R v Laracy [2007] VSC 19

2 Clissold's body was discovered in the backyard of the unit in which the accused lived on 23 April 2005.

3 The apparent cause of death was subsequently ascertained to be neck compression caused by ligature strangulation.

4 Prior to his death the accused had been in an ongoing relationship with the deceased, during which the deceased travelled from Colac on a regular basis to spend several days and nights a week with her at Camperdown. The evidence is that both the accused and the deceased customarily drank heavily and that from time to time the accused used intravenous drugs.

5 The Crown case is circumstantial. There is no direct evidence of the infliction of fatal injury upon the deceased by the accused. As part of its case the Crown seeks to adduce evidence of a series of statements made by the accused to police officers. None of these statements contain direct admissions to killing the deceased in the manner which the Crown contends was the cause of death.

6 Both singly and together, however, the statements contain a series of admissions as to relevant background circumstances, forming part of the Crown case as a whole. Further, it is ultimately contended on behalf of the Crown that a whole series of statements made, constituted deliberate lies evincing consciousness of guilt of murder.

7 The statements made by the accused which are in issue are as follows:

(a) Oral statements made in answer to preliminary questions asked by Detective Sergeant Rumble of the Colac Police at Camperdown Police Station on the night of 23 April 2005;

(b) A written statement given by the accused to Rumble at Camperdown Police Station on 24 April 2005 at 1.58 p.m.;

(c) A supplementary written statement given by the accused to Rumble at Camperdown Police Station on 25 April 2005 at 8.37 p.m.;

(d) Oral statements made to Leading Senior Constable Smyth (of the Homicide Squad) by the accused at Camperdown Police Station on the night of 25 April 2005 after the supplementary statement had been given to Rumble;

(e) A videotaped record of interview conducted by Smyth and Rumble at Camperdown Police Station on 25 April 2005 between 9.55 p.m. and 11.28 p.m.

8 Objection is taken on behalf of the accused to the admissibility of each of these statements and I shall deal with each in turn.

A. Answers given to Detective Sergeant Rumble on 23 April 2005

9 Mr Trapnell has ultimately conceded on behalf of the Crown that evidence should not be given of initial answers given by the accused to Rumble on the night of the day on which the body was found. Despite this concession it is desirable to say something as to the circumstances attending such questioning and answers, because it formed the background to the making of subsequent statements.

10 In the course of the voir dire Detective Sergeant Rumble with commendable frankness, stated to the Court that he did not take a formal statement from the accused on the night in question, first because of what she had been through, second because she seemed somewhat confused, and third because she appeared affected by alcohol.

11 He formed the view that she was not in a fit state to make a written statement which was true and correct in every particular.

12 The questions and answers which he noted in his day book, were made by him to assist the investigation, but not at a stage when the accused was a suspect. The answers did not contain any explicit admission of responsibility for the cause of the deceased's death.

13 I accept his evidence in respect of these fundamental matters.

14 There are a series of interrelated factual circumstances which both cast serious doubt upon the reliability of the accused's statements as admissions, and in my view give rise to a situation where it would have been unfair to allow her statements into evidence. Such unfairness flows firstly, from the vulnerability and instability of her state at the time of questioning and secondly, the prejudicial nature of a number of answers given by her which in the circumstances are of dubious probative value.

15 The circumstances raising serious questions as to the reliability of the answers are as follows:

(a) The accused had recently experienced the sudden death of a man with whom she had a continuing emotional and sexual relationship;

(b) The accused impressed Rumble as giving answers which were "jumbled and mumbled, really and all over the place". Thus although his notes record essentially responsive answers, they should not be taken as reflecting a coherent and rational mind;

(c) The accused was materially affected by alcohol;

(d) During the course of the questioning the accused expressed emotional distress stating among other things "[It's] bad enough on me as it is. I'm starting to freak out";

(e) The accused has a very low intellectual capacity.

16 It is apparent from his evidence that Rumble regarded the effect of alcohol as most relevant to the capacity of the accused to make reliable statements. I am of the like opinion. The evidence as a whole discloses:

(a) A series of lay witnesses observed the accused to be drunk on the day in question, describing her as "rotten drunk", "really pissed" and "stoned or pissed or both" on the afternoon of 23 April;

(b) The background evidence supports the view that she was commonly a heavy drinker when alcohol was available to her;

(c) Her own account to Rumble was of drinking a cask of wine "and nearly an empty and a half ... a power drink", on the day of the deceased's death;

(d) Rumble believes that on the evidence available the accused consumed both alcohol and Oxycontin on the Friday and Saturday;

(e) When he saw the accused on Saturday night Rumble perceived that the accused smelt of alcohol and moved slowly in a way apparently affected by alcohol. Thus although she could give responsive answers, he was satisfied that she was affected by alcohol;

(f) During the course of the questioning the accused asked for the opportunity to vomit, and upon leaving the police station vomited in the garden. Four minutes later she vomited again. The cause of such vomiting as perceived by Rumble, was alcohol consumption;

(g) The contemporaneous reaction of Rumble was that the effect of alcohol upon the accused rendered the taking of a written statement inappropriate;

(h) Smyth was able to confirm the accused was affected by alcohol during a 40 second conversation. He noted "no statement from Laracy due to alcohol. Other witnesses also drunk".

17 No video recording was made of the questioning. Rumble concedes his note is not a full note of what was said. Thus there is no satisfactory mode of assessing the detail and mode of delivery of particular answers which were noted by Rumble.

18 As against all this, the terms as noted by Rumble, in which the accused described a violent relationship with the deceased (which it is unnecessary for present purposes to detail), carried with them the real risk that they would be treated as propensity evidence by a jury, and as a result would have the real potential to cause unfair prejudice to the accused.

19 For the above reasons I would have excluded evidence of the first category of statement set out at pages 356-362 of the depositions, even if the appropriateness of such exclusion had not been conceded by the Crown. Moreover, the underlying concerns relating to the intellectual capacity of the accused and the effects of alcohol upon her, remain germane to the consideration of the further categories of statement in issue. It is unnecessary for me to consider the alternative bases for exclusion put forward by Mr O'Connell.

20 This statement was made on the afternoon of the day following the questioning giving rise to the first set of answers noted by Rumble.

21 On the evening of 23 April, Rumble had arranged for the accused to attend the police station the next day. She was advised not to drink so she would be fit to make a statement.

22 Prior to attending the police station the accused had attended the local hospital. While there she was given one Xanax tablet (a form of diazepene).

23 When she attended the police station she did not appear to Rumble to be affected by alcohol. He took a statement as to circumstances surrounding the death of the deceased. He did so by typing it up while in discussion with the accused.

24 The statement made on 24 April 2005 is distinguishable in material respects from the notes of questioning made the previous evening.

(a) There is no evidence the accused appeared to be or was directly affected by alcohol or drugs at the time of its making;

(b) The statement is in writing and signed and declared by the accused to be true and correct and made in the belief that a false statement is liable to result in penalties for perjury (the accused's subsequent record of interview supports the view that she understood this concept);

(c) The statement is in narrative form and does not consist of questions and answers;

(d) The evidence of Rumble (which I accept) is that it distills an account volunteered by the accused and clarified by questions asked by the police officer. Rumble did not put to the accused answers given to questions asked on the previous evening (indeed his evidence is that he strongly doubts he referred to notes of these answers).

25 Rumble's account of the manner in which he took the statement is corroborated by two subsequent videotaped records of interview. These demonstrate that when speaking to police the accused is initially able to tell a relatively coherent story. It is when elements of that story are challenged that she appears to have difficulty in articulating a coherent and logically consistent account.

26 It is also to be noted the accused did not give evidence on the voir dire challenging Rumble's account of the manner in which the statement was taken.

27 Mr O'Connell initially submitted that the statement should be excluded on the following bases:

(b) breach of s.464H of the Crimes Act 1958; and

28 In so doing Mr O'Connell relied in part on the following statements of basic principle. In R v Warrell[1] the Court of Criminal Appeal stated at 681:

"These concepts of voluntariness, fairness, and public policy are integral to the operation of our criminal justice system. They are designed to ensure that any finding of guilt arrived at, on the basis of confessional evidence, is not only reliable but that the evidence itself has been obtained in a socially acceptable fashion. It is important to keep in mind, in this context, that they are concerned not only with the recognition and protection of the rights of those who may be suspected of the commission of criminal offences, but that any such finding is not surrounded by an aura of possible injustice which compromises both the system and the society which supports it."

29 In his dissenting judgment in Collins v R[2] Brennan J stated at 310-311:

"The onus is on the prosecution to prove on the balance of probabilities that the confession is voluntary, (Wendo v R [1963] HCA 19; (1963) 109 CLR 559) and unless the Court finds at the end of the day, there being some evidence of pressure or inducement of the relevant kind, that those factors did not contribute to the making of the confession, it must be rejected. The rejection does not depend upon the exercise of a discretion: it is required by the application of a rule of law.

That rule applies to all confessions made by persons prosecuted in the Northern Territory, whether or not they are Aboriginals. The rule of law does not distinguish between black and white, educated and illiterate, sophisticated and simple. The rule applies uniformly, but its operation depends upon the circumstances of each case, and confessions made by those whose wills are more easily overborne - whether because of social condition, environment, natural timidity or subservience - will find reciprocally greater difficulty in being admitted into evidence."

30 Insofar as involuntariness is concerned I am satisfied that the accused's first statement is the product of voluntary statements made by the accused in the ordinary sense of this word.

31 In other words, it reflects accurately the account of potentially relevant circumstances volunteered by the accused to Rumble. (Although this may leave open the question of whether it was made in the exercise of the free choice to speak or be silent.)

32 Further, I am satisfied that at the time of the taking of the statement the accused was not a suspect and there was nothing inherently unfair in taking a statement from her without first cautioning her. Mr O'Connell conceded this point and in my view this concession was correct.

33 The circumstances in which the deceased's body was found did not suggest either to Rumble or Smyth, that the deceased was the subject of a violent assault.

34 Nothing prior to the taking of the first police statement on 24 April, raised the suspicion that the accused may have caused the violent death of the deceased. It follows s.464H has no application.

35 Nevertheless, evidence of intellectual disability may still lead to the conclusion that a statement should be excluded from evidence either on the grounds of incompetence, involuntariness or as a matter of discretion. The relevance of such evidence with respect to the accused's intellectual disability falls to be considered within the framework of principles stated by Gleeson CJ in R v Parker[3]:

"Cases in which a Crown case depends, wholly or substantially, upon confessions alleged to have been made by an accused person who is suffering from some form of mental disability, whether such cases are proceeding as ordinary criminal trials or pursuant to the special procedures contained in Pt XIA of the Crimes Act, present obvious difficulties. The principles relevant to the resolution of those difficulties may be summarised as follows:

1. The fact that an accused person who has allegedly confessed to committing a crime was, at the time of the alleged confession, suffering from some form of unsoundness of mind or psychiatric disorder may, depending upon the circumstances, be of importance in considering the evidentiary value of the confession, and may in some circumstances deprive it of all evidentiary value.[4] It does not, however, necessarily make evidence of the confession inadmissible.[5] As Dixon J observed in Sinclair, an insane person is not necessarily an incompetent witness. Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth.
2. Even if such evidence is admissible, a consideration of the quality of the evidence may, in a given case, result in a conclusion that a verdict founded upon it is unsafe and unsatisfactory.[6]
3. The intellectual capacity of the accused, or the existence of some disease or disorder of the mind, may go to the issue of whether the confession was voluntary and may in that respect bear upon the admissibility of the evidence. It may be relevant to the question whether the confession was made in the exercise of free choice, as for example, where an accused is incapable of making such a free choice, or of understanding his right to choose between speaking and remaining silent. Depending upon the circumstances, it may have an important bearing upon whether the statement was made as the result of duress, intimidation or undue insistence or pressure. The circumstances in which such a fact may be relevant to an issue as to the voluntariness of a confession are multifarious.[7]
4. Further, even if the confessional evidence is admissible, the intellectual or mental state of the accused may, in a number of possible ways, go to the exercise of a trial judge's discretion to reject the evidence.[8] It may, for example, touch upon the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself, and the fairness involved in permitting the statement to be used against the accused.
5. A person's vocabulary and standard of comprehension may also be of relevance in determining an issue as to whether such a person in fact made or intended the admissions attributed to him.[9]
6. If a Crown case is based in whole or in part upon the confession of a person suffering from some mental disability which may affect the reliability of the confession then a trial judge in his summing-up should use appropriate means to bring to the attention of the jury the possible danger of basing a conviction on such evidence unless it is confirmed by other evidence."[10]

36 In my view the evidence of Dr Wells and Mr McMullen does not suggest statements by the accused are necessarily of no evidentiary value by reason of their inherent unreliability.[11] Rather, their evidence supports the view that such statements may be unreliable and that such potential unreliability is affected by considerations such as whether they relate to short term or long term memories, whether the accused was suffering from alcohol withdrawal symptoms at the relevant time, whether lack of sleep had also affected her and whether the accused was volunteering a statement or being compliant purporting to respond to interrogation. The relevance of such factors and the weight to be given to particular statements are in my view issues of fact which subject to considerations of voluntariness and fairness a jury could potentially assess.

37 I turn then to the question of fairness, which I have found determinative as did the Court in Warrell.[12] The evidence of Dr Wells (head of the division of clinical forensic medicine at the Victorian Institute of Forensic Medicine) was that the accused was an alcoholic and that if the evidence of a series of witnesses were accepted, it appears she drank heavily on 21, 22 and 23 April 2005. In addition she consumed Oxycontin (an opiate).

38 In his view it is probable that her perception of events on 21, 22 and 23 April may have been affected and that the laying down of retrievable memories with respect to such events may have been affected. Further, it is likely that after she had stopped drinking on 23 April she would suffer withdrawal symptoms for some days.

39 It is possible such symptoms could include hallucinations and that such hallucinations might be vivid.

40 The viewing of the videotapes of subsequent records of interview with the accused raised in Dr Wells' mind the possibility that she suffers from impaired intellectual function. He formed this view by reason of her limited vocabulary, her physical movements and demeanour. In his view her intellectual ability should be formally tested.

41 Dr Wells noted that in the course of her interviews the accused did not respond at any stage with the statement "I don't know." In his view this fact, coupled with her elaboration of answers at two points when she appeared in the first instance to be 'stumped', led to the possibility that she was involved in confabulation.

42 He also noted that her manner of speech was simple and "thickened" on occasions.

43 In summary he was of the view that there was a real possibility the accused was affected by intoxication on 21, 22 and 23 April. Alcohol may have affected her capacity to lay down memories and subsequently recall the same. This effect may in turn have produced confabulation. These real possibilities were aggravated by her lack of intellectual ability, the possible effects of stress, and the likely effects of withdrawal from alcohol upon her.

44 Mr Gary McMullen, a clinical psychologist, also gave evidence of a personal history he had taken from the accused, which raised the possibility of post traumatic stress disorder arising from sexual abuse and violence suffered by her. He had also undertaken psychometric testing and was of the view that given the accused's history it was likely that serious substance abuse had affected her intellectual capacity over a number of years. It is likely, having regard to her level of intellectual function, that she would be compliant and vulnerable to suggestion when speaking to police.

45 He assessed her verbal IQ at 69 and her non-verbal IQ at 57. The accused's full Intelligence Quotient result was 58. This is significantly below the level of 70 ordinarily accepted as signifying the cut-off point for intellectual disability in the context of ascertaining a person's eligibility for a Disability Support Pension. He is of the opinion she is at the extreme lower end of the range of intellectual ability. Her verbal intelligence is equivalent to that of someone of the age of 10.4 and her non-verbal intelligence (relating to the processing of information) is in the order of the equivalent of the age of 5.8 years. Thus in 2005 she had the experience of some 34 years of life but her intellectual processing power was equivalent to that of a six year old.

46 Mr McMullen's opinion was attacked in cross-examination on the basis that the tests he utilised were limited. Nevertheless, Mr Trapnell conceded in address that the Crown had called no evidence to support this challenge and that I would have to accept the thrust of Mr McMullen's evidence. This is that the accused is of low intelligence and may properly be classified as being intellectually disabled. The consequences of this disability fall to be assessed on the basis of the whole of the evidence as to her behaviour, including in particular the two videotaped records of interview which are in evidence on the voir dire.

47 The question which then arises is whether it is fair in the circumstances to admit her statement into evidence. Mr O'Connell submits that as a matter of fairness the accused should have been accompanied by an independent third person at the time of the taking of the statement. The provision of such assistance to witnesses and suspects is required by the Victorian Police Manual in the case of intellectually disabled persons.[13] The role of the independent person stated in the manual is to:

"• Facilitate communication between police and the impaired person during the interview.

• Provide emotional support and ensure that the person understands their rights and the caution. They are not the person's legal counsel or advocate and should not make decisions on behalf of the person."[14]

48 Mr Trapnell submits that the absence of an independent third person is unfortunate but was not the result of a deliberate omission by Rumble. Rather it was the consequence of an honest misjudgement by him. The present case is thus to be distinguished from those such as Warrell where the accused was observed to be intellectually disabled.

49 If it is also accepted (as I do) that the first police statement reflects what was volunteered to Rumble, then it is difficult to conclude that it was unfairly elicited.

50 Nevertheless, it does not follow from this conclusion that it would necessarily be fair to the accused to admit the statement into evidence. In R v Lee[15] the High Court stated:

"It is, of course, of the most vital importance that detectives should be scrupulously careful and fair. The uneducated - perhaps semi-illiterate - man who has a 'record' and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a 'statement' may be 'taken' which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the 'statement' made to the police.

In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them. They provide the real justification for the Judge's Rules in England and the Chief Commissioner's Standing Orders in Victoria, and they provide (if we are to assume that the requirement of voluntariness is not enough to ensure justice) a justification for the existence of an ultimate discretion as to the admission of confessional evidence. The duty of police officers to be scrupulously careful and fair is not, of course, confined to such cases. But, where intelligent persons are being questioned with regard to a murder, the position cannot properly be approached from quite the same point of view. A minuteness of scrutiny, which in the one case may be entirely appropriate, may in the other be entirely misplaced and tend only to a perversion of justice. Each case must, of course, depend upon its own circumstances considered in their entirety. No better guidance is, we think, to be found than in the passages from the judgment of Street J in R v Jeffries (1947) SR (NSW) at 312; 64 WN 71, which we have quoted above." (My emphasis).

51 This passage was cited by the Court of Criminal Appeal in Warrell's case as stating a first principle to be considered in the context of assessment of the effect of intellectual disability upon confessional statements. I respectfully agree.

52 In R v Swaffield the majority of the Court quoted with approval the dictum of Wilson, Dawson and Toohey JJ in Van der Meer v R where their Honours stated:

"... the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him."[16]

53 The authorities make clear that even if the statement of an intellectually disabled person be accepted as voluntary, it may still be excluded as a matter of discretion for the reasons exemplified by Gleeson CJ in Parker:

"the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself, and the fairness involved with permitting the statement to be used against the accused."[17]

54 These matters are interrelated. The absence of an independent third person may not establish involuntariness, but it may go to questions of propriety, reliability and fairness. As Lee makes clear, questions of reliability may in turn inform a judgment as to fairness.

55 A complication in the present case is that the Crown seeks to rely not upon any direct admission of responsibility for the unlawful killing of the deceased, but in large part upon inferences it seeks to draw from demonstrable inaccuracies in the accused's statement.

56 This is not a case of potentially reliable admissions as to elements of the offence charged, which may be assessed against the whole of the circumstantial evidence by the jury. It is a case where the Crown seeks to rely upon demonstrable unreliability in the account given in the statement as evidencing consciousness of guilt and in the alternative presumably, to attack the accused's credit. In the broad it is contended that replete with inaccurate detail the accused's first police statement gives a false scenario of death by heart attack, the second a false scenario of death by hanging suicide, and the two subsequent sets of answers to questioning give no satisfactory account of the manner of the deceased's death

57 This circumstance gives particular point to the statement in the joint judgment of Toohey, Gaudron and Gummow JJ in R v Swaffield, R v Pavic: [18]

"As the authorities stand, the likelihood of an unreliable confession does not mandate the exercise of the unfairness discretion to exclude that evidence. Nevertheless, it is hard to understand why, in such circumstances, the discretion would not be exercised in that way, particularly when regard is had to the consideration that the risk of an untrue admission is the rationale for the inadmissibility of a non-voluntary confessional statement."[19]

58 The present case raises, among other issues, the question whether any inferences which might be drawn from errors or omissions in the statement are so inherently unreliable as inferences, that they are either of no evidentiary value or of such little value that their potential for unfair prejudice greatly outweighs such value.

59 Mr O'Connell submits that the admission into evidence of the statement would be unfair because the accused does not do herself justice due to her intellectual disability. I accept unfairness may arise where it is probable that errors and omissions have arisen in the statement due to intellectual disability and there is a real prospect they may unfairly prejudice the accused.

60 If it be accepted that the accused was not actively interrogated (as Rumble states), the relative balance of intellectual power between Rumble and the accused may be regarded as being of materially less concern than would be the case if she were actively interrogated. Likewise the possibility of confusion is materially reduced.

61 Nevertheless, it remains to be considered whether it would be unfair to the accused to use her statement against her by reasons of deficiencies in her statement attributable to intellectual disability.

62 As Mr O'Connell submitted, the proper approach is demonstrated by that of Kaye J in R v Mohammed. [20]

63 In Mohammed's case the accused had a limited command of the English language. Kaye J formed the view that on important occasions in the accused's record of interview, it was clear that the accused lacked the basic capacity to state his version of the events which occurred in comprehensible English. This constituted a significant handicap for the accused man, particularly at critical stages of the record of interview. It bore on his capacity to articulate facts of central importance to a potential defence of self-defence. It gave rise to the considerable risk that statements by the accused during the interview might be unfairly misconstrued by a jury. And the even greater risk that the record of interview might be used to criticise the accused either for inconsistency or for recent invention if at the trial he were to advance a more comprehensive or different account of events than that which was conveyed in the record of interview.

64 Adopting an analogous framework of reasoning in the present case, Mr O'Connell points to three matters in particular which are dealt with in the accused's first police statement.

65 Firstly, in describing events on Thursday 21 April 2005, she states:

"Sometime late in the afternoon probably around dark the two boys started arguing with each other. I don't even know what it was over. This upset Debbie and she told Ian to leave. Debbie tried to push Ian out because of how he was behaving. Stephen and Ian then got involved in a fight ..."

66 The evidence as a whole confirms that there was an argument which led to violence between the deceased and Stephen Nemet. Both the deceased in statements to third parties prior to his death and the accused in a subsequent statement to police alleged that the argument was in fact over the intravenous use of drugs by the accused following their supply by Debbie Seal to the accused.

67 It can be seen that there is an obvious reason why the accused may not have wished to give a full and frank account of the origins of the argument at the time of the making of the first statement. The difficulty which arises is that it seems to me that the making of the statement involved a forensic choice which she made in the presence of a police officer, while suffering from intellectual disability and without the support of an independent third person. There is thus a real argument that she did not do herself justice in part because of her intellectual disability. The failure to do herself justice bears on the evidence as to the relationship between the deceased and Nemet. This relationship is of significance because shortly prior to the death of the deceased an unidentified male was seen in the vicinity of the accused's home. It bears on the possibility Nemet was involved in further violence towards the deceased.

68 The second matter raised by Mr O'Connell relates to the accused's statement about drinking in the lead up to the deceased's death.

"The next time I saw Ian was Friday morning. I think he caught the 11.10 a.m. train. He came to my place. Ian was drinking. He was drinking wine out of a cask. It was San Berdino [sic]. Ian was drunk when he got to my place. I then had a couple of drinks out of the cask. All that day Ian and I stayed home and drank together. We kept drinking the wine. We drank two casks of wine. We got the second one from Foodworks in Camperdown, we walked up the street and got it."

69 It is apparent from other evidence that this account is confused in a number of respects. The accused is wrong about the train which the deceased caught. She is wrong that the deceased and she stayed home and drank together all Friday. She is wrong in saying that they both walked up the street to get a second cask of wine from Foodworks on Friday.

70 In addition no reference is made to the consumption of Oxycontin by the accused during this period of drinking.

71 The difficulty is that the extent and nature of the accused's consumption of substances which may have affected her mental state is a serious issue in the trial. It must necessarily bear on the Crown's capacity to establish the proposition that she caused the death of the deceased by conscious, voluntary and deliberate act done with the intent to either kill him or cause him really serious injury. Once again there is thus a very serious doubt that the accused has done herself justice in this passage.

72 Mr O'Connell next points to the accused's statement concerning the nature of an altercation between the accused and the deceased shortly prior to the deceased's death.

"Later that night around dark Ian and I had a big altercation. Ian was slinging his ex at me so I did the same back to him. By this I mean our ex partners. Both of us were pretty angry over all this. The fight was only verbal initially but it got physical later. We ended up punching each other during the fight. I remember we both punched each other in the head. I also remember picking up my vacuum cleaner handle and I hit him in the ribs area. I hit him pretty hard. I know it hurt him because he was complaining about the pain. The worst of the fighting went on for about an hour or so."

73 There are two reasons for regarding this account as inadequate and inaccurate. The accused attended Camperdown Hospital very shortly before making this statement on 24 April 2005. She gave an account of the recent infliction of a whole series of injuries upon her by the deceased. Bruising was observed to the head, arms, body and legs of the accused much of which was photographed. The evidence strongly supports the view that the accused's statement materially understates the extent to which she was punched by the deceased. In turn the autopsy evidence records no damage to the deceased's body which would corroborate the proposition that he was hit hard with the vacuum cleaner handle in the ribs area shortly prior to his death. There is a very real possibility that the accused is referring to an incident which occurred at some other time.

74 It follows that there is a real possibility the accused has failed to do herself justice in making a statement which bears on the issue of self-defence.

75 When the above matters are taken together I am satisfied that if it is accepted, as on the evidence it must be, that the accused suffers from material intellectual disability and was in all probability an alcoholic suffering withdrawal symptoms from alcohol, it would not be fair to the accused to allow the statement to pass into evidence. The unfairness derives firstly, from the risk that the statement might be regarded as more reliable than it should be and secondly, that it may be regarded as conveying the accused's position with respect to the facts of the matter more fully and fairly than in fact it does.

76 An additional complication derives from the fact that the Crown has given notice that it intends to rely upon lies contained in the accused's statement as demonstrating consciousness of guilt of the crime of murder. Two of the alleged lies relied on are:

"(l) That the next time the accused saw the deceased after he left Deborah Seal's residence on the night of Thursday 21 April 2005 was on Friday morning after he caught the 11.10 a.m. train from Colac to Camperdown.

(m) all Friday the deceased and the accused stayed at home and drank together."

77 The evidence of Dr Wells and Mr McMullen provides compelling reasons why inaccurate statements by the accused might be explained by reasons other than consciousness of guilt of murder. In particular their evidence strongly supports the view that the accused may have had a confused memory at the time of the making of the relevant statement and also may have been subject to confabulation. It follows that although the Crown wishes to rely upon the first statement as demonstrating firstly, relationship evidence, secondly, a potential motive for wishing to inflict physical violence upon the deceased and thirdly, as demonstrating consciousness of guilt, there is a real doubt as to the probative value of the statement in respect of each of these matters.

78 In summary there is a substantial and unacceptable risk that a jury may draw inferences from the statement which are not fairly open by using deficiencies in the accused's account as evidence of consciousness of guilty or as going to her credit. Further it is probable that the statement is inaccurate and does not do the accused justice, both in terms of what it does and does not say:

(a) as to the dynamics of the relationship between the accused and the deceased;

(b) as to the level of violence probably suffered by the accused prior to the deceased's death; and

(c) as to the nature of alcohol probably consumed by the accused prior to the deceased's death.

79 It would be unfair to admit the statement in circumstances where such deficiency and inaccuracy is explicable by the accused's intellectual disability and alcoholism.

Accordingly, evidence of the first statement should be excluded. It would make for an unfair and unjust trial if the statement were to be admitted.

1. The supplementary written statement given by the accused to Detective Sergeant Rumble at Camperdown Police Station on 25 April at 8.37 p.m.

80 On Monday 25 April, Smyth attended the autopsy in Melbourne. He advised Rumble of the results of the autopsy at 13:50 and spoke to him further at 16:25. At 13:50 he telephoned Rumble and advised that the body had ligature marks one centimetre wide around the neck. Rumble did not note further the results of the autopsy and there may be some doubt as to how fully they were conveyed to him, although Smyth gives evidence that they were, and one would expect Smyth to advise Rumble fully and accurately. Nevertheless, it is apparent in my view that from this time onward Rumble understood that the probable cause of death was compression of the neck caused by ligature. After the receipt of this information Rumble arranged for the accused's home to be secured as a "crime scene" in order to be "safe rather than sorry".

81 At the time of the second statement the investigating police and in particular Rumble were aware:

(a) that the deceased was probably killed by strangulation with a ligature;

(c) that on the day and night prior to his death the accused and the deceased had been involved in violent argument;

(d) such arguments had included physical assaults upon each other;

(e) the accused had now (on 25 April) come to the police station producing a wire potentially constituting the mechanism of death, which was said to have been found in the accused's house;

(f) the accused had previously advanced no account of such a wire;

(g) neighbours to whom the accused had produced the wire had been told by the accused that she had had a "flashback" and seen the deceased hanging from a tree in the backyard;

(h) the neighbours who had attended the police station were of the view that the branch of the tree identified by the accused would not have supported the deceased's hanging body.

82 In my view these circumstances taken together were such as to render the accused a suspect of being involved in the unlawful killing of the deceased.

83 Rumble disputes that he regarded the deceased as a suspect prior to the taking of the second statement. Likewise Smyth maintains he did not regard the accused as a suspect until he had formed his own view as to the load bearing capacity of the relevant tree.

84 Both Rumble and Smyth were independently informed by Acting Inspector Gillard (who was not called on the voir dire) of the information which the accused's neighbours had provided. The critical question is whether Rumble, not Smyth, regarded the accused as a suspect.[21]

85 The terms in which Rumble noted the information do not explicitly raise the question of whether the accused's new story was truthful or might raise suspicion against her. Nevertheless, I am satisfied that if the concept of "suspicion" explained at pp.547-548 of the judgment in Heaney is borne in mind, the accused ought at the time of the second statement to have been regarded as a suspect.

86 I am satisfied the fact that the truthfulness of the accused's "flashback" was challenged by her neighbours and was squarely in issue, was known to Rumble at the time he took the second statement. The obvious alternative was that the accused killed the deceased.

"In George v Rockett the High Court, in drawing a distinction between 'suspicion and belief' as a state of mind, stated that 'it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person', at p.488.

The distinction between suspicion and belief as a state of mind was analysed by Vincent J in Walsh v Loughnan at pp.356-357.

Vincent J observed in his ruling: 'Although the creation of a suspicion requires a lesser factual basis than the creation of a belief, it must nonetheless, be built upon some factual foundation.'

In our opinion this observation is plainly correct. The section is not concerned with a state of mind founded upon speculation or 'mere idle wondering' (Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 at p.303). But is concerned with a state of mind arrived at upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created."[22]

88 Whilst I accept Mr Trapnell's submission that there is a danger in ex post facto reasoning, in my opinion the known facts in the present case which I have summarised above gave rise to the reasonable apprehension that the accused might possibly have committed an offence by unlawfully killing the deceased.

89 Whether Rumble had elevated the accused to the status of a suspect at the time of the second statement need not finally be resolved.[23] In my view she ought reasonably have been so regarded and therefore fell within s.464H(1)(b). The subjective state of mind of Rumble is not determinative of the matter.

90 It follows that in my view s.464H(1)(c) applies:

(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who -

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

(c) if the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; or

(d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording; or

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or audiovisual recording; or

(f) if the confession or admission was made during questioning in accordance with an order made under section 464B(5), the questioning and anything said by the person was recorded by audiovisual recording -

and the recording (whether audio recording or audiovisual recording) is available to be tendered in evidence."

91 Sub-section (1)(c) in turn gives rise to the subsidiary question whether the substance of the admissions contained in the statement was confirmed by the accused thereafter and such confirmation was recorded by the subsequent videotape recording.

92 In my view it was not. The videotaped record of interview put to the accused at question 396ff what she had said to a neighbour. It did not put her second written statement back to her.

93 If I am wrong in the above conclusions then, in my view, it would, in any event, be unfair to admit evidence of the second statement as to a "flashback" when:

(a) the medical evidence supports the view that such a flashback in a person with alcoholism such as the accused, may be an instance of confabulation and therefore be of no evidentiary value whatsoever;

(b) the accused was not cautioned before making the statement;

(c) no independent third person (and no woman police officer) was present during the taking of the statement;

(d) there is no circumstantial evidence supporting the truth of the scenario put forward as to the cause of death in the second statement and in turn objectively confirming its reliability; and

(e) the statement is in turn an amplification of the first statement which I have already excluded.

94 I do not accept that the accused's experience with police some 8 years before would have adequately alerted her to her rights. Nor do I accept that the fact she was cautioned by a local police officer as a precautionary measure on the evening of 23 April is of significance. For reasons I have explained, I am satisfied she was drunk, unstable and vulnerable at that point in time.

1. The oral statements made to Leading Senior Constable Smyth by the accused at Camperdown Police Station on the night of 25 April 2005

95 I will attach as Appendix A to this ruling the terms of Smyth's note of the oral statements made by the accused on 25 April 2005 at 21:25.

96 Smyth properly concedes that at the time he asked the further oral questions of the accused at the Camperdown Police Station she was a suspect. Further, he agrees that by this stage she was in custody. In my view it was necessary for the caution which was then given to the accused to be videotaped in accordance with s.464G of the Crimes Act. Further, it was necessary for the accused's statements to be videotaped in order for them to be admissible in accordance with s.464H(1).

97 The Crown submits that the accused volunteered a further statement, after Smyth had indicated to her there were difficulties with the proposition that the deceased had hung himself. In my view such statement was actively elicited by Smyth and hence the product of interrogation. Indeed Smyth's initial statement to the accused before cautioning her, that he had difficulties with the proposition that the deceased was hanging in a tree, amounted to a direct and deliberate confrontation at the start of the conversation.

98 Smyth then interrogated the accused asking questions such as "Did you kill him?" and "Did you use the wire?" In my view the evidence of this questioning should not be admitted having regard to the clear scheme of the statute.

99 It was submitted on behalf of the Crown that the substance of the exchange between Smyth and the accused was put back to the accused in the subsequent videotaped record of interview. There are three answers to this proposition:

(a) This is no answer to the requirements of s.464G, which required the cautioning of the accused to be recorded.[24]

(b) This is no answer to the requirements of s.464H(1)(d), which govern the situation once the questioning of the accused commenced.

(c) I do not accept the questioning was put back accurately to the accused. Rumble's evidence does not directly corroborate Smyth's note of what was said at the time of the "informal" interview. But if Smyth's note of such informal interview is compared with the formal record of interview, the questioning is not put back accurately.[25]

100 Having regard to the above conclusions it is strictly unnecessary to decide whether in all the circumstances the statements made in answer to the informal questioning should be regarded as voluntary in the sense that they were given in the knowledge of the right to remain silent.

101 There are, however, real questions as to whether the accused did understand the caution administered to her by Smyth after he initially confronted her and in the absence of an independent third person. In R v Li & Anor Coldrey J stated:

"The breadth of the concept of voluntariness is often misunderstood. In my view it extends to and encompasses the situation where answers are given by an accused person who lacks understanding that such questions need not be answered, and, as a result, feels compelled to participate in the interview process. In such circumstances the interview will be non voluntary. This is so even though the interview itself may be conducted in an ostensibly co-operative fashion."[26]

102 I respectfully agree. In the present case the caution was not videotaped in accordance with s.464G. Nor was the accused asked to explain her understanding of the caution as required in the case of intellectually disabled persons by the Victorian Police Manual 112.3 [6.2.5]. Nor was the accused accompanied by an independent third person. Further, the subsequent videotaped record of interview demonstrates that initially the accused does not understand the caution.

103 In addition the failure to videotape resulted in specific forensic disadvantage in that as an intellectually disabled person the accused is at a material disadvantage in assessing the accuracy of Smyth's note of what was said particularly in circumstances where the terms of that note are not corroborated directly or in detail by Rumble.

104 It also seems to me that the circumstances raise real questions as to the fairness of the questioning, when regard is had to the accused's intellectual disability substantially for like reasons as form the basis of my rulings with respect to the accused's police statements. Indeed, the evidence as a whole including that of the subsequent videotape itself, suggests that the accused experienced substantially increased intellectual difficulty when subjected to direct questioning.

105 At the time of the informal interview the police could simply have waited half an hour or until the video recorder was set up, as conceded by Smyth, before commencing questioning.

1. The videotaped record of interview conducted on 25 April 2005 between 9.55 p.m. and 11.28 p.m.

106 Within approximately 25 minutes after the informal questioning of the accused by Smyth, a formal record of interview was commenced and video recorded.

107 Mr O'Connell submits the videotaped record of interview constituted part of the same period of questioning commenced informally by Smyth. The clear scheme of the section is that the police cannot conduct questioning off-camera and then in effect commence the recording on-camera when it suits them. Accordingly, evidence of the record of interview should be excluded.

108 In the matter of Zac Smith[27] the Western Australian Court of Criminal Appeal had occasion to consider a situation in which two initial interviews were not taped in accordance with relevant provisions of the Commonwealth Crimes Act 1914. In considering a third interview Wallwork J observed:

"It would seem an absurd result that the inadmissibility effect of s23V(1)(a) could be circumvented by the simple expedient of interrupting an interview not being taped in accordance with the Act, then re-commencing the interview at a later stage, either at the same or a different venue, taking advantage of matters not recorded to obtain admissions which were then recorded."

109 I respectfully agree. Nevertheless, the question of whether the "questioning" referred to in s.464H(1)(d) was recorded, requires a characterisation of the unrecorded questioning and its relationship to the recorded questioning. Was the unrecorded questioning part of the same questioning which was video recorded? The answer depends on the whole of the relevant circumstances including "in particular proximity of time and place".[28] Further:

"It is necessary to focus on the questioning which produced the answers sought to be adduced in evidence. Is that questioning, in terms of s.464H(1) affected by what took place earlier?"[29]

110 In R v Heatherington[30] Southwell J took the view on the basis of the facts in that case that it would be quite unrealistic to say that the content or nature of a later recorded interview was "affected by what took place earlier". The two interviews were separated by 45 minutes and took place at the same police station. Southwell J analysed the functional relationship between the two questionings as follows:

"The investigating police already knew that the applicant had twice admitted (to the ambulance officer, and to Senior Constable Watson) that he had struck the blows which had so seriously injured the victim and which caused his death some four months later. The recorded interview which (as is so often seen now that the discipline of a pen or a typewriter has been abandoned) was of inordinate length, does not appear to contain any questions which would not have been asked had there been no 'lead up' conversation. Doubtless if the applicant had in the recorded interview denied that he was the assailant, his three earlier admissions would have been put to him. But he made no such denial.

When one studies the contents of the 'lead up' conversation and that of the recorded interview, they are of a very different nature. That they were so regarded by the police is obvious from the fact that in the lead up conversation (probably) no caution was given, and no attempt made to go through the formal requirements of s.464H and s.464C, whereas those requirements were meticulously met in the recorded interview."[31]

111 Mr Trapnell submits that in the present case the whole process of interview started afresh with the videotaped record of interview. I reject this submission. First, the accused was cautioned before the first questioning and the questions then asked were confrontational and went to the core of the facts in issue. Second, the videotaped record of interview was conducted by the same police officers present at the questioning in the previous half hour. Third, it was conducted in a room close by that in which the initial questioning occurred. Fourth, the videotaped interview referred back to the immediately preceding questioning and Smyth purported to put to the accused the content of the previous exchange. In turn such reference back led directly into a further exchange with devastating potential for the accused:

Q. So why did you just tell me two minutes ago that he was?

Q. We're just trying to find out the truth of what's happened?

1. I just want to get out of here (pause). If only he'd come back, it'd be right, I wouldn't be in this fucking mess, excuse my language.
2. Okay did you kill Ian?
3. (No audible reply).
4. Did you kill Ian?
5. It would only have been by accident and self-defence.
6. Okay how is it that you think you killed Ian?
7. Strangulation.
8. With what?
9. My hands like, I showed you on the videotape.
10. Okay and when do you think you did that, that you killed him?
11. Late Friday night / early Saturday morning.
12. Okay?
13. And that is correct and true.
14. Is that the truth?
15. The truth."

112 In my view the interrogation of the accused which commenced with Smyth confronting the accused off-tape and subjecting her to initial questioning was functionally connected to the substance of the questioning which was videotaped. Further, on the balance of probabilities both the state of mind of the principal questioner and the accused were materially affected by the exchange which occurred off-tape. Thus both the content and nature of the later interview were directly "affected by what took place earlier".[32]

113 The off-tape questioning was materially relevant to the terms of the videotaped record of interview and the eliciting of critical answers which the Crown contends demonstrate consciousness of guilt.

114 I also reject Mr Trapnell's submission that this was a case of exceptional circumstances justifying the exercise of discretion under s464H(2). There was no need to confront the Accused with the results of Smyth's investigation of the tree(on which the deceased was said by the accused to be seen hanging) before the tape was switched on. There was no need to interrogate her as to the true cause of death until the tape was switched on. Further there was no likelihood of any real delay in being able to switch the tape on. The relevant operator was present at the police station.

115 It follows that the videotaped record of interview must be excluded.

116 I would add for the sake of completeness that the evidence as to the accused's intellectual disability and the manner in which the interview was conducted in the absence of an independent third person again raise significant issues of unfairness but it is unnecessary to analyse this further given the conclusion I have reached with respect to s.464H.

117 Accordingly I would exclude evidence of each of the statements objected to.

Leigh Scott SMYTH: "Jodi, we have received the autopsy results and they indicate that Ian died from ligature strangulation."

Leigh Scott SMYTH: "I have difficulties with that, because I have looked at the tree and don't believe it could support his weight. Before you say anything else, I need to caution you. I must inform you that you are not obliged to say or do anything, but that anything you do say or do may be given in evidence. Do you understand that?"

Leigh Scott SMYTH: "I must also inform you of the following rights. You may communicate or attempt to communication with a friend or relative to inform that person of your whereabouts. You may communicate or attempt to communicate with a legal practitioner. Do you understand these rights?

Leigh Scott SMYTH: "Do you wish to exercise any of those rights?"

Jodi Ann LARACY: "No, but I want to tell you the truth."

Jodi Ann LARACY: "It was just something that got out of hand."

Jodi Ann LARACY: "I had a fight with Ian on Thursday after he came back. He had me up against a wall and he smashed holes in the house. I got really angry and grabbed him around the neck with both hands and strangled him."

Jodi Ann LARACY: "After I let go of him, he fell to the ground and wasn't breathing."

Leigh Scott SMYTH: "Was Ian ever actually hanging in a tree?"

Leigh Scott SMYTH: "How did he get the wire around his neck?"

Leigh Scott SMYTH: "We will do a formal video interview with you shortly. Sit tight."

[1] [1993] VicRp 48; [1993] 1 VR 671.

[2] [1980] FCA 72; (1980) 31 ALR 257.

[3] (1990) 19 NSWLR 177 at 183-4.

[4] Jackson v The Queen [1962] HCA 49; (1962) 108 CLR 591.

[5] Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316 and R v Starecki [1960] VicRp 22; [1960] VR 141.

[6] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454.

[7] cf R v Lee [1950] HCA 25; (1950) 82 CLR 133 and Van Der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; 82 ALR 10.

[8] cf McDermott v The King (1948) 76 CLR 501; R v Lee.

[9] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94.

[10] cf Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315.

[11] Pfitzner v R [1996] SASC 5462; (1996) 85 A Crim R 120; Sinclair v R [1946] HCA 55; (1946) 73 CLR 316; and R v Starecki [1960] VicRp 22; [1960] VR 141 at 152.

[12] Without considering the questions of involuntariness which had not been argued: p682.

[13] See 112.2 [5.3] and 112.3 [6.2].

[15] [1950] HCA 25; (1950) 82 CLR 133 at 159-60.

[16] Van der Meer v R [1988] HCA 56; (1988) 62 ALJR 656 at 666; cited in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 174.

[17] (1990) 19 NSWLR 177 at 183.

[18] [1998] HCA 1; (1998) 192 CLR 159.

[20] [2004] VSC 408.

[21] See R v Heaney [1992] VicRp 85; [1992] 2 VR 531 at 547.

[23] I accept he did not positively believe the accused to be guilty of an offence at the relevant time, but as Heaney makes clear, this is not the issue.

[24] Although non compliance with this section does not render the record of what was said automatically inadmissible.

[25] In particular question 470 did not refer to ligature strangulation but merely "strangulation", a very material difference in terms of the accused's prior and subsequent answers about manual strangulation. In turn question 471 postulated an assertion by Smyth of difficulties with the accused's statements, in fact Smyth introduced his informal questioning by asserting that he did not accept the deceased was hanging from the tree.

[26] [1993] VicRp 59; [1993] 2 VR 80 at 87.

[27] (1996) 16 WAR 205, 86ACrime R 398.

[28] Per Toohey with whom Mason CJ generally agreed in Pollard v R [1992] HCA 69; (1992) 176 CLR 177 at 219.

[29] Ibid and cf the common law principle stated in R v Smith (1959) 2 QB 35 per Lord Parker CJ, Streatfield and Hinchcliffe JJ at 41 applied by Connor J in Pascoe v Little (1978) 24 ACTR 21 at 23: "...if the threat or promise under which the first statement is made still persists when the second statement is made, then it is inadmissible. Only if the time and the caution are such that it can be said that the original threat or inducement has been dissipated can the second statement be admitted as a voluntary statement."

[30] [1993] VicRp 46; (1993) 1 VR 649

[32] cf Hetherington at 656 applying the words of Toohey J in Pollard.