R v Rappel [2016] ACTSC 295

CRIMINAL LAW - Particular Offences - offences against the person - murder.

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - s 90 of the Evidence Act 2011 (ACT) - disputed facts hearing - objection to evidence of conversations - conversations between accused and case manager at gaol - where admissions were made - evidence not excluded.

Crimes Act 1900 (ACT) s 315

Evidence Act 1995 (Cth) ss 85, 90

Evidence Act 1995 (NSW) s 90

Evidence Act 2011 (ACT) ss 85, 90, 126B

EM v The Queen [2007] HCA 46; 232 CLR

R v Jarrett [2012] NSWCCA 81

R v Medcalfe [2002] ACTSC 83

R v Roberts [1999] NSWCCA 95; 106 A Crim 67

1. The accused has pleaded guilty to murdering Tara Costigan on 28 February 2015. The accused has disputed some of the facts alleged by the Crown and evidence has been led both by the Crown and on behalf of the accused. One of the witnesses called by the Crown was Gary Monahan. The accused objected to the admission of the evidence of Mr Monahan concerning conversations said to have taken place between the accused and Mr Monahan while the accused was on remand at the Alexander Maconochie Centre (the AMC) with respect to the present charges.

2. One of the original grounds of the objection, that the contents of the conversations were protected confidences for the purposes of s 126B of the Evidence Act 2011 (ACT) (the Evidence Act) has been abandoned by the accused. The remaining ground of objection is that the evidence should be excluded in the exercise of the Court's discretion under s 90 of the Evidence Act, which provides:

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if -

(a) the evidence is presented by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

3. Mr Monahan gave evidence that he is employed as a case manager at the AMC. He gave the following evidence concerning his role as a case manager:

What does being a case manager involve?---Our primary role is one of rehabilitation. We identify criminogenic risk factors through risk assessments, interviews, documents, historical stuff. We then devise a case plan for the duration of a prisoner's sentence, and that can include programs, employment, education. We also - also appreciate that the centre doesn't provide a welfare officer per se. So we undertake a lot of the welfare stuff as well, which includes an induction, making sure that new detainees have everything sort of - they're aware of the procedures. If there's any housing issues, any Centrelink issues, we look into that, and we give them a rundown on the centre operations.

Does that involve applications for Legal Aid and that type of stuff?---Yes, it does.

4. All new detainees at the AMC are allocated a case manager. Mr Monahan was allocated the role of the accused's case manger upon him being remanded in custody. On 3 March 2015, Mr Monahan conducted an induction interview with the accused in the Crisis Support Unit (CSU) at the AMC. He said that he made notes of the conversation in a notebook, which he later used to create an official case note on an electronic database. The notebook in which Mr Monahan made the handwritten notes of the conversation was also used by him to make notes in relation to conversations that he had with other detainees during their induction into the AMC. It was the practice of Mr Monahan to dispose of these notebooks because of "the Privacy Act" after the electronic case note was created although it appears that the timing of the destruction of individual notebooks was variable. Mr Monahan searched his papers at the AMC during a break in his evidence in these proceedings and was unable to locate the original notebook with his handwritten notes, so that it appears that the handwritten notes were destroyed.

5. Mr Monahan said that at the commencement of his interview with the accused he told the accused he should not talk about the offence with which he was charged, as if he were to make "certain admissions", he, Mr Monahan, was obliged to record them in case notes. He said that the accused replied "That's like them wanting to say I was insane. Fuck that. I wanted to hurt the bitch". Mr Monahan went on to say that the accused complained that the victim (Tara Costigan) had "lied on an AVO application" and that she was "the second partner who had lied to get an AVO". The accused is then said to have said "You have no hope if you are a male".

6. Mr Monahan said that he then discussed a Legal Aid application with the accused. The application form asked what plea the detainee wanted to enter, and when that question was put to the accused it is alleged he replied "Guilty. I wanted to hurt the bitch, and I knew what I was doing. So I can only plead guilty".

7. While discussing a question about "dependant children" on the Legal Aid application, the accused made comments suggesting that he doubted whether Ayla, the daughter of Tara Costigan, was his child, and said 'I only signed the birth certificate of Ayla to keep the peace'.

8. After further discussions about mundane issues such as the accussed's assets, employment opportunities in the AMC, and banking arrangements, Mr Monahan said that the accused commented "This is not too bad. I don't have to worry about anything in here and I haven't felt this relaxed in a long time".

9. Mr Monahan testified to a further conversation with the accused in the CSU on 13 March 2015. Mr Monahan again made handwritten notes of the conversation, and later used those notes to create a case note on the electronic database. Those handwritten notes were also later destroyed. Mr Monahan said that he had a conversation with the accused about Legal Aid after which the accused asked him what "temporary insanity" meant. Mr Monahan asked the accused whether he meant temporary insanity or diminished responsibility, to which the accused replied "The one where you have used drugs and you don't know what you are doing for a period of time". Mr Monahan advised the accused to discuss it with his solicitor, and reminded him not to discuss the offence with anyone until he had obtained legal advice, to which the accused is said to have replied "I don't want to deny I did anything as I have taken the life of someone".

10. In cross-examination Mr Monahan agreed that the CSU was commonly used to house detainees at high risk of self harm or harm to others, but did not accept that those detained in the CSU were necessarily there because they were suffering from a mental illness or "other mental condition". He did agree, however, that people may be housed in the CSU because they were suffering from a serious mental illness.

11. Mr Monahan agreed that he made a statement to police on 23 March 2015 about the events of 3 and 13 March 2015. He was aware at that time that he was asserting in that statement that the accused had made admissions to him concerning the death of Tara Costigan in the conversations recorded in the statement. He appreciated that those admissions may become important in any prosecution of the accused. Mr Monahan also agreed that when the accused became aware of the contents of Mr Monahan's police statement, the accused told him that he was not happy that Mr Monahan had made the statement, and disputed a number of the comments attributed to him by Mr Monahan in the statement. Mr Monahan accepted that the handwritten notes may have assisted in corroborating his testimony concerning the disputed conversations, but said that he only became aware in mid-2015 that the accused was challenging portions of the conversation recorded in his police statement, and he did not know whether the handwritten notes were destroyed before or after he became aware of that fact.

12. Mr Monahan agreed that he did not give the accused an opportunity to read his handwritten notes so that he could agree or disagree with their accuracy. He also did not tell the accused that he may report anything the accused said to the police.

13. Mr Monahan said he was aware that Marie Costigan, the aunt of Tara Costigan, is "an officer" at the AMC. He had, he said, only had limited professional contact with Marie Costigan, and brief social conversation. When asked about his contact with Marie Costigan, Mr Monahan said that he had contacted her "on Friday" (presumably the Friday before he gave his evidence) to find out when she had started at the AMC and to confirm his recollection that they had not had any conversations concerning the accused. He said that he contacted Marie Costigan because he deals with "officers" at the AMC "hundreds of time a day", and he wanted to get his facts right before he gave evidence. Mr Monahan said that he was confident that he had not discussed the accused with Marie Costigan. Mr Monahan also testified that he had not seen any assessment of the accused by a psychologist or psychiatrist at the time he spoke to the accused on 3 and 13 March 2015.

14. In his evidence at the sentence hearing, the accused only touched briefly on his conversations with Mr Monahan. He said that he "vaguely remembered" being assessed in terms of his "mental health and suicidal concerns" on his induction into the AMC. He agreed that he was then housed in the CSU "for some weeks". He denied saying to Mr Monahan on 3 March 2015 "That's like them wanting to say that I was insane. Fuck that, I wanted to hurt the bitch". He also denied saying, in the context of completing the application for Legal Aid, "Guilty. I wanted to hurt the bitch. I knew what I was doing so I can only plead guilty".

15. With regards to his conversation with Mr Monahan on 13 March 2015, the accused was asked whether he recalled a conversation where he asked about diminished responsibility or temporary insanity, to which he replied "I don't recall. I don't think I did". He also said that he did not think he said to Mr Monahan "The one where you have used drugs and you're not sure what you've done for a specific amount of time".

16. Dr Sellbom is a psychologist who was retained by the accused's lawyers to provide expert reports on the accused's mental state. He provided reports dated 31 January 2016 and 8 August 2016. In his first report, Dr Sellbom provided a mental health history of the accused. The accused told Dr Sellbom that he had struggled with depression and social anxiety for most of his life. He said that he had often contemplated suicide, but had only attempted it once. This was a reference to an attempt at suicide by taking an overdose of painkillers when the accused was 18 years old. As the accused was born in 1974, this incident would have occurred in 1992 or 1993. He also described an event just prior to Christmas in 2014 when he set out to commit suicide by attaching a hose to the exhaust pipe of his car, presumably with a view to killing himself by carbon monoxide poisoning, which was interrupted by police. The accused described himself as suicidal on the day that he killed Tara Costigan.

17. Dr Sellbom noted that the accused had been seen by a number of psychiatrists and psychologists in the past. He had been prescribed antidepressants and Valium, an anxiolytic. The accused's mother informed Dr Sellbom that the accused had been diagnosed with "manic depression" in Brisbane when he was 32, which would have been around 2006 or 2007. He was, at that time, prescribed an antidepressant (Mirtazapine), but he ceased taking this medication because he could not tolerate the side-effects.

18. Dr Sellbom noted that records indicated that the accused saw Eryn Davies, a psychologist, in 2009. In a referral letter to another psychologist, Dr Bruce Stevens, she reported that the accused presented with "bipolar symptoms" but he did not want to take medication due to the effect it had on his sex drive. She noted that he used Valium as required. Ms Davies noted that the accused reported difficulty controlling anger when not taking Avanza, an antidepressant, and that he would like support with anger management.

19. Mental health records further indicated that the accused was prescribed Valium for panic disorder in 2009. He reported depressed mood, and described himself as a "social retard", that he had a "fucked personality", was anxious and had no friends.

20. The accused's mother told Dr Sellbom that the accused was emotionally traumatised after the breakdown of his relationship with a previous partner, KH, in mid-2013. He became increasingly depressed and frequently talked about suicide. The accused's mother took him to a psychiatrist in Sydney, who concluded that the accused was traumatised and not coping well. Mental health records also showed that the accused saw another psychologist in April 2013, and in November 2013. He sought out counselling due to his relationship breakdown with KH and associated criminal charges. According to psychological test results, he scored in the severe range on depression, anxiety and stress, although his symptoms appeared to alleviate somewhat over the course of the year. He told the psychologist that he was feeling suicidal.

21. In his report dated 31 January 2016, Dr Sellbom said that records from the AMC showed that upon his admission to the AMC on 1 March 2015 the accused was placed on high risk suicide watch. AMC records also stated that the accused "presented as emotionally distressed with disordered thinking and significant suicidal ideation. He was monitored by the mental health team, who documented improvement in his mood and anxiety over the following three weeks".

22. In the same report, Dr Sellbom referred to records of psychological assessments of the accused undertaken in the days following his admission to the AMC. The initial assessment was undertaken by Ms Annie McQualter, a psychologist, on 1 March 2015. She observed that there was "clear evidence of disordered thinking", that the accused was "very emotionally distressed", that his memory appeared intact, but he was having difficulties remembering events from the previous day. The accused was assessed as at high risk of suicide. On 2 March 2015, the accused was seen by Dr Anthony Barker, a psychiatrist. The accused told Dr Barker "I knew what I was doing but couldn't stop. I was in a fucking rage", "I saw her and I ran after her and hit her twice", "All I wanted to be was a fucking dad", and "All I wanted was a fucking family". Dr Sellbom noted that the accused had also expressed themes of injustice due to the victim obtaining a Domestic Violence Order against him, hopelessness and demoralisation about the future, and expressed the hope that another detainee would kill him within a year. Dr Barker did not note any indication of current acute mental illness, but commented on the possibility of underlying depression and anxiety.

23. Dr Sellbom noted the records of the conversations with Mr Monahan, but made no further comment.

24. Dr Sellbom interviewed the accused at the AMC on 10 September 2015, 16 December 2015 and 17 December 2015 for the purposes of preparing his initial report. He described the accused as alert and oriented to time, place and person. His thought and speech processes were logical and coherent, and his concentration and memory appeared intact. He impressed Dr Sellbom as being of at least average intelligence based on his use of vocabulary and reasoning ability. He denied ever experiencing any auditory hallucinations, and did not appear to be responding to internal stimulation during the interview. Although no delusional thought content was observed, he did exhibit significant paranoid ideation that was fixed on previous interpersonal victimisation. The accused told Dr Sellbom that he was depressed, and Dr Sellbom considered the accused's affect to be generally consistent with this report. He stated that the accused became very emotional and was continuously crying when discussing Tara Costigan and what he had done to her. He declined to respond to Dr Sellbom's questions regarding suicidal ideation, as he insinuated that he did not want to be placed in a secure unit for monitoring.

25. As part of the assessment process prior to the first report, Dr Sellbom administered psychological testing to the accused. Having regard to the results of these tests, Dr Sellbom said:

Mr Rappel is likely to be experiencing significant emotional turmoil. He is likely emotionally distressed, and unhappy, and dissatisfied with his life. He is likely experiencing considerable symptoms of depression and anxiety, and is dispositionally prone to experiencing a wide array of negative emotions, including sadness, anxiety, anger, and guilt. He is likely to be stress reactive, worry to an excessive degree, and experience intense levels of anxiety, including potential post-traumatic stress reactions as a result of trauma. Mr Rappel is very likely to be experiencing considerable thoughts about death and suicide, and thus, be at risk for such behaviours... He tends to feel helpless about his circumstances and hopeless regarding the future. He is also likely to feel worthless and exhibit thoughts of inadequacy. Moreover, Mr Rappel unlikely [sic] to experience positive emotions, such as happiness, or be socially engaged....

Mr Rappel tend [sic] to be mistrustful and fears being victimised and hurt by others. He is likely to be guarded in interactions with others and exhibit paranoid ideation.

26. In his initial report, under the heading "Clinical Formulation", Dr Sellbom said:

Mr Rappel has shown evidence for an emotionally dysregulated temperament for most of his life, which has manifested in the expression of depressed mood, anxiety, frustration intolerance, and anger. Relatedly, he has also exhibited a significant tendency towards interpersonal sensitivity and anxiety, which has manifested in an intense fear of negative evaluation, rejection, and humiliation, as well as in adulthood, being victimised and hurt by others.

27. Dr Sellbom expressed the opinion that at the time of killing Tara Costigan the accused was not suffering from a mental impairment such as to entitle him to a defence of mental impairment, however, was suffering from an abnormality of mind that substantially impaired his mental responsibility for killing Tara Costigan. I will, when I come to sentence the accused, have more to say about the opinions expressed by Dr Sellbom. I refer to the opinions expressed by Dr Sellbom, for present purposes, because they may potentially be relevant to the drawing of inferences as to the mental state of the accused at the time he spoke to Mr Monahan.

28. For present purposes, nothing of significance was added by the report of Dr Sellbom of 8 August 2016.

29. After the accused killed Tara Costigan police found him crouched behind his car, in front of Ms Costigan's home, screaming. He took off his singlet and threw it on the ground next to him, and began rocking back and forth. Constable Symon asked him his name, and he replied "Marcus". Constable Syman asked "What's going on Marcus?" and the accused replied "She's in there, she's dead, all I wanted was to get my stuff and she has an AVO on me and my stuff... I killed her with an axe."

30. At about 8.55 pm on 28 February 2015 the accused underwent a forensic procedure at the City Police Station. The conduct of the forensic procedure was both audio and video recorded. I have reviewed the evidence of the conduct of the forensic procedures for the purpose of determining the extent to which it may be relevant to the present application.

31. The accused referred to four matters which he submitted made the evidence of Mr Monahan unreliable:

(a) despite being aware of the importance of the statement allegedly made by the accused, Mr Monahan had destroyed his handwritten notes of the conversations, which were the best evidence of the contents of the conversations;

(b) neither the handwritten notes of the conversations, nor the case notes, were provided to the accused for him to adopt as accurate or to dispute;

(c) Mr Monahan had a potential motive to fabricate the alleged admissions as the victim's aunt was a fellow employee of Mr Monahan at the AMC; and

(d) the initial conversation on 3 March 2015 occurred 72 hours after the offence and in circumstances where there is evidence that the accused was stressed, distressed and psychologically unstable.

32. The onus lies on the accused to demonstrate that, for the purposes of s 90 of the Evidence Act, it would be unfair to him to allow the Crown to use the impugned evidence: EM v The Queen [2007] HCA 46; 232 CLR 67 (EM v The Queen) at [63] per Gleeson CJ and Heydon J. As Mr Monahan was not an "investigating official" for the purposes of the Evidence Act, the protections afforded accused persons with respect to questioning by investigating officials by s 85 of the Evidence Act do not apply. The reliability of admissions made by an accused person is the focus of s 85, as it prohibits the admission into evidence of admissions made to an investigating official unless the circumstances in which the admission is made make it unlikely that the truth of the admission was adversely affected. The matters that a court may taken into account in deciding whether to admit or exclude evidence under s 85 include any relevant characteristic of the accused person including any mental disability to which the person is or appears to be subject: s 85(3) of the Evidence Act. In EM v The Queen, Gummow and Hayne JJ expressed the opinion, at [112], that the reliability of an alleged admission made to an investigating official is not a relevant consideration to the exercise of the discretion under s 90, because it is dealt with by s 85. Questions of reliability, however, were accepted by their Honours as relevant to the exercise of the discretion under s 90 where the admission was said to have been made other than in the course of official questioning.

33. In R v Medcalfe [2002] ACTSC 83 (R v Medcalfe), Higgins J (as his Honour then was) excluded evidence of interviews between an accused and police in the course of a special hearing under s 315 of the Crimes Act 1900 (ACT), the accused having already been found to be unfit to plead. His Honour found that by reason of mental disability the accused did not have the capacity to understand the caution given to him by the police, and that the reliability of his answers was likely to have been affected. His Honour had before him evidence that had been presented to the Mental Health Tribunal at the time the accused was found unfit to plead, and upon which he based his findings. Interestingly, the terms of s 85 of the Evidence Act 1995 (Cth) were not referred to by Higgins J, who based his decision on s 90 of that Act.

34. In R v Jarrett [2012] NSWCCA 81 (R v Jarrett), the New South Wales Court of Criminal Appeal (Blanch J, with whom Basten JA and Hall J agreed) considered an appeal from a decision of a trial judge to exclude admissions of sexual offences made by the respondent to a psychiatrist and other staff at a hospital in Lismore. The trial judge purported to exclude the evidence on the basis that it would be unfair on the accused to use the evidence within the meaning of that term in s 90 of the Evidence Act 1995 (NSW). In upholding the appeal, Blanch J said at [16]-[17]:

Although the trial judge did not refer in his reasons for rejecting the evidence to the case of R v Medcalfe [2002] ACTSC 83 it was a case submitted to the judge as relevant because of the exercise of the power to reject confession evidence under s 90 based on the mental state of the accused. That was a completely different case because the accused had earlier been found unfit to plead and there was psychiatric material detailing his mental condition. It was also a case where the confession was as a result of police questioning and the judge in the ACT Supreme Court formed the view as a result of the medical evidence the accused did not understand the caution and was giving answers he thought would please.

In this case there was no evidence of the mental state of the respondent at the time of the admissions. A bare assertion that he was mentally disordered was not sufficient to conclude it would be unfair to admit the evidence. The doctor was not called to give evidence and it is plain from the hospital notes that the only basis for concluding the respondent was mentally disordered was his concern he might go to gaol as a result of committing the offences and was threatening to commit suicide.

35. What cases such as R v Medcalfe and R v Jarrett demonstrate is that the application of s 90 is likely to be very fact reliant. The ambit of what may constitute unfairness for the purposes of s 90 cannot be described exhaustively: EM v The Queen at [56] and [109].

36. The first basis upon which the accused submitted that it would be unfair to admit the alleged admissions made to Mr Monahan is the failure of Mr Monahan to retain the handwritten notes which he said he made of his conversations with the accused. It is difficult to see how the destruction of those notes enlivens the exercise of the discretion under s 90, as the section is directed towards the question whether the circumstances in which the admission was made make it unfair on the defendant to use the evidence. The subsequent destruction by Mr Monahan of his handwritten notes is not a circumstance in which the admissions were made for the purposes of s 90.

37. In any event, it is likely that the production of the handwritten notes would have added little, if anything, to resolving the main issue raised by the accused, being whether the admissions said to have been made by the accused to Mr Monahan were in fact made. So far as the impugned statements of 3 March 2015 are concerned, the accused submitted these are fabrications on the part of Mr Monahan. If they are fabrications, it would not have been beyond Mr Monahan to have fabricated handwritten notes to support his version of events. Of course, it would have been forensically useful to the accused if the handwritten notes had been produced and contained no reference to the impugned statements, but at the present time that is mere speculation. The unavailability of evidence due to loss or destruction will not ordinarily justify a stay of proceedings on the basis that the accused cannot have a fair trial: R v Roberts [1999] NSWCCA 95; 106 A Crim 67. It is difficult to see how the absence of Mr Monahan's handwritten notes makes it unfair on the accused to allow the Crown to use oral evidence of those admissions. The question which must ultimately be asked is whether an inference should be made that the destruction of the notes is adverse to the credibility of Mr Monahan, but that is not a question which is relevant for the purposes of s 90. Whether the witness is ultimately believed is a separate issue from the application of the discretion under s 90.

38. The destruction of the handwritten notes does not result is any relevant unfairness to the accused.

39. The second basis upon which the accused submitted that I should exercise my discretion under s 90 to exclude evidence of the alleged admissions was the failure of Mr Monahan to provide the handwritten notes to the accused for him to adopt or dispute. This matter also does not enliven the operation of s 90, for the same reason that I gave with regard to the first suggested basis for exclusion above. The failure of Mr Monahan to show his notes to the accused for comment does not result in any unfairness to the accused. The accused may have become aware of the fact that Mr Monahan had recorded the alleged admissions at a slightly earlier date than he ultimately did, but the failure of Mr Monahan to show the accused the notes does not result in any relevant unfairness to the accused.

40. The third basis upon which the accused submitted that the evidence should be excluded is that Mr Monahan is employed with the aunt of the victim at the AMC and may have a motive to fabricate the alleged admissions by the accused. Assuming for present purposes that the impugned admissions were made by the accused, this suggested basis for exclusion is also not a circumstance in which the admission was made, so that the provisions of s 90 are not engaged. In any event, the evidence does not support a finding other than that the relationship between Mr Monahan and Marie Costigan was purely professional, and involved minimal contact between them. I accept the evidence of Mr Monahan concerning the minimal nature of contact between himself and Marie Costigan. The evidence of Mr Monahan concerning his telephone conversation with Marie Costigan before he gave evidence does not suggest collusion. I accept Mr Monahan's evidence that he was concerned to give accurate evidence to this Court, and sought to confirm in that conversation his recollection that he had not discussed the accused with Marie Costigan. If there had been collusion between Mr Monahan and Marie Costigan with a view to fabricating the alleged admissions made in the conversations with Mr Monahan, it is improbable that Mr Monahan would have volunteered in his evidence, as he did, that he had spoken to Marie Costigan by telephone before he gave evidence. If Mr Monahan was prepared to lie about his conversations with the accused, it is improbable that he would be unwilling to lie about his contact with Marie Costigan. This suggested basis for the exclusion of the evidence is, in reality, directed towards the credibility of Mr Monahan and whether he is to be believed. For these reasons I reject the third basis for exclusion of the evidence advanced by the accused.

41. The final basis advanced by the accused for exclusion of the evidence of the alleged admissions was the alleged psychological or emotional state of the accused at the time he spoke to Mr Monahan, particularly on 3 March 2015. The murder of Tara Costigan took place on 28 February 2015, and there is clear evidence that the accused was in a disturbed emotional state shortly before and after he killed Tara Costigan. He was nevertheless able to communicate responsively with police shortly after he killed Tara Costigan, at the time when one would think he was subject to the greatest level of emotional turmoil. There was also nothing in the conduct of the accused during the forensic procedure which suggested emotional or psychological disruption to the extent that his statements could not be relied upon, or that it would be otherwise unfair on the accused to admit statements that he made at that time. There was very little evidence of the accused's emotional or psychological state at the time he spoke to Mr Monahan on either 3 or 13 March 2015. The accused himself did not give evidence of his psychological or emotional state on either occasion, and nor was Mr Monahan cross-examined to suggest that the accused was showing signs of psychological or emotional disturbance at the time he spoke to him. While there were records that the accused was observed to have "disordered thought" at the time of his induction into the AMC, the author of the case note to that effect was not called to give evidence about what she meant by "disordered thought". When the accused was assessed by Dr Barker the next day, there were no reported signs of current acute mental illness. I accept that the emotional or psychological state of the accused at the time he made the alleged admissions (assuming he did make them) is a circumstance in which the admissions were made so as to satisfy that part of the requirement of s 90. On the evidence, however, I am not satisfied as a question of fact that there was anything about the accused's emotional or psychological state at the relevant times which would make it unfair to him to allow those admissions into evidence.

42. It will, of course, still be necessary to determine whether I am satisfied that the admissions were made, but that is an exercise separate to determining whether the evidence should be excluded in the exercise of the s 90 discretion.

43. I am not satisfied that the evidence of Mr Monahan should be excluded under s 90 of the Evidence Act.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.