R v BLAKE

District Court of NSW|2021-07-29

Reasons for decision as to admissibility of admissions

The accused is charged with one count on an indictment, namely that he: "On the 26th day of October 2019 in Lloyd in the State of New South Wales, did drive a vehicle, namely, a Toyota Camry with the New South Wales registration number TC 749 on a road, namely, Red Hill Road, when it was involved in an impact occasioning death to Malcolm Hackett, and at the time David Edward Blake ought to reasonably have known that the impact had occasioned death and subsequently did fail to stop and give necessary assistance within his power to give, contrary to s 52AB(1) of the Crimes Act, 1900.
It is my understanding that the Crown relies substantially on admissions. The bulk of those admissions are contained in a very lengthy (in total 3 hours 20 minutes) record of interview conducted by Senior Constable Powell on 27 October 2019. The other admissions were to Kathleen Beeby, the wife of the accused's employer. The accused challenges the admissibility of the admissions made to the police and to Ms Beeby.
The accused also relies on s 365 of the Criminal Procedure Act, 1986 and makes application, which is opposed by the Crown that any trial is by judge alone.
To make these reasons more comprehensible I will set out in brief summary form what I understand to be the Crown case against the accused. The following does not constitute any finding of fact but rather it is merely an outline of the factual circumstances of the incident on the night of 26 October 2019. What follows as to the factual circumstances is drawn from the Crown Case Statement.
Lloyd is a southern suburb of Wagga Wagga. Red Hill Road is a major thoroughfare that is oriented generally east-west. At the point where the incident occurred, Red Hill Road divides the suburbs of Glenfield Park to the north and Lloyd to the south.

The interview

Mr Dennis SC on behalf of the accused objects to the admissibility of the record of interview after question 56. As Mr Dennis SC submits at paragraph 13 of his written submissions, Road Rule 287(3)(a) required the accused to give a version of the events.
Senior Constable Powell at question 34 of the interview commences to ask the accused questions so far as the particulars required by the Road Rules. The accused tells the officer that he was the driver (Q/A 39-40) and he gives the officer his full residential address (Q/A 43). At question 47 Constable Powell asks the accused for his "most descriptive version of what happened during the collision. The accused then gives an account in answer to questions 48 to 54.
The accused (q/a 48) gives an account of collecting Mr and Ms Harrison. He described the route he took from the Boat Club, namely Plumpton Road, Red Hill Road round-about and then Red Hill Road. His lights were on high beam. He saw an object on the road and he could not avoid it. The account continues in answer to question 49 that he accidentally ran over the object and Mr Harrison told him that he hit a kangaroo. They went to the Silvalite Service Station and inspected the damage. Mr Beeby, the accused's employer attended. In answer to question 51 the accused gives an account of arranging alternative transport for his passengers and the damaged vehicle being taken by Hull's smash repairs. In answer to question 53 he gives an account of Mr Beeby telling him the next day that it was a human that he hit.
At question 54 Constable Powell advises the accused that he has complied with his obligations under the traffic legislation and at question 56 administers a caution.
The accused in his version of the impact details being contacted by Geoffrey Harrison, going to the Boat Club and collecting Mr and Mrs Harrison. He set out the route he took and said that his lights were on low beam because (see Q/A 48), "apparently it's against the law" to have them on high beam. He saw an object on the road which he could not avoid.
The account continued that both his passengers told him that he hit a kangaroo. In this regard I note that this is confirmed by Mr Harrison in his statement. Mr Harrison suggested that they pull in and have a look at the damage so they went to the Silvalite Service Station. The accused told police (Q/A 49) that he contacted Mr Peter Beeby, who owned the taxi that the accused was driving. Another taxi attended and took the Harrisons home. The damaged vehicle was taken to Hull's Smash Repairs. When he went to get his money from Peter Beeby that morning (i.e. 27 October 2019) Mr Beeby told him that it was a human being that he hit and not a kangaroo.
To the point of the record of interview where the accused was cautioned (at question 56) nothing of an incriminating nature so far as the offence with which the accused has been charged was said. In any event, the accused was required to give an account of the impact to police by virtue of the Road Rules. Questions and answers 56-60 read: Q: OK. Um, so now we're back to the, the part where you no longer have to say or do anything unless you want to do so, OK. A: Well I'm, I'm only, I'm only doing it for your help, you know, helping--- Q: Yep. A: ---the questions that I can do it so--- Q: Yep, so I just want to reiterate at the moment you're not under arrest, you are free to leave at any stage. A: Ah hmm. Q: OK. We are going to ask you some further questions about what happened, just to clarify some things but I want you to understand you don't have to say or do anything if you don't want to. Anything you do say will be, will be recorded and that may be used in evidence, at, potentially at court later on. A: Yes. Q: Do you understand that? A: Yes.
Constable Powell then proceeds to ask the accused numerous questions. The accused maintains that he thought that he impacted with a kangaroo and said that he had previously seen kangaroos in that area. He maintained that he could not use high beam in a built up area and that Ray Hadley had told him that. He conceded (Q/A 344) that had he had his lights on high beam the impact may well have been avoided.
In answer to question 362 the accused said the object with which he collided was in the middle of the lane in which he was travelling. At question 365ff the following appears: Q: All right. Um, and can you describe um the size of the object? A: Solidly built. Q: Yep? A: But uh, like I, like he was solidly built shirt. Q: Sorry? A: Sorta, a shirt, he wore, he had a shirt on. Q: Right A: And sort of uh like, he looked like he had like shoulder length hair. Um, and it was like, well just appeared. Like, I, like I was concentrating on what I was doing or, and I, I, like, like, I, I was, at, middle of the, middle of the road and I just thought, I can't, well I can swerve but which way do I go. Q: OK. So I just want to ask you a clarifying question there. When you saw the object on the road, it was in the middle of your lane, and you saw it when it was a car length in front of your vehicle, is that right? A: Yeah, yeah. Q: At that time when you saw the object what did you think that the object was? A: I thought it was a kangaroo Q: OK? A: I, I, I, I thought it was a, and Geoffrey Harrison said the same thing, oh you've hit a kangaroo, you've run over a kangaroo. Q: OK? A: We both thought it was a kangaroo. Q: Right well you just-- A: At the time. Q: OK. Well you've just described the object to me as having a shirt on and shoulder length hair? A: Yeah, but that, that that was after, that was just, just before I, I went under it, he, he went under the car. Just before he went under the car. I said, no Geoffrey, I, no, I don't, don't think it was a kangaroo. I think it was something else. He said, no, no, you've run a kangaroo, you ran a kangaroo, but I, I was sort of in, in shock. Like I, I, I was shocked, I couldn't put my brain into, well not gear but think, think straight 'cause I was sorta, oh well actually I was in shock, and when Peter came, I, I was literally shakin', I just thought well what, I, I can't, I can't, I can't think. Q: Yeah? A: I can't think. Q: I'll just take you back, you described it to me as having a shirt on, shoulder length hair and you said, I don't think it was a kangaroo, I think it was something else. What did you thank that it was? A: What's that? Q: What did you think that it was? A: Well at first I thought, I thought it was, I, we did think it was a kangaroo. I said, no Geoff, I don't think it was a kangaroo. Q: Yeah? A: I think it was something else. Q: What is that something else? A: Well, I, I didn't, I didn't think it was a, I didn't think it was a person. I really didn't think it was a person.
Then at Q. 407ff the following appears Q: Mate, you just said, he had a blue shirt on, shoulder length hair and it was him? A: Well, it looked, it, it looked like, it, it looked like a blue shirt and shoulder length hair 'cause it was, it just, I came up to it quickly and I--- Q: Yep? A: It just--- Q: And you said it was him. What do you mean when you say--- A: Ah hmm. Q: What do you mean, it was him? He had a blue shirt on and shoulder length hair? A: Yeah, well it looked, it, it looked like a blue shirt before, before it, I ran over him, purely accidental and I didn't realise that I'd done it. Q: Yeah? A: I, I really didn't know I'd done it. Q: Yeah, so when you say him, what do you think the object was? A: Well after I thought, nuh, I, I, I've run, I've run over someone. I've run over someone Q: OK? A: I have run over someone 'cause--- Q: Yeah? A: ---that wasn't a kangaroo, that--- Q: Yep? A: That, that, that was a person, that was a human being I've done.
The accused is then informed that his custodial status had changed and that he was under arrest and he was no longer free to leave. The interview was paused for the accused to be formally taken into custody. The accused was told on a number of occasions that the fact he was under arrest did not necessarily mean that he was going to be charged. At the hearing of this issue on 29 July 2021 a portion of the interview was played, namely from and including question 941 on page 82 of the transcript of the ERISP to and including question 1140 on page 99 of the transcript. I will not recite that part of the interview but will briefly summarise the content. Q. 945 - the accused says had he had his lights on high beam he would have been "fine" Q 949 - the accused confirmed that after the interview was suspended the object on the roadway was a person; he also said that when he looked at the damage afterwards he thought a kangaroo cannot do that much damage. Q 952ff - the accused confirms that it looked like the person had a blue shirt on and it looked like a blue tee shirt. Q 960-965 - the accused said the person was male and was solid. Q 968 - he said the person had shoulder length hair Q 973 - the accused said that the man was sitting on the road on his bottom and he was slumped over with the head on his knees Q 984 and thereabouts - the accused sat on the floor and gave a demonstration of the manner in which the man was sitting.
In the questions following there were further questions as to the manner the man was sitting on the road. Q 1037 - the accused said that he did not know if the man had any injuries or blood on him, nor did he know if the man was alive immediately before he was struck. Q 1051 - the accused confirmed that his passenger Geoffrey Harrison told him that he hit a kangaroo however the accused went on to say and "inside me, I thought, I think I've done, I think I've hit something else besides a kangaroo". He did not say that out loud (Q 1052). Q 1062 - the accused was asked if he looked in the rear vision mirror could he see anything. The accused said it was dark. Q 1064 - the accused was asked if there was any reason he did not go back to check on the person. The accused said he was in shock. Q1100ff - the accused went back to the scene with Peter Beeby and saw the police. He told interviewing officer (Q 1105) that he thought the police were there because of "that fella getting knocked over" but he did not know at the time. This was later confirmed at Q 1117. He was then asked why he did not say something to the police at the scene but said he was in shock. Q1184 - the accused told police he knew it was an offence not to exchange particulars or stop.
Although the interview was not played in its entirety, I also note the following: Q 1481 - the accused said that the did not see him until the very last moment Q 1554 - the accused said that the person was just sitting there before he accidentally hit him. Q 1573 - the accused said he just gently applied the brakes after the impact. Q 1579 - the accused confirmed that he could not see the person on the road. Q 1580 - the accused said he would have expected the person hit to have "bad injuries".

Police are informed the accused has an acquired brain injury before the ERISP is conducted

Both parties provided a copy of the Custody Management Records. At page 2 under the heading "Vulnerability Assessment" the first question is "Does this person have impaired intellectual functioning?" The answer is recorded as "No".
The interview was commenced at 12.56pm on 27 October 2019 and concluded at 4.15pm
Acting Sergeant Christopher Poulsen attended the scene of the impact at about 5.30am on 27 October 2019. At about 9am that day he was in a police vehicle conducting patrols when he heard over the police radio that an informant believes that his taxi was involved in the hit and run on Redhill Road Wagga at 2210 hrs the day before. The message continued to the effect that the informant said that the taxi had passengers, the driver thought he hit a kangaroo, the vehicle was towed and the informant went to the location and saw the area taped off and that the informant thinks that the driver hit and killed a person.
At about 9.25 am Acting Sgt Poulsen attended the home of Peter and Kathleen Beeby, who owned the taxi vehicle that the accused was driving. Sgt Poulsen activated his body worn camera before speaking to Mr and Ms Beeby. Part of the conversation between the officer and the Beebys is transcribed. However, so far as the application by Senior Counsel for the accused is concerned a particularly significant aspect of that conversation was not transcribed as part of the officer's statement. Mr Beeby told the officer that the accused had an acquired brain injury. Also in that part of the conversation Mr Beeby also said that the accused was high functioning and that he had his taxi licence.
However, Ms Beeby told the officer also as part of that conversation that the accused was one who wanted to please. Significantly she also suggested that the accused should have her partner present when police spoke to him. The officer was informed that the accused was likely to panic if the police just arrived unannounced at the accused's door. In other words Ms Beeby was telling the police that it was her opinion that the accused should have a support person at the time police spoke to the accused and that the accused was suggestible.
Acting Sergeant Poulsen did not pass any of that information on to any of the investigating police officers. Constable Powell was not aware of that at the time she conducted the interview. None of the officers concerned were required for cross-examination. The court is not aware whether the failure by Acting Sergeant Poulsen to pass on this information was by deliberate decision or by oversight. Given the material before me I am very much inclined to the view that it was an oversight rather than a deliberate decision.

Expert Psychological Assessment of the Accused

The accused consulted two psychologists namely Dr Susette Sowden and Dr Peter Ashkar. Both provided comprehensive reports and neither were required for cross-examination by the Crown. The Crown apparently did not seek to have the accused examined by a psychologist of their choice. In these circumstances there is no apparent reason to doubt the validity of the conclusions reached by either Dr Sowden or Dr Ashkar in their reports. Dr Sowden's report is dated 5 November 2019 and Dr Ashkar provided two reports, one dated 13 March 2020 and the other 2 October 2020.
Dr Sowden administered the Stanford Binet Intelligence Scales, Fifth Edition (SB5) on 5 November 2019. Dr Sowden opines that the results are considered to the true representation of the accused's cognitive ability. The SB5 is an individually administered assessment of intelligence and cognitive abilities for persons aged 2 to 85+.
Dr Sowden found that the Full Scale IQ of the accused was 68 and is greater than 2% of adults in his age range. That places the accused into Mild to Borderline Impaired range of intellectual ability. Dr Sowden goes on to say that the non verbal IQ is in the mild impaired range of intellectual ability and greater than 0.3% of adults in his age range. The verbal IQ is in the low average range of intellectual ability and is greater than 9% of adults in his age range.
Further, she opines that the accused's non-verbal IQ being significantly below his verbal IQ may be indicative of brain injury. She notes that the accused reported a significant fall when he was young.
The report sets out that five indices are assessed in the SB5 which are fluid reasoning, knowledge, quantitative reasoning, visual special reasoning and working memory. The fluid reasoning score was in the borderline impaired range. The knowledge was in the mid impaired range, the quantitative reasoning was in the borderline impaired range, the visual special reasoning was in the borderline impaired range and working memory was in the borderline impaired range.
Dr Ashkar also interviewed the accused's brother Simon. Simon Blake informed the doctor that the accused sustained a traumatic brain injury at the age of four from a fall down an escalator. He spent several months in hospital.
Dr Askhar recounts that the accused told him that when he attended the police station he was told he was not under arrest but was wanted for questioning. He did not recall being given a police caution and he was unable to explain to Dr Ashkar why the caution might be important. According to Dr Ashkar the accused had little understanding of his legal options or of the legal process more generally, but he was able to understand the concepts when they were explained to him.
At paragraph 15 of the first report Dr Ashkar sets out: "…The findings from this assessment reveal injury related weaknesses in his intellectual and cognitive functioning particularly in areas of attention and concentration, language, new learning and memory (for auditory/verbal material) and higher level/executive thinking involving planning and organisation, abstract reasoning and concept formation, mental flexibility, self-monitoring and social understanding and judgement. In practical terms he is easily distracted and confused, is quick to become overwhelmed, has difficulty organising his thinking and expressing his ideas and struggles to process voluminous material…he is largely independent with his activities of daily living (albeit functioning at the low end of normal limits in this regard…) and he is not intellectually disabled".
Dr Ashkar then opines at paragraph 16: "The injury related weaknesses in Mr Blake's intellectual and cognitive functioning have significant implications for his understanding of any legal cautions given to him by the police prior to his questioning, not the least of which his very reduced (abstract reasoning and concept formation) ability to provide informed consent (i.e. to think through the consequences of providing information to the police without the support of a solicitor) particularly if his understanding of the caution was not checked at the time (i.e. by getting him to demonstrate his understanding of the caution by explaining it to them in his own words".
The second report, i.e. 2 October 2020, noted that a second report was required specifically addressing the accused's understanding of his rights, his understanding of the caution administered by police during the record of interview and the overall suggestibility.
At paragraph 4 of the report Dr Ashkar says: "Mr Blake demonstrated no pre-existing understanding of his rights in relation to being arrested and charged with the subject offence. He is completely at the behest of the police and is highly vulnerable in this regard. His lack of understanding arises from his childhood history of traumatic brain injury and the associated impairments in his cognitive functioning particularly his very limited skills in areas of concept formation and social understanding and judgment."
Dr Ashkar opines that the accused has the cognitive resources to understand a police caution when it is administered in optimal conditions. However he goes on to say (paragraph 6) that the conditions during the interview were not optimal. The accused gave an account of being confused, devastated and not thinking straight. Dr Ashkar observes correctly, in my opinion, that the interviewing officer delivered her questions at a rapid pace. Dr Ashkar goes on to say that the pace was not optimal for someone of the accused's limited cognitive functioning. The caution was not explained in "concrete terms". Dr Ashkar opines that it is not clear to what extent the accused understood the police caution.
At paragraph 8 of the second report Dr Ashkar says: "…It is therefore not clear that Mr Blake is able to provide informed consent to the police interview if he is unable to foresee or appreciate the many possible consequences of doing so. Indeed when I asked him why he agreed to speak with the police without a support person or lawyer present he simply told me that he thought he would be in more trouble if he did not speak to them. The fact that his brother (with whom he is close) is a lawyer further underscores his poor judgment and decision making at the time".
Further, Dr Ashkar opines (paragraph 10) that the accused is more likely than most people to be suggestible during a police interview because of the limitations in his cognitive functioning. Yet further, "he is especially vulnerable to suggestive questioning during times of stress, fatigue and heightened emotion as appears to have been the case during his interview with police".
Dr Ashkar concludes the second report with the following at paragraph 11: "Mr Blake's difficulties with (his already limited) attention and concentration are also likely to be compromised during the suboptimal conditions of a police interview, and to lead to confused, acquiescent and potentially unreliable responses. His ability to monitor his responses for attentional errors (a higher-level executive thinking skill) is very limited because of his traumatic brain injury, and he may fail to correct an incorrect or unintended response until someone else points it out to him. This can predispose him to unintended and invalid self-incrimination during a police interview."
At the hearing in respect of the pre-trial issue Mr Dennis SC read an affidavit affirmed by Luisa Gaetani, a solicitor to whom the accused spoke after the point of the ERISP where the status of the accused changed and the accused was placed under arrest. She spoke to the accused by telephone and the conversation with the accused was brief. She recalls that the matter was about a motor vehicle accident. She told the accused that she did not service courts in Wagga Wagga and that he should get someone else to represent him. She recalls the only advice she gave the accused was that he should get someone else to represent him. She did not form the impression that the accused was suffering from intellectual disability or any impairment in his mental functioning. The accused did not tell Ms Gaetani that he was suffering from an intellectual disability or that he had an acquired brain injury. Nor did any police officer tell her that, which is hardly surprising given that Acting Sergeant Poulsen did not tell anyone what he had been told.

Is the accused a "vulnerable person" for the purposes of LEPRA

Regulation 27 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 defines "impaired intellectual functioning" as: "impaired intellectual functioning", in relation to a person, means- (a) a total or partial loss of the person's mental functions, or (b) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or (c) a disorder, illness or disease that affects the person's thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour. Note. See clause 3 of Schedule 2 for guidance to custody managers on whether paragraph (a) or (b) applies to a person.
Regulation 28 provides: 28 Vulnerable persons (1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories- (a) children, (b) persons who have impaired intellectual functioning, (c) persons who have impaired physical functioning, (d) persons who are Aboriginal persons or Torres Strait Islanders, (e) persons who are of non-English speaking background, but does not include a person whom the custody manager reasonably believes is not a person falling within any of those categories. Note. If a person falls within more than one of the above categories, each provision of this Division relating to any category within which the person falls applies in relation to the person. (2) Pursuant to section 112(1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division.
The Crown submitted that the accused was not a vulnerable person. As a secondary submission the Crown puts that there was nothing about the accused that would have alerted the Custody Manager that the accused was suffering under a disability. The Custody Manager may not have been on notice but the "police" or authorities were very well aware because of what had been said to Acting Sergeant Poulsen earlier in the day by Peter and Kathleen Beeby.
On that aspect the Crown posed a question to the effect of was what Acting Sergeant Poulsen know from what he was told sufficient to alert police that the accused was a vulnerable person. In particular the Crown noted that Peter Beeby told Sgt Poulsen that the accused was high functioning and had a taxi licence. The Crown submitted that the accused had been told his rights.
In my view the answer to the rhetorical question posed by the Crown must be "yes". Sgt Poulsen was told in specific terms that the accused had an acquired brain injury; that he was one who wanted to please; that the accused would panic if police arrived at his door unannounced and that it would be an idea to have Peter Beeby present when the accused was spoken to. The fact that the accused was explained his rights does not overcome the fact that the accused had the acquired brain injury or for that matter it does not overcome the fact of the accused's limited level of intellectual functioning.
Given the unchallenged opinions of Drs Sowden and Ashkar I am satisfied that the accused comes within the definition of a vulnerable person by reason of impaired intellectual functioning - Regulation 28(1)(b).
At paragraph 49 of his comprehensive and helpful written submissions Mr Dennis SC sets out (correctly in my view) a number of things that flow from the fact that the accused is a vulnerable person. In summary those matters are:
The custody manager must assist the vulnerable person - Regulation 29;
The custody manager must attempt to ascertain the identity of the person responsible for the welfare of the protected suspect or detained person - Regulation 36(1)(a);
The custody manager must contact the person so responsible and advise the person of the detained person or protected suspect's whereabouts and the grounds for detention - Regulation 26(1)(b);
The custody manager or other person giving the caution must take appropriate steps to ensure that the detained person or protected suspect understands the caution - Regulation 38(1); and
If the caution is given in the absence of a support person the caution must be given again in the presence of a support person, if one attends during the period of detention - Regulation 36(2).
In the matter presently under consideration there is material within the record of interview and also from the exchange between Acting Sergeant Poulsen and the Beebys that the accused lives independently. No other person is therefore responsible for the accused's welfare. Of particular importance in the present matter is the obligation to assist the vulnerable person and to ensure that the vulnerable person understands the police caution.
Mr Dennis SC is correct in his observation that none of those requirements were met so far as the accused is concerned. However as the accused lives independently there is no one responsible for his welfare. There was no issue as to the identity of the accused. The Crown's primary submission in this regard was that there was no breach of LEPRA. I am against the Crown on that issue.
Senior Constable Powell and Senior Constable Bartlett who conducted the interview were not aware of the acquired brain injury sustained by the accused and it follows that they were not aware of the status of the accused as a vulnerable person. However, the "police" were aware by virtue of what was said by Mr and Ms Beeby to Acting Sergeant Poulsen.
It follows therefore that the interview was obtained in contravention of the Law Enforcement (Powers and Responsibilities) Regulation 2016. It then follows that section 138 of the Evidence Act, 1995 is enlivened for consideration. Section 138 of the Evidence Act provides: 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.
The probative value and importance of the evidence is particularly high, noting that the Crown placed on record that Senior Counsel for the accused has filed an application that no further proceedings be taken by the Crown if the court excludes the interview. From what I gleaned at the hearing of the pre-trial issues on 29 July 2021 was that the admissions within the ERISP form the vast bulk of the case the Crown has against the accused.
The relevant offence is one contrary to section 52(AB)(1) of the Crimes Act. At the hearing on 29 July 2021 the offence was is described as a "Table" offence meaning that it is amenable to disposition in the Local Court. It is the Crown's election that brings the matter to this court on indictment. The maximum penalty is 10 years imprisonment. It is far from a trivial offence but neither is it one of the more serious offences on the criminal calendar.
The Crown submitted that the offence with which the accused is charged is serious. The submission continued that the circumstances of what is alleged, namely impacting with a human being and panicking and leaving the scene was serious.
I am not suggesting that the offence is other than serious noting the maximum penalty provided. However, it seems to me that relevant to the issue of the nature of the offence is the Crown's concession at the hearing on 29 July 2021 that even if the accused had stopped it would have made no difference to the outcome so far as the late Mr Hackett is concerned. Further, there is no allegation that there was anything inappropriate about the accused's manner of driving immediately before the impact with the late Mr Hackett.
A significant issue so far as the gravity of the impropriety is concerned is that Acting Sergeant Poulsen was on notice that the accused had an acquired brain injury. Further Ms Beeby told Acting Sergeant Poulsen that the accused was one who wanted to please. Still further, Ms Beeby told Acting Sergeant Poulsen that the accused should have a support person. That part of the conversation is not transcribed as part of Acting Sergeant Poulsen's statement, but I have a very clear recollection of it being played at the hearing on 29 July 2021. Acting Sergeant Poulsen clearly heard what he was told. Having watched and listened carefully to that footage I am certainly of the opinion that Acting Sergeant Poulsen was quite dismissive of what he was told.
Senior Constables Powell and Bartlett were simply unaware of the accused's acquired brain injury and no blame can be sheeted home to them. However, Acting Sergeant Poulsen should have informed them of what Ms Beeby told him earlier in the day. It is the failure to pass on that information that makes the impropriety more serious. The information of which Acting Sergeant Poulsen became aware when he spoke to Ms Beeby was particularly significant. It should have been obvious to any police officer that an acquired brain injury would be a relevant and moreover very significant factor in any determination as to how to deal with a suspect with such an injury. A number of decisions would be influenced by that information including but not limited to whether to actually embark upon an interview, whether to make further inquiries about the suspect's capabilities and what arrangements were to be made if an interview was to be commenced.
In this regard the statement made by the accused to Dr Ashkar that he thought he would have been in more trouble if he did not speak to the police in my view is particularly significant. Connected to or associated with that is the requirement for the accused to comply with Rule 287(3) of the Road Rules. The real significance to this becomes apparent when the opinion of Dr Ashkar that the conditions under which the caution were administered were not ideal is taken into consideration.
The impropriety was reckless. I have made the point now a couple of times that Constables Powell and Bartlett were not aware of the accused's brain injury. On the material before me I cannot find other than that the failure by Acting Sergeant Poulsen to pass on that information was anything other than reckless (to use the words of the section) rather than deliberate.
No submission was made as to any alleged breach or infringement of the International Covenant on Civil and Political Rights.
No other proceeding is likely to be taken in respect of the breaches by the officers in this matter.
So far as s 138(3)(h) is concerned it is difficult to come to any firm conclusion in this matter. The evidence may well have been able to be obtained without the breach of LEPRA, but this we will never know.
Having given the matter a great deal of consideration taking into account what I have said about the seriousness of the offence and the complete failure by Acting Sergeant Poulsen to pass on significant information of which he became aware about the acquired brain injury leads me to the conclusion that desirability of admitting the evidence is not outweighed by the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. The record of interview after question and answer 56 is therefore rejected.

Section 85 Evidence Act - unreliability

Mr Dennis SC relies on s 85 of the Evidence Act to have the contents of the ERISP after question and answer 56 excluded. That section provides: 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.
The Crown's primary submission so far as s 85 of the Evidence Act is concerned is that it is simply not applicable.
So far as s 85(3)(a) is concerned I have set out at some length earlier in these reasons the issues so far as the accused's level of intellectual functioning is concerned and in particular the opinions of Drs Ashkar and Sowden. Mr Dennis SC appears to concentrate his submissions on s 85 of the Evidence Act, setting out at paragraphs 19 and continuing a number of matters which in his submission would lead to a conclusion that the admissions made by the accused were unreliable.
Mr Dennis SC is correct at paragraph 37 of his submissions in that the accused has an evidentiary onus to provide evidence that the accused is suffering an intellectual impairment. The Crown therefore has to satisfy the court on balance that the admissions were no adversely affected.
At paragraph 38 of his submissions Mr Dennis SC makes a submission as to the nature of the questions and the manner in which they were put that the court could not be satisfied that the standard caution was understood by the accused. Neither Dr Sowden nor Dr Ashkar specifically gives an opinion as to the significance, if any, on the length of the interview noting in particular the change in status of the accused.
Dr Ashkar does opine (paragraph 11 of the second report) that the accused's difficulties with (his already compromised) attention and concentration are also likely to be compromised during the suboptimal conditions of a police interview and to lead to confused, acquiescent and potentially unreliable responses.
However, in the absence of an opinion more precisely and directly addressing the issue of any significance arising from the length of the interview I will for the purposes of determining this issue put concerns I have to one side. Had either of the experts given evidence this was a matter I certainly would have raised with them even if the parties did not.
At the hearing on 29 July 2021 it was the position of the parties that I need only watch (and also listen) to a relatively small portion of the interview. Given the number of questions, the rather quick delivery by Constable Powell and the constant nature of the questions I was left with a feeling of particular disquiet about the manner of questioning given the unchallenged expert evidence of the level of intellectual functioning. Mr Dennis SC is correct with his submission (paragraph 39) that the court would be concerned about the manner in which the questions were put.
In this regard I note Dr Ashkar at paragraph 6 of the second report sets out: "...Furthermore the police officer interviewing him spoke with him and delivered her questions to him at a rapid pace and certainly not at a pace that was optimal for someone with his limited cognitive functioning…"
Dr Ashkar also gives an opinion as to the suggestibility of the accused saying at paragraph 9 of the second report, "The essential ingredient for suggestibility is leading questioning and the police officer adopting a leading questioning style at various times during her interview with Mr Blake". The doctor then sets out examples. Dr Ashkar goes on (paragraph 10) to conclude that the accused is more likely than most people to be suggestible during a police interview because of the limitations in his cognitive functioning.
Mr Dennis SC in his submissions refers to the decisions of R v Ye Zhang [2000] NSWSC 1099 and Severino v R [2017] NSWCCA 80.
Going initially to the decision of the Court of Criminal Appeal in Severino the Court (Payne JA, Campbell & Wilson JJ) said at [65]-[67]: "There was little dispute between the parties on the appeal about the relevant principles which govern this issue. Rather, the dispute was about the application of the relevant principles. Section 85 is concerned with two important concepts; the circumstances in which an admission is made and the likely effect of those circumstances upon the truth of the admission. [66] The question posed by s 85 is the unlikelihood, or otherwise, that the circumstances in which the admission was made adversely affected the truth of the admission: R v Douglas [2000] NSWCCA 275 (Mason P, Sully and Sperling JJ agreeing). Whether an admission was in fact made or whether an admission was actually true or untrue are matters for the tribunal of fact (unless the defence raises truth or untruth as an issue): s 189(3), see R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27; R v Ul-Haque (2007) 177 A Crim R 348; [2007] NSWSC 1251 at [102]. [77] Section 85(3) makes it clear that the range of circumstances relevant for the purposes of s 85(2) include the physical and mental characteristics of the interviewee: R v Clarke (1997) 123 A Crim R 506; [2001] NSWCCA 494; R v Phan (2001) 35 NSWLR 480; (2001) 123 A Crim R 30; [2001] NSWCCA 29."
It is plain enough from the authorities that the question of whether the admissions are truthful or otherwise is a question for the tribunal of fact. Mr Dennis SC at paragraph 36 of his submissions puts, "The court should examine the subjective reliability/truthfulness or otherwise of the admissions". Paragraph [76] of Severino is cited as authority for that proposition. It appears to me the court at [76] examined the circumstances in which the admissions were made and concluded that the admissions made by the accused should not be excluded pursuant to s 85 of the Evidence Act.
Simpson J (as her Honour then was) in Ye Zhang said at [51]: "…The focus of s 85 is the reliability of the admission in the circumstances in which it was made. It is necessary to consider with some care what the two officers said to the accused. Detective Breton had offered him the benefits mentioned earlier in (paragraph 27)… Generally speaking, s 85 is directed to the circumstances in which an admission is made and any impact those circumstances may have on the reliability or otherwise of the admission. The section is not directed to the truth or falsity of the content of the admission: see R v Rooke (unreported, Court of Criminal Appeal, NSW, 2 September 1997 per Barr J) but that position is not absolute…."
Her Honour went on to say at [52]: "The combined effect of sub ss (1) and (3) is that where the voir dire determination concerns the admission of evidence of an admission in a criminal case, the truth or falsity of the admission is to be disregarded unless that issue is introduced by the accused. It seems to me that sub s (3) is designed to obviate a "bootstraps" argument in the determination of the admission of the evidence. That is, evidence of an admission will not be admitted because the admission can be shown, by other evidence, to be truthful. The attention of the court is to be directed to the circumstances in which the admission was made, excluding evidence that would substantiate or contradict the admission. The legislation delineates the circumstances in which the admission was made from its independently verifiable (or otherwise) content. An exception to that position, provided in s 189(3), is made where the accused introduces the question of truth or falsity of the admission. Where the accused takes that course, neither the Crown or the court is precluded from embarking on an examination of the proof of the admission, although it may be that the extent to which that will be considered is limited: R v Donnelly (1997) 96 A Crim R 432 at 438 per Hidden J."
The conduct of the interrogating police in Ye Zhang as found by her Honour was such that it was inevitable that the admissions would be excluded pursuant to s 84 of the Evidence Act. I note that at [64] her Honour concluded on the submission concerning s 85, "…I would not, on the basis of s 85, reject the admission".
I do not consider that the accused has raised the question of the truth or falsity of the admission. Mr Dennis SC submits on more than one occasion both in his written and oral submissions that the accused in the ERISP vacillates between whether the object that he hit was a kangaroo and a person. I understand this to go to the issue of the reliability of the admissions rather than raising the issue of truthfulness or falsity of those admissions. Her Honour emphasises that the attention of the court is to be directed to the circumstances in which the admission was made excluding evidence that would substantiate or contradict the admission.
It is tolerably plain that Peter Beeby told the accused that he (i.e. the accused) had impacted with a person before the interview was commenced. This is plain from the footage from the body worn camera worn by Acting Sergeant Poulsen when he spoke to Peter and Kathleen Beeby. It is also apparent from the answer to question 53 in the ERISP (to which no objection is taken) in that: "No, then, then I went, then I went to get my money off Peter this morning and he said, that wasn't a kangaroo you hit. I said what? He said that was a human you hit. I said, oh no, I, I, I, I felt twice as bad when he told me than, exactly how I felt last night. But, I, I like I sort of can't understand why, why a person would stay on a dark road, middle of the road of this, well he was probably asleep or I, I don't know, on a dark road with no lights on. I don't know, unless he was pretty well under the weather or was on something".
What Dr Ashkar says on the issue of suggestibility is of some significance it seems to me. The accused had been told that he had hit a person.
Both parties addressed on the description given of the person by the accused in the ERISP going to the issue of reliability. Senior Counsel for the accused caused to be subpoenaed an article from the Border Mail (local paper circulating in southern New South Wales, but particularly Albury) which contains a photograph of the deceased and the clothing he was wearing, the photograph having been taken at the engagement party for the deceased's daughter that he attended the night of the incident.
The deceased appears in the photograph to be relatively tall, of reasonably solid but certainly not overweight build, with a goatee beard and very short hair, so far as can be ascertained as the deceased is wearing a cap in the photograph. The deceased is wearing what appears to be dark blue jeans, a black collared button up type shirt with a black t-shirt with some type of white logo or writing on underneath the button up shirt.
The description given by the accused commences at question 365 (bottom p 32 transcript): Q: All right. Um, and can you describe um the size of the object? A: Solidly built Q: Yep A: But uh, like, he was solidly built shirt Q: sorry A: Sorta, a shirt, he wore, he had a shirt on Q: Right A: And sort of uh, he looked like he had like shoulder length hair. Um, and it was like, well just appeared. Like I, like I was concentrating on what I was doing or, and I , I like, like I, I was, that, middle of the, middle of the road and I just thought, I can't well I can swerve but which way to go
The deceased was not wearing a blue shirt and he most certainly did not have shoulder length hair. The Crown in oral submissions that the accused gave a detailed description that was - at least as I understood the submission - generally consistent with the appearance of the deceased.
The Crown Prosecutor on a number of occasions put that a submission to the effect that there was nothing to suggest that the admissions made by the accused were nothing other than truthful. As I have set out above, section 85 is not necessarily directed towards the truthfulness of the alleged admissions.
Mr Dennis SC submits, correctly in my view, that the accused oscillates between asserting that at the relevant time he believed the vehicle he was driving struck a kangaroo and asserting he had knowledge it was a human being. But one example of this at Q/A 405 ff in the ERISP: Q: I am not interested in what Geoffrey thought, what was the object on the--- A: I thought, I thought it was a kangaroo Q: Ah hmm A: I, no, I thought it was a kangaroo Q: Mate you just said, he had a blue shirt on, shoulder length hair and it was him A: Well it, it looked, it, it looked, it looked like, it, it looked like a blue shirt and shoulder length hair 'cause it just I came up to it quickly and I---
In answer to question 950 the accused said, "I would've hit something else" (other than a kangaroo). He goes on to say that the male was wearing what looked to be a blue t-shirt (Q 957) and that he was solid (Q 958). Then questions and answers 972 and 973: Q: OK. And we've established that um you believe it was a person on the road. Um, what position was the person in? A: Well he was, that's your, that, that there is your, the side that I'm travelling on Q: Yep A: And the other side's here. He was sitting on the road on his bottom, legs, legs slumped over and, but he, he was slumped over, like head on his knees. He had his head on his knees like he, like will, I, I, I'd say he was asleep.
The accused then (see Q 982 ff) demonstrated by sitting on the floor of the interview room the manner in which he said the deceased was sitting on the road.
In answer to question 1051 the accused said that his passenger Geoffrey Harrison said that he hit a kangaroo. The accused goes on to say that he did not think that a kangaroo would not do the damage that had been occasioned to the vehicle and he thought he had hit something other than a kangaroo. He goes on to say in answer to the following questions that he did not say that out loud.
Further, in answer to question 1104, taking into account the questions preceding, the accused said that when he went back to the scene he thought the police were there because of the accident. When asked what accident was that the accused replied, "The fella getting knocked over, I knocked the fella over. But as I say, I didn't know at that time". In answer to question 1106 he said that neither Pete (reference to Mr Beeby) nor he knew until it was seen on Facebook that morning.
The submission made by Mr Dennis SC on behalf of the accused that the accused oscillated between asserting that his vehicle struck a kangaroo and knowing that his vehicle struck a person is made good. It seems to me that this is a relevant factor to take into account so far as the reliability of the admissions is concerned.
Given the issues raised by Mr Dennis SC but moreover considering the issues so far as the level of intellectual functioning and the opinions of Drs Ashkar and Sowden to which I have already referred at some length and the issue of suggestibility I would uphold the submissions of senior counsel for the accused and also exclude the admissions pursuant to s 85 of the Evidence Act. I consider this a secondary point after the exclusion pursuant to s 138 of the Evidence Act given the breach of the LEPRA Regulations.
However, if I am incorrect in the conclusion as to s 85 of the Evidence Act, I would maintain the position I have taken with s 138 of the Evidence Act. The admissions would be excluded because of the breaches of the LEPRA Regulations.

Section 90 - Unfairness

Section 90 of the Evidence Act provides: 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.
Section 90 was described by Gummow & Hayne JJ in Em v The Queen (2007) 239 CLR 204; [2007] HCA46 at [114] as a "safety net that catches a residuary category of cases not expressly dealt with elsewhere in the Act". Gleeson CJ and Heyden J in the same decision at [42] said it was possible for an accused to invoke s 90 successfully even if the accused unsuccessfully invokes another ground or other grounds of exclusion.
Mr Dennis SC submits on behalf of the accused (paragraph 52 written submissions) that if it is accepted on balance that the accused was not equipped to evaluate the potential cost/benefit of the option to speak or remain silent also represents unfairness. Mr Dennis SC refers in this regard to the decision in Haines v R [2018] NSWCCA 269. In that matter the Court (Hoeben CJ at CL, Davis & Button JJ) said at [269]-[271]: "The discretion to refuse to admit evidence of an admission sought to be adduced by the Crown pursuant to s 90 depends on a trial judge concluding that to admit the evidence would be unfair to an accused in all the circumstances. The focus of s 90 is on the unfairness of the use of the admission in the trial (Em v The Queen [2007] HCA 46; 232 CLR 67 at [107]). [270] The scope of the discretion cannot be defined exhaustively (Em v The Queen at [109]). The reliability of the admission is a factor but not an exclusive factor affecting the unfairness of its use. Its application is likely to be "highly fact specific" (Em v The Queen at [56]). [271] The unfairness associated with the use of an admission might extend to forensic disadvantages that an accused might suffer at trial. That is not the case here. The kind of problems which might arise were discussed by the High Court in R v Swaffield [1998] HCA 1; 192 CLR 159 at [78] where Toohey Gaudron and Gummow JJ said with respect to the unfairness discretion at common law: 'The purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence. Thus, in McDermott, where the accused did not admit his guilt, but admitted making admissions of guilt to others, it was hypothesised by Williams J that it might have been unfair to admit his statement if the persons to whom the admissions were made were not called as witnesses. In R v Amad, Smith J rejected admissions which were voluntary and which the accused accepted were true because the manner in which he was questioned led to apparent inconsistencies which might be used to impair his credit as a witness. And the significance of forensic disadvantage is to be seen in Foster where the inability of the accused to have his version of events corroborated was taken into account.'"
It is clear from what I have extracted above is that the focus of section 90 of the Evidence Act is the unfairness of the use of the admission at trial. It seems to me that given the opinions of Drs Ashkar and Sowden as to the accused's understanding of the caution and level of intellectual functioning it would be unfair to admit the ERISP at trial, noting that the admission of the ERISP would place the accused at a very great forensic disadvantage.
Mr Dennis SC also relies on the decision of R v Pitts (No. 1) (2012) 229 A Crim R 387; [2012] NSWSC 1652. At [40] Adamson J said: "Although he was not threatened and the statements made to him do not amount to an inducement, I have come to the conclusion that, in all the circumstances, the accused's answers were not given voluntarily and the questioning of him was not fair".
The argument that Mr Dennis SC advances is that the admissions made by the accused were not voluntary if it is accepted on balance that the accused did not understand the caution or understand that no adverse inference could be drawn against him in the event that he chose to remain silent then what flows from that finding is that the accused has had his free choice to speak or remain silent usurped.
It occurs to me that of particular significance to this point is that part of Dr Ashkar's second report at paragraph 8 where the author opines, "Indeed when I asked him why he agreed to speak with the police without a support person or lawyer present he simply told me that he thought he would be in more trouble if he did not speak to them. The fact that his brother (with whom he is close) is a lawyer further underscores his poor judgment and decision making at the time."
Further in considering whether admissions should be excluded pursuant to s 90 of the Evidence Act the reliability of those admissions is not a relevant consideration. Gummow & Hayne JJ in Em v The Queen said at [112]: "As noted earlier, s 90 of the Act expressly directs attention only to the fairness of using the evidence at the trial of the accused. Section 85 deals with evidence of an admission made by a defendant in the course of official questioning, and provides that the evidence 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". It follows that consideration of the reliability of what was said in a statement made to police can have no part to play in the operation of s 90. (By contrast, questions of reliability may well have a role to play in the application of s 90 if the statement was not made in the course of official questioning or "as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued". But that is not this case.)"
Given the reports of Drs Sowden and Ashkar I find on balance that the admissions in the ERISP were not voluntary given the limited capacity of the accused to fully understand the caution and the predicament in which he found himself.
Further, the reasons I gave in excluding the ERISP pursuant to consideration of s 138 of the Evidence Act I also to the consideration of unfairness for the purposes of consideration of section 90 of the Evidence Act.
I would also reject the admission of the ERISP after question 56 pursuant to s 90 of the Evidence Act.

Admissions to Kathleen Beeby

The Crown relies on statements by the accused said to be admissions to Ms Kathleen Beeby. In particular, Senior Counsel for the accused objects to paragraphs 25 and 30 of Ms Beeby's statement. The relevant parts of paragraph 25 are: "…I went outside with Peter and we had a conversation with David. Peter told David 'I don't think it was a kangaroo, I think it was a person'. David was horrified, he said, 'Oh shit I'm going to go for murder'. I said, No, you're not, you didn't go out to kill him, it wasn't premeditated, it might be manslaughter but not murder. I think Peter told him that he had talked to the police already and that they would be in contact with him. I just told him not to panic, just calm down and see what happens, he was a bit worked up then. As soon as David found out that it was a man he started changing his words and staring saying that it was he, he starting saying things like, I didn't see him to the last minute".
Paragraph 30 reads: "I also believe his memory has been changed by us saying the word man on Sunday morning. We shouldn't of given him too much information, because he used to say, 'I didn't see it' and then after we told him he would say, 'I didn't see him'".
Peter Beeby gives essentially the same evidence. As I understand the submissions of Senior Counsel for the accused there is no challenge to the proposed evidence of Peter Beeby.
Mr Dennis SC for the accused relies on section 90 of the Evidence Act, and says that the admission is unreliable and it would put the accused at a forensic disadvantage. In dealing with the ERISP I have set out the legislation and the relevant authorities and will not do so again.
Proceeding on the basis that there is no challenge to the proposed evidence of Peter Beeby the accused is at no greater forensic disadvantage if Ms Beeby gives the same evidence as her partner.
On the issue of unfairness it seems to me that there is a considerable difference between an exchange to people well known to each other and official questioning. The issues such as the presence of support persons and understanding the police caution are not considerations so far as what was said to Ms Beeby is concerned. Further, what is said by the accused was not in response to questioning, but rather statements volunteered by the accused.
The first sentence in paragraph 30 of Kathleen Beeby's statement is an opinion not anything said by the accused. Further, whether the statements attributed to the accused and to which objection is taken are actually admissions is a moot point and will be one for the ultimate tribunal of fact to determine.
I do not reject the content of what was said by the accused to Kathleen Beeby.

Application for trial by judge alone

Senior Counsel for the accused makes application for trial by judge alone pursuant to s 365 of the Criminal Procedure Act rather than section 132. Accordingly, it is not necessary for me to consider s 132(5) of the Criminal Procedure Act. The Crown in what I have previously described in Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150 as an "expected and almost routine opposition to trials being determined by judge alone" objects to that course.
As I understood the Crown's submissions it was put that there is no issue about jury trials being conducted at Wagga Wagga at the moment. Jury trials can be conducted and have recently been conducted at Wagga Wagga. Since hearing submissions Wagga Wagga, with the rest of New South Wales, has gone into lockdown because of the COVID-19 pandemic and no jury trials are being conducted.
Further, the Crown conceded that there is an issue of admissibility but the Crown then submitted that once that that is determined the matter involved a factual dispute which would ordinarily be determined by a jury. I made the point at the hearing on 29 July 2021 that the offence with which the accused is charged is a Table offence and is amenable to disposition by a Magistrate sitting alone in a Local Court. I note the observations of the Court of Criminal Appeal in Redman v R [2015] NSWCCA 110. In that decision Adams J said at [17]: "On a fair reading of the trial judge's reasons, it seems to me (with respect) that, as distinct from merely emphasising the jury's suitability for judging credibility in a word against word case, his Honour acted on the basis that a jury is a superior tribunal of fact for this purpose. This was a significant error: the interests of justice are not determined by suppositions about the relative abilities of judge or jury to determine facts, though in some cases - such as those enumerated in s132(5) - a jury may be the more appropriate tribunal, other things being equal."
The Crown also submitted that there are no complex legal issues that fall for determination in this matter.
Senior Counsel for the accused submits that the "key issue" in the trial is the admissibility of certain admissions made by the accused; firstly by way of ERISP interview and in the conversation with Ms Beeby. Those issues have been determined given my earlier rulings on those issues within these reasons.
It is also put that the accused is privately funded. That is not a particularly significant factor in a determination that the trial be by judge alone.
I agree with Mr Dennis SC when he puts that there are no real issues of substance pertaining to community values. He also submits that the evidence is complex. In that regard the evidence of the experts namely Drs Ashkar and Sowden is complex.
Of particular significance is what appears at paragraph 17 page 8 of Dr Ashkar's first report, namely: "… however need to be made to guide him through the Accommodations with pleading process and to support his participation in any trial. He may struggle to focus and sustain his attention for more than one hour at a time and he will benefit from short presentations of information and regular rest breaks. He will almost certainly struggle to process large amounts of information…and complex material will need to be simplified to support his understanding…"
I agree with the submission by Senior Counsel for the accused that these additional accommodations are more efficiently met by conducting the trial judge alone.
I otherwise rely on what I said in Regina v BD (No. 1) (Judge alone application), particularly noting the situation that prevails as at the date of handing down these reasons as to the State being in lockdown.

Orders

The admissibility of the Electronically Recorded Interview with a Suspected Person (ERISP) between Senior Constable Powell and the accused after question and answer 56 is rejected;
What are relied upon as admissions made by the accused to Ms Kathleen Beeby on 27 October 2020 as contained in paragraphs 25 and 30 of her statement dated 29 October 2020 are admitted; and
I direct that any trial be conducted by judge alone pursuant to s 365 of the Criminal Procedure Act.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2021

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