R v MARTIN ROSS HAUSFELD

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION AT TAMWORTH

JUDGMENT (Voir dire - admissibility of certain answers in ERISP - Crimes Act 1900 - Part 10A - vulnerable person - impaired intellectual functioning)

1 HIS HONOUR: The accused seeks to have ruled as inadmissible certain only of the questions and answers asked and given in the course of an electronically recorded interview. That interview, which took place between 5.30 and 7.01am on Friday 15 of December 2000, was conducted with the accused by Detective Senior Constable Coe and Detective Senior Constable Imeson at Tamworth Police Station. The tapes and transcript are respectively exhibits A and B on the voir dire which was held yesterday. 2 Various sections of the Evidence Act 1995 are relied upon to have excluded the several questions and answers. However, what I shall describe as an umbrella objection was taken based upon s 138, improperly obtained evidence. To put it shortly, that objection flows from what is said to have been non-compliance with Part 10A of the Crimes Act 1900. 3 Part 10A of the Crimes Act deals with detention after arrest for the purposes of investigation. The immediately relevant section is s 356A which enacts modification of the application of Part 10A to certain persons. It states: "356A (1) The regulations may make provision for or with respect to the modification of the application of this Part to: (a) persons under the age of 18 years, or (b) Aboriginal or Torres Strait Islanders, or (c) persons of non-English speaking background, or (d) persons who have a disability (whether physical, intellectual or otherwise)".

4 The relevant regulations are the Crimes (Detention After Arrest) Regulation 1998, the first of which is in Part 1 Regulation 5 (1) and (2), which state: "5 (1) A person who falls within any of the following categories (referred to in this Regulation as categories of vulnerability) is a vulnerable person for the purposes of this Regulation:

(b) persons who have impaired intellectual functioning,

(c) persons who have impaired physical functioning,

(d) persons who are Aboriginal persons or Torres Strait Islanders

(e) persons who are of non-English speaking background.

(2) Pursuant to section 356A of the Act, the application of Part 10A of the Act to vulnerable persons is modified by the provisions of Parts 4 and 5 of this Regulation". 5 The modification affected by Regulation 5 brings into operation Parts 4 and 5 of the Regulations. However, the critical part of Regulation 5 itself for the purposes of this voir dire is Regulation 5 (3), which states: "(3) However, the requirements of this Regulation with respect to a detained person who is in a particular category of vulnerability do not apply if the custody manager believes on reasonable grounds that the person is not in that category of vulnerability".

6 In this voir dire I have been concerned with sub-category (b) in Regulation 5(1), namely, persons who have impaired intellectual function. Clause 3 of Part 1 of the Regulation defines impaired intellectual function: "(a) total or partial loss of a person's mental functions, or

(b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(c) a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgement, or that results in disturbed behaviour".

7 Part 4 of the Regulation makes general provisions for vulnerable persons and the fundamental requirement that the Custody Manager must assist the vulnerable person (clause 20). The nature of that assistance, for example, is provided in clause 21 with respect to a support person. 8 Part 5 of the regulation again contains special provisions for vulnerable persons, and I note clause 27 (1) which says: "If a detained person…is a person with impaired intellectual functioning, the custody manager must as soon as practicable, attempt: (a) to ascertain the identity of the person responsible for the welfare of the detained person…"

9 Schedule 1 to these Regulations provides guidelines for custody managers and other police officers. Part 1 clause 2 of Schedule 1 states:

(2) Consideration of whether a detained person has certain impaired intellectual functioning.

In considering whether a detained person has a total or partial loss of a person's mental functions or a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, police officers should consider whether the detained person appears: (a) to have difficulty understanding questions and instructions, or (b) to respond inappropriately or inconsistently to questions, or

I have mentioned but three of the six matters that the schedule says the police officers should consider. 10 I mention Schedule 1 Part 1 clause 2 of the Regulations merely to state, in the context of how the voir dire was conducted and submissions made, that it appears to me that that is dedicated to the first and second in the definition of intellectual impairment, namely (a) total or partial loss of mental functions and (b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, as opposed to imposing on the relevant police officer those obligations in respect to (c) under the definition. 11 That brief outline of the statutory and regulatory regime indicates some complexity in the practical application of Part 10A conformably with its objective set out in s 354 of the Crimes Act. 12 During the course of submissions I was referred to the following decisions which have been concerned with Part 10A. Regina v Phung and Huynh [2001] NSWSC 115 was a decision of the Chief Judge at Common Law on 15 May 2001. That case concerned two ERISPS. Objection was taken to each of them as a whole, and the case concerned a child of 17 years of age. Both ERISPS were rejected under s 138 of the Evidence Act and the particular issues relating to confinement or lack of it in accordance with Part 10A are set out in paragraphs [26] and [40] of his Honour's judgment. The facts of that case do not bear on the present. His Honour's statement of principle and policy in paragraph [34] to [39] are of course apposite. 13 The next case referred to was Regina v Helmhout [2001] NSWCCA 372, a decision of the Court of Criminal Appeal on 19 September 2001. That case concerned an Aboriginal person. Objection was taken to the whole of the ERISP on the basis of non-compliance with Part 10A and the operation of s 138. On its facts it bears no relationship to the present situation. 14 The next case was Regina v Rondo [2001] NSWCCA 540, a decision of the Court of Criminal Appeal on 24 December 2001. That case was concerned with the validity of detention warrants referred to in Part 10A, s 138 of the Evidence Act, as well as statements of policy in the judgment of the Chief Justice in paragraph [15]. Otherwise, it bears no relationship to the instant voir dire. 15 Finally, I was referred to the judgment in Regina v Lamb and Thurston of Dunford J (NSWSC, unreported, 24 April 2002). Again, his Honour was concerned with the admissibility of the whole of the record of interview, and what I understand from a reading of this judgment, it was a case that acknowledged the vulnerable person being an Aboriginal. His Honour seems to have been concerned with the questions of time limitations under Part 10A. His Honour in the end admitted, as I understand it, the relevant material. 16 None of those cases addresses the acutely focused point here, namely, the operation of s 356A, and the circumstances giving rise to the modification of the application of that Part to a vulnerable person, in the sense of the resolution of the question of whether the accused person was a vulnerable person, and thus the operation of Regulation 5 (3). 17 As I understood the submissions for the accused, there are two components when considering the operation of Regulation 5 (3) in Part 1 of the Regulations. 18 First, whether in fact the accused person is a vulnerable person, an objective issue, and second, whether the custody manager believed on reasonable grounds that the accused person was "not" in the category of vulnerability. It would seem that upon a reading of Regulation 5(3) that it is arguable that two such questions arise, as it speaks of the requirement of the Regulation with respect to a detained person "who is in a particular category of vulnerability", and then goes on to deal with its non-application. 19 As to the first objective component, the principal relevant evidence placed before me is made up of exhibit A (the tapes of the record of interview) and exhibit 1, a folder of medical material tendered by the accused. 20 Exhibit 1 contains material relevant to the admission (and discharge) on 17 July 1997 of the accused to the Banksia Mental Health Unit, a diagnosis being indicated bipolar disorder, hypomania, alcohol and cannabis abuse. Reference is made to words used in that document, "agitated", "delusional" and "intoxicated". The progress notes from the New England Health Service are the second relevant part to the admission on 17 July 1997. Thereafter exhibit 1 refers to a discharge summary from Tamworth Base Hospital in relation to an admission and discharge in December 1988, which relates to, on the face of the summary, a fractured right femur and a schizo-affective disorder. The other matter in exhibit 1 goes back further in time to 1986 and 1985. I merely note that included in that material is a letter dated 31 August 1986 from the accused, the significance of which is not the subject of a submission. 21 I will state in relation to that component, the evidence in relation to the objective issue of whether in fact the accused was a vulnerable person, that the material by itself is insufficient to persuade me that looking at the situation objectively as at 15 December 2000 that on the probabilities the accused in fact was a vulnerable person, that is, that he was suffering an intellectual impairment. No expert evidence was called by either side in relation to that. 22 I turn to the tapes themselves which I have viewed. Particular reliance is placed, for example, and these are for the purposes of this ruling examples only, questions and answers 23, 30, 162 and 306: "Q23 As I already explained to you Detective Imeson and I are making some inquiries in regard to the death of your brother, Glen earlier on tonight. In your own words can you tell me what happened which has led to the death of your brother? A Glen was the sort of fellow once he's had a few drinks or whenever possible, but he only was vocal after he's had a few drinks, that he always had a chip on his shoulder and everyone was to blame for something. And him and I never got on. He was always quite a happy character but the same sort of character that could face major depression. Like, life's a roller coaster and I used to live on the high as much as I could and I did not need anyone to pull me down. I suppose that's what he did tonight. It happened all my life, I didn't need to do it again. I've been hospitalised for depression but I'm a very happy person and I know how to succeed too, but I don't need to see people pulling people down, I just can't handle it 'cause I know what life is, I've seen the worst of life I've seen the best of life and I've, I don't, My own mother said today, tonight, this morning as she was walking out, she said, I don't blame you Marty. That's all I can say. … Q30 Well can you tell us what happened? A Mate, family only has to put up with so much rubbish for so much time of its life. The same man grabbed my mother by the throat for over half an hour in his, in my mother's ute and no one could hear them, and they were over in the ute for an hour or more because she wouldn't give him the keys to go to town to buy a packet of smokes over 12 months ago. I'll never forgive him for that. Like, it may be nothing to do with it but I don't forget these things. Mum pretends that she forgives him but she said she never would, but things most definitely must stay in your head like that. Do you understand what I'm saying? … Q162 By that I mean - - - A I've been in conflict that many times with him and many other people, No I had no fear any more like that, no, no. … Q386 In regards to your depression, have you been feeling depressed lately? A No."

23 Reference was also made in the course of the cross-examination of Detective Coe to a matter which, in the scheme of things, might not by itself have been of transcending significance. What is clear and observable in the record of interview is the accused picking at his beard and the accumulation on the table of some beard hair. By itself nothing of significance struck me about that but its neutrality in the scheme of things is exposed in the answer to question 174: the question was: "Q Well in regards to tonight, what do you say would have been an alternative course of action?

A. Get all my beard pulled out instead of half of it, then lay it on the table. And how many times have you got to have this stuff happen?" 24 Giving to the accused the benefit of the onus being on the Crown to establish that more probably than not that the accused was not objectively a vulnerable person by reason of intellectual impairment as defined I am satisfied that the Crown has discharged that onus. 25 The accused in the record of interview does present to me as articulate, philosophical, at times reflective, idiosyncratic, if not to use Mr Hamill's words "eccentric", on the basis of ordinary human observation and experience. However, being so characterized does not render him on any of the material in that tape a person of impaired intellectual functioning as defined in Regulation 3. 26 Further of course as I have remarked the medical records, certainly the most recent one being for 1997, the rest being concerned with 1986 and 1985, are, without more, simply not persuasive. Thus the position is reached on the first component of objective vulnerability that I am persuaded more probably than not that the accused was not in a vulnerable person category. That would, one would think, be the end of the matter but I consider it desirable to turn to the question in Regulation 5 (3) as to the "reasonable grounds" issue. 27 Much evidence was given by Sergeant Haslam; he was the Custody Manager. His statement is exhibit D; the custody management records are exhibit E; the custody system printout exhibit F. The officer gave evidence as to (at pages 21, 22 and 23), to use the words of the Regulation his grounds of belief. He said (at 21.40): "He was an adult for one. He didn't appear to have any physical disability for two. He spoke to me reasonably, he was lucid, he was coherent. I had a conversation with him. I read out the form 10A to him as part of my custody manager duties and he understood. I was of the belief that he understood perfectly what I was telling him and I didn't believe he was a vulnerable person". (Answers to similar effect are set out on pages 22 and 23). 28 The belief on reasonable grounds must be that the accused person is "not" impaired intellectually by reason of (going back to the definition): "(a) total or partial loss of a person's mental functions, or

(b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(c) a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgement, or that results in disturbed behaviour".

29 The view can be formed that that belief of the custody manager, or any police officer, relates to matters of sophisticated specialist medical, psychiatric and psychological considerations and it is quite daunting and demanding. In that context and generally I am satisfied that there were reasonable grounds for Sergeant Haslam to believe that the accused did "not" fall into a category of a vulnerable person whose vulnerability was founded upon impaired intellectual functioning being the matters in (a), (b) and (c) above. 30 Perhaps some guidance, for what it is worth, to forming some understanding of the vulnerable person with impaired intellectual functioning as defined, can be gained from a matter to which I referred earlier in these reasons, that is Part 5 of the Regulations which deals with the requirement of ascertaining the identity of the person responsible for the welfare of a person with impaired intellectual functioning. That might, in ordinary common sense language, point to something being observed which might lead to a view that that person is under the welfare of someone else and thus requiring the inquiry to be made. 31 I do not consider the evidence of Senior Constable Klein, the custody officer, adds anything. 32 Detective Senior Constable Coe conducted the interview. He was the officer in charge of the investigation. His statement is exhibit H. In his evidence-in-chief he was asked: "Q. Was there anything about his manner or anything at all about him that suggested to you he was subject to any intellectual impairment? A. No." 33 And it is useful to interpolate once again what is involved in the notion of intellectual impairment by reference to its definition. 34 Detective Senior Constable Coe was cross-examined at length and in detail and appropriately, especially as to the accused's answer in question 23 where he stated that he had been hospitalised for depression and to the fact that towards the end of the interview Detective Coe (in questions 252 to 267) asked the accused questions about that history. What that was intended to show, as I understand it, was the Detective Coe knew, or ought to have known, or ought to have been alerted to either the fact, or the possibility, of the accused being a vulnerable person as defined and ought to have at least referred him back to the custody manager or discontinue the interview. 35 He was asked (at T33): "Q. You didn't make any inquiries of Sergeant Haslam as to whether or not he was aware of this? A. No."

That being the reference to the accused having been hospitalised for depression and as stated in the answer to question 23. And he went on to say: "I made my assessment of him as well as every other police officer made their assessment, specially the custody manager. At no stage did I think that he was a vulnerable person. I think I don't even recall the answer in regards to the depression, but if it was an oversight - even if I thought it was of that sort of nature, I would ask him more questions in regard to his hospitalisation and the depression." 36 The issue was not one that gave rise to concern with the officer, even in the context of it being put to him that there is a difference between someone saying he is depressed and clinical depression, whatever that might mean in the context of the material placed before me. 37 At page 38 I merely point to the questions and answers relating to the picking of hair about which I remarked above. 38 I am persuaded that on the officer's observations, and even taking into account the accused's raising of the fact that he had been hospitalised for depression, and even taking into account the officer's exploration of that subject matter towards the end of the interview, that there were reasonable grounds for this officer to believe that the accused did not fall within the vulnerable category. 39 Detective Imeson's evidence does not add anything. There was some suggestion that COPS might have disclosed the 1997 admission at the hands of the police. It might have. There was no evidence that it was on COPS. There was no evidence that COPS was consulted and in my view on all the evidence there was no reason for it to have been consulted. 40 In all the circumstances thus I am satisfied more probably than not as I have said the accused was not a vulnerable person nor that there was any contravention in Part 10A. 41 I add this. Taking into account the complex considerations with which a custody manager is confronted, or the interviewing officer is confronted - in the context of the intellectually impaired person, even if I would have found some contravention, I would not have excluded the evidence thereof by reason of s138 of the Evidence Act. Easily could I have come to the view that any impropriety or contravention could not in my view be categorized as deliberate, reckless or grave; the probative value of the evidence generally would be taken into account, as would the desirability of its admission given its importance in the light of the nature of the offence of murder with which he, the accused, stands charged. 42 Speaking hypothetically I would not have been otherwise persuaded that s138 would exclude the evidence. As I said at the beginning of these reasons other sections of the Evidence Act were relied upon. I turn to the specific parts of the record of interview and briefly indicate my conclusions and my reasons for them in respect of those other sections. 43 In relation to the following questions there seems to be no issue really that they are irrelevant and should be excluded: questions 252 to 267, 306 to 309, 317 to 318 and they will be excluded. 44 Question 324 to 331 relate to the oral admissions. I will exclude them under s86 and s90. 45 Questions 287 to 290 constitute the first set of questions that deal with "recklessness". Briefly stated "recklessness" in the context of that interview introduced, in my view, a technical expression that could unfairly and potentially found a basis of liability for the charge in respect of which the accused is to be indicted. It was further pursued by reason of the accused's answers to 287 to 290, in questions 311 to 315. Pursuant to s85 and s137 I reject those questions on the subject of recklessness. 46 In relation to the balance of the questions the subject of objection for present purposes I cannot state that I have given consideration to all the factors involved in the applications of ss85, 90 and 137 and have concluded the evidence constituted by the answers to questions 30, 36, 124 to 125, 135 to 145, 160 to 164, 175, 241 to 244 are admissible. 47 In brief I can state that the course of questioning was not such to be productive of unfairness to the accused. Ultimately it will be a question for the tribunal of fact to determine what the evidence on the tapes establishes. It will be open for the tribunal of fact to make any relevant determination on that subject in the context of what they see and observe as to the demeanour of the accused. For example, it was submitted that during the course of the record of interview the accused gave the appearance of being impatient. It could be said that the accused gave the appearance of being disdainful. None of that arises in my view from the structure of the record of interview in such a way as to bring about the exclusion of that material, its probative weight being otherwise persuasive. 48 The record of interview, as I have indicated, discloses a lot about the accused. Save for any view I have formed for the purposes of this voir dire as to what it discloses it will otherwise be a matter for the jury. I rule accordingly.

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