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[2011] VSC 397
General information, not legal advice.
Supreme Court of Victoria
2011-08-22
LASRY J
Original judgment source is linked above.
CRIMINAL LAW - Record of Interview - Whether admissible - section 85(2) of the Evidence Act 2008 - Circumstances of the interview - Whether the truth of the admissions adversely affected - section 189(3) of the Evidence Act 2008 - whether truth of the admissions a consideration - section 464C Crimes Act 1958 - Whether breached - Whether accused was given useful or any legal advice - Record of Interview excluded.
1 At about 6:15 pm on 18 November 2009, on the banks of the Ovens River at Wangaratta, the accused Kerry McNiven is alleged to have doused the deceased, Garry Stewart, with fuel and then ignited the fuel with a cigarette lighter causing him injuries that resulted in his death some weeks later on 5 December 2009. The accused is thus charged with the murder of Garry Stewart. At this early point of the outline of the circumstances, it is important to note that Mr Papas SC, who appears with Mr Kantor of counsel for the accused, has indicated that his client accepts that she did apply the fuel to the deceased but that a central issue of fact in the trial will be how and by whom it was ignited.
2 The accused and the deceased are both Aboriginal people. They had known each other for a number of years. At the time of the incident they were together on the banks of the Ovens River having walked there from nearby premises. They had both been drinking beer and wine during that day from an early hour. Whilst the evidence about their drinking is not uniform, the most likely conclusion for me to draw is that the accused had consumed a great deal of alcohol prior to this incident. Mr Raymond Fleming is the former partner of the accused. Both the accused and the deceased had slept at his place on the night before 18 November 2009. In his evidence at the committal,[1] Mr Fleming said that as soon as the accused and Stewart got up at around 7:00 am they commenced to drink alcohol. He said the accused was drinking all day. Describing the accused and the deceased in the afternoon, the witness Anita Saunders said that the deceased was "pretty pissed" and that the accused was "three quarters of the way there".[2] The witness Emma Reid, who was then a teenager, went to Ray Fleming's house on this day and saw the accused and said of her:[3]
I don't believe Kerry was that intoxicated at that stage. I have seen Kerry intoxicated on a number of occasions, I would say every day.
3 It seems to me to be overwhelmingly likely that the accused was significantly affected by alcohol for almost all of the day and, more generally, that she was an alcoholic.
4 As to the deceased, the evidence suggests that he had consumed valium and had a blood alcohol reading of 0.29% as at 7:00 pm on 18 November 2009. He had also been smoking cannabis.
5 The accused woman and the deceased were in the vicinity of the river because, as the Crown alleges, the accused had asked the deceased to go for a walk with her so that she could kill him. He apparently agreed to go. The dousing of the deceased and the ignition of the fuel by the accused is alleged by the Crown to be an act of retribution by the accused as a result of her being informed that day by the witness Sandy Riley that during the previous week the deceased had fondled the accused's breasts while she was asleep.
6 There are several witnesses who saw what occurred on 18 November 2009, to some extent. Certainly they saw the accused and deceased together and saw the accused pouring the fuel over the deceased but, as I understand it, no-one actually saw the ignition of the fuel and what the accused did, if anything, to cause it. However, an important part of the Crown case is a record of interview with the accused that occurred at the Wangaratta Police Station on the evening of 18 November 2009. It is important because it contains admissions from the accused, including that she intended to kill the deceased and that she caused the conflagration which resulted in his fatal injuries. For various reasons I will describe shortly, the interview was suspended on two occasions. However, in the last and longest portion of the interview, which commenced at 10:35 pm that same night, admissions were made by the accused which included:
Q92 So then what happened when you went down there?
7 On behalf of the accused, it has been submitted by Mr Papas that the whole of the record of interview should be excluded. On the basis of the course that the submissions followed there is no third option to exclude or admit parts only of the interview. Mr Papas' submissions are made on a number of bases pursuant to several provisions of the Evidence Act 2008 ("the Act") as follows:
8 On behalf of the Crown, the prosecutor, Mr Thomson, has submitted that the interview should be admitted on the basis that it is voluntary, there is no effect on the truth of the admissions made by the accused as a result of the circumstances of the record of interview, and there is no reason for the exercise of any discretion to exclude the interview pursuant to s 90 of the Act or pursuant to s 138.
9 A voir dire was conducted and evidence called in relation to the role of the Victorian Aboriginal Legal Service ("VALS") in this matter, the investigation by police and, on behalf of the accused, evidence about her cognitive ability. The accused did not give evidence.
10 Police attended the scene of this incident near the "beaches" some time after 6:20 pm on 18 November 2009. According to the evidence, the accused was located by Constable Beecroft[5] of the Wangaratta Police at about 6:24 pm. She had been seen by a witness with a stubbie of beer in her hand after the incident had occurred.[6] According to Constable Beecroft, when he located the accused by the river the following conversation occurred:
Accused: I did it, I'm the one that did it.
Beecroft: You are under arrest.
Constable Beecroft then cautioned the accused and she indicated that she did not wish to exercise any of the rights that he described. In walking the accused back to the police vehicle, Constable Beecroft observed a cigarette lighter in the front of her bra. There was then a conversation about it:
Beecroft: Is this your lighter?
Accused: Yeah.
Beecroft: Is this the one you used?
Accused: I think so.
11 As I understand the evidence to be led in the trial of this matter, two cigarette lighters were found - the one located on the person of the accused and another at the scene. The latter was found in a bag containing beer stubbies some distance from where the incident occurred. Both the accused and the deceased are smokers.
12 The accused was taken to the Wangaratta Police Station in a divisional van and I have been shown CCTV footage of her being removed from the van at the police station. At about 6:56 pm she was placed in an interview room. At the time of the arrest of the accused the arresting officer, Constable Beecroft, described her as being upset and agitated. Asked during his evidence at the committal[7] whether he thought she was intoxicated, he replied that he did not think so.
13 With the accused having been placed in an interview room, Leading Senior Constable Carr[8] and her colleague Constable Beecroft attempted to commence an interview at 7:24 pm. Senior Constable Carr said in evidence before me on the voir dire that she had never intended that the accused be interviewed about the allegation that she attempted to kill Garry Stewart at that stage. The idea was to "put her on tape and suspend it"[9] so as to formalise the fact that she was in custody and then give her an opportunity to contact a friend and to arrange legal representation or advice through the Victorian Aboriginal Legal Service ("VALS"). That part of the interview is, as follows:
LEADING SENIOR CONSTABLE CARR: THIS IS A RECORDED INTERVIEW BETWEEN LEADING SENIOR CONSTABLE KAYLENE CARR AND KERRY ANN McNIVEN OF 122 MURDOCH ROAD, WANGARATTA. CONDUCTED AT THE WANGARATTA POLICE STATION ON WEDNESDAY THE 18TH OF NOVEMBER 2009...
Q1 Kerry, do you agree the time is now 7.24 pm by this watch?
Q2 Yeah. Alright. And what is your full name and address?
Q3 Yeah. But I'm just asking you just to identify who you are for the purpose of the tape?
Q5 Alright. Not a problem. Kerry, I intend to interview you in relation to an incident that happened down at the - down at the beaches this morning. Down in - or this afternoon in Templeton Street this evening. Before continuing, I must inform you that you are not obliged to say or do anything but anything you say or do may be given evidence. Do you understand that?
Q6 Yeah. Okay. And I must also inform you of the following rights. You may communicate with, or attempt to communicate with, a friend or a relative to inform that person of your whereabouts.
Q7 And you have the right to communicate with, or attempt to communicate with, a legal practitioner.
Q8 If you are not a citizen or a permanent resident of Australia, you have a right to communicate with or attempt to communicate with the consular office of the country of which you are a citizen. Do you understand these rights?
Q9 Okay. And do you wish to exercise any of these rights before the interview proceeds?
Q11 We started the tape you said to me that you wanted me to contact Ray for you?
Q12 Yeah. Okay. And also that we were making contact with the Victorian Aboriginal Legal Service.
Q13 Alright. So what I propose to do is to actually suspend the interview. Alright. Just so that we can make contact with Ray, as you said you wanted to do and also to make sure that you have some legal rep-, representation from the Aboriginal Legal Service, or whoever you choose.
Q17 Okay, alright. Just a couple of quick things. What is your age and your date of birth?
Q22 And are you of Aboriginal or Torres Strait Islander descent?
Q23 Okay. Alright. Kerry, as I said, we'll now suspend the - suspend the recording and it's just while we make some further inquiries, and give you the opportunity to contact and speak to the people that you need to speak to as well. Alright.
Q24 Alright. In regards to an incident where you set - you set - it's been alleged that you set a man alight down at the - down at the beaches this evening. Alright. And we attended and we arrested you.
Q25 Okay. So that's - that's what you're here for at the - at the present time.
Q26 Alright. So we're going to suspend this, rather than ask you some more questions about that, before you speak to a solicitor or somebody, we're going to suspend for now. Alright.
Q27 So do you agree that the time is 7.27 pm by this watch?
14 When questioned on the voir dire, now Sergeant Carr claimed she had no concerns about the fitness of the accused to be interviewed. However, having had the opportunity in Court to observe the recorded interview for the first time she ultimately, though with some reluctance, accepted that in the condition that the accused was in at 7.24 pm on 18 November 2009, she would not have been comfortable about going ahead with a substantive interview.[10]
15 In my opinion, the reluctance of the police to accept that the accused was unfit to be interviewed at 7:24 pm may inform the attitude they developed in relation to the later interview although my conclusion about this matter does not turn on the conduct of the police.
16 This early portion of the interview with Senior Constable Carr lasted only for three minutes and, watching the video tape, I have no doubt that the accused was significantly affected by alcohol at that time. She was gesticulating; speaking loudly and slurring her speech on occasions. As can be seen from the transcript, Senior Constable Carr, informed the accused of her rights in the usual way and, as each of the rights were mentioned, the accused said she understood. However, her demeanour suggested that although she was acknowledging what was being said to her, she was not concentrating on the substance. This is demonstrated by what occurred when she was asked whether she wished to exercise any of those rights and she then appeared confused. She said, "what do you mean by that?"
17 After Senior Constable Carr suspended the interview at 7:27 pm, according to the CCTV footage which I have seen, the accused was then taken to a holding cell where she removed her outer clothing which was taken by police. She then put on a police overall which she can be seen to be wearing in the later interview. Some minutes later, Constable Beecroft entered the holding cell and, with a cordless phone, contacted VALS. According to the record that took place at 7:38 pm. The officer then handed the phone to the accused and left the cell. The accused then spoke on the phone, apparently to Ms Josie O'Neill, a Client Service Officer with VALS, for some five minutes. Clearly there is a conversation going on but there is no reliable evidence about what was said. The accused did not give evidence on the voir dire. The call ended and the accused handed the phone back to the police officer and remained in the holding cell. She then lay down on her bed and appeared to go to sleep.
18 Ms O'Neill gave evidence on the voir dire and, with all due respect, her evidence was most unsatisfactory. By November 2009 she had worked at VALS for approximately three months in a non-legal role. She has no legal qualifications. She said in her evidence that her role was to make contact with people in police custody where their arrest triggered a notification to the VALS system or on request by a police officer, and to establish that that particular person in police custody was Aboriginal. If the person was Aboriginal, her role was then to establish whether they wished to use the services offered by VALS. As best I could tell from her somewhat disjointed evidence, there was a procedure that she generally followed in making such calls and fulfilling the requirements of her role, by which she would also let the person in custody know their legal rights by some kind of reference to the phrase "no comment".
19 Whatever the procedure was, all Ms O'Neill could recall of the conversation she had with the accused on 18 November 2009 was that she had asked the accused whether she wished to use the services offered by VALS. She could recall nothing of the demeanour of the accused and did not have access to any contemporaneous record, particularly any notes that she might have made during that particular phone call, to assist her memory. She claimed in her evidence that the accused said she did not wish to use the services offered by VALS.
20 Ms O'Neill also spoke on the phone to Constable Beecroft although she has no memory of doing so. According to the note made by Constable Beecroft, Ms O'Neill was "new to process of this type of offence" but said she was pleased with the way the process had gone. She also told Constable Beecroft, though she can recall none of this, that she would make further welfare checks on the accused. It appeared on Ms O'Neill's evidence that further welfare checks would only be pursued if the person wished to avail themselves of the services of VALS, which is inconsistent with the evidence she gave of the conversation she had had with the accused.
21 In my opinion, on the evidence as it stands at the time the phone call with Ms O'Neill took place, the accused was still affected by alcohol to some degree, based on the way she performed during the initial interview. I am not, by any means, convinced that she was given legal advice at all, let alone legal advice that could have been useful to her. I very much doubt that Ms O'Neill attempted to give such advice - she certainly has no memory of doing so. No legally qualified person spoke to the accused before the substantive interview took place. Ms O'Neill said the accused rejected the offer of assistance from VALS but that evidence is inconsistent with Constable Beecroft's evidence that Ms O'Neill had indicated an intention to make further welfare follow-ups.
22 Thus, although the police suspended the interview so that the accused could, among other things, speak with a solicitor, that did not occur. What I have just said is not a reflection on the police to this point nor does it involve them in any failure under s 464C of the Crimes Act 1958. The police provided an opportunity for the accused to speak to VALS. They may well have further suspended the interview if the accused had said she wanted the opportunity to speak with a lawyer. Mr Thomson for the Crown submitted that the police would, no doubt, have suspended the interview again had the accused actively requested a solicitor and he may well be right about that. However, be that as it may, the system failed because it cannot be established that she was told by Ms O'Neill anything about her rights or, more importantly, that she was offered any meaningful opportunity to speak to a properly qualified person about the impending police interview.
23 If there is a criticism to be made of the police officers it is that it should have been clear to them when they went to commence the comprehensive interview later that evening that the accused was still intoxicated to some degree. They would have done well to satisfy themselves more thoroughly as a result, that she had actually received legal advice and was nonetheless willing to proceed with the interview.
24 After taking the phone call with Ms O'Neill from VALS, the accused was then placed in a cell, and there is more CCTV footage that appears to demonstrate that for several hours she slept in there. At 10:18 pm, the record of interview was resumed and her rights were again recited to her. The following occurs:
OKAY. RECORDED INTERVIEW CONTINUED BETWEEN SENIOR DETECTIVE MARK HUSSEY AND KERRY ANN McNIVEN OF 112 MURDOCK ROAD, WANGARATTA. CONDUCTED AT THE WANGARATTA POLICE STATION ON WEDNESDAY THE 18TH DAY OF NOVEMBER, 2009. ALSO PRESENT IS MY CORROBORATOR, SENIOR DETECTIVE - DETECTIVE ACTING SERGEANT NEIL THOMPSON
Neil Thompson. Registered number 26182, Wangaratta CIU.
Q29 Kerry, do you agree the time now is 10.07 - 10.18 pm?
Q31 Okay. Kerry, I intend to interview you in relation to an offence of attempted murder. Before continuing, I must inform you - -?
Q32 That you are not obli-, that you do not have to say or do anything but anything you say or do may be given in evidence. Do you understand that?
Q33 I must also inform you of - of the following rights. You have the right to communicate with, or attempt to communicate with, a friend or relative to inform that person of your whereabouts. You have the right to communicate with, or attempt to communicate with, a legal practitioner. If you are not a citizen or permanent resident of Australia, you have the right to communicate with, or attempt to communicate with, the consular office of the country of which you are a citizen. Do you understand these rights?
Q34 Do you wish to exercise any of these rights before the interview proceeds?
Q37 Okay. Just before I - I suspend, what is your age and date of birth?
Q40 Are you of Aboriginal or Torres Strait Islander descent?
Q41 Alright. I'll just suspend the interview so you can ring your ex-husband. Do you agree the time is 10.20 pm? Just down there?
25 Immediately prior to 10.18 pm, when this interview commenced, the accused had been asleep. The video footage reveals that the accused had quite a different demeanour from the initial interview at 7.24 pm. From looking at the video footage, this short interview appeared to be the first time that she was informed by police that she was going to be interviewed in relation to the offence of attempted murder. She seemed quite taken aback by that revelation. She looked tired and agreed with the proposition that she was tired (at question 43). However, it would seem that her desire to speak to Ray Fleming was facilitated and she did so.
26 In my opinion there remains an issue as to whether the accused was fit to be interviewed at 10.18 pm, on the basis that, apart from anything else, she was still likely to have been affected by alcohol. The following factors are relevant:
• In my view the accused can properly be regarded as an alcoholic. When Mr Delaney gave evidence there was some contention about that diagnosis but I think it is clear enough for this purpose. Mr Delaney's evidence was:
I think it's highly probable that Ms McNiven would meet the criteria for alcohol dependence and confidence at least, if not alcohol dependence, that she would meet criteria for alcohol abuse.[11]
• On 18 November 2009, she had been drinking throughout the day and, in particular, started drinking very early in the day;
• She had been drinking with the deceased all day so, an indication of the level of her drinking can been taken from the fact that the deceased had a blood alcohol reading of 0.29% at the time of his hospitalisation;
• The accused was seen with a stubbie of beer immediately after the incident; and
• The accused was clearly intoxicated on the video footage taken at the police station at 7:24 pm.
27 It is convenient at this stage to refer to a portion of the evidence of the neuropsychologist, Mr Luke Delaney. Mr Delaney was called as a witness on the voir dire on behalf of the accused. He is a clinical neuropsychologist with an organisation called Arbias which is a not-for-profit organisation that specialises in providing services to people with acquired brain injuries. He advised the Court on the voir dire that, during the course of his work as a neuropsychologist, he has completed in excess of 1300 neuropsychological assessments. Mr Delaney's evidence firstly concerned the testing that he conducted to establish the cognitive ability of the accused. He said that she had a full scale IQ of 68 with an error band range of 56 to 112. He considered that her overall cognitive abilities are broadly within a mildly impaired to borderline range.
28 Mr Delaney also gave evidence about the effect of alcohol and consequent memory blackouts which may have occurred during the record of interview with the accused, and on that issue he gave the following evidence, which was interrupted by a transmission failure in the videolink:[12]
I think a person's risk of experiencing alcohol related memory blackouts is increased with high levels of blood alcohol content, so the fact that she was reported to be heavily intoxicated at the time means that she would have been at risk of experiencing a memory blackout and my observation both of the written transcripts of the police record of interview and also viewing the DVD of that record of interview this morning was that a number of elements of her responses to questioning were consistent with what one would expect to see in someone who had a fragmented memory of events associated with memory blackouts.
But I would add to that that that's not the only explanation and it is possible that she was choosing to - or making some choices about the responses that she was making and at times choosing to deceive, which I think was the point of the questioning or the questions that were being put to me, and that it's - that I don't - I'm unable to determine the difference between those two possibilities except to say that I think that it's - that her performance and responses during the interview were consistent with the performance of someone who is having - who has impaired memory and that that could have been caused by an alcoholic memory black - - -
(Loss of transmission.)
29 I turn then to consider the record of interview which the Crown wishes to put before the jury during Ms McNiven's trial. At the commencement of the interview at 10:35 pm, Detective Hussey again recites to the accused her rights, and she gives him formal details.
Q59 Okay. And do you also agree that in the time of the - the initial interview that the uniform police members conducted an initial taped interview with you - a recorded interview? Do you agree with that?
Q60 And now that we haven't discussed any of the allegations or any other police member has with you?
Q62 Okay. Now, Kerry, can you just tell me what - what occurred earlier this evening?
31 The answer to question 62 seems to me to display a lack of understanding of what she should do. Furthermore, the answer does not give any comfort that, even after several recitations of her legal rights by police, she has actually understood them.
Q63 Do you agree that - that you had a conversation with the police earlier whereby, in relation to a male person by the Garry - ... ... - Gary - - -?
Q65 Where - whereby he was set alight. Do you agree?
Q66 Yeah, that's right. That - that's what I'm saying with that conversation you had with the police...
Q68 Alright. You - you - you said before you're just a bit tired but you - you're fine?
Q69 Correct. You - are you happy enough to continue - - -?
33 So, she was then saying that she could not remember and could not explain why she could not remember. The issues that that raises are compounded by her answer to question 71, which I set out below according to what I heard from listening to the video tape:
Q71 Alright. Do - what - what occurred with you and Gary down at the river there this evening - early this evening?
34 She then outlined how she had been told earlier in the day about Gary Stewart having touched her breasts while she was asleep. She became clearly distressed as she related that to police.
35 In answer to questions 92 and 93, she claimed a lack of memory about what had occurred:
Q92 So then what happened when you went down there?
36 Mr Papas submits that the most damaging answer given by his client to questions 94 and 95 is qualified:
37 Mr Papas has submitted that there was a suggestion planted in her mind as a result of the earlier conversation at the scene with Constable Beecroft, where the accused was asked whether the lighter found on her was the lighter she used, and also as a result of the initial interview with Senior Constable Carr at 7:24 pm where the accused was told that it was alleged that she "set a man alight", such that the accused believed that that was what had occurred, whether she actually recalled it or not. Mr Thomson submitted that one should not be semantic about this and this answer represents a statement by the accused of what she knows she did. In my opinion, the answer "well, I torched him", without more, is not in these circumstances an unequivocal answer. It may mean that she knew she threw the fuel over the deceased who, for example, at the time was already smoking a cigarette. I do not regard it as an unequivocal statement that she threw the fuel over the deceased and then lit it with a cigarette lighter.
38 In the following questions she was asked whether it was petrol she was using and she said she was not sure what it was. Then in answer to question 97 about how she had acquired the petrol, she said:
39 She was then asked about the petrol can and where it came from and she said she could not remember. At question 105, the accused appears to me to be in some difficulty. She appears to make a request which is hard to hear and seems to be saying she cannot think. She also refers to something having "worn off". She then becomes quite emotional.
40 Again at question 114 she is asked about how she lit the deceased after he was doused in fuel:
Q117 I'll show you a lighter Kerry, and I'd appreciate it if you didn't touch it. Is that the lighter, you think?
Q118 And that's a - a black BIC lighter, is that right?
A Yeah, if it was found at the scene, I suppose it is.
Q120 Police found this lighter in your possession when they got there.
Q121 Alright. If I was to say that's your lighter, would you dispute that at all?
41 There is a degree of cross examination in this questioning which is only significant because it demonstrates that there is not a flow of detail about her actions coming from the accused, in a manner suggesting the answers were reliable. The answers are much more in the nature of accepting the thrust of what is being put to her.
42 Somewhat later in the interview, at question 148, she was asked:
Q148 What happens - what happened when you - after you doused him, you - did - you got the cigarette lighter, and what happened then?
That answer particularly stood out in the record of interview as requiring clarification in all the circumstances. "Then I just saw him come alight" says little about what happened. No question was asked about what she did with the lighter or how she lit the petrol. Indeed, she added that she "freaked" and that is followed by a description of what was done to extinguish the flames.
43 Again, her lack of memory is demonstrated by question 168:
Q168 When you tipped the - the - the fuel on him, did you say anything to him?
44 At question 186 the accused was asked about her intention:
There was a significant pause between the question and the answer and, as can be seen, the answer was qualified.
45 Asked about whether Garry Stewart said anything to her about her not killing him she said she could not remember. She said she could not remember any conversation with the witness at the scene, and could not recall any of the conversation that the police said that they had had with her.
46 In order to establish that the accused well understood her circumstances and her rights, the prosecutor led evidence of the occasions between 2001 and 2009 when she had had contact with the police in Wangaratta. On two of those occasions she was interviewed and the opening portions of those interviews, conducted on 13 March 2006 and 11 June 2006 were played.
47 This evidence was led as part of the Crown evidence for the purpose of establishing that the accused was well familiar with police procedures and was aware of her rights. That knowledge would have remained with her on 18 November 2009 and would have enabled her to make a proper and informed decision about her circumstances.
48 However these interviews are relevant for another purpose. In both of those interviews, it appeared that the accused was capable of responding to questions and describing incidents in which she was involved. She suffered little in the way of memory deficit and was co-operative. There is a contrast with the interview in this case. Mr Thomson has submitted that the reason for that is clear - this is a far more traumatic and difficult situation for her than any of those were. It seems to me there are two other significant differences. The accused does not appear to have been affected by alcohol on those occasions and they were for relatively minor matters. They also showed that unlike this occasion, the accused was able to give a coherent and detailed narrative of the events she was being questioned about. Mr Thomson's submission about the significant difference in the traumatic effect is also valid.
49 Section 85(3) of the Act requires that in determining the issue raised under that section, I take into account "..any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject".
50 As I have earlier outlined, evidence was given on the voir dire by Mr Luke Delaney, a Senior Clinical Neuropsychologist. His evidence included a report he prepared on the accused dated 12 August 2011. In summary, his opinion is that the accused's profile indicates that she is generally performing in a mildly impaired to borderline range across most aspects of cognitive functioning including attention and memory. She is at the top end of the range for mild intellectual disability but she would not meet the criteria for a formal diagnosis. It is possible that she has sustained a mild degree of alcohol related brain injury but there is not enough evidence to conclude that issue.
51 Mr Delaney also gave evidence about the way alcoholics can develop resilience to high levels of blood alcohol which may result in apparent normal presentation even when the level of alcohol is high. I have earlier quoted what he has said about the effect of alcohol in a person such as the accused and the possibility of memory blackouts.
52 Mr Delaney's evidence was substantially tested by Mr Thomson in cross-examination. He said his experience included neuropsychological reports on some 20-35 indigenous people. He agreed that an interview process for what was then the charge of attempted murder would have been stressful. He said that based on the testing that he did after the accused been abstinent from alcohol for some 20 or so months he thought her cognitive weakness was long standing. The consumption of alcohol would have a further impact on her cognitive functioning.[14]
53 He accepted that unwillingness to answer questions is one plausible explanation for the apparent memory failures in the record of interview but so too is a fragmentary recall of information as a result of the effect of alcohol.[15] He agreed that deliberate under-performing in his tests by the accused was possible but he said that tests for effort were also administered and she performed in the normal range.
54 In my opinion, Mr Delaney was an impressive, objective, measured and well qualified witness and I am content to act on his evidence. As I have noted, it is true, as Mr Thomson submitted, that the apparent memory deficits were either the result of some memory blackout or a conscious decision not to answer the question. In many respects, the existence of the former as a reasonable possibility is a significant obstacle in the Crown establishing that the truth was unlikely to have been affected by the circumstances.
Section 85 of the Evidence Act 2008
55 Mr Papas first relies on s 85 of the Act. The relevant parts provide:
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by an accused -
(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; ...
56 So the section applies to the matters under consideration. The section then provides:
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account -
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning -
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
57 I am concerned with the circumstances in which the admission was made and whether the truth of the admission was adversely affected by those circumstances. For the purpose of the resolution of the issue I take the phrase "the truth of the admission" to contemplate a statement by the accused in her admission to police that is, to her recollection, factual - an actual description of what occurred or what was said as opposed to an assumption, a guess, a reconstruction or a lie. For the purpose of this section none of those latter alternatives would represent the truth.
58 Further, it needs to be borne in mind that the accused is said to have made admissions as to what she did on 18 November 2009 in connection with the burning of the deceased. It is those admissions that are central to this debate. She said many other things in the interview. Mr Thomson quite properly relies on those as being answers which point to the admissions themselves being the product of memory. I regard myself as concerned primarily with whether the prosecution have established on the balance of probabilities that the truth of the admissions she made, which tend to implicate her in the crime of murder with which she is charged, is unlikely to be affected by the circumstances of the interview.
59 I must then take into account other relevant matters, as set out in s 85(3) above, in coming to a conclusion about that issue.
60 It is also necessary to adhere to the direction in s 189(3):
(3) In the hearing of a preliminary question about whether an admission made by an accused should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the accused.
61 The effect of s 189(3) in this matter, in my opinion, is that the truth or untruth of the alleged admissions should be disregarded by me. The accused did not give evidence on the voir dire. Notwithstanding the submissions of Mr Thomson that senior counsel for the accused has introduced the issue, it seems to me that what was being put on behalf of the accused is not an argument about the truth of what was said but rather an argument that what was said by her may not represent her actual memory about what she did but rather, possibly, an acceptance by her of what must have happened.
62 This section effectively requires me to consider whether the reliability of the admissions sought to be relied upon may have been impaired as a result of the way in which they were obtained. As Barr J said in R v Rooke:[16]
I think that the expression "the circumstances in which the admission was made" as used as in subs(2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs(1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under para(1)(b)).
So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions - adversely to affect their truth - the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury. The authors of ALRC 26 said, at [765], speaking of the draft forerunner to s 85, "the trial judge should determine as a preliminary issue whether the reliability of the admission may have been impaired by the way it was obtained".
63 In my opinion, in this case some of the circumstances surrounding the making of the admissions include, by reference, some of the general circumstances of the events said to form part of the offence to which the admissions are relevant. Whilst understanding the separation of issues to which his Honour was referring, where there is a relevant overlap such as, for example in this case, the heavy consumption of alcohol leading to up to the commission of the offence, the effect of which was still evident at the time of the record of interview, such matters must be considered for the purpose of dealing with an issue raised under s 85(2) of the Act.
64 Shortly after, speaking of the role of the trial judge in dealing with such an issue, Barr J said:[17]
The question for his Honour, under s 85, was whether in the circumstances pointed to by the appellant, the making of the answers was reliable, that is, whether the circumstances were such as to make it unlikely that the truth of what the appellant had said was adversely affected.
66 In the short time available, the only relevant ruling of a trial judge of this Court that has been discovered is that of T Forrest J in R v Tang.[19] In that case challenges were made to the admissibility of admissions made by the accused on the basis of both ss 84 and 85 of the Act. His Honour reached factual conclusions which led him to reject the submissions on behalf of the accused and admit the record of interview.
67 Mr Papas SC for the accused made both written and oral submissions. In his written submissions he raised an issue of voluntariness but as I understand his position he does not pursue that part of the argument. His primary submission, as I followed it, was that pursuant to s 85(2) of the Act and that the Crown has failed to establish that, in particular, those parts of the interview where the accused appears to admit that she ignited the fuel, were any more than reconstruction on her part. Rather than being the product of her memory, those answers were an acceptance by the accused of what "must" have happened. The result is that that the truth of the admissions she appeared to be making was being adversely affected by the circumstances surrounding the making of those admissions. Those circumstances included:
68 In his written and oral submissions, Mr Thomson for the Director of Public Prosecutions, put with some force that there was nothing about the circumstances that would have affected the truth of the admissions. He accepted that the accused may well have been intoxicated at 7:24 pm but submitted that by the time of the substantive interview at 10:30 pm, she had recovered and it can be seen that she is able to deal with the questioning and make conscious and considered choices about her answers.
69 Mr Thomson spent some time seeking to demonstrate that the accused had been able to choose not to answer some questions. He submitted, and I accept, that there was no misconduct by the police. They afforded her the opportunity to obtain legal advice and there was no breach of s 464C of the Crimes Act 1958. Because she had had previous contact with the police, Mr Thomson submitted that she knew well what her rights were. She made a conscious choice to speak because she wanted to tell them what happened. True, the accused could have been asked to give more detail about her actions and the omission of that was unfortunate, but, he submitted, there was no consequence of unreliability as contemplated by s 85 of the Act.
70 In determining this issue, I must consider all the circumstances. One question which has been raised and which appears not to have been resolved by the authorities is whether the test under s 85(2) is a subjective or objective test. I am unable to see how it can be other than subjective. I am only concerned with this particular alleged admission and the circumstances in which it was made.
71 In my opinion, the following conclusions I have come to are significant, particularly given the matters that s 85(3) of the Act requires be taken into account. The accused is a person with cognitive abilities broadly within the mildly impaired to borderline range. As I said earlier, I accept the evidence of Mr Delaney. The accused has a full scale IQ of 68 albeit with a broad error band. The accused is an alcoholic and on 18 November 2009 she had consumed a large amount of alcohol. She may have suffered from memory blackouts as a result of heavy alcohol consumption. She was intoxicated when the incident occurred in the late afternoon of 18 November 2009. Her long-standing cognitive weakness, as diagnosed by Mr Delaney, was exacerbated by her alcoholism.
72 Further, there was an understandable degree of suggestion by the police in the initial questions that they asked her about the cigarette lighter and her use of it. She did not volunteer that information. When she reached the police station she was clearly still intoxicated and that much can be seen from the video tape of the start of the record of interview at 7:24 pm. When she spoke to Ms O'Neill, in my opinion, she was still intoxicated and was not given any useful advice about her circumstances. Apart from the recitation of her rights, read to her by the police, she had no proper legal advice and whether she wanted that advice is unclear. This situation may, for example, be significantly contrasted with the circumstances on this issue confronting T Forrest J in R v Tang[20] where there was a recording of the accused speaking to a highly experienced solicitor and being given patient advice about the courses that were open to him. Nothing like that happened in this case and in police custody, about to be charged with attempted murder this accused woman needed proper legal advice.
73 I am also of the opinion that in the later interview at 10:35 pm there is a significant chance that she was still affected by alcohol. In addition to that possibility, she appears to me to be tired and somewhat overwrought by the circumstances. Further, during the interview, she was not asked at any time by the police to describe in detail the means by which she ignited the fuel on Garry Stewart, and she did not volunteer a detailed explanation or attempt to demonstrate what happened so as to indicate that what she was saying was a product of her actual memory. In my view there is a significant prospect that the somewhat generalised answers she gave about what she did are not the product of her memory.
74 The Crown have not satisfied me on the balance of probabilities that the circumstances in which the admissions were made by the accused, were such as to make it unlikely that the truth of the admissions was adversely affected.
75 I have therefore concluded that the record of interview will not be admitted in evidence at the accused's trial. It is unnecessary in the circumstances to deal with the other parts of Mr Papas' further submissions.
[4] Section 85 of the Evidence Act 2008.
[5] As he was at the time, now Senior Constable Beecroft.
[6] Statement of Graeme Cripps, Depositions at 207.
[7] Transcript of the Committal, dated 30 November 2010, at 27.
[9] Transcript of pre-trial argument, dated 16 August 2011, at 117.
[10] Transcript of pre-trial argument, dated 16 August 2011, at 129.
[11] Transcript of pre-trial argument, dated 17 August 2011, at 200.
[14] Transcript of pre-trial argument, dated 17 August 2011, at 213.
[16] [1997] NSW CCA (2 September 1997) at 15-16 (my emphasis).
[18] Per Higgins J in R v Taylor [1999] ACTSC 47 at [29].
R
McNiven [2011] VSC 397