R v Kaewklom

Supreme Court of NSW|2012-09-03|Before: Johnson J, Latham J

Judgment 1JOHNSON J: The Accused, Kukiat "Gang" Kaewklom, is charged with the murder of Frederick McGregor at Liverpool on 25 February 2011. 2This judgment relates to a number of applications and objections made in advance of the trial of the Accused. The pretrial hearing took place on 3 and 4 September 2012 and I announced my rulings on 5 September 2012 (T14). This judgment contains my reasons for those rulings.

The Charge of Murder 3The Crown alleges that, at about 10.35 am on 15 February 2011, the Accused (then aged 18 years) was alone in a cell in the precincts of the Liverpool Local Court with the deceased (then aged 69 years). The Crown alleges that the Accused grabbed the deceased and threw him to the ground, and then kicked him in the back before repeatedly stomping and jumping with two feet on his head and upper-chest area. It is alleged that the Accused stepped back and forcefully kicked the deceased. 4The deceased did not touch the Accused at any time before or during the incident. 5There is effectively no dispute that the Accused acted in this way, as the incident was captured on closed-circuit television. 6Mr McGregor was conveyed to Liverpool Hospital suffering from multiple and severe injuries to his head and body. Surgery was undertaken, however, on 25 February 2011, his life-support system was turned off and the deceased died.

The Late Emergence of Substantial Mental Impairment as a Trial Issue

7On 25 January 2012, the Accused was committed from the Campbelltown Local Court for trial in the Supreme Court on the charge of murder. 8On 2 March 2012, the Accused was arraigned before Latham J and pleaded not guilty to the charge. His trial was fixed to commence on 3 September 2012, with a two-week estimate. 9If the Accused intended to adduce evidence of substantial mental impairment at the trial, he could not do so, without the leave of the Court, unless notice was given to the Crown at least 35 days before the commencement date of the trial, namely 27 July 2012: s.151(1) Criminal Procedure Act 1986; Clause 20 Criminal Procedure Regulation 2010. 10Clause 10 of Practice Note SC CL2 "Criminal Proceedings" (issued on 13 August 2010) provides for the operation of pretrial case management procedures in this Court. In the absence of specific orders under s.136 Criminal Procedure Act 1986 or waiver of the relevant requirements, the Crown is to give the Accused notice of the prosecution case no later than six weeks before the trial date, and the defence is to respond no later than four weeks before the trial date. It appears that Clause 10 of the Practice Note applied to this case, as no other order was made when the trial date was fixed. 11Clause 10 of the Practice Note refers expressly to the need for defence notice of alibi to be given within the period prescribed by s.150 Criminal Procedure Act 1986. However, there is no reference in Clause 10 to s.151 Criminal Procedure Act 1986 concerning substantial mental impairment. 12Section 138 Criminal Procedure Act 1986 requires the accused person to give the Crown notice of the defence response which includes: "(c) a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi), (d) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment)." 13It will be observed that s.138(d) is expressed in terms of notice "whether or not the accused person intends to give any notice under section 151". It may be taken that the purpose of s.138(d) is to require an accused person to state whether or not there will be a substantial mental impairment issue raised at the trial. The statutory expectation is that this advance notice will be given before the time when s.151 notice is actually required. I will return to this topic. 14Following a request by the Crown made on 9 August 2012, the matter was listed before me on 15 August 2012 for the purpose of confirmation of the trial date. On that day, the Crown Prosecutor informed the Court that the Crown had just been served by the Accused with three reports of Dr Bruce Westmore, forensic psychiatrist, whereby the Accused sought to raise the issue of substantial mental impairment. 15Dr Westmore had furnished reports, dated 15 August 2011 and 3 January 2012, to the solicitor for the Accused, neither of which stated that the partial defence of substantial mental impairment was available to the Accused. 16However, in a third report dated 10 August 2012, Dr Westmore expressed the opinion that this partial defence was available to the Accused, for reasons explained in that report. 17The Crown indicated on 15 August 2012 that urgent steps had been taken to retain Professor David Greenberg, forensic psychiatrist, in the hope that the matter could be ready to proceed on the scheduled trial date. 18As the Accused had not filed and served a notice under s.151 of the Act at that time, I directed that a notice be filed and served, in support of an application for leave of the Court, as required under the statute. 19The proceedings came before the Court again on 20 and 29 August 2012, with progress reports being provided by the Crown concerning the efforts of Professor Greenberg to furnish a report for the purpose of the trial. It was apparent that, on any view of the matter, the trial would not be in a position to commence with a jury on 3 September 2012 and I directed that the jury panel be informed that attendance was not required before 5 September 2012. 20On 3 September 2012, the Court was informed of a range of applications and objections which were sought to be argued and ruled upon in advance of the empanelling of a jury. As will be seen, most of these issues concerned admissibility of evidence at the trial, associated with the emergence of substantial mental impairment as a trial issue. 21Following his late retainer, Professor Greenberg had undertaken substantial work in preparation for the trial, including psychiatric assessments of the Accused on 25 and 31 August 2012 at the Metropolitan Remand and Reception Centre at Silverwater ("MRRC"). However, for understandable reasons, he was not in a position to provide his report to the Crown until the early hours of 4 September 2012. The report was served on the Accused and furnished to the Court on 4 September 2012. 22In an affidavit sworn 31 August 2012, read in support of the s.151 leave application, the Accused's solicitor, Brenda Duchen, explained her involvement in the matter since its early stages, and the provision of Dr Westmore's earlier reports. Having attended to the extension of the grant of legal aid to instruct Dr Westmore once again and after receipt of certain Justice Health records on subpoena, Ms Duchen instructed Dr Westmore on 11 July 2012 to provide a further report. It was expected that this could be done quickly. It was Ms Duchen's intention to obtain a final report from Dr Westmore by the end of July 2012. 23However, the Accused was transferred to Parklea Correctional Centre, and Dr Westmore could not attend that prison. Ms Duchen requested that the Accused be transferred back to the MRRC, and Dr Westmore examined him there on 9 August 2012. Ms Duchen provided Dr Westmore's report of 10 August 2012 to the Crown promptly upon receipt, together with his earlier reports. 24Accordingly, it is clear that the Accused was not in a position to give notice prior to 10 August 2012 of intention to rely upon substantial mental impairment, as there was no evidence until then to support that partial defence. 25Ultimately, the Crown did not oppose leave being granted to the Accused to rely upon substantial mental impairment. 26On 4 September 2012, following the receipt of Professor Greenberg's report, I granted leave for the Accused to rely upon the partial defence of substantial mental impairment (PT25). 27I should explain why I took that course, before raising an issue for consideration of possible procedural reform. 28It is necessary to keep in mind that the partial defence of substantial mental impairment fixes upon the state of mind of the Accused at the time of the alleged murder. It may be readily distinguished from fitness to be tried, which calls for an assessment of the Accused's mental state at the time of the proposed trial. The latter concept may ebb and flow, a circumstance recognised in s.8 Mental Health (Forensic Provisions) Act 1990: R v Dunn [2012] NSWSC 946. 29With respect to the grant of leave to rely upon an alibi, where the notice requirement in s.150(2) Criminal Procedure Act 1986 has not been complied with, it has been said that a Court should be slow to refuse a leave application, unless prejudice arises such as is incapable of being addressed without significant disruption to the trial: Skondin v R [2005] NSWCCA 417 at [47]. 30In my view, a similarly flexible approach ought be taken by the Court, where leave is sought under s.151 to rely upon the partial defence of substantial mental impairment after the time prescribed by statute. 31Both s.150 (alibi) and s.151 (substantial mental impairment) require notice to be given to the Crown to allow the Crown to investigate, before the trial, the issue proposed to be raised. Notice of alibi must be given at least 42 days before trial: s.150(8). As mentioned, 35 days' notice is required for substantial mental impairment. 32These notice provisions permit the Crown to undertake different types of investigations. 33Examination of an alibi notice will give rise to police enquiries before trial. 34Where substantial mental impairment is to be raised (invariably through the report of a psychiatrist), the Crown will seek to retain a forensic psychiatrist for the purpose of examining an accused person (sometimes, as here, more than once), conducting a document review and then furnishing a considered report on the question. At times, this process may lead to agreement by the Crown as to the existence of substantial mental impairment, and acceptance of a plea of guilty to manslaughter in full discharge of the indictment. However, a proper and reasonable opportunity should exist for this to be done. It might be thought that the statutory period of 35 days is a relatively short and demanding period for the Crown to obtain expert opinion evidence of this type. 35There is a further aspect of ss.150 and 151 Criminal Procedure Act 1986 which should be noted. Each provision allows the Crown, subject to any direction by the Court, to adduce evidence in reply which seeks to disprove an alibi (s.150(5)) or to disprove a contention of substantial mental impairment (s.151(3)). Factors relevant to the giving of a direction under s.151(3) were considered by Howie J in R v Fraser [2003] NSWSC 965. 36Subject to the direction of the Court, it is open to the Crown to seek to split its case to rebut a partial defence of substantial mental impairment, as a statutory exception to the common law rule: R v Fraser at [25]. 37A number of observations ought be made arising from the experience in this case. 38Firstly, it might be thought that the modern case management provisions now contained in the Criminal Procedure Act 1986, including s.138(d), entitle the Court to learn at an early time, and before the 35-day period is reached, whether substantial mental impairment is to be raised in a murder trial. 39Secondly, it is the case that Dr Westmore had provided two earlier reports (the latter in January 2012 before committal and arraignment) which did not raise substantial mental impairment. Once the trial date was fixed on 2 March 2012, it was at least desirable that the solicitor for the Accused seek a further report from Dr Westmore promptly, so that notice could be given to permit the Crown to take necessary steps in a timely but not pressured manner, and for the Court to have an accurate understanding of the issues in the trial and its likely estimate and, in particular, so that the trial would be in a position to commence with a jury on the date fixed, namely 3 September 2012. I understand that Ms Duchen and Dr Westmore had a plan in place which was intended to lead to service of a report within the statutory time period. However, there was no leeway if a problem arose, as it did when the Accused was transferred to Parklea Correctional Centre. 40Thirdly, it is apparent that Professor Greenberg was required to undertake very substantial preparation, including two prison visits to the Accused, within a short period of time for the purpose of preparing his report. But for the willingness of Professor Greenberg to undertake these steps, the question of leave may have become a more lively one, with the possibility that the trial date would be vacated, and with the associated difficulties of delay and cost to the community. 41Fourthly, the late communication of substantial mental impairment in this case has given rise to a series of pretrial issues, which call for consideration and determination in the shadow of the trial, in a way which delayed the empanelment of the jury and had a potential to impact upon the allocation of Court resources. 42I accept that there are some unusual features to this case. I emphasise that these matters are not being raised to be critical of Ms Duchen and Dr Westmore. 43There is some tension between ss.138(d) and 151 Criminal Procedure Act 1986 and Clause 10 of Practice Note SC CL2. The purpose of s.138(d) is to require a statement of intent that substantial mental impairment is to be raised before the notice is actually given under s.151 (see [13] above). Yet, Clause 10 of the Practice Note does not require a s.138 defence response to be given until after the s.151 deadline has passed. 44The experience in this trial suggests that amendment to Supreme Court practices may be appropriate, to reinforce the expectation of modern criminal trial case management that timely notice of substantial mental impairment will be given well in advance of a murder trial.

An Incident Between the Accused and X on 10 February 2011

45The various issues to be determined in this judgment relate, in one way or another, to the Crown's desire, subject to the rulings of the Court, to adduce evidence before the jury of a serious assault by the Accused upon his 15-year old former girlfriend, X, on 10 February 2011 and its consequences. I will refer to this young victim as X to prevent publication of her identity: s.15A Children (Criminal Proceedings) Act 1987. 46The Accused was in custody, having been charged with an offence arising from this incident, at the time of his attack upon the deceased in the Liverpool Courthouse cell on 15 February 2011. 47Given the issues in the trial, it is accepted by Mr Averre, counsel for the Accused, that the circumstances giving rise to this charge, and the arrest of the Accused, would be in evidence before the jury. However, there are two pieces of evidence which the Crown seeks to adduce which are objected to by the Accused: (a) the recording of a "000" call made by X on 10 February 2011, in the course of the Accused's assault upon her, in which the Accused may be heard speaking in the background (Exhibits PTA and PTD); (b) the ERISP conducted between Detective Senior Constable Aaron Turner and the Accused at the Cabramatta Police Station on 14 February 2011 concerning the assault upon X (Exhibits PTB and PTE). 48In addition, the Crown seeks to rely upon the evidence of the assault upon X, and the ERISP with the Accused on 14 February 2011, as tendency evidence. 49Mr Averre accepted that the Agreed Statement of Facts concerning the assault on X "has relevance in the context of what Dr Westmore says and doubtless what Professor Greenberg says" and that it was "inevitable that evidence in relation to that assault would be given some how", with the areas of controversy being the "000" call and the ERISP of 14 February 2011 (PT6-7, 3 September 2012). 50It is sufficient to note in this judgment that the Accused pleaded guilty in March 2012 to a charge of recklessly inflicting grievous bodily harm upon X on 10 February 2011, and awaits sentence for that offence in the District Court. The Agreed Statement of Facts concerning this incident (Exhibit PTA) reveals the following events. 51About 2.30 am on Thursday, 10 February 2011, the Accused called X by mobile phone and argued with her, with X eventually agreeing to see the Accused. The Accused drove to a location near X's residence and collected her. They then drove to Cabramatta and purchased some cigarettes. They drove to a car park area in Lansvale. 52The Accused and X had a conversation, which included the Accused making sexual advances towards her, with X refusing these advances and requesting that he take her home. 53As a result of X's rejection, the Accused became enraged. He said "Do you wanna see me angry, do you wanna see me angry, I'll show you what angry is". The Accused then hit X three to four times to the face whilst they were both inside the vehicle. 54The Accused then exited the vehicle by the driver's door and forcibly dragged X from the vehicle. The Accused continued to punch X numerous times whilst she was on the ground. The Accused also kicked and stomped on X whilst she was on the ground. 55X called "000" and the call was recorded. The "000" call, which is the subject of objection, captures the following words (Exhibit PTA): "OPERATOR: Please go ahead Telstra. TELSTRA OPERATOR: xxx no request, no location. OPERATOR: Police emergency go ahead. X: No, no, I'm sorry. OPERATOR: Hello. X: I'm sorry please leave me alone. KAEWKLOM: ....(INAUDIBLE) ... Fucking ... bring fucking people here, you fucking dog bitch. X: I'm sorry please stop hitting me. KAEWKLOM: Bitch. OPERATOR: Hello can you hear me? Can you tell me the address? Where are you? KAEWKLOM: I love you so much, you're fucking lucky bitch ... Fucking slut. OPERATOR: Hello can you please tell me where you are? KAEWKLOM: Get up now. X: (MOANING) OPERATOR: Tell me the suburb that you're in?" 56X then lost consciousness. Her next memory was regaining consciousness in the Accused's vehicle. 57About 11.00 am on 10 February 2011, X recalls being driven by the Accused to her home. On the trip home, the Accused asked her if she was going tell anyone what happened. She said that she would not. The Accused asked what she would tell her mother. X said that she would tell her mother that she had been bashed in Cabramatta. The Accused said "Good, because if you tell anyone about it and I find out, I'll make sure your fucked up eye is hanging out". 58The Accused refused to drive X all the way home, and he dropped her off about 200 metres away. 59X returned home and called her mother. Her mother returned home and saw X's injuries. X's mother immediately drove her to Fairfield Police Station and an ambulance was called. X originally told police that she had been assaulted by some girls in Cabramatta. She did this because she was afraid of the Accused. 60X was conveyed to Liverpool Hospital, and was treated for her injuries which included the following: (a) fractured right eye socket; (b) a laceration to the top of the head, two centimetres long and one centimetre deep; (c) deep bruising to her facial area; (d) tenderness to the left abdomen; (e) red marks to the neck area; (f) abrasions/swelling to her knees and foot. 61About 10.30 pm on 14 February 2011, the Accused voluntarily attended Cabramatta Police Station and asked to speak with the detectives. The Accused was arrested, cautioned and returned to the custody area by Detective Senior Constable Aaron Turner, where he was introduced to the Custody Manager (Sergeant Bijay Chand) and informed of his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. 62The Accused was escorted to an interview room and participated in an electronically recorded interview. In the course of the ERISP, to which objection is also taken by the Accused, the Accused admitted that on the night of 9 February 2011, he drank a significant amount of beer and spirits. He said that he received a telephone call from X asking him to pick her up from Cabramatta. He then drove to the bus stop near the train station and collected her. He said that, when she got into the car, X was bleeding and bruised. He drove her to the car park at Lansvale and they talked. He alleged that X told him she had been assaulted by some Asian girls and refused to go to the hospital. The Accused then suggested that X may have made up the allegation that he had assaulted her because he had slept with two of her friends, and also because X was seeing a psychologist.

63It is appropriate to refer briefly to relevant principles concerning substantial mental impairment and the anticipated contest between the evidence of Dr Westmore and Professor Greenberg in this area. 64Section 23A(1) Crimes Act 1900 permits a person on trial for murder to be convicted of manslaughter in the following circumstances: "(1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter." 65The onus lies upon the accused person to prove (on the balance of probabilities) that he or she is not liable to be convicted of murder by virtue of the section: s.23A(4). 66The first element of the partial defence (in s.23A(1)(a)) requires the capacity of the accused person to function, in one of the three ways mentioned in the subsection, to be substantially impaired. It is not sufficient if the accused person simply chose not to function in that way. 67An abnormality of mind occurs if the accused person's capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, deviates from the normal variation in the ways in which people so function. It must be so different from that of ordinary human beings that the reasonable person would term it abnormal. 68The abnormality of mind must arise from an underlying condition, being a pre-existing mental or physiological condition, other than a condition of a transitory kind: s.23A(8). 69For the purpose of the second element (in s.23A(1)(b)), evidence of an opinion, that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter, is not admissible: s.23A(2). 70The issue under s.23A(1)(b) is a task for the jury, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact: R v Trotter (1993) 35 NSWLR 428 at 431. 71An impairment must be so substantial as to warrant the reduction of the crime from murder to manslaughter: R v Trotter at 431; R v Ryan (1995) 90 A Crim R 191 at 195; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241 at 243 [10]-[11]. In R v Majdalawi, Adams J observed (at 247 [36]) that the "value judgment by the jury representing the community" to which Hunt CJ at CL referred in R v Ryan "is a decision about culpability" and hence "is not a medical question". 72Section 23A(1)(b) has been described as giving rise to "an issue which is quintessentially one for the determination of a jury": R v Hucker [2002] NSWSC 1068 at [2] (Howie J). 73Accordingly, Dr Westmore and Professor Greenberg cannot express an opinion on the second element in s.23A(1)(b) concerning the Accused. 74There is a live issue in this case as to whether the Accused has satisfied the first leg of substantial mental impairment in s.23A(1)(a) Crimes Act 1900, before one gets to the quintessential jury question to be considered, as the second leg, under s.23A(1)(b) of the Act. 75There is a dispute between Dr Westmore and Professor Greenberg as to whether the Accused was substantially impaired at the time of the relevant acts on 15 February 2011. 76In his third report dated 10 August 2012 (part Exhibit PT1, page 2), Dr Westmore said: "Following my recent meeting with Mr Kaewklom, I am of the view that the court should be given the opportunity to consider the defence of substantial impairment in this case on the basis that, on the balance of probability, Mr Kaewklom was suffering from the prodromal stage of the illness schizophrenia (at the time of the offence) which became fully expressed and later diagnosed when in prison. This (prodromal stage) is an underlying condition which I now believe lead to an abnormality of mind (fear, paranoia and probably anger) and that in turn impacted on his ability to control himself at the relevant time. It will be a matter for the court I think to determine whether or not he was substantially impaired." 77In his report furnished on 4 September 2012 (Exhibit PTG), Professor Greenberg, for reasons explained in some detail in the report, said (page 27): "I am therefore of the opinion that it is most unlikely that Mr Kaewklom had such an abnormality of mind at that time period. I am of the opinion that his mental state was not substantially impaired. I am of the opinion that he likely had the capacity to understand events and judge whether his actions were right or wrong and to control himself at that time period. This capacity was not in my view impaired by an underlying mental abnormality of the mind at that time period. However, the final determination is best left to the trier of fact." 78A little later, Professor Greenberg said (page 27): "I am of the opinion that at the time of the alleged offence Mr Kaewklom was likely tired, exhausted and angered and annoyed by the behaviour of the victim. He likely, in my view, acted in an angry manner. Mr Kaewklom had a pattern and history of aggression in his past. I am of the opinion that although there is a possibility that he may have a mental illness, the mental illness played no significant part in his alleged offending behaviour. I am therefore of the opinion that Mr Kaewklom likely does not have a partial defence of substantial impairment."

79By notice served on 6 August 2012, amended on 15 August 2012 (Exhibit PTF), the Crown gave notice of an intention to call evidence from Detective Senior Constable Turner outlining details of the offence that the Accused pleaded guilty to on 14 March 2012, that is recklessly causing grievous bodily harm contrary to s.35 Crimes Act 1900, being the offence committed against X. 80Whilst acknowledging that the Accused concedes that this evidence is otherwise admissible in the trial, the Crown seeks its admission as well as tendency evidence, to demonstrate a tendency on the part of the Accused to act in a particular way with a particular state of mind. 81In addition, the Crown submits that the evidence has the capacity to rebut the partial defence of substantial mental impairment relied upon by the Accused. 82The tendency particularised in the tendency notice is: (a) the tendency of the Accused, when angered, to physically assault the victim by positioning the victim on to the ground, by either dragging or throwing the victim, in order to use his feet to repeatedly kick and stomp the head and body of the victim; and (b) the tendency of the Accused to perpetrate violence when angered. 83The evidence sought to be adduced as tendency evidence includes the Agreed Statement of Facts concerning the assault on X and the ERISP conducted on 14 February 2011, but not the "000" call made on 10 February 2011. 84Mr Averre submits that the proffered evidence does not have significant probative value for the purpose of s.97 Evidence Act 1995 and, in any event, the Court could not be satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the Accused for the purpose of s.101 of that Act. 85It is necessary to identify the facts in issue, the probability of the existence of which is said to be affected by the evidence under consideration: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at 316-317 [34]. Having done so, it is then necessary to consider whether the evidence in question has "significant probative value". The actual probative value of the evidence is a matter for the jury. The question to be determined is whether it is capable of having had that degree of probative value. This involves an assessment of the extent to which the evidence could rationally affect the probability of the existence of the facts that are in issue: R v Fletcher at 316 [33]. 86Subject to the balancing exercise imposed by s.101(2), evidence will be admissible under s.97 if it is evidence, the acceptance of which, beyond reasonable doubt, will render it more probable that, on a particular occasion relevant to the proceedings, the Accused acted in a particular way or had a particular state of mind: R v Ford [2009] NSWCCA 306 at [33]-[46]. 87Evidence that a person has a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the trial, that person acted in a particular way (or had a particular state of mind), that is, to provide the foundation for an inference to that effect: Cittadini v R [2008] NSWCCA 256; 189 A Crim R 492 at 495 [22]-[23]; R v PWD [2010] NSWCCA 209 at [57]-[63]. 88The prejudice with which s.101(2) is concerned is the risk that the evidence will be misused by the jury in some unfair way, for example, by provoking an irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves, or by distracting the jury: R v Ford at [56]. The proper carrying out of the balancing task requires the Judge to identify the type or types of prejudicial effect to which the evidence may give rise, and why it is that the Court has concluded that the probative value of the evidence does or does not substantially outweigh any such prejudicial effect: R v Ford at [64]. 89This process requires, as well, the Court to consider the ameliorating effect of any directions that may be necessary or available to reduce the prejudicial effect: DAO v R [2011] NSWCCA 63 at [104], [172]. 90There are some unusual features to this case. 91Firstly, as the Crown observed, unlike many tendency arguments, there is no issue raised by the defence in this case as to the admissibility of the evidence per se of the assault by the Accused upon X as it provides an explanation as to why the Accused was in custody when he attacked the deceased. 92In addition, the incident is referred to in the reports of Dr Westmore and Professor Greenberg in the context of the substantial mental impairment issue. 93Secondly, there is no factual dispute that the Accused assaulted X, in the manner referred to, on 10 February 2011. Nor is there factual dispute that the Accused attacked the deceased, in the manner referred to, in the cell on 15 February 2011. 94Accordingly, the jury will be aware of these two events and the acts of the Accused in those events are not in contest. The present issue, however, centres upon the question whether the Crown can make use of this evidence as tendency evidence, with directions to be given to the jury to that effect. 95The fact in issue in the case, to which the tendency evidence and direction is aimed, is the state of mind of the Accused at the time of the attack upon the deceased on 15 February 2011. The fact that the Accused, when angry, physically attacked X on 10 February 2011 in a manner which included kicking and stomping is, in my view, relevant and has significant probative value to an issue in the trial. That issue is whether, when angry, the Accused attacked the deceased on 15 February 2011 in a manner which involved kicking and stomping. 96The s.101 inquiry involves the Court considering whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the Accused. It is the case that the jury will have this evidence before them, in any event, in the trial. This is not a case where, if the tendency evidence is disallowed, the jury will not be aware of the Accused's assault upon X on 10 February 2011. 97I accept the Crown submission that this factor reduces, to a significant degree, the suggested prejudice which is said to flow from the admission of this evidence as tendency evidence. Directions may be fashioned to ensure that the evidence is used appropriately by the jury: R v Ford at [139], [140]. 98It is also significant to the question of prejudice that there is no factual dispute that the Accused acted in the manner described in the incidents on 10 and 15 February 2011. 99I accept the Crown submission that, if the jury was persuaded that the Accused, only four days prior to the attack on the deceased, attacked his former girlfriend in anger when frustrated, the Crown could demonstrate a tendency to act in a particular way with a particular state of mind, this making it more likely, to a significant extent, that the Accused had so acted on the occasion of his attack upon the deceased, in a state of anger and frustration. This matter would bear strongly upon the issue of substantial mental impairment in the trial. 100The similarity in the conduct of the Accused on each occasion, including the use of kicking and stomping, and the reasons for the use of such force, renders the evidence more probative of the facts in issue and relevant to the proposed partial defence to be raised by the Accused. 101I am satisfied that the evidence is relevant and is capable of demonstrating a tendency of the Accused to act in a particular way (violently kicking and stomping his victim), with a particular state of mind (when angered or frustrated) and that this falls within s.97(1) of the Act. The evidence has significant probative value in the determination of the question whether the Accused is guilty of murder. The likelihood that such conduct occurred in the preceding week would make it more likely that the Accused acted in the way alleged for the particular reason alleged by the Crown on the occasion when he attacked the deceased on 15 February 2011. 102I am satisfied that the evidence has significant probative value that substantially outweighs any prejudicial effect. 103I propose to allow the evidence identified by the Crown to be adduced as tendency evidence in the trial of the Accused.

104The Crown seeks to tender, through Detective Senior Constable Turner, the ERISP conducted with the Accused on 14 February 2011 concerning the assault upon X. The Crown submits that this ERISP is relevant and admissible on four principal bases: (a) to prove the Accused's state of mind at a time closely proximate to the alleged murder; (b) it forms part of a connecting series of events between 10 and 15 February 2011, culminating in the attack upon the deceased on 15 February 2011; (c) it is relevant to the partial defence of substantial mental impairment sought to be proved by the Accused; (d) it assists the Crown in proving the 10 February 2011 offence beyond reasonable doubt. 105Mr Averre objects to the tender of this ERISP on the grounds of relevance and, if relevant, upon the grounds that it would be unfairly prejudicial to the Accused (ss.135 and 137 Evidence Act 1995) and that it ought be excluded, in any event, as evidence obtained improperly or unlawfully under s.138 Evidence Act 1995. 106Written submissions on behalf of the Crown and the Accused developed arguments in favour of and against the tender of the ERISP. In addition, evidence was given on the voir dire by Detective Senior Constable Turner and Sergeant Bijay Chand on issues relevant to the s.138 objection, to which I will return. 107I am satisfied that the ERISP conducted with the Accused on 14 February 2011 is relevant to issues to be determined in the trial. There is a particular, and unusual, area of relevance in this case. The Accused is charged with the murder of the deceased as a result of the attack upon him at about 10.35 am on 15 February 2011. The Accused has raised the partial defence of substantial mental impairment, as to which he carries the onus of proof on the civil standard. 108The psychiatrists who will give evidence at the trial have had available to them contemporaneous visual images of the Accused at times before, during and after the attack upon the deceased in the cell. There is available: (a) the ERISP with the Accused which commenced at 11.58 pm on 14 February 2011 and concluded at 1.44 am on 15 February 2011 - this interview provides an opportunity to observe and hear the Accused in conversation with police, on an occasion some nine-11 hours prior to the fatal attack - it constitutes a contemporaneous record of the Accused and a means by which his manner, affect and mental state may be assessed; (b) the CCTV footage of the attack upon the deceased in the cell at about 10.35 am on 15 February 2011 provides a contemporaneous and graphic visual record of the acts of the Accused at that time; (c) the ERISP conducted with the Accused between 3.30 pm and 4.05 pm on 15 February 2011 concerning the attack upon the deceased will be admitted, without objection, and will provide a further contemporaneous visual record of the Accused in a manner which allows observers to assess his manner, affect and mental state. 109Both Dr Westmore and, in particular, Professor Greenberg have derived assistance in an assessment of the mental state of the Accused from the ERISP conducted on 14 February 2011, prior to the attack upon the deceased. 110In circumstances where there is a live issue as between the expert psychiatrist witnesses as to whether the Accused was affected by an abnormality of mind at the time of the attack upon the deceased, this recorded interview of the Accused is capable of shedding very considerable light upon that topic. 111For that reason alone, I am satisfied that the ERISP is admissible in the trial, as part of evidence relevant to an assessment of whether the partial defence of substantial mental impairment is made out by the Accused. It will be for the jury to determine whether the Accused has established both the first and second legs of the partial defence under s.23A(1), and this contemporaneous visual evidence depicting the Accused is of significant probative value on those issues. 112I do not accept the submission of Mr Averre that this ERISP of 14 February 2011 ought be excluded given that there will be other evidence of police officers and correctional officers and the Legal Aid solicitor who spoke to the Accused shortly prior to the fatal attack, and who can describe his manner and apparent mental state. Although that evidence is relevant to the Accused's mental state at the time of the fatal attack, it does not have the advantage of a contemporaneous visual and audio recording of the Accused, in conversation with the police, only hours prior to the fatal attack. 113I have had regard to the defence submission that it would be unfairly prejudicial to allow this evidence to be adduced in support of the contention that it ought be excluded under ss.135 or 137 Evidence Act 1995. It is the case that the evidence does have a prejudicial capacity, because the Accused in the ERISP is providing false denials to the police of having assaulted X. 114However, the capacity of the Accused to engage with police in an extended conversation during that interview is, in my view, highly relevant to the substantial mental impairment issue. The psychiatrists refer to the account which he has given, including his denial of the earlier assault. The way in which the Accused interacts with the police is relevant to the substantial mental impairment issue. 115In my view, any prejudice which could result to the Accused because of his false denials in the ERISP may be balanced by appropriately fashioned directions. I am satisfied that the probative value of the ERISP outweighs any prejudicial effect and I decline to exclude it under s.135 Evidence Act 1995. I have considered whether the evidence ought be excluded under s.137 Evidence Act 1995 upon the basis that its probative value is outweighed by the danger of unfair prejudice to the Accused. I am not satisfied that the probative value of this evidence is outweighed by the danger of any unfair prejudice to the Accused, and I decline to exclude it on that basis as well. 116Although it is not strictly necessary to consider the other bases upon which the Crown seeks to rely upon this evidence, I will shortly address them for the purpose of this ruling. 117As to the first basis (at 104 above), I am satisfied that the evidence is relevant to prove the Accused's state of mind at a time proximate to the alleged offence of murder - this aspect, in reality, overlaps with the relevance already adverted to concerning the partial defence of substantial mental impairment. 118As to the second basis (at 104 above), I am persuaded that this evidence, being the ERISP of 14 February 2011, may be characterised as being part of a connected series of events which may be considered as one transaction: O'Leary v The King [1946] HCA 44; 73 CLR 566 at 577; R v Adam [1999] NSWCCA 189; 106 A Crim R 510 at 516 [30]; R v Serratore [2001] NSWCCA 123 at [39]-[40]; R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 at 324-326 [126]-[137]. In the unusual circumstances of this case, the events set in train by the Accused's assault upon X on 10 February 2011, his attendance at the police station on the evening of 14 February 2011, the ERISP which then took place, the fact that he was charged and bail refused and thereby kept in custody, set the scene for the fatal attack upon the deceased in the cell on the morning of 15 February 2011. 119With respect to the first and second bases relied upon by the Crown, I accept the Crown submission that it is an available rational inference that when the Accused handed himself into the Cabramatta Police Station at 10.30 pm on 14 February 2011, he expected to give his false account and walk out of the police station without being charged. He attempted to joke with the police initially, and to steer their investigation away from him by giving a premeditated false story. However, the police did not believe this account and the Accused was charged and bail was refused, leading to him being confined in the cell near the deceased who was yelling abuse and behaving in an irritating fashion. 120I accept, in the unusual circumstances of this case, that this may be regarded as a connected series of events, which is capable of shedding light upon the Accused's state of mind at the time of the attack upon the deceased in the cell later that morning. It may serve to explain why he was angry and frustrated, although it will be a matter for the jury to determine whether the Crown argument to this effect ought be accepted. 121As to the fourth basis (at 104 above), I am not persuaded that this evidence is relevant to assist the Crown in proving the 10 February 2011 assault upon X beyond a reasonable doubt. There will be an admission by the Accused that he assaulted X and has pleaded guilty to that charge, so that this leg of the Crown's argument ought not be upheld. 122I turn to the objections based upon s.138 Evidence Act 1995. As initially advanced, Mr Averre objected to the admissibility of the ERISP of 14 February 2011 upon the following bases: (a) that the Accused had been unlawfully arrested for the purpose of questioning; (b) that the Accused was a "vulnerable person", being a person from a non-English speaking background, so that a support person should have been offered to him for the purpose of the ERISP; (c) that there had been a failure to comply with appropriate procedures to explain the Accused's right to consult a lawyer. 123An objection under s.138 Evidence Act 1995 involves a two-stage process: Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at 500-501 [28]-[29]. At the first stage, the onus lies upon the Accused to establish impropriety or illegality for the purpose of an objection under s.138 Evidence Act 1995. The Accused must discharge this onus on the balance of probabilities, but with the principle in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 kept in mind: R v Petroulias (No. 6) [2006] NSWSC 1422; 182 A Crim R 1 at 6 [21]; R v Petroulias (No. 8) [2007] NSWSC 82 at [11]-[18]. 124If the Accused establishes impropriety or illegality, the burden then falls upon the party seeking admission of the evidence to persuade the Court that it should be admitted: s.138(1) and (3); Parker v Comptroller-General of Customs at 500-501 [28]-[29]. 125The evidence of Detective Senior Constable Turner and Sergeant Chand on the voir dire did not assist the Accused in support of these grounds of objection. 126As to the arrest ground, I am not satisfied that the Accused has established impropriety or illegality. It has not been demonstrated that the Accused was arrested for the purpose of questioning. 127The evidence of Detective Senior Constable Turner, taken with the documentary evidence and the evidence of Sergeant Chand, reveals that the Accused attended the police station at about 10.30 pm on 14 February 2011. The COPS entry concerning the assault upon X (Exhibit PTK) was accessed by Detective Senior Constable Turner. That document made clear that X, although originally asserting that the Accused had not assaulted her, had informed police that the Accused had in fact done so and that the Accused had sought to dissuade her from revealing the true facts. 128The COPS entry also disclosed that the police had been looking for the Accused, without success, for the purpose of arresting and charging him with the assault upon X and to serve an apprehended violence order on him. 129Accordingly, the COPS entry provided a proper foundation for Detective Senior Constable Turner to reasonably suspect that the Accused had committed an offence and that arrest was appropriate. 130Further, I accept the evidence of Detective Senior Constable Turner that arrest was appropriate in this case by operation of s.99(3) Law Enforcement (Powers and Responsibilities) Act 2002, given the need to ensure the appearance of the Accused before Court in respect of the offence, the need to prevent a repetition of the offence and, in particular, to prevent harassment of or interference with X, to prevent fabrication of evidence in respect of the offence and to preserve the safety or welfare of X (s.99(3)(a)-(f)). 131It is the case that Detective Senior Constable Turner did not inform the Accused that he was arresting him for these reasons. However, the Accused was informed that he was being arrested for the assault upon X. The COPS entry provided a solid foundation for the factors referred to in s.99(3) to which Detective Senior Constable Turner adverted to in his evidence. There was a proper and reasonable basis for the police officer to consider that arrest was necessary to protect X and to guard against any further harassment of her, in circumstances where there was evidence suggesting that this had already occurred since the offence committed against her on 10 February 2011. 132In any event, it is difficult to see how arrest for the purposes of questioning may be found in this case. The Accused had attended the police station, no doubt in the expectation that he would be questioned about the assault on X. After some initial questions were asked of the Accused by Detective Senior Constable Turner, the Accused was informed he was under arrest and was then processed by way of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, before he was sought to be interviewed by way of ERISP. The effect of this was that the Accused was informed fully of his rights by Sergeant Chand, in a manner which re-emphasised the fact that he did not have to answer questions if he did not wish to, and that he could seek to speak to a lawyer or a friend if he so wished. Thereafter, Detective Senior Constable Turner interviewed the Accused and the Accused participated in the interview. 133I am simply not persuaded that any impropriety has been demonstrated here by way of the arrest of the Accused for questioning. 134The second basis of objection - that the Accused was a "vulnerable person" - was ultimately not pressed by Mr Averre, after attention was drawn to the definition of "person of non-English background" in s.3 Law Enforcement (Powers and Responsibilities) Act 2002. That definition states that "a person of non-English speaking background" is one "who is born in a country outside Australia and whose first language is not English". The submission was made initially upon the basis that the Accused's mother had Thai as her first language, and required a Thai interpreter to give a statement to police and that this feature was relevant to the issue of the Accused's vulnerability. 135The question was whether the Accused was a person "born in a country outside Australia ... whose first language is not English". It is plain that the purpose of this class of "vulnerable person" is to provide a measure of assistance or protection to a person with a significant difficulty in speaking and understanding the English language. 136Although it is the case that the Accused was born in Thailand, the evidence makes clear that his first language is English. He came to Australia when he was six years' old and, even at that time, he could speak English. Further, it is apparent that all persons who have spoken to him, including police officers, the Legal Aid solicitor and psychiatrists have been able to converse with him readily in English. The ERISP of 14 February 2011 was conducted in English without any difficulty on the part of the Accused. 137The evidence of Sergeant Chand revealed a practical and constructive approach on his part to the determination that the Accused had a good understanding of the English language. A practical approach by a custody manager, for the purpose of an assessment as to whether a person is a "vulnerable person", is what is to be expected in the setting of a police station, where issues of this type arise for consideration: Spurling v R [2006] NSWCCA 245 at [21]. 138The submission based upon the "vulnerable person" issue was ultimately not pressed but, in any event, was without merit. 139The third head of objection under s.138 was that there was impropriety or illegality in the way in which the Accused was informed of his rights to consult a lawyer. The evidence of Sergeant Chand, which I accept, outlined the process adopted in his discussion, as Custody Manager, with the Accused. 140That discussion included a clear statement that the police will help the Accused to contact the lawyer of his choice, if he wanted legal advice or to ask that person to come to the police station. The Accused provided a written acknowledgement that he had been given such advice (Exhibit PTM). 141Thereafter, the Accused was interviewed by Detective Senior Constable Turner in the ERISP. Early in that interview, the police officer confirmed with the Accused that he had been advised of his rights by Sergeant Chand. The Accused had with him in the interview room a copy of the written acknowledgement. 142It was only after the interview was complete at 1.44 am on 15 February 2011, and the Custody Manager was about to be called into the room, that the Accused said (Exhibit PTB, Q/A708, page 66): "I thought I could get legal advice before I could speak to youse." 143Soon after, Sergeant Chand came into the room and he asked the Accused (Exhibit PTB, Q/A722-724, page 67): "Q722. Have you any complaints to make about the manner in which you were interviewed? A. No. Although I always thought that I was able to contact legal advice before I spoke to ... Q723. Which is something I had spoke to you about when I was reading your rights to you. A. Um ... Q724. You never told me that you wanted to contact anyone. All right. I get the guys to come back and finish the interview off. OK?" 144In my view, these comments by the Accused emphasise the fact that, at all times, he was aware that he could seek legal advice if he wanted to do so. It may readily be inferred that he understood what Sergeant Chand had told him in this respect before the ERISP. However, the Accused did not ask Sergeant Chand if he could contact a lawyer, nor did he raise the issue with Detective Senior Constable Turner as the ERISP commenced. Rather, at the end of the ERISP, he raised the issue for the first time. 145It is noteworthy that the Accused was again reminded, after the ERISP, of his right to contact a lawyer before a forensic procedure (the taking of a buccal swab) took place. The Accused did not seek to contact a lawyer at that time. 146I am simply not persuaded that there is any impropriety or illegality at all in the manner complained of by the Accused. He was aware of his right to contact a lawyer, but he did not exercise that right and only raised the topic at the end of the ERISP. 147I reject the third ground of objection based on s.138 Evidence Act 1995. 148As the Accused has not established any impropriety or illegality, it is strictly not necessary to consider how the relevant discretion would be exercised in the event that impropriety or illegality had been demonstrated. However, I express the view, for the purposes of s.138(1) and (3) Evidence Act 1995, that if (contrary to my findings) any impropriety or illegality had been established, it would be technical in nature and that the probative value of the evidence, the nature of the charge of murder and other factors contained in s.138(3), when appropriately considered, would have seen the admission of the evidence in any event.

149The Crown submitted that evidence of the "000" call (see [55] above) and, in particular, the words spoken by the Accused during that call, are admissible. It was submitted that this evidence forms part of the connected series of events and is evidence of the Accused's state of mind at that time. It was argued that it demonstrates that the Accused was furious, and should be considered in conjunction with his statement to X, immediately preceding the assault, "Do you wanna see me angry, you wanna see me angry, I'll show you what angry is". 150The Crown submits that the evidence of the words spoken by the Accused during the "000" call makes the attack on the deceased on 15 February 2011 more explicable, comprehensible and able to be understood as the result of anger on the part of the Accused. 151Further, the Crown submitted that the Accused's account of the assault on X, as given to Dr Westmore and Professor Greenberg, was pertinent to the partial defence of substantial mental impairment. The accounts given by the Accused to Professor Greenberg concerning the "000" call and the assault on X have fluctuated somewhat. The Crown contends that the "000" call provides the best evidence of what the Accused was saying at that point, and the way in which he was saying it. 152The Crown submitted that this evidence is pertinent, as well, to a proper understanding by the jury of matters bearing upon the substantial mental impairment issue. 153Mr Averre submitted that the "000" call was not relevant but that, in any event, it ought be excluded under s.135 or s.137 Evidence Act 1995 upon the basis of unfair prejudice. He pointed to the time gap between the "000" call on 10 February 2011 and the attack upon the deceased on 15 February 2011. He submitted that it was remote in time from the events directly relevant to this trial. Mr Averre submitted that the Accused's statements during the "000" call did not advance the Crown case, particularly in circumstances where he admitted his guilt with respect to the assault upon X. 154I approach the objection to this evidence upon the basis that evidence of the assault upon X, and the ERISP of 14 February 2011, will be before the jury. In addition, a factor pointing strongly in favour of the admission of this evidence is that it is a further contemporaneous recording disclosing the words of the Accused, and the tone of those words, in connection to an event which is relevant to the trial, being the assault upon X. 155The Accused having raised substantial mental impairment, his state of mind and his conduct, including the assault upon X and his anger, are relevant to the issues in this trial. The "000" call captures the sound of what the Accused said on this occasion and the tone in which he said it. 156I am satisfied that this evidence is relevant to issues in the trial, including the issue of substantial mental impairment raised by the Accused. I am satisfied as well that this aspect may be seen as part of a connected series of events in the manner referred to earlier in this judgment. 157I do not consider that the probative value of this evidence is outweighed by unfair prejudice to the Accused so as to warrant its rejection under ss.135 or 137 Evidence Act 1995. 158I allow the Crown to adduce evidence of the "000" call and the recording of that call in the Crown case.

159Having considered the evidence and submissions arising from the pretrial hearing on 3 and 4 September 2012, I announced the following rulings on 5 September 2012 (T14): Admissibility of ERISP of 14 February 2011 160I allow the Crown to adduce evidence of the ERISP of 14 February 2011 concerning the assault on X upon the basis that this evidence: (a) is relevant to the partial defence of substantial mental impairment raised by the Accused; (b) is relevant to establish the Accused's state of mind at a time close to the alleged offence of murder; (c) is capable of forming part of a connecting series of events culminating in the alleged murder. 161The accused has not established any impropriety or illegality with respect to the ERISP for the purposes of s.138 Evidence Act 1995, and I decline to exclude it under that section. 162I also decline to exclude the ERISP of 14 February 2011 under ss.135 or 137 Evidence Act 1995. The "000" Call on 10 February 2011 163I allow the Crown to adduce evidence of the "000" call made on 10 February 2011 upon the basis that this evidence: (a) is relevant to the partial defence of substantial mental impairment raised by the Accused; (b) is relevant to the Accused's state of mind at a time not distant from the alleged murder; (c) is capable of forming part of a connected series of events culminating in the alleged murder. 164I decline to exclude the "000" call under ss.135 or 137 Evidence Act 1995. The Tendency Evidence 165I allow the Crown to adduce tendency evidence in the manner identified in the tendency notice dated 15 August 2012, and the jury will be so directed at the appropriate time. 166The reasons contained in this judgment explain the rulings announced by me on 5 September 2012. 167By way of postscript, I record the fact that, on 5 September 2012, the Accused pleaded not guilty to murder, but guilty to manslaughter. The Crown did not accept that plea in discharge of the indictment. A jury was empanelled and the trial of the Accused proceeded. On 10 September 2012, the Accused requested that he be rearraigned before the jury. On this occasion, the Accused pleaded guilty to murder. In accordance with s.157 Criminal Procedure Act 1986, the jury was discharged from giving a verdict and the Court found the Accused guilty of murder and convicted him of that offence. A sentence hearing was fixed for 17 September 2012.

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