Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Prejudicial evidence - Particular cases - Prejudicial effect outweighs probative value - Demonstrations of mental disability and "breaking from reality" in video of police interview.

R v Parker (1989 - 1990) 19 NSWLR 177, applied.

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Prejudicial evidence - Particular cases - Admissibility of deposition of a witness now unavailable.

R v Lynch and Watson A35/1978; R v Collins [1986] VicRp 3; [1986] VR 37; Gorman and McLaurin v Fitzpatrick and Barrett (1987) 32 A Crim R 330, referred to.

Judgment Number: [2000] TASSC 129

1 The accused has pleaded not guilty to two charges of assault. It is alleged that on 15 August 1999, the accused assaulted Steven Selvaraj in the course of an incident which began whilst Mr Selvaraj was travelling as a passenger in a vehicle driven by the accused and culminated after he left the vehicle.

2 The Crown proposes adducing evidence of a videotaped police interview with the accused in the course of which he made a number of admissions. The Crown has also foreshadowed that pursuant to the Evidence Act 1910, s134, it will apply to tender a deposition taken from Mr Selvaraj, pursuant to Part VII of the Justices Act 1959, in committal proceedings referable to the incident.

3 Counsel for the accused, Mr C Gunson, submits that the evidence of the police interview is inadmissible due to non-compliance with the provisions of the Criminal Law (Detention and Interrogation) Act 1995 ("the Act"). In the alternative, he submits that the Court should exercise its discretion to exclude this evidence as the circumstances in which the interview was conducted are tainted with illegality and impropriety and the prejudicial effect of the evidence outweighs its probative value. He also submits that the Court should exercise its discretion to exclude the evidence of Mr Selvaraj's deposition.

4 The submission that evidence of the interview is not admissible due to non-compliance with provisions of the Act is based on the premise that, following the incident and prior to the interview, the accused was in custody for the purposes of the Act. On the basis of that premise it is contended that obligations which arise under the Act referable to an accused person taken into custody have not been complied with.

5 The incident which is the subject of the charges against the accused came to a conclusion in Campbell Street, Hobart, a short distance from the Hobart Police Station. At that time the accused says he was restraining Mr Selvaraj in order to effect a citizen's arrest and take him to the police station. A number of police officers attended the scene of the incident. Following the incident, the accused, Mr Selvaraj and a witness, Miss Spyt, went to the Hobart Police Station. The evidence does not establish how the accused got to the police station. I infer that he walked there, probably in the company of a police officer. He entered the police station via the public enquiry area and went into the private area of the station. A perimeter security system is in place around the private area of the station. In order for a person to enter or leave the private area, it is necessary for a police officer, or some other person who had an appropriate electronic key, to open one of the perimeter doors. Mr Gunson, in substance, submits that upon the accused entering the private area of the police station he was in police custody as it was thereafter necessary for him to ask for a door to be opened in order for him to depart. In my view, this submission is not sustainable. The Act, s3(2)(b), provides that a person is in custody if under lawful arrest. There is no evidence to suggest that the accused was arrested until after the completion of the police interview. The unchallenged evidence of Constable Franklin is that the accused was informed, "He was just there to help us of his own free will." Constables Franklin and Newbury both say that the accused was free to leave the station at any time. Confirmation for their evidence comes from the video tape interview with the accused. At the outset of the interview, Constable Newbury said to the accused, "But remember, you are not under arrest, you are here of your own free will, so you can do whatever you like? OK." The accused responded, "OK" and did not suggest that the reminder he had just received was contrary to what he had previously been led to understand.

6 In the absence of any evidence to show that the accused was arrested prior to the conclusion of the interview, there is no basis for a finding that the evidence of the interview is inadmissible due to non-compliance with any of the provisions of the Act. For completeness I should say that the meaning given to the expression "in custody" for the purposes of the Act is not as wide as the meaning given to that expression when used in the Judge's Rules. For the purposes of the latter:

" ... a person is to be regarded as in custody not only after formal arrest, but also where he is in, say, a police vehicle, or on police premises, and the police by their words and conduct have given him reasonable grounds for believing, and caused him to believe, that he would not be allowed to go should he try to do so.", R v Amad [1962] VicRp 75; [1962] VR 545 at 546 - 547.

The fact that the accused was in an area of the police station from which it was necessary to obtain the assistance of another in order to depart does not, without more, justify a finding that he was in custody for the purposes of the Judge's Rules. There is no evidence that the accused was aware that it would be necessary for him to ask someone to open one of the perimeter doors if he chose to leave. For the accused to be in custody for the purposes of the Judge's Rules there needs to be evidence that the police caused the accused to believe that he would not be allowed to leave the premises if he tried to do so. The evidence is to the contrary effect.

7 Accordingly, arguments based on the proposition that the accused was in custody prior to the completion of the interview provide no support for the contention that the circumstances in which the interview was conducted are tainted with illegality or impropriety. With reference to impropriety, Mr Gunson submits that the police officers should have stopped interviewing the accused when he told them he was classified as mentally ill, albeit that the accused also told them he did not believe he was mentally ill at the time. In essence, Mr Gunson submits that notwithstanding the accused made it plain to the police officers that he wanted to proceed with the interview, they should have refused to allow him to do so. Whilst one of the primary reasons for interviewing people accused of offences is to obtain admissions of guilt, it must be borne in mind that accused people are also interviewed in order to provide them with an opportunity to refute the allegations made against them. In my view, people accused of offences should be afforded this chance at the first opportunity. They may wish to take advantage of the opportunity to refute allegations made against them without delay in order to minimise any suggestion that they have reconstructed their account of events or taken advice in relation to the same. There is no reason why this opportunity should be denied to an accused person suffering from mental illness or reduced mental capacity, provided that the accused is competent to participate in an interview. Such a denial would wrongly discriminate against accused people who fall into this category.

8 The submission that the Court should exercise its discretion to exclude the evidence of the interview as its prejudicial effect outweighs its probative value, centres on the mental state of the accused at the time of the interview. As mentioned, at the beginning of the interview the accused said that he was classified as mentally ill, but that he did not believe he was mentally ill at that time. Evidence of the accused's mental state was given by two psychiatrists, Doctor Ian Sale and Doctor Russell Pargiter. The accused was first referred to Doctor Sale in March 1994. Doctor Sale has had sporadic contact with the accused since that date. His assessment is that the accused can confidently be regarded as suffering from paranoid schizophrenia. The challenged police interview was conducted on the evening of the day of the alleged assaults, 15 August 1999. Doctor Sale saw the accused on the following day. Doctor Sale says that at that time, the accused appeared to be showing signs of an exacerbation of his schizophrenia and the exacerbation appeared to have been present for a few days. Doctor Pargiter examined the accused for the first time in June of this year and confirmed Doctor Sale's diagnosis of the accused's mental illness.

9 The evidence of Doctors Sale and Pargiter satisfies me that the accused suffers from paranoid schizophrenia and, as a result, he regularly and to varying degrees is affected by symptoms such as restlessness, agitation, hallucinations and a belief that his thoughts are being influenced by others. If interviewed, dependent upon the degree of his symptoms at the time, he would be restless and agitated and somewhat grandiose. It would be difficult to hold him to a subject as he would digress and ramble. On occasions, his thought process would be illogical and he would be incapable of reasoning with composure. The reliability of his answers would be patchy, in part because of the difficulty he has in maintaining a train of thought. Notwithstanding these matters, the accused is capable of answering some questions rationally and reliably, in particular questions directed to specific information rather than open-ended questions. He is capable of considered admissions as to criminal conduct.

10 Doctor Pargiter viewed the transcript of the police interview with the accused. Doctor Sale did not. Doctor Pargiter prepared a written report on his assessment of the interview in which he said:

"My overall conclusion is that although there were eccentricities in his speech, thought and demeanour for the most part with one or two exceptions it was not sufficient to sustain a diagnosis of psychosis in the sense that there was any demonstrable break with reality. In particular, although there were illogicalities, over valued ideas, repetition, contradiction there was no abrogation of abstract, ability, delusions, formal thought disorder or hallucinations."

11 When informed of Doctor Sale's observations of the accused's behaviour on the day following the police interview, Doctor Pargiter said that they were strongly supportive of a diagnosis of a psychosis. By this I understand him to mean that this further information, coupled with his observation of the video tape, satisfies him that at times during the interview the accused demonstrably broke from reality. I agree with this assessment. Upon viewing the video tape it is manifest that on occasions during the course of the interview, which lasted for one hour and 53 minutes, the accused did not respond rationally and broke from reality. On the other hand, it is clear that he understood the questions put to him and on many occasions he appeared to respond rationally and reliably to them. From my observation of the accused on the video tape, I am satisfied he would have been a competent witness at the time of the interview.

12 The principles relevant to the resolution of the difficulties which arise in relation to a confession by an accused person suffering from a mental disability are summarised as follows in R v Parker (1989 - 1990) 19 NSWLR 177, Gleeson CJ, at 183:

"1 The fact that an accused person who has allegedly confessed to committing a crime was, at the time of the alleged confession, suffering from some form of unsoundness of mind or psychiatric disorder may, depending upon the circumstances, be of importance in considering the evidentiary value of the confession, and may in some circumstances deprive it of all evidentiary value: Jackson v The Queen [1962] HCA 49; (1962) 108 CLR 591. It does not, however, necessarily make evidence of the confession inadmissible: Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316 and R v Starecki [1960] VicRp 22; [1960] VR 141. As Dixon J observed in Sinclair, an insane person is not necessarily an incompetent witness. Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth.

2 Even if such evidence is admissible, a consideration of the quality of the evidence may, in a given case, result in a conclusion that a verdict founded upon it is unsafe and unsatisfactory: Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454.

3 The intellectual capacity of the accused, or the existence of some disease or disorder of the mind, may go to the issue of whether the confession was voluntary and may in that respect bear upon the admissibility of the evidence. It may be relevant to the question whether the confession was made in the exercise of free choice, as for example, where an accused is incapable of making such a free choice, or of understanding his right to choose between speaking and remaining silent. Depending upon the circumstances, it may have an important bearing upon whether the statement was made as the result of duress, intimidation or undue insistence or pressure. The circumstances in which such a fact may be relevant to an issue as to the voluntariness of a confession are multifarious: cf R v Lee [1950] HCA 25; (1950) 82 CLR 133 and Van Der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; 82 ALR 10.

4 Further, even if the confessional evidence is admissible, the intellectual or mental state of the accused may, in a number of possible ways, go to the exercise of a trial judge's discretion to reject the evidence: cf McDermott v The King (1948) 76 CLR 501; R v Lee. It may, for example, touch upon the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself, and the fairness involved in permitting the statement to be used against the accused.

5 A person's vocabulary and standard of comprehension may also be of relevance in determining an issue as to whether such a person in fact made or intended the admissions attributed to him: Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94.

6 If a Crown case is based in whole or in part upon the confession of a person suffering from some mental disability which may affect the reliability of the confession then a trial judge in his summing-up should use appropriate means to bring to the attention of the jury the possible danger of basing a conviction on such evidence unless it is confirmed by other evidence: cf Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315."

13 Mr Gunson has not challenged the admissibility of the interview on the basis that it was not voluntary. In my view, he was right not to do so. As a preliminary to my consideration of the matters he has pressed on behalf of the accused, I have reviewed the evidence in order to determine whether it has been established on the balance of probabilities that the accused's confession was voluntary in the sense that it was made knowingly and in the exercise of a free choice. I am so satisfied. The conversation at the outset of the interview, between the accused and the two police officers who interviewed him, demonstrates that the accused was fully cognisant of both: his entitlement to remain silent; and, of the opportunity afforded to him to communicate with his lawyer or his psychiatrist before proceeding with the interview. I am satisfied that in this knowledge the accused made a reasoned and rational decision to participate in the interview.

14 In assessing the reliability of what the accused said in the course of the interview, one of the factors the jury will take into account is his mental illness. I do not consider this to be a matter which militates in favour of the exercise of the Court's discretion to exclude this evidence. The jury will also have to take into account the accused's mental illness in assessing his evidence if he elects to go into the witness box. Whilst the need to pay regard to the accused's mental illness reduces the probative value of the interview, it also reduces any prejudice the admission of the interview into evidence is likely to cause the accused. The admission of the interview into evidence may prompt the accused to make an election to call or adduce evidence which he would not otherwise have made. I do not consider this to be a significant factor in the exercise of the discretion. This is a consequence which may flow from the admission of most evidence. For these reasons I am not persuaded that the evidence of the accused should be excluded on the basis that its prejudicial effect outweighs its probative value. I will allow evidence of the interview to be led.

15 I turn to the deposition of Mr Selvaraj which the prosecution proposes adducing into evidence pursuant to the Evidence Act, s134. Mr Selvaraj has been deported from Australia and is not available to give evidence. Whilst Mr Gunson concedes that the deposition is admissible pursuant to s134, he submits that the Court should exercise its discretion to exclude it. Section 134 does not confer any discretion on the Court to exclude evidence which is admissible in accordance with its terms. The Court may, however, exclude such evidence in the exercise of its overriding general discretion to exclude evidence because its prejudicial effect outweighs its probative value, or because for some other reason its use will deprive the accused of a fair trial; R v Lynch and Watson A35/1978, R v Collins [1986] VicRp 3; [1986] VR 37 and Gorman and McLaurin v Fitzpatrick and Barrett (1987) 32 A Crim R 330.

16 Mr Selvaraj is the alleged victim of the accused's assaults. If his deposition is admitted into evidence the accused will be exposed to conviction on the basis of evidence from a witness who has not appeared before the jury and been cross-examined in their presence. Ordinarily there is a real risk that the admission of evidence in these circumstances could significantly prejudice an accused. As to that risk and the regard a judge should pay to it when considering the exercise of a discretion to exclude a deposition which is admissible pursuant to s134, in R v Lynch and Watson (supra), Green CJ, at 9, said:

"It is difficult for a lawyer brought up in the common law tradition to accept that a criminal trial could be conducted fairly if the accused does not have the opportunity of being confronted by the principal witness against him and does not have the opportunity of cross-examining him. And this is thought to be so not only because in such cases the jury are thereby largely deprived of the opportunity of making their own assessment of the credibility of the witness, but also because the accused is deprived of the opportunity of eliciting other evidence from the witness which might qualify or reduce the effect of that witness' evidence against him or which might otherwise be useful to the accused's case. However, I accept the learned Crown Advocate's submission that when a Judge is called upon to consider whether in the exercise of his discretion evidence which would otherwise be admissible under s134 of the Evidence Act 1910 ought to be excluded, he must not allow the weight of that common law tradition to so influence the way he exercises his discretion as to render s134 nugatory. He must bear in mind that by enacting s134 Parliament has to some extent abrogated those common law principles and has sanctioned the possibility that a person my be convicted of a crime upon the evidence of a witness whom he has not had the opportunity of cross-examining."

17 Mr Selvaraj's deposition is comprised of a statement he made to a police officer on the afternoon of the incident and his cross-examination by Mr Gunson, who was also the accused's counsel at the committal hearing. In the course of a precise and thorough cross-examination of Mr Selvaraj, Mr Gunson elicited a number of matters which reflect poorly on Mr Selvaraj's credit. More significantly it seems that Mr Gunson put the accused's case to Mr Selvaraj in considerable detail and Mr Selvaraj accepted the overwhelming majority of what was put to him. Upon reading the cross-examination, it appears that matters which remain in issue between the accused and Mr Selvaraj are:

* Mr Selvaraj's assertion that the accused was driving his vehicle very fast.

* The time at which the accused first said that he was going to make a citizen's arrest on Mr Selvaraj.

* Mr Selvaraj's denial that he threatened the accused with an axe and a knife and tried to kill him two days prior to the incident.

* Mr Selvaraj's denial that on the day of the incident he threatened to kill the accused.

18 In pressing the Court to exclude the evidence of Mr Selvaraj's deposition, Mr Gunson did not assert that any specific matter of significance was not tested with Mr Selvaraj in the course of his cross-examination. The focus of the concerns Mr Gunson referred to are difficulties in relation to Mr Selvaraj's credit and the inability of the accused to elicit further evidence from Mr Selvaraj. Whilst Mr Gunson's cross-examination of Mr Selvaraj at the committal hearing was comprehensive, it is inevitable that there are a number of differences between the approach he then took to Mr Selvaraj's evidence and the approach he would take if cross-examining him at the accused's trial. Although the limited number of matters in issue between the accused and Mr Selvaraj reduces the prejudice the accused may suffer if the evidence of Mr Selvaraj is adduced by way of his deposition, this does not overcome all the problems that this course presents to the accused.

19 In assessing whether the prejudicial effect of the deposition outweighs its probative value, or would for some other reason deprive the accused of a fair trial, I consider it significant that the manner in which the jury should use this evidence, if admitted, is subject to my direction as the trial judge. That direction would involve pointing out the deficiencies of evidence from a witness who has not been cross-examined before the jury and whose credit they have not had an opportunity to assess. The jury would also be cautioned to scrutinise the evidence contained in the deposition with great care before acting on any of it and directed that, unless corroborated, it would be most dangerous to rely on it as to any matter in issue.

20 In my view, upon the jury being directed along the above lines on the use of the evidence contained in the deposition, its prejudicial effect will not outweigh its probative value and its use will not deprive the accused of a fair trial. I will accordingly allow the prosecution to adduce evidence of the deposition.