nevertheless exercise my discretion to exclude all five sets of admissions pursuant to s 90. I would do so because I cannot accept that it would be appropriate to admit into evidence demonstrably unreliable admissions made by a man who was cognitively impaired, confused, physically unwell to the point of hospitalisation and medication, and - most importantly - who had recently been threatened with violence if he did not so confess by a very forceful and frightening person. I am convinced that all of those circumstances, in which the admissions had been made, would make it unfair to the unfit accused to use the evidence of his admissions against him in the special hearing.
[29]
Section 138 of the Evidence Act
Turning now contingently to s 138 of the Evidence Act, it can be seen from the first table that it was relied upon by defence counsel with regard to the first admissions, the second admissions, and the third admissions. In the case of the first admissions and the third admissions, s 138 of the Evidence Act was relied upon in conjunction with s 139 of the same Act.
The sections in their entirety are as follows:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.
139 Cautioning of persons
(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the person was under arrest for an offence at the time, and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and
(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or
(b) the official would not allow the person to leave if the person wished to do so, or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
(6) A person is not treated as being under arrest only because of subsection (5) if:
(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or
(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.
As I understood it, this objection had two bases. The first and most straightforward was that, when she cautioned the accused at the beginning of the recorded interview that led to the first set of admissions, Detective Senior Constable Straume did not provide him with the complete caution in accordance with s 139(1)(c), in that she did not refer to the fact that anything the accused said or did could be used in evidence. As I understood it, that failing was said by defence counsel to "infect" not only the first set of admissions, but also the third set.
The Crown prosecutor accepted that there had not been full compliance with s 139 of the Evidence Act, but submitted, for the purposes of s 138(3), that that was neither here nor there.
The second basis of objection was more complex. It arose in the following circumstances.
To recap: it will be recalled from the above chronology of undisputed evidence that Detective Sergeant Frost instructed Detective Senior Constable Straume to travel to Murwillumbah Hospital and arrest the accused there. There was a custody manager on duty at Tweed Heads Police Station, but of course there was none at the hospital. No custody manager travelled with Detective Senior Constable Straume and Sergeant Amos to the hospital.
At the beginning of the recorded interview that includes the first set of admissions, Detective Senior Constable Straume (imperfectly) cautioned the accused. But having determined to arrest him, she did not provide him with any of his rights pursuant to LEPRA. Nor did she do so when she stated that she was arresting the accused halfway through that interview, and fully cautioned him at that stage. Nor did Sergeant Amos take any such step.
As I have said, Senior Constable Holiday, the custody manager, became involved at about 8.30 pm on that Saturday evening. He was informed that the accused had been arrested at the hospital at about 7.30 pm. He undertook the exercise of filling in the custody management record with regard to that event. In summary, he recorded nothing noteworthy about the arrest or the presentation of the accused. As I have remarked, that was something of a formalistic exercise, for the simple reason that, at that time, the custody manager had neither attended the hospital nor seen the accused, and in truth knew nothing of his presentation.
For operational reasons that were not explored in the evidence, Senior Constable Holiday did not arrive at Murwillumbah Hospital until about 11.15 pm that night; that is, hours after the first set of admissions had been made. At that stage, he made an effort to inform the accused of his rights. But, in the submission of defence counsel, bearing in mind the particular attributes of the accused, and the absence of any inquiries of medical staff with regard to them, that was not a satisfactory exercise either. In particular, it did not comply with the clauses of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) to do with vulnerable persons.
The second set of admissions were not accompanied by a caution. That is understandable, because the position of Senior Constable Keller and Senior Constable Woods was that they were mere guards, not investigators or interrogators.
The same may be said about the third set of admissions to Senior Constable Dutton and Senior Constable Cecil.
As I understand the submission of defence counsel, the result of all that was that the first set of admissions was not preceded by the provision to the accused of his statutory rights, despite the fact that the police had indeed decided beforehand to arrest the accused. Furthermore, the caution that was provided was incomplete. Finally, the procedure that was adopted by the custody manager hours later was itself unsatisfactory. All of that, as I understood the submission, not only applied to the first set of admissions, but also infected the second and third sets of admissions.
Turning to my determination of this ground of exclusion, it was not disputed before me that on the evening of Saturday, 5 April 2014, the police were entitled to arrest the accused without warrant, pursuant to s 99(1) of LEPRA.
Section 122 of the same Act, as at April 2014, was as follows:
122 Custody manager to caution, and give summary of Part to, detained person (cf Crimes Act 1900, s 356M)
(1) As soon as practicable after a person who is detained under this Part (a detained person) comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing:
(a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and
(b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person's legal representative, may make representations to the authorised officer about the application.
(2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.
(3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given
I approach the matter on the basis that, although it was no doubt more inconvenient for the police to have the accused detained at a hospital rather than a police station, that did not, of course, relieve them from complying with s 122(1)(b) of LEPRA "as soon as practicable" after the accused was detained by way of being arrested. And it would surely have been possible for steps to have been taken for that to have been complied with by somebody well before the custody manager arrived at about 11.15 pm on 5 April 2014.
Indeed, I think there is force in the proposition of defence counsel that, if Detective Senior Constable Straume was fully intending to arrest the accused, whatever he might say, in accordance with the instruction of the Detective Sergeant Frost, then she should have complied with s 122 of LEPRA before even commencing the interview.
In short, to quote the evidence on the voir dire of Detective Sergeant Frost, at the least "I believe it could have been done a little better."
In summary, I accept that the first set of admissions were obtained in contravention of an Australian law, in accordance with s 138(1)(a) and s 139 of the Evidence Act, not only with regard to the incomplete caution, but also with regard to the failure to inform the accused of his statutory rights.
Having said that, I do not accept the submission of defence counsel that those contraventions "infect" the second set of admissions and the third set of admissions. As I have shown, those admissions were not made as a result of questioning by police. They were spontaneous statements of the accused to other persons in the presence of the police. Separately, Senior Constable Holiday had made an effort, albeit perhaps an imperfect one, to explain the rights of the accused to him late on the Saturday evening. And in any event, there was no real question of the accused exercising his rights pursuant to LEPRA at the time of the second and third sets of admissions: he was not being questioned, but rather speaking spontaneously.
Returning to the first set of admissions, my finding that they were obtained in contravention of an Australian law is not, of course, the end of the matter. They are not to be admitted, unless the desirability of admitting them outweighs the undesirability of admitting evidence that had been in the obtained in the way that they had been obtained.
As for that evaluative judgment, I am firmly of the opinion that the Crown has established that they should be admitted. Without pausing, in this highly contingent analysis, to discuss in detail the factors mandated for consideration in s 138(3) of the Evidence Act, the probative value of the first set of admissions; their importance to these proceedings regarding a count of murder; and my acceptance of the proposition that the contraventions occurred, at worst, recklessly, as opposed to deliberately, leads me to the view that, despite the contraventions, the first set of admissions should be admitted.
In short, I would not contingently exclude the first set of admissions, the second set of admissions, or the third set of admissions pursuant to s 138 (and, as applicable, s 139) of the Evidence Act.
[30]
Section 281 of the Criminal Procedure Act
It can be seen from the first table that only the third set of admissions was objected to pursuant to s 281 of the Criminal Procedure Act; that is, the admissions made to Senior Constable Dutton and Senior Constable Cecil at Tweed Heads Hospital between 8.30 pm on Sunday 6 April, and 5 am on Monday, 7 April 2014. It will be recalled that they were typed into a laptop, but not electronically recorded.
Section 281 is as follows:
281 Admissions by suspects
(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).
(4) In this section:
investigating official means:
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.
official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
reasonable excuse includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
tape recording includes:
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.
In my respectful opinion, this ground of contingent objection can be dealt with shortly.
It can be seen from s 281(1)(b) that an essential pre-condition for the application of the section is that the admissions were made in the course of official questioning, as defined in s 281(4) of the Criminal Procedure Act.
But I do not consider that it has been established that Senior Constable Dutton was engaging in such questioning when the accused made the third set of admissions. The short clarifying questions that she asked do not establish that proposition. Leaving aside the complexities of what falls within and without the statutory definition of official questioning, I do not consider that Senior Constable Dutton was questioning the accused at all.
If I be wrong in that analysis and it was official questioning, I would contingently approach the section on the basis that, pursuant to s 281(2)(ii), the prosecution has established that there was a reasonable excuse for the absence of an audio recording at the time the third set of admissions were made. That is simply because Senior Constable Dutton and Senior Constable Cecil were not intending to question the accused. They were simply intending to guard him. They did so. The third set of admissions were not made in response to questions that they asked.
Following the many contingencies through to their conclusion, if I be wrong in that analysis, for the purposes of s 281(2)(a)(ii) and (b), I would also accept that the prosecution had established that there was a reasonable excuse for the absence of a subsequent audio recording in which the accused was asked to "adopt" the admissions previously made.
That is because I accept the evidence of Detective Sergeant Frost that, if the accused had not exercised his right to silence on legal advice, the Detective proposed to engage in an electronically recorded interview with the accused, and to ask him during it whether he adopted the third set of admissions.
In other words, the exercise of the right to silence by the accused, in the particular circumstances of this case, would, in my opinion, constitute a reasonable excuse for the absence of a subsequent electronically recorded adoption.
In short, if all of my preceding analyses about exclusion pursuant to other sections were wrong, I would not exclude the third set of admissions pursuant to s 281 of the Criminal Procedure Act.
[31]
Conclusion
In short, I exclude all five sets of admissions, pursuant to s 84 of the Evidence Act.
If I be wrong in that determination, I would nevertheless exclude the admissions on differing bases. For the convenience of the reader, I consider that all of my determinations, including the ancillary ones, can best be summarised by a further annexed table of determinations ("Table 2") that closely follows the format of the table of objections ("Table 1"), and that is also annexed to this judgment.
[32]
Ruling
For the preceding reasons, I make the following evidentiary ruling:
1. All five sets of admissions objected to are excluded.
[33]
Table 1 Overview of Objections
Evidence of admissions by the accused S84 EA S85 EA S90 EA S138 EA S139 EA S281 CPA
Admissions to DSC Mandy Straume and S Adam Amos at Murwillumbah Hospital at 7.20-7.30pm on Saturday 5 April 2014 Objected to Objected to Objected to Objected to Objected to
Admissions to Jennifer Smith and Ben Blackman at Murwillumbah Hospital from 11.15am - 1pm on Sunday 6 April 2014 overheard by SC Anthony Keller and SC Nathan Woods Objected to Objected to Objected to Objected to
Admissions to SC Alicia Dutton and SC Ryan Cecil at Tweed Heads Hospital from 8.30pm on Sunday 6 April 2014 to 5am Monday 7 April 2014 Objected to Objected to Objected to Objected to Objected to Objected to
Admissions to DS Terry Frost and DSC Richard Hughes at Tweed Heads Police Station from 4.15pm on Monday 7 April 2014 to 9.51 am on Tuesday 8 April 2014 Objected to Objected to Objected to
Admissions to I Adrian Telfer at Tweed Heads Police Station at 9.15pm on Monday 7 April 2014 Objected to Objected to Objected to
[34]
Table 2 Overview of determinations
Evidence of admissions by the accused S84 EA S85 EA S90 EA S138 EA S139 EA S281 CPA
Admissions to DSC Mandy Straume and S Adam Amos at Murwillumbah Hospital at 7.20-7.30pm on Saturday 5 April 2014 Excluded Excluded Excluded Admitted Admitted
Admissions to Jennifer Smith and Ben Blackman at Murwillumbah Hospital from 11.15am - 1pm on Sunday 6 April 2014 overheard by SC Anthony Keller and SC Nathan Woods Excluded Admitted Excluded Admitted
Admissions to SC Alicia Dutton and SC Ryan Cecil at Tweed Heads Hospital from 8.30pm on Sunday 6 April 2014 to 5am Monday 7 April 2014 Excluded Admitted Excluded Admitted Admitted Admitted
Admissions to DS Terry Frost and DSC Richard Hughes at Tweed Heads Police Station from 4.15pm on Monday 7 April 2014 to 9.51 am on Tuesday 8 April 2014 Excluded Excluded Excluded
Admissions to I Adrian Telfer at Tweed Heads Police Station at 9.15pm on Monday 7 April 2014 Excluded Admitted Excluded
[35]
Amendments
04 April 2018 - Child name changed to pseudonym.
06 April 2018 - Typographical errors amended.
08 November 2023 - In paragraph 185 amended the section to 89A.
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Decision last updated: 08 November 2023
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Blackman
Legislation Cited (5)
Law Enforcement (Powers and Responsibilities) Regulation 2005(NSW)