R v Franklin

Supreme Court of NSW|2020-08-27|Before: Button J

Solicitors: Solicitor for Public Prosecutions (Crown) Cunninghams - The Law Practice (Accused) File Number(s): 2017/202326

Judgment

Introduction
On 24 August 2020, towards the conclusion of the evidence in a special hearing by judge alone conducted in the Supreme Court sitting at Orange, I declined to exercise my discretion to exclude an admission allegedly made by Mr Cody Franklin (the accused), pursuant to s 90 of the Evidence Act 1995 (NSW).
That section reads: 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.

Subject matter of objection

To recap only very briefly: the accused was subject to a special hearing as he was unfit to stand trial because of chronic and severe mental illness. The indictment contained one count of murder and two counts of what I shall call for simplicity arson, all said to have been committed in the regional centre of Parkes on 5 June 2017.
The homicide was said to have been effected by the brutal bashing of an elderly man in his own home in a block of flats, of which the accused was also a resident. All three offences were alleged to have occurred on the same morning, one arson in the apartment of the deceased after his death, and the other in the apartment of the accused soon after that.
There was a plethora of evidence that the accused was psychotic at the time, and indeed the joint position of the parties was that, if the physical elements of the offences were established against the accused, he should be found not guilty on the ground of mental illness. I interpolate that three verdicts to that effect were the ultimate outcome of the special hearing.
Ms Kathleen Willis gave evidence in the special hearing on 12 August 2020 (trial transcript (TT) commencing at page 124). She was a friend of Ms Doris Dixon, in turn a female friend of the deceased. Ms Dixon had been in the company of the deceased in his apartment on the morning in question. The two women were thereafter in each other's company driving around looking at real estate in the town. A phone call was received that led them to drive to the block of flats, arriving there at about 11.15 AM. Ms Willis saw that the apartment block was on fire from her vantage point outside the front of it. She also saw the accused, he having appeared from the western foyer of the building.
The following evidence was given in the special hearing (TT 128.26), defence counsel having reserved the position that the words allegedly said may be the subject of subsequent objection: Q. And whereabouts was he when you saw him? A. At the - well he came out from the front doors from the fire, like down out the front door from the flats and he was standing in the street and like my friend Doris said "What happened up there Cody?" just shook his head and mumbled something we couldn't understand and I said to him, I said "What happened up there Cody?" and he goes - and he said - I'm going to have to swear, sorry I have to swear-- HIS HONOUR Q. No, please use the exact words, ma'am, don't be embarrassed? A. Okay, he goes, he goes "The fuck'n cunt got - deserved what he got". Sorry. HIS HONOUR: There's no need to apologise.
It was those words, allegedly said by the accused in the presence of Ms Willis, that were the subject of the application for discretionary exclusion.
In cross-examination by defence counsel (commencing at TT 131.50), it was established that Ms Willis had not made a statement to police until 10 days after the morning in question.
She had spoken to Ms Dixon about the events in question before having made her statement.
By the time she made that statement, she was aware that the deceased had died, and suspected that the accused may have been responsible.
She confirmed that her evidence in the witness box in 2020 was that it was she, Ms Willis, who asked the question to which the accused responded. She agreed that, in contrast, her statement from 2017 was to the effect that it was Ms Dixon who asked the question to which there was an intelligible response.
She also agreed that in the statement, the words allegedly used by the accused were in reverse order: "You got what you deserved you fucking cunt".
The final exchange in cross-examination (TT 139.32) was as follows: Q. Is it possible ma'am that you have just mis-remembered what you heard from Cody on the day of the fire? A. Yeah, maybe I forgot, I'm sorry, I didn't - yeah maybe.
In re-examination (commencing at TT 139.36), the concluding question and answer were as follows: Q. In relation to that, the words that were said there, "You got what you deserved you fucking cunt"-- A. Yes. Q. -- are you clear about what you overheard? A. I heard that, I did hear that, exactly.
Separately, Ms Dixon had also given evidence in the Crown case in the special hearing. Her evidence-in-chief was given by two statements tendered without objection, which became exhibits U and V. Relevantly, she was with Ms Willis at the front of the block of flats when the two of them interacted with the accused. Although the accused was speaking, the witness was incapable of understanding a word he said. She gave no evidence of having perceived anything approaching the details of what Ms Willis claimed to have heard and understood.
The evidence generally was that a large crowd of residents and bystanders had gathered outside the block of flats and were observing the fire. And yet none of them gave evidence of having heard the words - either in whole or in part - that Ms Willis claimed to have heard.
Relatedly, many witnesses had spoken of the utter unintelligibility of the speech of the accused generally on that morning; more than one of them had described it as "gibberish".
Finally, on the voir dire the Crown prosecutor relied on evidence already given in the trial by a Senior Constable Mann of a conversation he had had with the accused at the same location and at around the same time (TT 69.01; exhibit T). In that conversation, although there were times when the accused had been "mumbling incoherently", the following interaction occurred: I said, "Cody are you ok? You feeling ok?" His eyes were pinpoint and had droplets of water on his chest and back. It looked as if he had just got out from the shower. I also noticed that he was not wearing underwear. Mr FRANKLIN had to keep pulling up his pants. Mr FRANKLIN said, "…….I haven't slept in a week chief. I need some sleep. I need help." I said, "You taken drugs today?" At this time a paramedic walked over and observed Mr FRANKLIN. Mr FRANKLIN said, "I don't [do] drugs. I haven't slept. I need sleep." I turned to the paramedic and had a short conversation. I turned back toward Mr FRANKLIN. I said, "How can we help you Cody?" Mr FRANKLIN said, "Hospital. I need some sleep." The paramedic spoke to Mr FRANKLIN. He said, "Do you want to talk to someone at the hospital mate? We can take you up." Mr FRANKLIN said, "Ok… Yeah…Ok…Ok."

Submissions of defence counsel

The first step in the submission of defence counsel was reliance upon s 88 of the Evidence Act. That section is to be found in "Chapter 2 - Adducing Evidence Part 3.4 - Admissions", and is as follows: 88 Proof of admissions For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.
The submission was made (commencing at TT 680.1) that, for the purposes of the voir dire that was being conducted to determine whether the admission was admissible, on the evidence it was simply not "reasonably open" to find that the accused had said the words about which Ms Willis had given evidence. That was on the following bases.
First, Ms Dixon was indeed in the company of Ms Willis for the whole of the relevant time, but Ms Dixon confirmed in two reasonably contemporaneous police statements that she had not heard anything comprehensible.
Secondly, three workmen and other witnesses had spoken of their sheer inability to understand what the accused was saying throughout that morning.
Thirdly, although there was a crowd gathered at the scene, no one else heard the accused say the words alleged.
Fourthly, although Senior Constable Mann could understand some of what the accused said, that was hardly determinative. And although a paramedic who took the accused from the scene to hospital could similarly understand a few words spoken by him, the vast bulk of what he had to say was indecipherable.
In short, the submission was that the first hurdle to admission on the voir dire had not been overcome.
As for s 90 itself, the submissions may be summarised as follows (commencing at TT 682.41).
First, the uncontested psychiatric evidence established that the accused was gravely psychotic at the time he made that statement, and in those circumstances, it would be highly unfair to use the statement against his interests in the Crown case. This was the central argument in support of exclusion.
Secondly, it was conceded that Ms Willis was not a police officer who was questioning the accused or another person in such a position of authority, nor was she badgering the accused into obtaining an admission. But that was said not to be determinative of the question.
Thirdly, defence counsel asserted that other people who had interacted with the accused on that day demonstrated a very limited level of understanding of anything coherent in what he had said.
Fourthly, defence counsel submitted that, while the very real possibility of complete unreliability of the statements of the accused was not determinative, it was certainly relevant to the question of discretionary exclusion.
Finally, the circumstances in which the admission was made, namely the inability of many other witnesses to comprehend the utterances of the accused and the possible interest of Ms Willis in the proceedings adverse to the accused, were emphasised in submissions.

Reasons for determination not to exclude

As for the threshold question that s 88 seemingly asks as to whether it was reasonably open on the voir dire to find that the admission had been made, I dealt in my reasons for verdict at [98] with the question of whether I was satisfied as the tribunal of fact in the substantive proceedings that the statement was indeed made by the accused. Much of that analysis is apposite here; again, this judgment assumes familiarity with those reasons, and will not be unduly repetitive.
In a nutshell: it is quite true that Ms Dixon heard nothing intelligible. Nor did any other person give any evidence of having heard what Ms Willis said she had heard. But the focus of the bystanders was surely on the fire, not the accused. That is particularly so in the case of Ms Dixon, because she was a former intimate partner of the deceased, who was in obvious danger, and she remained a good friend of his. There was surely something of a hubbub at the time, which meant that the ability of different people to hear things said by different people was variable. The accused did say some understandable things to others that morning: to the police officer, and to the paramedic, for example. Ms Willis was firm by the end of her evidence about having heard words to the effect of those extracted above. There was no suggestion of animus on her part against the accused, nor any other reason to be untruthful. Finally, in my opinion, those words were of a kind that, if heard in the dramatic context of a life threatening fire, would impress themselves upon the listener.
In all of those circumstances, analysed not separately but as to their combined force, I considered that it was reasonably open to find that the words under objection had indeed been said. If the true intention of the section is to impose an initial hurdle of that kind to admissibility of an admission, I considered that it had been cleared.
As for the substantive question of exclusion, I declined to exclude the evidence in the exercise of my discretion for the following reasons.
First, I considered that the "onus" with regard to exclusion lay upon the accused. In other words, if the accused failed to persuade me that the alleged admission should be excluded, or if the question were evenly balanced, the discretion should not be exercised.
Secondly, in accordance with the words of the section and the thrust of the common law discretion that preceded it, my focus was on the circumstances in which the alleged admission was made. And I accepted the submission that those circumstances included the very severe mental illness from which the accused was undoubtedly suffering at that time.
Thirdly, I regarded the gravity of the counts in the indictment presented at the commencement of the special hearing as irrelevant to the question. In other words, I did not engage in a "balancing exercise" analogous to the one found in s 138 of the Evidence Act.
Fourthly, in similar vein, except in the sense of reliability referred to below, I did not engage in a "weighing up" of the probative value of the evidence as one might do for the purposes of the rule of exclusion in s 137 of the Evidence Act.
Fifthly, I accepted that the accused was floridly mentally ill at the time that the words were allegedly said. It is also true that many of the things that he said that morning that were intelligible were also nonsensical. Having said that, the evidence in the trial was that, on the morning in question, he was capable of giving some rational answers to some questions examples of which are extracted above.
Sixthly, I also felt that even a person who is grossly deluded about some matters may nevertheless speak freely and rationally and - potentially - reliably and probatively about other matters. To repeat the completely hypothetical example that I spoke of with counsel during our very useful discussion, a mentally disturbed person may believe that the sales assistant in a cake shop is, in truth, an alien. Even so, the disturbed person may successfully purchase a meat pie, taste it, and choose to state, reliably, whether it is hot or not.
Seventhly, this was not a case of harsh police interrogation, or even anodyne questioning. Nor was it a case of the police using an undercover operative, or a civilian who was to be characterised as a "state agent": see R v Swaffield; R v Pavic (1998) 192 CLR 159; [1998] HCA 1. The investigative and coercive manifestations of the State played no direct or indirect role in the obtaining of the alleged admission.
Nor was there any chicanery, or deception, or sharp dealing, or taking advantage of the mental illness of the accused by the civilian interlocutor. She merely spontaneously asked the accused "What happened up there?", and he replied.
Eighthly, the statement allegedly made by the accused was not, at least explicitly, a recitation of a narrative or a state of affairs. In one sense, it was a straightforward expression of emotion as to how the accused felt about something. Having said that, I accepted that there was an implicit statement contained within the alleged words that something bad had happened to the deceased, to the knowledge of the accused.
Ninthly, I was the tribunal of law determining the voir dire within the special hearing, and also the tribunal of fact determining the substantive proceedings. As a result, there was no fetter or "embarrassment" to be imposed upon defence counsel, in terms of explaining to the tribunal of fact the chronic and severe mental illness of the accused that undoubtedly called into question the reliability and probative value of what the accused had said, whereby that explanation would be prejudicial to him. Indeed, the fact that the accused was entitled to the special verdict that he was not guilty on the ground of mental illness was always an important secondary submission of the accused in the special hearing.
Tenthly, I was certainly of the opinion that the statement could be unreliable. As I remarked to counsel at the time, and as I have said in my reasons for verdict at [99], it is possible that, even on the assumption that the accused said those words, he was referring to some fantastical misfortune that he believed had befallen the deceased that was nothing to do with being bashed or having his apartment set on fire, as a result of the deeply held delusional beliefs of the accused.
And I was aware of the historical doctrinal connection between questions of unreliability and unfairness in this context, emphasised by many judgments of the Court of Criminal Appeal of this State and the High Court of Australia; see, for example, R v Lee (1950) 82 CLR 133; [1950] HCA 25 and Foster v The Queen (1993) 67 ALJR 550; (1993) 66 A Crim R 112; [1993] HCA 80. But it seemed to me that those two questions, whilst undoubtedly related, are not coextensive, as follows.
One can readily hypothetically posit an admission made by an accused person that can be seen to be highly reliable as a result of many pieces of external evidence corroborating it, but nevertheless the admission is to be excluded because of the grossly unfair conduct of investigating authorities. Conversely, one can hypothetically posit an alleged admission that may be potentially very unreliable for countless reasons, but there is nothing in the circumstances in which it was made that gives rise to a hint of unfairness.
In short, I regarded the significant possibility that the alleged admission was grossly unreliable as important, but not determinative of the question of discretionary exclusion.
Finally, I was well aware that mental illness, intellectual disability, vulnerability arising from youth, and countless other factors peculiar to an accused person can, speaking generally, lead to exclusion pursuant to the common law discretion and the section. But the question to which I ultimately gave a negative answer was whether, on all of the evidence placed before me, the condition of the accused should lead to discretionary exclusion in this particular case.

Disposition

It is for the foregoing reasons that on 24 August 2020 I said "I think it is reasonably open to find that these words were said", for the purposes of s 88 of the Evidence Act". For the same reasons, a little later on the same date, I said for the purposes of s 90 of the same Act "I decline in my discretion to exclude the evidence of what the witness says the accused said".

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: 04 September 2020

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