R v Kevin Pocknell [2015] NSWDC 333 | Case summary

Consideration of the issues raised

I approach the objection from the perspective of the submissions made by learned counsel for the accused as addressed by the learned Crown Prosecutor.
With regard to s 138 of the Act, the relevant impropriety is said to be a failure to comply with s 122 of LEPRA (in the context of Part 9 of that Act).
That section states: (1) As soon as practicable after a person who is detained under this Part (a "detained person") comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing: (a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and (b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person's legal representative, may make representations to the authorised officer about the application. (2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer. (3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given.
It is submitted in that the accused was too intoxicated to understand what was read to him by the Custody Manager, Leading Sen. Constable Fitzhenry, and was denied his mandatory rights under the Act to understand his entitlement to medical treatment, legal advice or the presence of a legal practitioner or a 'friend', his right to silence as provided for in Part 9 LEPRA. In this regard to process involved pursuant to s 122 of this Act is submitted to be vital and must be given more that 'lip service', to use my words, with which I agree at the outset.
There is no issue, having regard to the evidence of the Custody Manager and the evidence of the accused and his recollection or lack of recollection of relevant events, that the Custody Manager after the accused was placed under his control read to the accused 'the Part 9 document', asked the accused if he understood what had been read to him to which the accused replied "Yeap". He then invited him to sign the documents acknowledging that the 'Form', as it is described, had been read, and that here had been information he had been given. This he refused to do saying, "I'm not signing that shit".
I satisfied that the accused was intoxicated at the time, that the Custody Manager knew this to be so, having regard to the Custody Management Record and the state of the accused as assessed just less than an hour before. I am also satisfied, however, that the accused was belligerent as he demonstrated himself to be at times during the course of the subsequent recorded interview, and had no hesitation in asserting himself if needs be.
I accept that s 122 LEPRA cast upon the officer, with the care of the accused, a mandatory obligation to which lip service should not be given. Whilst the accused in the later interview said that he had little recollection of the questions asked of him at the time of his arrest, I do not regard his claim in his evidence on the voir dire that he had no memory of the Custody Manager reading to him the "Caution and Part 9" document as decisive. Ultimately, nothing turns upon this because the judgment of what is appropriate conduct does not turn solely upon the accused's recollection. I bear in mind that the Custody Manager was seen by Detective Duckworth, as reported by her in her statement made 10 days after the event, physically in the possession of the document that the accused declined to sign at a time soon before the Custody Manager spoke to him on his arrival at the Police Station.
The critical issue is whether the accused did understand the document and/or whether, having regard to his condition, the Custody Manager ought to have delayed reading the document to him or re-read the document, given his refusal to sign the document and the fact that the Custody Manager gave him a recovery time in any event to become less intoxicated.
Notwithstanding the fact that the accused said he understood the document, although he refused to sign it acknowledging that he understood it, given the fact that I accept the accused was intoxicated when spoken to by the Custody Manager, the failure to ensure that the accused was in a condition to be able to understand all the document was relevantly an impropriety on the part of the Custody Manager at that time. I bear in mind that the Custody Manager gave the accused 'recovery time', fed him and allowed him to have some cigarettes and allowed him further rest until 4 pm, demonstrating that there was no deliberate mistreatment of the accused by him. As for the detectives, Detective Duckworth said that she told the accused that the interview of him would be delayed until he was " not so drunk", which is of course a recognition of his intoxication at that earlier time, but also a recognition of the need to interview him when he was in a condition to be interviewed.
Thus, the interview commenced at 4:34pm, at which time the accused does not give the appearance in the course of the interview of being so intoxicated as to not be able to understand what is happening or what questions are being asked of him or not to be able to provide considered direct answers to the questions that were asked. I accept that with his tolerance of alcohol he could give an impression of understanding what was going on or show less signs of intoxication. He could well be the "functioning alcoholic" that counsel for the accused spoke of in submission. But there were many indicia that he was not just "barely functioning".
With regard to the Custody Manager he was directly asked why he read the Part 9 document to the accused, even though he knew that the accused was not then fit to be interviewed. He said that the reading of the Part 9 document was a different process and that there was nothing inconsistent about this approach, a matter about which he was not asked any further questions to clarify his position.
I accept that whilst it is consistent with the "Objects" of Part 9 (s 109(c) LEPRA) that the accused must understand the process required pursuant to s 122 of that Act, the requirement to understand the advice concerning the rights provided for in that section of the Act does involve some different considerations than the considerations to be had as to whether a person is in a condition to be interviewed about allegations which may elicit responses that could be used in evidence against the suspect. That having been said, clearly it would have been more prudent, given the fact the accused refused to sign the document, to re-read the document when he was deemed ready to be interviewed.
In considering this aspect of the matter, I note that when the interview, the subject of objection, was conducted the interviewing police officers, whilst cautioning the accused, reminding him that he did not have to participate in the interview, that it would be recorded (etc) (Q9 - 17 of Exhibit 2), did not reiterate matters that are "recommended" to be raised at the outset of the interview such as confirming that he had been advised of his "Part 9 rights": the right to contact a legal advisor, receive advice, have someone present if practicable, receive medical treatment etc. There was nothing sinister about this as the interviewing police were entitled to believe that the accused had been provided with that information, albeit at a time that he was considered to be, at least, "intoxicated", even "heavily intoxicated". In fact he had been provided with that information.
The accused gave evidence that if advised of his rights to seek legal advice (at least) he would have exercised that right. I do not accept that evidence as evidencing his state of mind on 4 March 2013. That evidence is in my judgment an ex post facto reconstruction given that the accused claims no memory of being told his "rights" and thus must have no memory of what his thought processes were at the relevant time and having regard to what clearly was his clearly belligerent attitude to signing the "Caution and Part 9" document to which earlier reference was made.
Further, when interviewed after 4.34pm he was asked what he remembered of the questioning that occurred at the time of his arrest he said … "Not really" …"I was a bit drunk" … (Q Do you remember parts of it, any of it) "That you said I raped or something, some shit to this bloody CS sheila". This reflects memory of key details of that preliminary conversation which is not consistent with necessarily having no memory of what Leading Constable Fitzhenry had read about the "Part 9" document.
It was apparent to Fitzhenry that the accused was an experienced drinker, no stranger to consuming large amounts of alcohol on a daily basis, sleeping rough with a rough and ready presentation. That the accused refused to sign the document and described it as, "that shit", having agreed that he understood it, would have more reasonably reflected to the Custody Manager that the accused appreciated its import rather than not.
Is so far as the quantity of alcohol claimed by the accused to have drunk in the 36 hours before in the course of the record of interview, 6-8 litres of "wine", although, this is not inconsistent with histories contained within the medical records of the hospital for his admission on 4 March, the accused's evidence on the voir dire was somewhat at odds with this detail from that period surrounding his arrest. His evidence on the voir dire was that he drank 'port' in casks, which I take to be fortified wine as it is sometimes described. Some of the medical records from early March refer to a history of drinking casks of "white wine", although this may be a misunderstanding by the note taker. However, in his evidence he went into a great deal of detail about his pattern of drinking before his arrest, suggesting that on a typical day he would drink between 15 or 20 beers, being schooners of Victoria Bitter, and that he would buy 'port' to drink at night-time, drinking a schooner glass of port at night, usually if he was "going into the shakes". Although he agreed he told the hospital that he had drunk between 6 to 8 litres of wine before his admission in early March 2013, he disputed that he said it was wine.
Whether it be the history that he gave the hospital or the evidence he gave in court, I regard him as an unreliable historian, as was contemporaneously noted in the hospital notes, albeit I take it more directed at his capacity to give a history about medical matters. The problem is that the accused, who I accept at the relevant time was a heavy drinker, even an "alcoholic" as he was described by his counsel, was by definition an unreliable historian. As I pointed out to counsel in the course of submissions, one of the difficulties with his evidence now is that he is endeavouring to remember events that occurred in a blur of alcohol consumption, sporadic head injuries, homelessness and the like, which are highly unsatisfactory circumstances for generating accurate or reliable memories, as opposed to being able to recount things that he may have believed to be true or accurate or reliable, but which were in fact not. These last matters ultimately will be relevant to assessing the weight to be given to any admissions made by the accused on 4 March 2013, but are not relevant to the assessment of the probative value of that evidence (R v Shamouil [2006] NSWCCA 112, R v XY [2013] NSWCCA 121).
Although it is more relevant to the other grounds advanced on behalf the accused for seeking the exclusion of the record of interview, the issue of the accused demonstrating the "shakes", or "Joe Blakes" as he perceptively described them, whilst consistent with him being a heavy drinker, is also consistent, given what he said in the interview and what he said in his evidence, with the accused withdrawing from the effects of alcohol, rather than directly from intoxication caused by the consumption of alcohol. In other words, on his own account his shakes were a manifestation of his condition after some hours of not drinking alcohol. He suggested in his evidence that he could get the shakes, sometimes up to 12 hours after cessation of the drinking of alcohol. I do not regard evidence of him having the shakes during the course of the interview or the observations of the police in that way as reflecting upon the extent of his intoxication at that time.
This leads me to two other issues that were ventilated on behalf the accused. His counsel in the written submissions and in oral submissions gave the court a 'lecture' on absorption rates and elimination rates for alcohol, particularly after cessation of drinking. I am well aware of the literature and the expert opinions of pharmacologists and medical practitioners as to the fact that alcohol is absorbed into the blood and then eliminated respectively over periods of time, the peak rate sometimes occurring hours after the cessation of drinking. This is a common feature in PCA matters and dangerous driving causing death, or grievous bodily harm, matters and often a trap for drivers who go to bed have a sleep and then drive their cars still with alcohol in their bloodstream. The problem here is I do not have a reliable history from the accused as to the amount of alcohol he drank before he came into police custody, the rate of drinking, when he actually finished drinking, his body weight at the relevant time or other data that may lead to some comfortable conclusion as to the estimated range, as it must be, of absorption, and elimination of alcohol from the bloodstream based upon expert opinion. Not my calculation or that of counsel for the accused. The speculation by counsel about this matter is not supported by any expert evidence and even taking judicial notice, as I do, of the general topics discussed by counsel I could draw no conclusion that is of any assistance in this matter. Further, there is the issue of the accused's tolerance of alcohol and whether the accused was a "functioning alcoholic", not able to do justice to himself at any relevant time, or not. I referred to this earlier. That matter has to be assessed by reference to what is demonstrated by the most reliable evidence in the voir dire as to his condition and his state of mind, that is the contents of interview. This is a matter I will come back to shortly in dealing with the other grounds of objection.
Ultimately, in relation to the first round of objection, taking into account the warnings given to the accused at the commencement of the interview, the evidence of Leading Senior Constable Fitzhenry and the contemporaneous documentation, including the Part 9 document, whilst I accept that there was impropriety in failing to revisit the issue and re-reading of that document, I am not satisfied that the evidence the subject of objection, that is the interview conducted from 4:34pm onwards on 4 March 2013 was relevantly "obtained" by that impropriety, or in consequence of it. It is possible that the accused may have sought legal advice, or taken heed of other matters, that may have delayed the interview or even prevented interview from occurring, but I am not satisfied that probably would have happened. It would involve drawing a speculative inference in the face of the attitude of the accused throughout the interview of confidence and willingness to speak.
Even if the relevant causal relationship between the impropriety and the obtaining of the evidence was established in my view the prosecution has established that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that was obtained in the way in which that evidence was obtained.
In this regard I have taken into account the probative value of the evidence, the importance of the evidence, the gravity of the impropriety or contravention, the fact that the contravention of was reckless, the difficulty of obtaining the evidence without the impropriety, amongst other matters. In this regard the impropriety has to be assessed in the context of the fact that the accused had the rights read to him and he deliberately chose not to sign the Part 9 document, reflecting a presence of mind, notwithstanding his intoxication. The probative value of the evidence is significant, and of course it is important in the proceedings. Although I accept that the importance of the evidence may emphasis the significance of the impropriety complained of being a particular case. The rights of the accused will in my view be of paramount importance if they have been deliberately sublimated in order to obtain evidence that could not be obtained without cavalier action on the part of the investigators. This is not the case here, as the presentation of the accused in the interview and the character of the complaint made on his behalf in this trial clearly shows.
No issue has been raised on behalf of the accused as to the significance of a claimed history of 'mental illness' and his use of medication to treat its symptoms. There is, I hasten to say, no evidence of "psychosis" or paranoia in his presentation during the interview.
As to the other grounds advanced on behalf the accused concerning ss 85, 90 of the Act, to which I earlier referred, I take into account all that has been put by the accused in the written submissions and oral submissions. The resolution of these matters, in the context of earlier findings to which I have referred, is largely determined by the presentation of the accused in the course of the interview and what actually happened in the interview. I made some reference to these matters to the counsel for the Crown in her submissions on this topic.
I refer to some of those matters now. At an early stage of the interview, even before he was cautioned again, he referred to "black fellas … standing behind me". He then quickly said, "I'm mucking around" (Q, 5 and 6). This is one of many instances of a sharp presence of mind. He provided a number of such instances of presence of mind, volunteering information that showed an awareness of what the interview was about, such as his answer at Q 48, his lengthy explanation of his contact with the complainant in a number of questions and answers, the information he provided that accorded with aspects of the Crown case as I understand it, his construction of events in a deliberate fashion, which he now says in his evidence on the voir dire are not true (such as his claims of consumption of ice, Q 180) and his description of the effect upon him of ice (Q 177, smiling at the same time). Sometimes he repeated questions that have been put to him, such as his in answer to Q 88, showing a clear awareness of the detail in the question and showed his capacity to assert that he remembered in the course of having sex with the complainant biting her on the "tits", but not biting her "to bite her nipples off" (Q156 - 160). This last matter is a matter of small detail from 10 months before which is confirmed, potentially, by the DNA investigations undertaken.
The written and oral submissions of the accused suggested that his memory of the relevant events being "a couple" or "over two" years before speak of his "unreliability", not in the probative value sense, but reflecting upon his state of mind at the time of the interview. The fact that he, in some respects, is a poor historian as a general rule, both then and now, must be taken into account as a contextual matter. But vagueness as to timing of events has to be weighed against some of the precision of detail provided by the accused reflecting a presence of mind that demonstrates his capacity to understand the questions asked and to give a coherent relevant answer. Furthermore, his misuse of language the subject of submission on occasions is outweighed in its significance and incidence by the accuracy of his language. In any event, one such example relied upon by the defence (Q 37), his use of the word "sobrietly" (sic), does not to my mind reflect so much his intoxication, but more his inherent capacity for articulation. The question he was answering was, "Are you able to have this conversation with us?". His answer was, "Yes, I am able to have this sobrietly with youse". The misuse of the word in this context speaks more of his lack of education than his level of intoxication, having regard to his manner of expression throughout the interview and the context in which the words were used.
That answer is relevant to other parts of the interview where the police officers were checking as to his capacity to be interviewed given that he was highly intoxicated four hours before. After being cautioned and told that there would be a recorded interview, denying there was any threat, promise or offer of advantage offered to him, agreeing that he had told the police that he had had a lot of alcohol, telling them that he did not want the DVD of the interview, telling the police that they had not done anything wrong relating to the injuries to his face, in fact, laughing about the matter when it was suggested by the police that they had not done anything to contribute to his injuries, that had "happen(ed) outside the police station" (Q 33 - 34) and telling the police that he needed to have a drink in due course to stop "the Joe Blakes" (Q 35); he told the police that he was "a bit drunk" earlier in the day when they had spoken to him, but remembered the essence of what they had spoken about, that is, "That you said I raped or something, some shit to this bloody CS shiela". This was in fact the essence of what he was spoken to at the hospital. He went on to say "she's a slut" (Q 42). When asked if he was going to remember the conversation, "You are having with us now" (Q 43), he said, "Yeah. I'm sober now". He also said that he didn't want the DVD because, "I've got no implement to use it on" (Q 44). He then supplied the answers to Q 46 - 48, volunteering information particularly pertinent to what he understood be the police investigation.
When asked if he was in a "decent frame of mind" for talking to the police, at Q 51, he said, "I'm losing the plot now, I'm starting to get the shits". It is clear that what he was referring to is not a state of mind, but the fact that he is annoyed at being held in custody and is anxious to get out and have another drink or have a cigarette and not be detained by the police. In fact, later in the interview he again showed his frustration at being detained as he was. It is clear that police were concerned that they establish that he was in a state to be interviewed (Q 55 - 56). In answer to the latter question. He said inter alia, "… I feel quite capable of being interviewed". The police officer observed, as can be seen in the video interview as well, "You seem quite lucid now and your responses are quite clear, so if you are happy to continue (emphasis added), to which the accused responded ... "I'm not, I'm not babblin' on or crapping on"(Q 57).
Thus, the interview continued for another 200 questions with various details provided by the accused with considerable precision, making it abundantly clear that anything that happened was consensual and part of the deal he had with the complainant of 'sex for ice'. Now, this assertion can be completely untrue or "unreliable", but it is not so because the accused was intoxicated, suffering from a mental illness or a physical injury which adversely affected him, such as to affect the truth of what he said. If his admissions are untruthful and or unreliable it was because he endeavoured to create a scenario that was exculpatory, even if he was endeavouring to recount events that he could not remember. Not because of his then current state at the time of interview, but because of his lifestyle in the intervening months.
That he initially asserted the relevant events took place at a different park than that which the evidence reveals was the location of the alleged sexual assaults, that there is independent evidence to establish that the complainant did not walk back to the King's Cross area with him after any sexual activity and finished or that he gave other incorrect details concerning the timing of the event do not appear to be causally related to his condition, physically or mentally, at the time of the interview, having regard to the manner in which he provided these details and the relationship of those details he volunteered to the questions that were asked of him. The prosecution has all things considered satisfied the Court that the circumstances in which the representations were made by the accused during the interview was such as to make it unlikely that the truth of any admissions was a adversely affected. If admissions made by the accused were untrue and there was a reasonable possibility that was because the accused was spinning a story to exculpate himself from the allegations being made of sexual assault of the complainant this would be a matter to be considered in assessing what weight could be given to any relevant admission and whether in fact a relevant admission proved a particular matter for which the prosecution bears the onus.
I have further concluded that it is not unfair to the accused to admit the evidence of the representations he made during the interview, particularly having regard to the checks made by the interviewing police during the early part of the interview to ascertain whether the accused felt he was able continue (s90 of the Act: cf Em v The Queen [2007] HCA 46, at [56] per Gleeson CJ and Hayne J. It was the accused who persuaded the police to continue the interview as his answers to many of the questions up until Q57 show. However, when the interview got to the point where a 10 minute break was taken for the accused to have a cigarette the accused clearly indicated that he had had enough of the questioning and he did not wish to be question any further. After the break no attempt was made to ascertain the genuinely wish to continue, to remind him that he need not answer any questions unless he wished or even to re-cap on what had happened during the break. I hasten to say there is absolutely no suggestion of any wrongdoing by the police during that break, but Detective Duckworth conceded that it would have been "prudent" to ask particular questions of the accused after the break to ascertain that it was proper to continue with questions concerning the subject matter of the investigation.
As it turned out there were further questions, many of which were repetitive of earlier questioning with elements of attempting to draw the accused into supplying more information when it was clear by his body language and he spoken word that he was reluctant to continue to be interview. He asserted his unhappiness at how the interview had been dragged out and it is apparent on viewing the recording of the interview that he was becoming more or frustrated and showing more physical symptoms of withdrawal from alcohol. I note in this regard, of course, that two hours after the interview concluded an ambulance was in attendance at the police station. Ultimately to take the accused to hospital for treatment for symptoms of alcohol withdrawal. Thus, I propose to exercise the discretion available pursuant to s. 90 of the Act to exclude the second part of the interview conducted after the 10 minute break, that is from the resumption of the interview at Q. 266 onwards, with the exception of the questions asked of the accused at the conclusion of the interview by Leading Senior Constable Fitzhenry and any questions and answers after Q266 to be admitted by consent. This I indicated last Friday, 27 March at 2 pm

R v Kevin Pocknell

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Judgment (9 paragraphs)

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