R v Malula

Evidence in the hearing

1. The Crown evidence on the voir dire was a bundle of documents which became Exhibit A1 to A16. Exhibits A1 to A5 were police records relating to the accused's arrest on 21 June 2020 and I will refer to these later in the judgment. Exhibit A6 to A9 were police custody records following the accused's arrest on 8 September 2020 including the transcript of the ERISP interview, which was Exhibit A8.
2. Exhibit A10 was a statement of Senior Constable David May dated 17 September 2020. Exhibit A11 and A12 were the Forensic Procedures Information Sheet and Consent Form which will be referred to below. Exhibit A13 was the DNA expert's certificate dated 11 November 2020, subject of the application. Exhibit A14 was the EFIMS DNA summary link notifications dated 29 June 2020 and 18 September 2020.
3. Exhibit A15 was a report of Dr Martin, psychiatrist dated 10 June 2021 and Exhibit A16 was a discharge summary on the accused's discharge from St Vincent's Hospital on 8 July 2020. In that document at p 111 of the Crown bundle, the author notes that the accused was born in Kenya and came to Australia as a refugee in 2005 with his family. He was diagnosed with schizoaffective disorder in 2006, and his illness was complicated by polysubstance abuse. He has experienced functional decline since diagnosis. He had been trialled on antipsychotics, including clozapine in 2014, risperidone oral and depot in 2015 and paliperidone depot (Trinza) in 2018.
4. In 2014 to 2015, he had an extended rehabilitation admission in Bloomfield. He is often very difficult to follow-up and lost when discharged in the community. He has failed a number of Community Treatment Orders. He has an allegedly extensive forensic history for various offences, including drug related, sexual safety related, assault and breach of bail offences.
5. Exhibit B was audio visual evidence of the ERISP interview on 8 September 2020 and also of the forensic procedure consent undertaken by Detective May on 8 September 2020. Exhibit C on the voir dire was a document from Transport for New South Wales bearing registration details in respect of a black Hummer vehicle relevantly for the period 24 January 2009 to 23 October 2009. The registration number was recorded as being BOB1 and the recorded operator, one Masiala Kipioka.
6. The accused also relied on a bundle of documents which became Exhibit 1.1 to 1.20 on the voir dire. Exhibit 1.1 was the Crown case statement to which I have referred. Exhibit 1.2 to 1.5 were reports of Dr S Dayalan, forensic psychiatrist. In those four reports, Dr Dayalan proffered opinions that the accused was unfit to be tried on the basis of his longstanding mental illness of schizoaffective disorder. Further, that he was an incapable person on 8 September 2020 in that he was suffering from an acute relapse of schizoaffective disorder on that day, and would have been incapable of understanding the general nature and effect of a forensic procedure and incapable of giving informed consent to the forensic procedure.
7. Exhibit 1.6 was a further report of Dr Martin, a psychiatrist qualified by the solicitor for Public Prosecutions dated 21 March 2023. This was the second report of Dr Martin and he agreed with the opinions expressed by Dr Dayalan in his report. He also proffered an opinion at [17] of his report that the accused's appearance in the video taken on 8 September 2020 was consistent with acute and severe mental illness manifested by thought disorder (a breakdown in coherence, logic and sequencing of expressed ideas), appearing disinhibited and referring to himself as Lucifer. He also referred to God watching him and appeared to be talking to himself, which was consistent with hallucinations. Dr Martin went on to opine that the accused's judgment was impaired.
8. All the other documents in Exhibit 1 were duplications of the Crown bundle, Exhibit A, having been prepared prior to service of that bundle by the Crown, except for three body-worn videos of police officers being Exhibits 1.16 and 1.18. Those videos being exposed on 21 June 2020 (twice), and on 8 September 2020. They were included for completeness, but not played in open court.
9. Oral evidence was called on behalf of the Crown from Sergeant Barlow, the custody manager at the Day Street Police Station on 8 September 2020. She was responsible for the custody management records which she identified in Exhibit A and when assessed by her, she had noted that the offender suffered a mental illness. In her evidence-in-chief, she gave the following evidence, (transcript p 12):- "Q. In terms of the conversation you had with the accused at that time, was he responsive to the questions that you asked? A. Yes, he did. He answered everything meaningfully. Q. You've noted they're in common section, "Rambling to himself". Is that right? A. Yeah, that's correct. Q. Could you hear what it was he was actually saying? A. I can't, I can't recall the exact words". Q. The first question was could you? I'm not asking you if you, at this stage, if you can recall it. Do you recall though, if he did, if what he was rambling was something that you could understand at that stage, not the actual substance? A. Yeah, I could understand him. Q. The next item, although it's cut off, is that heading, "Visual assessment"? A. Yes. Yes, it is. Q. Just before we go onto that, in terms of the questions and answers you asked during the brief assessment phase, you noted that he was mentally ill. Is there anything you could say in terms of whether he appeared to be cognitively impaired to you? A. No, he didn't appear to be cognitively impaired at all. He responded appropriately to all of my questions; his language was that of a normal person; not someone with a cognitive impairment. Q. Then you go onto the visual assessment. How do you do that? A. Again, by speaking to the person and observing them. Q. Under item 7 you've noted an endorse "yes" to the question "Does the person appear rational?" and you've made a comment "Rambling"? A. Yep. Q. Is there anything further you can say about that? A. He, he didn't appear to be acutely unwell. I mean, most people that come into custody have a mental illness of some description, but, but he was still aware of what was going on around him. He was certainly able to communicate with me appropriately".
10. In respect of what is known as a Pt 9 statement, the sergeant gave the following evidence, (transcript 13):- "Q. Just going back to the first page of the document at page 31, did you read the contents of this document out to the accused? A. Yes, I did. Q. At the time you read it out to him, is it your usual practise to answer any questions? A. Yes. Q. Was there anything that you can recall about reading this out to this accused on 8 September 2020? A. No, I just read it out. Q. Was there nothing unremarkable about it? A. No, nothing unremarkable. Q. Sorry, I withdraw that. I should ask it the other way. Was there anything remarkable that you can recall about it? A. No, there was nothing remarkable".
11. In respect of giving the accused the opportunity to get legal advice, Sergeant Barlow gave the following evidence, (transcript 14):- "Q. Do you an independent recollection in relation to that day as to whether or not the accused spoke with the Aboriginal Legal Service? A. I can't recall. Q. Is it the case he could have, but you don't know? A. No, I'm not certain".
12. In relation to her having him adopt the ERISP at its conclusion, Sergeant Barlow gave the following evidence, (transcript 15):- "Q. You'll see that he responded to you when you asked the question for "Have you taken part in this record of interview of your own free will"? And he's replied, "It's good" or "It good". Is that right? A. Yep, that's correct. Q. The following answer to the question "Were any promises made to you to take part in this interview?" He says "Above"? A. Yes. Q. Then the next two questions he also replied, "Above still". What do you understand that to mean? A. That he was saying it was good. Q. He was verbally basically saying "Ditto"? A. Yes. Q. Again, when you were asking that questions, was he responsive to what you were asking? A. Yes".
13. In cross-examination in respect of her reading the Pt 9 statement to the accused, Sergeant Barlow gave the following evidence, (transcript 18):- "Q. You confirmed that you read that to Mr Malula that day? A. I did. Q. When you read it to him, did you take any steps to ensure what you were saying to him? A. Yes. I always read one paragraph at a time, and I check for understanding. Q. When you say you check for understanding, did you simply just ask him "Do you understand?" A. Sometimes that's all I ask, but sometimes I ask clarifying questions. Q. In relation to Mr Malula, did you ask clarifying questions? A. I, I can't recall specifically, but I always ask clarifying questions of everyone that I have in custody".
14. In relation to her evidence about him adopting the ERISP interview. She was asked as follows, (transcript 19):- "Q. In response to question 2, "My function is to ensure fairness in the conduct of the interview. Do you understand?" The answer was "I understand you say Queen is for London." What do you take Mr Malula to mean when he said, "Queen is for London" answer? A. That he was making a comment about the Queen being in London. Q. In your opinion, was that responsive to your question? A. No, he'd already answered my question, that was what he said afterwards but nevertheless, I still wrote it down. Q. Did you ask any clarifying questions about why he said that? A. No. Q. I'll just take you to your previous answers. In response to the Crown's questions about whether - I guess your observations about the state of Mr Malula, you said that he responded to questions appropriately? A. Yes. Q. Do you remember saying that? A. Yes, I do. Q. And he was responsive to your questions? A. Yes, he was. Q. Can I take you to page 37? A. Yes. Q. Under visual assessment item 7, you noted there that does a person appear irrational and you said, "Yes" do I take that to mean you're observation"-- This was in fact on p 36. "Q. Does that mean, does it not, that you observed Mr Malula at that time to be irrational? A. Yes. Q. Can I suggest that the suggestion that Mr Malula cannot on the one hand be irrational but on the other hand respond appropriately to questions, those two things can't be true at the same time? A. I believe they can be, there's certainly a scale of rationality. Q. But when you observed him to be irrational, that means that he was not rational, is that right? A. That's correct but once I spoke to him he was able to listen and respond appropriately so he was able to come back and interact appropriately. Q. Wouldn't you then put on your system that he was rational if that was the case? A. No, I think for the sake of, of custody and ensuring the safe custody of somebody, you put them at their worst - we called them at their worst so that their needs are met and that no one slips through the net. Q. That's not true, is it? A. Yes, it is true."
15. Detective Senior Constable David May gave evidence that in 2020 he was a plainclothes Senior Constable working at the Day Street Police Station. In his evidence-in-chief, he gave evidence that prior to interviewing the accused he was given information. At transcript 23, he was asked:- "Q. Can you recall what information you were provided? A. That there was a male in custody in relation to a historical sexual assault that needed to be interviewed and the police processing to be done after that. Q. Did she tell you anything in relation to any DNA links? A. I believe there was information regarding a DNA kit or DNA link. Q. As a result of that, was there any conversation between you and Detective Champion about whether or not a forensic procedure should be undertaken in relation to the accused? A. I can't recall the specifics of the conversation but a conversation would have been based on a historical kit. Q. Was it the case that after the electronically recorded interview with the accused that a forensic procedure was undertaken? A. Yes. Q. Prior to you undertaking the forensic procedure, did you have access to the accused's criminal history? A. No. Q. In terms of the interactions you had with the accused and I'm talking about interactions other than those that were recorded - for example, when you went to the dock area of the station and so forth, did the accused appear to comply with any instructions or directions in terms of moving from the dock to the interview room and so forth? A. Yes, he was very compliant."
16. In relation to the ERISP interview itself, Detective May gave the following evidence, (transcript 24): "Q. During the course of the interview, he nominated Prince William as his interview friend, did that cause you any concern? A. No. Q. Why not? A. Mainly because a lot of people just say things that can't be - can't happen, essentially. Q. In terms of-- A. Or aren't achievable. Q. Sorry? A. Or aren't achievable. Q. In terms of the ERISP interview itself, do you agree that there were times when he appeared to go off on a tangent and then come back again? A. Yes, he would talk and then start talking about other things but he would always come back to the question that was asked if he was asked it again. Q. Was his response once he was brought back again lucid? A. Lucid and always coherent."
17. At transcript 25 he was asked: "Q. In terms of the forensic procedure, you had already conducted the interview with the accused. Was there anything during the course of the interview that caused you any concern about whether or not the accused could consent to the forensic procedure? A. No"
18. In cross-examination, the detective was asked about the training he undertook for undertaking forensic procedures, (transcript 27):- "Q. Part of your training was also informing you what sort of powers you have under the act? A. Yes. Q. When you can take buccal swabs and when you can't take buccal swabs? A. Yes. Q. You're aware of course that if a person is incapable, you could not take the buccal swab on the spot, is that right? A. Yes. Q. You needed to seek a Court order from the magistrate, you understood that? A. Yes. Q. You interviewed Mr Malula for close to an hour - probably not an hour but close before you performed a forensic procedure, is that right? A. Yes. Q. You mentioned that you watched the interview last night? A. Yes. Q. Did you watch the forensic procedure video as well? A. Yes. Q. You mentioned just then that in the process of interviewing Mr Malula, you didn't have any concerns as to whether he was able to consent to the forensic procedure, is that right? A. Yes, I have no concerns. Q. Can I take you to Exhibit A if you just flip to tab A? A. Yes. Q. That's a transcript of the interview, is that right? A. That's correct, yes. Q. Can I take you to page 46? A. Yes. Q. This is question 41 - sorry, for context let's go to question 39. Mr Malula's answer was, "Then you will know there's a people, Nene, DJ Nene, he's a Sudanese, yes, Sudanese" do you see that? A. Yes. Q. Then at question 41 you ask, "Who's DJ Nene?". A. Yes. Q. Then the answer was, "DJ Nene, he built a party that he lured the person to kill" do you see that? A. Yes. Q. As far as you know, did you do anything in relation to that information that you got? A. No. Q. But there could potentially have been a murder investigation or attempted murder investigation? A. I didn't do anything with the information but I don't know the full context of it. Q. Can I put it this way, you didn't ask any clarifying questions about this particular aspect. That is, he lured a person to kill? A. No. Q. You didn't ask follow up questions because you didn't take Mr Malula seriously there, did you? A. No, because that's not what we were there to talk to him about. Q. In the process of interviewing an individual, if they give you important, vital information about another client, you don't follow up because that's not the thing that you're investigating at the time? A. Not with the ERISP, no. Q. Did you follow up afterwards? A. No. Q. The reason why you didn't follow up was because Mr Malula was not making any sense there? A. Not necessarily, no. I was not there to interview on about other things, I was there to interview about what the allegation was at the time."
19. The detective was further cross-examined in relation to the ERISP, (transcript 30):- "Q. In the context of the interview, that conversation that you were talking about, Sonny - at least according to Mr Malula, was one of the people that were in the Hummer? A. Yes. Q. That was relevant to your investigation because you were investigating an alleged sexual assault that occurred in the Hummer? A. I myself, no. I was questioning Mr Malula with relation to that, I was not investigating the actual sexual assault. Q. Wouldn't you agree that questioning is part of an investigation or no? A. I would, but I was only focusing on the police interview at the time. Q. Right, okay-- A. Not other aspects of the investigation. Q. You were questioning Mr Malula about an alleged sexual assault that occurred in a Hummer? A. Yes. Q. Did you make any inquiries in relation to this "Sonny" person? A. Myself personally? Q. Yes? A. No. Q. As far as you're aware, did the police make any investigations in relation to this Sonny person at all? A. I don't know because I wasn't involved in the investigation after the forensic - after the perosis."
20. He went on to give the following evidence, (transcript 31):- "Q. But information regarding another individual that, according to Mr Malula, was in the car, wouldn't that be important information to ask about during the interview? A. I didn't have information about the overall sexual assault, I was only there to interview Mr Malula about what I knew. Q. But you were given information about this Sonny bloke who was apparently in the Hummer but you still didn't ask him any questions - any follow up questions in relation to this person? A. That's correct. Q. My suggestion to you is that you didn't take him seriously when he was talking about Sonny, did you? A. No, I did take him seriously. Q. The reason I've put this to you - the reason why you didn't take him seriously was because he wasn't making any sense, he was making things up? A. No."
21. Detective May was cross-examined about the end of the interview. At p 32:- "Q. Is that your usual practice, to confirm that they've interviewed under their own free will, et cetera? A. Yes. Q. He responded to that question, "I need to be free" do you see that? A. Yes. Q. He reiterated, "I need to be free"? A. Yes. Q. Then the following page he reiterates or he says, "If I'm free, you're free too" do you see that? A. Yes. Q. That's not responsive to your question about whether he made the interview of his own free will, is it? A. I believe I didn't ask that question, it was-- Q. But you were present during the interview, were you? A. Yes. Q. Did that give you any concerns? A. No. Q. Just because you didn't ask the question, are you able to answer this question. That's not responsive to that question, was it? A. Sorry, can you repeat the question? Q. His answer was not responsive to the question? A. In that case, no. Q. The following question is, "Has anyone offered you anything to make this interview?" and his answer was, "No" do you see that? A. Yes. Q. There's back and forth and then at question 420 his answer was, "No, I've just said it true cause you, they're rushing me someone, the spirituals. Maybe now cause he can fix you, that's what I'm telling you, she'll be smart with you Go Masiala Kipioka. Go first. That will mean she's not good and she tried to kill that person so try to give them and talk about it" do you see that? A. Yes. Q. That's not really responsive to any questions, is it? A. That specific one, no."
22. He was then asked, (transcript 33): "Q. Can you turn to the next page, we're still on - you know, you see the first question? A. Yeah, I have. Q. "Have we offered you anything?" so we're still on the question about have the police officers offered him anything to do the interview, his answer was, "No, you didn't offer me anything" you see there? A. Yes. Q. The next question was, "No, no, no, no. If you offered me now, I say you see your ring, you have to separate. Maybe you feel you left un-piece(as said). Try to separate yours own one, maybe she's in bed" it's like a long answer if you just read it, I won't read the whole thing? A. Yes. Q. That's not responsive to any questions, is it? A. It's not. But I know what it's in relation to. Q. Do you? A. Yes. Q. Can you tell me what "Story for 1000 year and don't touch them, don't fuck a woman, did something bad so be smart when you talk to - talk with me, because your God loves you", what does that mean? What was he referring to there? A. Detective Pont had a wedding ring on."
23. In relation to that passage, the detective gave evidence that he did not know what the religious beliefs of the accused were in relation to that. He gave the following evidence, (transcript 33):- "Q. Did that give you any concerns about his mental capacity? A. No. Q. You had no concerns? A. No. Q. Did you observe when you were - well at the time did you notice when you were interviewing Mr Malula and when you were performing the forensic procedure, did you notice that Mr Malula was occasionally talking to himself? A. Yes. Q. He returned to his side as if he was speaking to someone but there was no one there, did you observe that to have occurred? A. Yes. Q. Did that give you any concerns about his mental capacity at the time? A. No. Q. You already said when he wanted Prince William of London to be his support person, that that didn't give you any concerns about his mental capacity? A. No. Q. Can I suggest that you went into that interview and you performed - well I'll do the interview first, but really this relates to both procedure with the explicit purpose of obtaining evidence against Mr Malula? A. Sorry, can you repeat the question? Q. You went into the interview with the explicit purpose of obtaining evidence against Mr Malula in relation to the alleged sexual assault? A. We had reasonable grounds to take his DNA and that was what was going to happen at the end of it. Q. It was going to happen regardless of whether or not he had the mental capacity to consent to that? A. He did consent and-- Q. Forensic procedure? A. I believe he had the mental capacity to consent. Q. Even if he didn't, you didn't care. You wanted to obtain that DNA evidence, didn't you? A. If he was unable to consent, we wouldn't have taken it. Sorry, if he was incapable of consenting, we wouldn't have taken it."
24. There was no re-examination.

The accused's submission

1. Counsel for the accused relied on a detailed written outline of submissions in which it was submitted that the accused was an incapable person as defined by s 3 of the FPA.
2. It is common ground on this application that the accused does fall within that definition. The effect of that is that a forensic procedure could not be performed unless an order was obtained pursuant to s 23 of the FPA from a magistrate. Section 82 of the FPA is in respect of the admissibility of evidence from improper forensic procedures and s 82(5) sets out the matters that may be considered by the Court for the purpose of subs (4).
3. Also relevant is subs (6) which provides that the probative value of the evidence does not by itself justify the admission of the evidence. I will come back to that section shortly. Section 82(4) provides a test as to whether the desirability of admitting evidence that is otherwise not admissible outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of the Act.
4. Counsel, properly in my view, conceded that the DNA evidence had probative value. However, it was submitted that there was no reason provided for non-compliance with the FPA on the two relevant occasions namely 21 June 2020 and 8 September 2020. It was submitted that the gravity of the failure to comply is severe given the accused's vulnerability, namely, his mental illness.
5. Counsel submitted that the failure to comply in this case was at least reckless, if not intentional, given the presentation of the accused on both occasions. It was further submitted that there was a public interest in compliance by police authorities with the Act, otherwise a wrong message would be sent to the community.
6. It was further submitted that there was no difficulty in the police applying for an order pursuant to s 80 by a magistrate, given their resources. In his oral submissions, counsel submitted that the ERISP was inadmissible pursuant to s 90 of the Evidence Act because of the accused's mental illness, which rendered anything he says really unreliable.
7. It was submitted that the breach of the FPA in this case was intentional because Detective May knew there was a match, meaning a DNA match and did not care whether the accused was capable of consenting to the forensic procedure.
8. Counsel rehearsed his submissions concerning that to allow the DNA evidence would send the wrong message, given the clear example of a breach of the Act here.

The Crown submissions

1. The Crown also relied on an outline of written submissions. The Crown submitted that the DNA evidence was relevant to a fact in issue, namely, that penile-vaginal intercourse took place on 14 March 2009 between the accused and the complainant and was therefore of high probative value.
2. The Crown set out in her written submissions the scheme under the FPA and agreed, properly in my view, that the psychiatric opinion from both Dr Dayalan and Dr Martin confirmed that the accused was an incapable person as defined in the FPA.
3. The Crown emphasised s 82(4)(b) of the Act, which was the test that I set out above and submitted in relation to the matters set out in s 82(5) as follows.
4. First in respect of the reasons given for non compliance, the written submissions outline that the Crown intended to call the evidence of Senior Constable May, who conducted the forensic procedure, as to why the Act was not complied with and I will refer to his evidence again in my determination.
5. It was noted in the custody management record that the accused was rambling. But it was submitted that he obtained legal advice from a person from the Aboriginal Legal Service, and there was no indication that there was any follow-up or any further legal referral. It was submitted that the police officer undertaking the forensic procedure, namely Detective May, complied with the relevant parts of the Act in relation to obtaining informed consent, namely that he provided the accused with the relevant explanation in accordance with s 9 of the Act and read it out to the accused to ensure he heard it. The officer had formed a reasonable belief in accordance with s 11(3) that the accused had committed an offence.
6. It was further submitted that the accused was responsive to questions asked and complied with directions. Although it was noted that the accused appeared to be speaking with another person, it was submitted he was lucid and responsive to questions, providing detailed answers, and appeared to have an excellent recall of the events of the particular night, meaning the night on 14 March 2009, some 11 years previously.
7. The Crown submitted that the reason for non-compliance with the Act was because the accused appeared to have an understanding of the general nature and effect of the forensic procedure. In relation to subs (5)(c), the Crown submitted that the gravity of the failure to comply resulted in the accused, who consented, providing a buccal sample. Given the earlier EFIMS DNA link notification coupled with the allegation that the complainant was sexually assaulted, the Crown submitted it would be sufficient for a finding that there were reasonable grounds to believe the accused had committed an offence as required under s 24 of the Act. In short, it was submitted that obtaining the DNA sample by consent was not a fishing exercise but a reasonable step in the investigative process.
8. In respect of subs (5)(d) the Crown submitted that the failure to comply with the Act was not intentional or reckless. Rather, it arose out of the officer forming the view that the accused was capable of understanding the general nature of the forensic procedure. It was in no way motivated by malice or a disregard for the provisions of the Act which, it was submitted, was assiduously attended to in all other respects.
9. In respect of subs (5)(e) it was submitted that the officer complied with all other aspects of the Act, save for him not being in a position to diagnose the accused's mental illness. It was also noted that the accused had been recently discharged from St Vincent's Hospital on 8 July 2020 and was noted to have, "A reactive affect, normal speech, logical and nil grandiosity". In respect of subs (5)(f) the Crown submitted that the offence was a serious one, being an indictable offence carrying a custodial penalty; it was an offence involving serious allegations.
10. In respect of subs (5)(g) the Crown submitted there was a high probability that an order would have been made pursuant to Pt 5 of the Act and the admission of the evidence would not seriously undermine the protection given to suspects by the Act.
11. In respect of subs (5)(h) it was submitted that a failure to comply with the Act was not contrary or inconsistent with the International Covenant on Civil and Political Rights. In relation to subs (5)(i) it was submitted there was no other proceeding, legal or disciplinary which has been or is likely to be undertaken in relation to the breach.
12. The Crown acknowledged there would be little difficulty pursuant to subs (5)(j) in obtaining the evidence without a contravention of the Australian law, namely under Pt 5 of the Act. In respect of subs (5)(k), the Crown submitted that the accused consented to the forensic procedure after he had sought legal advice from the ALS lawyer. He was explained his rights whilst in custody and during the course of the ERISP, which proceeded the forensic procedure, he voluntarily responded to questions which were put to him in a detailed manner.
13. The Crown also in her submissions relied on R v Russell [2018] NSWSC 343 in which case Rothman J had held that results of a forensic procedure obtained with non-compliance of the Act was admissible notwithstanding that the accused in that case was an incapable person under the FPA. Here, the Crown submitted it was not a deliberate or reckless failure to comply with the Act.
14. In relation to s 138 of the Evidence Act, the Crown submitted that any impropriety of the police officers was not intentional nor of such gravity so as to warrant the exclusion of the ERISP interview. In her oral submissions, the Crown rehearsed her submissions that the accused could respond lucidly and coherently to questions during the ERISP. Although it was clear he went off on tangents, however, he was able to be brought back to the question at hand.
15. The Crown rehearsed her submission in respect of the Forensic Procedure Consent Form being read by Detective May and also the Pt 9 form being read to the accused by Sergeant Barlow and their evidence in relation to those two documents.
16. The Crown identified admissions the Crown relied on in the ERISP interview from question 59 to 83. Those questions and answers related to the accused telling police officers that he remembered being in a car, a big Hummer in 2009 with three people, one called Bob and another, Sonny. He also identified a white girl and another girl who was "African" by his description, and that one of the girls wanted to go to a hotel with Sonny. He also proffered that Bob was driving the vehicle and that he was Congolese.
17. At question 147, the Crown referred to the accused telling police that he kissed a girl in the car, something which he subsequently disavowed in the interview. At question 164 he referred to, "That blonde, she loved me", which the Crown submitted was evidence leading to the identification of the complainant who was blonde in 2009.

Submissions in reply

1. Counsel for the accused submitted that when the consent for the forensic procedure form was being read, the accused was shown on the video to be speaking to himself, was unresponsive to anyone, and through the whole process was not listening to the police officer. The Crown's own expert opinion, that is of Dr Martin, is that he was suffering an acute and severe mental illness manifested by a thought disorder at the time. It was further submitted that s 85 of the Evidence Act would render any statements in the ERISP unreliable and inadmissible on the basis of his severe mental illness. In relation to s 90 of the Evidence Act, having been asked questions concerning an event that took place 11 years beforehand with no support person, when clearly he needed one, the Court would not admit the ERISP on that basis.

Determination

1. For the purpose of my decision on these applications, I will not repeat all of the provisions of the FPA referred to above, however, it is important to set out s 82:- "82. Inadmissibility of evidence from improper forensic procedures. (1) This section applies where: (a) a forensic procedure has been carried out on a person, and (b) there has been any breach of, or failure to comply with: (i) any provision of this Act in relation to a forensic procedure carried out on a person (including, but not limited to, any breach of or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out), or (ii) any provision of Part 11 with respect to recording or use of information on the DNA database system. (2) This section does not apply if: (a) a provision of this Act required forensic material to be destroyed, and (b) the forensic material has not been destroyed. Note: Section 83 applies where this act requires forensic material to have been destroyed. (3) This section applies: (a) to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and (b) to evidence of any results of the analysis of the forensic material, and (c) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure. (4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a Court unless: (a) the person does not object to the admission of the evidence, or (b) in the opinion of the Court, the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act, or (c) in the opinion of the Court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child. (5) The matters that may be considered by the Court for the purposes of subsection (4)(b) are the following: (a) the probative value of the evidence, (b) the reasons given for the failure to comply with the provision of this Act, (c) the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act, (d) whether the failure to comply with the provision of this Act was intentional or reckless, (e) the nature of the provision of this Act that was not complied with, (f) the nature of the offence concerned and the subject matter of the proceedings, (g) whether admitting the evidence would seriously undermine the protection given to suspected by this Act, (h) whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, (i) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply, (j) the difficulty (if any) of obtaining the evidence without contravention of an Australian law, (k) Any other matters, the Court considers to be relevant. (6) the probative value of the evidence does not, by itself, justify the admission of the evidence. (7) if a judge permits evidence to be given before a jury under subs 4, the just judge must: (a) inform the jury of the breach of or failure to comply with a provision of this act and, (b) give the jury such warning about the evidence as the judge thinks appropriate in the circumstances."
2. Also relevant to my determination are ss 85, 90 and s 138 of the Evidence Act with which the parties are familiar and I do not need to set out for the purpose of my determination.
3. The medical evidence tendered by the parties is all one way. It is clear that Dr Dayalan, from the outset, found that the accused was unfit to be tried having been diagnosed many years earlier with a schizoaffective disorder that was ongoing. He was also of the opinion that he was an incapable person as of 21 June 2020 and 8 September 2020.
4. Dr Martin, who was qualified by the Crown, agreed with the opinions expressed by Dr Dayalan in his reports. Quoting from Exhibit 1.6 at [17], Dr Martin said as follows:- "His appearance in the videos taken on 8 September 2020 is consistent with acute and severe mental illness manifested by thought disorder (a breakdown in coherence, logic and sequencing of expressed ideas) appearing disinhibited and referring to himself as Lucifer. He refers to God watching him and he appears to be talking to himself (consistent with hallucinations). He's generally restless, his judgment is impaired and for instance he refers to Prince William as a potential support person. His appearance is entirely consistent with severe psychosis which is a description of a person being out of touch with reality and regarded as severely disturbed mental state. In my view, it is highly likely that he would have had significant and severe difficulty in understanding the consequences of participating in a recorded interview at that time despite giving verbal assent…In my view, the reliability of statements provided should be regarded as highly questionable given the context that he would have been hearing voices and that his thought stream was illogical and that his responses could have plausibly and likely been informed by delusional thoughts."
5. He went on to state in [18] that he agreed with Dr Dayalan that on 21 June 2020 and 8 September 2020, the accused was an incapable person within the meaning of that phrase in the FPA. Having viewed the ERISP interview, I entirely agree and adopt the opinion of Dr Martin set out above. The interview is replete, particularly at the commencement and towards the end, with unresponsive answers given by this accused to questions asked of him by investigating police.
6. I do not accept the evidence of Detective May that he always got back to the question when it was re-asked. I also reject his evidence that this accused in that ERISP was always lucid and coherent. I also reject the evidence of Sergeant Barlow as to her opinion as of the accused when the Pt 9 statement was read to him.
7. I make no criticism of the police officers personally who do difficult jobs. It is clear that they have no qualifications in psychology or psychiatric illness to properly assess people. But in this case where the accused was noted to be irrational and suffering with mental illness, their evidence is unacceptable. The video evidence of both during the ERISP and whilst the forensic procedure consent information form was being read to him clearly shows the accused acting inappropriately. The latter form was read by Detective Day in a rather fast monotone which, in my view, most people would find hard to understand let alone someone with an acute and severe mental illness.
8. I also note that the answers marked on that document by circling either "Yes" or "No" do not accurately record what the accused said at the time and on my viewing of that video, he was also demonstrating that he was laughing at the time and not actually listening to what the police officer was saying. In respect of the document being Exhibit A 12, the Forensic Procedure Consent Form, I note that it was signed by the accused on 8 September 2020 as, "Papy Lucifer" which is not his proper name.
9. As outlined above, the custody manager, Sergeant Barlow, was aware of his mental illness and also observed him speaking to himself and described him as being irrational. I find that he was acting irrationally when she had him adopt the ERISP in terms of the answers that he gave to questions which I will set out below.
10. The decision relied on by the Crown in R v Russell concerned an accused charged with murder and Rothman J in that judgment dealt with a number of pre-trial issues regarding the admissibility of various aspects of the evidence. The forensic procedure carried out in breach of the FPA concerned photos taken by a police officer and a swab taken of blood or what appeared to be blood on the hands of the accused. The blood on the hands of the accused did not emanate from any injury on the accused in circumstances where the fact of the accused stabbing the victim was not otherwise put in issue and was subject of independent eyewitness evidence. His Honour held that the forensic procedure results did not, in that case, have great probative value and that they caused no prejudice and certainly no unfair prejudice to the accused and for those reasons he allowed them to be admitted.
11. That case, in my view, may be distinguished on its facts. The Crown also relied on the High Court decision in Sinclair v The King (1946) 73 CLR 316 where, in a murder trial, the Court held that a confession was not necessarily inadmissible as evidence because it appears that the accused who was making the confession was at the time of unsound mind. In so holding the High Court did so according to the common law and not pursuant to the provisions of the Evidence Act 1995 as it applied in New South Wales.
12. That decision was referred to in R v Michael John Parker, NSWCCA, (1990) 19 NSWLR 177 and again, the case concerned an accused who allegedly confessed to committing a crime who was suffering from unsoundness of mind or a psychiatric disorder. The Court applied Sinclair in the same manner and I again note that common law was applied and this decision was well before the 1995 passing of the Evidence Act in New South Wales.
13. Both may be distinguished both on the facts and in relation to the applicable law. I do not accept the Crown submission that that part of the ERISP from question 59 to 83 could be characterised as admissions against interest to the accused that go to a fact in issue in the trial, namely whether the accused sexually assaulted the complainant without her consent, knowing that she was not consenting. Whilst some of the answers may go to peripheral matters, giving some context to the facts in issue, they are rather vague and ambiguous concerning the alleged offence.
14. Notwithstanding he identifies a black Hummer with a driver Bob that he was in sometime in 2009 with a number of people, one of whom was a blonde girl, these matters do not amount to admissions against interest let alone a confession.
15. I find that the failure to comply with the FPA was deliberate in all of the circumstances of the case given the following matters. First, the nature of the incident which the accused was arrested in June 2020, namely offensive behaviour was a matter of police record. In Exhibit A1 at p 2, the COPS entry for the incident includes the following: "At the time of interaction (I interpolate on 21 June 2020), the accused was no longer engaging in offensive behaviour. The accused was displaying erratic behaviour as he appeared to be speaking to an imaginary person. When asked who he is speaking to, the accused replied with "God". The accused was incoherent with his responses to police and was unable to provide consistent response when asked by police for his address."
16. The police were also aware on presentation on 8 September 2020 that he had a mental illness as noted by the custody manager. She also described him as "irrational" and "talking to himself".
17. The safeguards in the FPA are there for the protection of the most vulnerable members of our community, namely, children and the mentally ill. With regard to the matters set out in s 82(5), which I add is not an exclusive list of matters to be taken into account, it is clear that the DNA evidence is of high probative value pursuant to subs (5)(a). No reasons were given for the failure to comply with the FPA by the police officer involved, Detective May. Rather, an ex-post facto rationalisation was given in his evidence, namely, that the accused was lucid and coherent during both the ERISP and the consent procedure, when clearly he was not.
18. I find that the breach was therefore deliberate, in the sense that the police officer proceeded to interview and obtain consent in the face of clear evidence that the accused was suffering an acute and severe mental illness. In no way could it be said to be informed consent. I find that it was a grave failure amounting to a gross deprivation of the accused's protection under the FPA pursuant to s 82(5)(c).
19. As outlined above, I find it was both intentional and reckless by the police officer. Pursuant to s (5)(e), I find that it was a serious breach of the FPA and pursuant to s (5)(f), the offence alleged against this accused was a serious indictable offence. Pursuant to s (5)(g), I find that it would seriously undermine the protection given by the Act.
20. In respect of s (5)(h), there was no evidence of contravention of any international convention and I note pursuant to s (5)(i), that the Crown has advised no action has been or will be taken in respect of the breach. I further find pursuant to subs (5)(j) that there would have been no difficulty at all for police to comply with the requirements under the FPA. As Rothman J sets out, it can be done via telephone to a magistrate and in any event police resources could easily have achieved compliance with the Act.
21. I note s 82(6) as outlined above, means that the probative value in this case being high probative value, does not justify by itself admission of the evidence. Clearly that would in the exercise of a discretion not involving subs (6) be a telling factor. However, subs (6) must be given work to do in the legislative scheme and therefore I apply it in my discretion as not justifying by itself admission of the DNA certificate or evidence relating to it.
22. Having considered all of those matters, I am not of the opinion that the desirability of admitting the evidence outweighs the undesirability of admitting DNA evidence that was not obtained in compliance with the FPA pursuant to s 82(4). Therefore the DNA expert certificate will not be admissible in the special hearing, or any other evidence obtained as a result of carrying out forensic procedures either on 21 June 2020 or 8 September 2020.
23. Having found the ERISP contains no admissions against interest relevant to a fact in issue, in my view s 85 of the Evidence Act does not apply. If I am wrong in that finding, the relevant evidence is not admissible because the circumstances made it likely the truth of any admission would have been adversely affected by the accused suffering an acute and severe mental illness at the time of the ERISP on 8 September 2020, pursuant to s 85(2) and (3) of the Evidence Act.
24. I would also refuse to admit the evidence pursuant to s 90 of the Evidence Act, as the circumstances in which the said admissions were made, mean it would be grossly unfair to the accused to use the evidence. I find that the accused should not in the circumstances of his arrest on 8 September 2020, have been subject to an ERISP interview on 8 September 2020 given his presentation with mental illness and as being irrational.
25. The evidence does not establish that he had the benefit of any legal advice whatsoever. He did not represent as an Aboriginal or a Torres Strait Islander and Sergeant Barlow's evidence does not establish whether he obtained any legal advice from the ALS at all. I therefore reject the Crown submission that he had the benefit of legal advice before embarking on the ERISP.
26. I also find that his answers were substantially unresponsive, vague and tangential and I reject as set out above, the evidence of Detective May that he was lucid and coherent at all times. Rather the interviewing police officers persisted with their questioning, notwithstanding completely unresponsive and irrational answers. Examples of that are as follows.
27. At the commencement of the ERISP at Q 16, Plain-Clothes Senior Constable David May was asked for his name and details and following which the accused answers:- "And it goes sir, I have a question now, nowadays when you go to the RTA, the Chinese they work there, they take your ID, you know like ID, your birthday, your detail. Q. Yeah. A. And they put the flash, you know how I think go upload. Q. No, not really. A. Oh, you don't know. That's very lucky but you can have it close for police new one and you don't know they steal it. Q. Really? A. And they're mad. Go to the store, I see a lot of it."
28. At Q 33 he was asked about a person named Masiala Kipioka. At Q 34, he answered:- "A. I don't know the person but the name - the sound was too long - was too long time. I had someone talk to me long time with that name Masiala Kipioka. Q. Okay. A. Yeah. Q. Where was it that person spoke with you? A. Oh a club - a club we meet a club, club - African club. Q. African club? A. Yeah, I think like Nene - write down Nene, Nene. Q. Nene? A. Yeah. Nene, DJ Nene 2000, write it down. Q. Okay. A. Then you will know there's people, Nene - DJ Nene, he's a Sudanese, yeah Sudanese."
29. His answers followed in a similar vein through to Q 44. At Q 46 he was asked how did he know the person named Masiala Kipioka and answered: "A. That name it's kind of like you. Masiala Kipioka is African name. Masiala Kipioka is African name like Papy Malula Lucifer. Lucifer. Papy Malula Lucifer. Apologise even like Masiala Kipioka is if you find Nene and you find 2000, DJ 2000. Q. DJ 2000? A. DJ 2000. Q. Yep. A. Yeah, don't tell him. Don't, don't tell him you see me cause if they see me they will run cause they know me. I…you try to say I just want to see you. I seen - don't say you're police. If you say you're police they will know. They will run. They never tell you. Just say I'm a friend. I want to do a show. I want Masiala Kipioka blah blah blah. You will see them but if you say you're police they never tell you everything. Q. So, why am I - why am I asking for a show? A. Well, cause he for yourself - because that one is predator. It's something stronger - strong than you. It can create you, it's smart. Q. So, what can - so what are you talking about at the moment? A. At the moment, we're talking Masiala Kipioka. I say to you if you want to see Masiala Kipioka, you have to go to Nene, cause they always come to club."
30. Other examples towards the end of the interview at question 202 to 208 where the accused clearly did not have an understanding that he was under arrest. For example at Q 206:- "Q. Yeah, that's why you're here, you're under arrest. A. Oh. I'm under arrest. For why? Q. For sexual assault. Like we've told you a couple of times already. A. This fellow's going far. Q. So, you understand that? A. I understand that I'm under arrest."
31. Detective May asked him at Q 412: "Q. Okay, all right no worries and have you - have you made this interview of your own free will? A. I need to be free." "Q. Pardon? A. I need to be free. Q. Mm? A. If I'm free, you're free too."
32. It is clear that when the specific allegations were put to the accused during the interview, he denied those allegations. I refer to his answers at question 169, questions 172 to 176, questions 224 to 228, question 313, questions 337 to 343, which particularly concern the allegation on 14 March 2009, and question 361.
33. Also relevant are the answers he gave to Sergeant Barlow in her role of having him adopt the ERISP from question 457 to question 462 where in answer to the question, "Have you taken part in this interview of your own free will?" he eventually answered "It's good. That's good". And the subsequent questions regarding promises made to him and threats made to him were answered "Above" and "Above still". In answer to the question "Were you induced to take part in this interview?" He further answered, "Above still".
34. Part 9 div 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 sets out safeguards relating to persons in custody for questioning. They include the right to communicate with a friend, relative, guardian or independent person or an Australian legal practitioner (s 123), a right of a foreign national to communicate with consular official, (s 124) and a right to medical attention (s 129). Clearly, those matters were not referred to by either of the police officers who gave evidence before me.
35. Exhibit A1 being the COPS entry described, as outlined above, his erratic behaviour on 21 June 2020, namely the fact that he was incoherent, that he was speaking to God, and that he appeared irrational. Notwithstanding that, he signed a consent form on that day.
36. Exhibit A7 described him on 8 September as being irrational, an Australian citizen, and whilst in the dock chatting quietly to himself. I accept the diagnosis of Dr Dayalan that he was suffering an acute relapse of schizoaffective disorder on 8 September 2020, that he was acutely unwell on 21 June 2020, responding to auditory hallucinations and referring to himself as Lucifer, leading to an inpatient admission two days later after his arrest. I further accept Dr Dayalan's opinion that he was suffering cognitive deficits which were exacerbated during his relapse on 8 September 2020.
37. In assessing the discretion pursuant to s 138 of the Evidence Act, I find that the evidence in the ERISP was improperly obtained for the purpose of that section. In DPP v AM (2006) 161 A Crim R 219; [2006] NSWSC 348, Hall J at [23] under the heading "Meaning of the word 'improper'", said as follows: 23 The term "improperly" in s.138 is not defined. In Regina v. Cornwell (2003) 57 NSWLR 82, Howie, J. stated at [17] that he agreed with the view expressed by Smart, AJ. in Carr (supra) that there was little purpose in attempting to define the terms "improperly" or "impropriety", whilst, however, expressing reservation with Smart, AJ.'s observation that s.138(2) and s.139 of the Act "indicated the word 'improperly' and the phrase 'in consequence of an impropriety' should not be narrowly construed". 24 Section 138(2) does, however, make specific provision as to the stated circumstances in which an admission made during or in the course of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly. That subsection does not, as expressly stated in it, otherwise limit s.138(1). 25 In Ridgeway v. The Queen (1994-1995) 184 CLR 19 at 37, Mason, CJ., Deane and Dawson, JJ., in relation to the conduct of police in the investigation of some types of criminal activity that necessarily involved subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence, stated that impropriety will be reached in the case of conduct which is not illegal in cases involving a degree of harassment or manipulation "… which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community". 26 As Smart, AJ. observed in Carr (supra) at [22], the High Court was not, in Ridgeway, dealing with every set of circumstances that may raise questions of impropriety. His Honour there stated:- "… their statement was probably not meant to be exhaustive but it does indicate the degree of impropriety required where serious offences are involved. Ridgeway involved a serious drug offence. With minor offences, any impropriety is likely to be of a lesser order with lesser consequences. Nevertheless, it will be important. As the Justices pointed out, the enquiry is whether what was done (or not done) is inconsistent with minimum standards of acceptable police conduct in all the circumstances. The Justices did not attempt to define what 'improper' meant."
38. Having regard to my findings set out above as to whether that part of the ERISP the Crown alleged constitute admissions relevant to a fact in issue by the accused, I find that the probative value of that evidence as not being high in all of the circumstances in this case. The accused otherwise denied the allegations when specifically put to him.
39. Whilst it is a very serious offence alleged against him, I find that there has been, in this case, a grave deprivation of the accused's rights, given that he was mentally ill and suffering an acute and severe illness at the time, namely 8 September 2020. I note there are no proceedings arising or to arise pursuant to any impropriety of the police officers who conducted the ERISP, but I find that there should have been no difficulty in complying both with LEPRA and the FPA in all of the circumstances. In so finding, I come to the conclusion that the ERISP is not to be admitted in the special hearing against this accused.

ORDERS:

1. I therefore make the following orders on the accused's application. 1. I order the Crown not be permitted to adduce into evidence: 1. Exhibit A13, the DNA expert certificate of Ivana Sesardic dated 11 November 2020 or any other evidence relating to DNA of the accused; and 2. The ERISP of the accused on 8 September 2020.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2023