R v O'Grady

HULME J R v MATTHEW O'GRADY JUDGMENT On application by Crown Prosecutor to cross-examine accused on failure to refer to matters relied upon at trial in his ERISP; on objection to evidence from accused's sister of conversation with accused after shooting; and on application by media for publication of ERISP video tape

1 HIS HONOUR: During the course of cross-examination of the accused, at about page 932 of the transcript, the Crown indicated the desire to cross-examine the accused on the topic of his failure to refer, during the course of his ERISP, to three matters now relied upon by him. The three matters are: The hearing of voices, experiencing flashbacks, and a lack of control at the time of the shooting. 2 The significance of the matters lies in the fact that an issue raised at the trial was the voluntariness of the accused's conduct in his admitted shooting of the deceased. In the course of his ERISP, he said that it was like he was watching himself. In statement made since, particularly to psychiatrists and other medical witnesses, he has said that shortly prior to, or during, the activities which led to the shooting of the deceased, he heard voices telling him to "kill him" or "do it", and it has been suggested that he was suffering from flashbacks, which as I understand it are mental images of previous experiences or hallucinations. It is said that, in part, because of these matters, and a state of depersonalisation which ensued, the accused had no control at the time he shot the deceased. 3 In my view, there were no questions asked of the accused during the ERISP which fairly inspired mention by him of flashbacks, but there were questions where one would have expected reference to having heard voices and having a lack of control, if indeed the accused either heard or thought he heard voices or he felt, during the course of the evening, that he had no control over what he was doing. 4 Included within the questions or answers wherein such a response could have been expected were numbers 64 to 5, 365, 368, 378 and 453. It might be noted that the Crown also relied upon questions 414 and 415. Thus it was that I held the Crown entitled to cross examine the accused on his failure to mention, during his police interview, the voices or lack of control. 5 Another matter which required a ruling from me occurred at about transcript page 714. During the examination in chief of the accused's sister, she gave evidence of a conversation with the accused about a month after the shooting. When Mr Conditsis appearing for the accused asked her "Q. What did he say to you?", the Crown objected. 6 At page 714 of the transcript I allowed the question, indicating that I would give my reasons later. These are they. The answer given was: "Kate, tell me what happened. You know that I couldn't do something like that", an answer which was something to the effect of that Mr Conditsis had anticipated. 7 My reasons for allowing the question and the answer are these. I regard the evidence as admissible as falling within the exception contained in s66(2) of the Evidence Act and also as falling within s72. The answer, in my view, contained implied representations to the effect that the accused's shooting of the deceased was not the ultimate result of a voluntary act, or was done in the circumstances of some abnormality of mind. 8 At the time the evidence was given, it had been indicated that the accused would be called, and his statement was made close enough to the time when the shooting occurred for the asserted fact to be fresh in his memory as s66(2) requires. 9 So far as s72 is concerned, I regarded myself bound by authority to hold that the statement although about a month after the events to which it related was contemporaneous. The authority, the name of which escapes me, was a decision of the Court of Appeal something of the order of ten or more years ago. I remember it because I was counsel for the appellant. The only point I had to argue was that statement to a doctor about a representor's bodily feelings were contemporaneous, although made some few months later. I thought the point was doomed to failure but it succeeded, as in consequence did the appeal. But for that earlier decision, I would not have regarded the accused's statement to Kate in the case as contemporaneous. 10 Then turning to this other matter, during the course of the trial of Matthew O'Grady there was tendered by the Crown and admitted into evidence a video tape of an interview conducted between police officers and himself. 11 Application was made by representatives appearing on behalf of the press for access to that video tape. I permitted access including copying for the purposes only of displaying still photographs of the interview, although imposing a condition directed to preventing the reproduction of the images of Mr Krook who at the accused's request had been present at the interview. Mr Krook was a friend and it did not seem to me appropriate that he should be rewarded as it were for his agreement to participate by having his photograph displayed generally to the community. It is obviously desirable that where the presence of some such person is required there be no additional deterrence provided by way of publication of their photograph. 12 It was envisaged that application would be made during the trial for further access to the video tape of the interview for the purposes of it, or extracts from it, being shown by television stations. I indicated that I would not permit that showing to occur until after the jury's verdict. The matter was argued after the jury had retired to consider its verdict. 13 The practice of the Courts is that they conduct their affairs with limited exceptions in public. The confidence which the Courts enjoy, in no small measure is due to that fact. Our processes are open and available for scrutiny to all who care to attend. The practice is an important one. It is my view that it is but a logical incident of that practice that documents which become exhibits should also be available for scrutiny by the public recognising of course that the extent of that scrutiny cannot be allowed to impose any significant disruption on the efficient operation of the court system. 14 It was such factors which led me to the view that the video tape of the interview should be made available for the limited purposes that I have indicated during the course of the hearing. Because of the potential impact of the pictorial representation in moving form, if I can use that expression and the fact that almost certainly only extracts were liable to be selected for their interest value as perceived by television presenters, I thought it inappropriate to allow wider use of the video or a copy of it at that stage. Those considerations no longer apply. 15 The substantial basis advanced in opposition to the application made on behalf of the television stations was that making the record of the ERISP available in this trial and if my decision is treated as a precedent in other trials also, is calculated to discourage persons from agreeing to be interviewed by police officers thus hampering the investigation of crime. 16 I acknowledge the possibility that they may be the effect. The weight of that argument must however be considered in light of the fact that, not uncommonly the fact of admissions being made, or other information being given by suspected persons to police officers, is already reported in the news media. Although the showing in moving form of an interview is, I think, calculated to have more impact, nevertheless it is not of a character different from what is presently placed within the public domain, however much its impact might be thought to be different in degree. 17 I suspect also that it will be a rare event in any case where more than, at most, a few minutes of an ERISP is shown, and I am not persuaded that making a decision in favour of the application will have any substantial impact on the police investigations. 18 A further matter arises in the particular circumstances of this case, namely, that at the time of the interview the accused was but sixteen and there are a number of legislative provisions designed to keep anonymous or relatively anonymous, the identity of young persons who become involved in the criminal justice system. However, there are some limitations in that area. He is now and has been through the trial, eighteen. I have not seen in the fact that he was seen at the time of the offence, adequate reason to make any orders directed to ensuring or preserving or maximising his anonymity, particularly in light of the nature of the offence with which he was charged and of which he has now been convicted. I do not regard there as being any good reason why, because of his age at the time, I should preclude access to the video tape. In short, I see no reason why there should be any more limitation on the press' access to the video tape in this case than there is generally to other exhibits, or to oral evidence given in the course of the case. Of course, I say that against the background that the jury's verdict has now been given. 19 I do however maintain my view that Mr Krook's photograph should not appear. Although he did give evidence during the course of the case and there was evidence about him, his role as an adult present at the interview had no connection with that evidence to which I have referred, and I do not see in it any reason why I should not seek to preserve the anonymity of him as just someone who was, in the circumstances, trying to help. Accordingly, so long as I can ensure that adequate safeguards are in place to ensure that no photographic depiction of Mr Krook appears, I propose to make the video tape available to the press. 20 I should also record that in arriving at that conclusion, I have been influenced by the information which I have been given to the effect that the mere copying of the tape is a very simple exercise, which will involve no appreciable risk to it, and as I understand it the copying can be done within the confines of the court building and under the supervision of the court staff.

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