R v RG

PARTIES : Regina RG

COUNSEL : L Gray (Crown) M Austin (Accused)

SOLICITORS : S Kavanagh (Crown) Walker Smith (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT - Objection to evidence 1 BUDDIN J: Before the jury was empanelled, objection was taken on behalf of the accused to part of a conversation which she had with police officers. I overruled the objection. These are my reasons for so ruling. 2 In order to put the material to which objection was taken into context, it will be necessary to refer to some background material. The accused (who is now aged 45) is charged with the murder of her 7 month-old baby daughter, on 31 October 2004 at Wingham. The accused will be referred to hereafter as RG, and the deceased as RM. The accused and the father of the deceased, whom I shall refer to as CM to further ensure that the identity of the deceased is protected, commenced a relationship in January 2003. CM is more than 20 years younger than the accused. 3 In around November 2003, the accused and CM moved into a rented farm property at 49 Brown's Close, Wingham. It is part of a 350-acre dairy farm with the Manning River forming its western boundary. The house which they occupied was approximately 450 metres from the river. In due course the relationship deteriorated and in July 2004, when the deceased was 3 months old, CM moved out of the premises. He nevertheless remained in almost daily contact with the accused and his daughter. Indeed he spoke to the accused the day before his daughter died and during the course of their conversation the prospects of a reconciliation were discussed. 4 The evidence before me reveals that the deceased had a normal birth. She was in good health at the time of her death and was well looked after by the accused, in whose constant care she remained. She was reported to be at a normal stage of development and although she could lift her body up when lying on her stomach by raising her arms, she was unable to sit unsupported. Nor she was able to crawl. In other words, she was incapable of independent movement. 5 At about 1.30 pm on 31 October 2004, the deceased's body was located by two fishermen who were travelling up the Manning River in an aluminium boat. She was floating face down in the river about 10-15 metres from the bank. The soles of her feet were wrinkled, which suggested that she had been in the water for some time. The two fishermen scanned both the river and its banks but were unable, despite having clear views, to see or hear anyone. They returned to shore and contacted the police. 6 Senior Constable Oliver arrived at the scene at 2.10 pm. The deceased was handed to him. She was cold to the touch and it was apparent that she was dead. All attempts by ambulance officers to resuscitate the baby failed. She was transported to Manning Base Hospital in Taree where later that afternoon she was pronounced dead. A post mortem conducted the following day revealed that the direct cause of her death was consistent with her having drowned. 7 Senior Constable Oliver sought additional police assistance. He then observed the accused, who was naked, struggling to swim in the river. She was screaming hysterically and requesting help. She was assisted ashore. She appeared to Senior Constable Oliver to be in a state of shock. She said to him, "I am a bad mother, where is my baby?" 8 Earlier in the day, at approximately 11-11.30 am, three different men had been travelling in a boat in that same part of the river, where they observed a naked woman sitting on the riverbank. As the boat approached where the woman was sitting, she stood up and walked off with a dog. It is reasonable to infer from all the circumstances, including the description of the woman and her dog and the direction in which she went, that it was the accused that the men had observed. 9 Two female police officers, Constables Howard and Couch, then arrived at the scene. After the deceased was placed in the ambulance, they observed that the accused was shaking and that she was distressed. The officers then had a conversation with the accused, which contains the material to which objection was taken. It is convenient to set out below the relevant parts of the conversation, which appear in the statement of Constable Howard. The portion to which objection was taken is underlined. The accused was pushing Constable Couch towards the ambulance still saying, "My baby, where is my baby." I held the accused with Constable Couch to stop her from getting to the ambulance. Constable Couch said, "The ambulance are with her, they will take care of her, just wait here." The accused said, "I want my baby." Constable Couch said, "What is your name?" The accused said, "I'm Jesus, I've done some bad things, I'm a bad mother, I've drowned my baby."

Constable Couch said, "What is your babies [sic] name."

Constable Couch and I continued to hold onto the accused to prevent her from getting in the way of the ambulance officers. At the time we were both trying to reassure the accused saying things like, "Just wait, stay here with us, let the ambulance do their job."

One of the ambulance officers then handed Constable Couch and I a blanket, which we placed around the accused. The ambulance then left the location with the baby. Constable Couch and I sat the accused down on the ground at the side of the road. The accused settled down and Constable Couch and I were able to let go of her.

The accused was pointing across the river towards a hill on the Tinonee side of the bridge.

The accused said, "Yes, I'm a single mum, I live alone."

The accused said, "Yes, a daughter in Sydney. She is twenty four."

The accused said, "4 Mortimer Street, Wingham. I should go to him now, I want to go to my baby."

The accused said, "You have to go and see [CM], it is imperative you go and see [CM]."

Constable Couch said, "The other police will speak to him, don't worry." 10 Shortly thereafter the accused indicated that she no longer wished to speak to police. She was also taken to the Manning Base Hospital. When the accused arrived there a number of hospital staff endeavoured to speak with her but she did not respond. It would appear that she had by then lapsed into what was described as a "catatonic state". It is unnecessary for present purposes to descend into detail about her mental state during this period. It will suffice to observe that she was diagnosed by medical practitioners as being mentally ill and as a result was detained as an involuntary patient in the mental health unit of the hospital. Her conduct was quite bizarre and was consistent with that of a person seriously affected by a mental disorder. It seems that she remained unresponsive to any attempts to engage her in conversation. She was placed on anti-psychotic medication for her illness. 11 The accused was then transferred to the James Fletcher Hospital in Newcastle on 1 November as an involuntary patient. She remained there until 8 November, at which time the view was formed that she was no longer suffering from a mental illness. She was then released into police custody. On 9 November police sought to interview the accused but she declined to be interviewed. 12 Dr Olav Nielssen, a forensic psychiatrist, examined the accused at the request of the Crown. In his report he expressed the opinion: [O]n the balance of probabilities [RG] was acutely mentally ill at the time of her daughter's death and has the defence of mental illness available to her. I believe the illness resulted in an acute state of disorganised thinking and behaviour during which she was not aware of the nature and quality of her actions, or that her actions were wrong. 13 Dr Nielssen formed his opinion in part because of the accused's history, which revealed that she had suffered from a major depressive illness since 1996. He also expressed the view that she was suffering from "a psychotic illness (either a relapsing schizophrenia-like illness or a form of bipolar disorder with periods of elevated mood and severe depression)". The accused's history also included an occasion on which she had been admitted to the psychiatric ward of Hornsby Hospital following an attempt to take her own life. Apart from her conduct at the time of her baby's death, there were other occasions shortly before her death which revealed either extremely odd conduct or remarks on the part of the accused. Both CM and her adult daughter, whom I shall refer to as LG, furnished details of those episodes. 14 The accused told Dr Nielssen that she had no recall of the events leading up to her daughter's death. She told him that she could not recall having removed either her own clothes or those of the deceased. She told Dr Westmore, who prepared a report about her at the request of her solicitors, that she did not know what she had meant when she had told police that she was Jesus. Nor could she explain to him how she had come to be severely sunburnt as she indeed was when police discovered her. 15 The accused also told Dr Nielssen that she could not recall having discussed the events leading up to her daughter's death with staff at James Fletcher Hospital on 2 November 2004. According to the statement of facts with which I was furnished for the purpose of deciding the application, she told medical staff at that hospital that she had taken RM to the riverbank at about 6.30 am on the day in question. She had then sat facing the water, at a distance of about 1-1.5 metres from the water's edge, with RM between her legs. She told the doctors that the next thing she recollected was finding herself lying totally naked on the ground on her side, with the front and back of her body sunburnt. She said that she saw the baby floating towards a bridge, as a result of which she ran along the riverbank and onto the bridge. She said that she then jumped from the bridge in an attempt to save RM, following which she was pulled from the river by police. This account is somewhat at odds with the observations of police, to which reference was made earlier. 16 Subsequent police investigations found no evidence of any clothing or footprints or anything else that might suggest that any other person had been on the riverbank at the relevant time. Police also examined the house in which the accused had been living. They found a stroller on the porch. The inside of the house was very tidy but a pile of woman's clothing and a white cotton singlet were discovered lying on a chair. 17 There are two bases upon which objection is taken to the evidence in question. The first is that the utterances of the accused do not constitute an admission or admissions and the second basis is that, even if they do amount to an admission or admissions, they ought to be excluded pursuant to either s 90 or s 137 of the Evidence Act. 18 It is convenient to deal first with the submission that the utterances do not constitute an admission or admissions. The argument, as I understand it, is that the accused's convoluted response to the simple question enquiring as to her name was inherently ambiguous and accordingly could not amount to an admission against interest, as defined in the Evidence Act. It followed, so it was submitted, that it did not satisfy the test of relevance within the meaning of s 55 of the Evidence Act and thus must be inadmissible: s 56(2) of the Evidence Act. 19 Mr Austin was unable to point to any authority which provided direct support for his submission. He did however rely upon the remarks of O'Loughlin J in R v Khalil (1987) 32 A Crim R 126, in which his Honour said that "[t]here is no doubt that where a confession is equivocal, the court may quash a conviction founded solely thereon" (at 140). See also R v Geesing (1985) 16 A Crim R 90. Of course, the principles which an appellate court is bound to apply are quite different from the test which a trial judge must consider in determining the admissibility of evidence. 20 In any event, the present submission falls to be considered in light of s 55(1) of the Evidence Act, which is in the following terms:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 21 In R v Le [2000] NSWCCA 49, Sully J observed: In considering whether [the] evidence was admissible in terms of s.55 of the Evidence Act , it is in my opinion important to keep clearly in mind a distinction between the question whether a particular piece of evidence is probative, and therefore admissible at all; and the very different question of the weight fairly to be given to that evidence after it has been admitted properly.

It is to be observed that s.55 speaks of a rational effect that is brought about "directly or indirectly" . This is very broad language, and it suggests, in my opinion, a wide rather than a narrow focus to the inquiry whether a proffered piece of evidence has the rational potential which s.55 requires. (at pars 18-19) 22 Mr Odgers in his text "Uniform Evidence Law" (6th ed, Lawbook Co 2004) sets out the Australian Law Reform Commission's rationale for the proposal on which the provision is based: The definition requires a minimum logical connection between the evidence and the "fact in issue". In terms of probability, relevant evidence need not render a "fact in issue" probable, or "sufficiently probable" - it is enough if it only makes the fact in issue more probable or less probable than it would without the evidence - ie it "affects the probability". The definition requires the judge to ask "could" the evidence, if accepted, affect the probabilities. Thus, where a judge is in doubt whether a logical connection exists between a fact asserted by evidence and a "fact in issue", he should hold that the evidence is relevant if satisfied that a reasonable jury could properly find such a logical connection. (at 162-163) 23 Mr Austin submitted that the claim by the accused that "I drowned my baby" was equivocal because it was open to a number of interpretations. He submitted that "the statement could only be said at its highest to be a statement that could be an admission to murder not that it is unambiguously so". He went on to submit that "it must be unambiguous in terms of the issues to be determined by the jury and that it is unambiguously saying 'I committed the murder of the child through drowning' in this case". The short answer to the submission, cast in that fashion, is that it posits a much more stringent test of relevance than the terms of s 55 itself contemplate. 24 I pause to observe that an argument based upon s 137, namely that the probative value of the evidence was very low and would accordingly be outweighed by the danger of unfair prejudice to the accused, could have been advanced at this stage of the application, in light of the asserted ambiguity of the accused's responses. That is not however how Mr Austin advanced the argument and I pass over it.

25 Given the nature of the challenge to the evidence in question, it is necessary to identify the elements which the Crown must establish in order to prove the offence charged against the accused or the statutory alternative of manslaughter - in other words, the fact or facts in issue in the proceedings. It is common ground that the deceased died as a result of drowning. I was informed by Mr Austin, however, that issue would be taken in respect of both the physical and mental elements of the offence. In other words, the Crown would have to establish both that the deceased met her death at the hands of the accused and that the accused had the requisite state of mind when she caused the death. If both these matters were established, then a question would also arise as to whether the accused had been suffering from a "disease of the mind" such as would entitle her to a "defence" of "mental illness" or a "partial defence" of "substantial impairment". 26 As no independent witness observed the act or acts which led to RM's death, then in the absence of the impugned material, the Crown's case so far as both the physical and mental elements are concerned depends upon the drawing of inferences. The combination of factors to which I earlier referred in recounting the factual background to the matter point, however, almost irresistibly to the fact that the deceased died at the hands of the accused. The deceased was taken to the banks of the river by her mother and, as I have said, was incapable of independent movement. She drowned in the river. Both of them were naked and there was nothing to suggest that their clothes had been taken off at the river. There is also nothing to indicate that any third party played any part in the deceased being drowned. The statement by the accused that she drowned her baby is quite capable, in my view, of constituting an admission by her as to the physical element which the Crown has to establish. Indeed, it is powerful evidence to that effect and should be admitted upon that basis alone. 27 Mr Austin's principal contention was, as I have noted, that the accused's claim that she had drowned her baby was equivocal upon the question of the mental element which the Crown has to establish. It was submitted that it could "be interpreted as an outburst by a distraught mother", in the context of attempts being made to resuscitate her child. To that scenario should be added, he submitted, the fact that she was mentally ill at the time. In other words, she may, in the circumstances which confronted her, have simply mistakenly and wrongly assumed legal responsibility for her daughter's death. 28 It may be observed at once that there is no evidentiary foundation in the material before me to support such a hypothesis. Nor did the accused at any stage make such a suggestion to anyone to whom she spoke about the events which culminated in her daughter's death. Neither did she give evidence upon the voir dire. Indeed, no oral evidence was adduced either on her behalf or on the part of the Crown. Thus the submission does not rise above being pure speculation. 29 When the utterance about drowning her baby is considered in the context of the other objective features of the case to which I have referred, it is, in my view, quite capable of also amounting to an admission by the accused as to the mental element which the Crown must establish. To put it another way, it satisfies the test of relevance within the meaning of s 55 of the Evidence Act. It is also to be recalled that the accused volunteered that she "had done some bad things" and that she was a "bad mother", which may serve to strengthen the inference that she knew that she had performed an act that was criminal in nature. It is important to also bear in mind that the Crown's case is that a verdict of manslaughter is also available. The utterance by the accused is certainly quite capable, in my view, of constituting an admission to the lesser mental element that is required to satisfy that offence.

30 Before leaving this aspect of the matter I should indicate that I do not consider that much can be made of the fact that the accused was suffering from a mental illness at the time of the offence, at least not in the absence of expert evidence concerning the impact which her illness may have had upon the utterances which she made (and in particular upon their reliability). Mr Austin declined the opportunity which I extended to him to obtain such evidence. In those circumstances I am bound to consider that aspect of the matter upon the state of the evidence before me and in the light of the established principles. 31 In R v Parker (1990) 19 NSWLR 177, Gleeson CJ said: 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) 108 CLR 591. It does not, however, necessarily make evidence of the confession inadmissible: Sinclair v The King (1946) 73 CLR 316 and R v Starecki [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. (at 183) 32 It has been held that those principles are applicable to the relevant provisions of the Evidence Act: R v Donnelly (1997) 96 A Crim R 432. An extended review of the relevant principles was undertaken by the South Australian Court of Criminal Appeal in R v Pfitzner (1996) 85 A Crim R 120. See also R v Helmhout (2000) 112 A Crim R 10. 33 The essence of Mr Austin's submission was that the accused's utterances were likely, by reason of her mental illness, to be unreliable. As I understand the authorities, that would not of itself require the exclusion of the evidence: see, generally, Morris v The Queen (1987) 163 CLR 454. This submission was advanced, as I understand it, both in respect of the argument concerning admissibility and in relation to the argument which relied upon s 90, which permits a court to refuse to admit evidence of an admission if to do so would be unfair to the accused. 34 In Swaffield & Pavic v The Queen (1998) 192 CLR 159, Toohey, Gaudron and Gummow JJ said that "[w]hile unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone" (at 189). As I have said, there is no expert evidence upon this question. In any event, there is no reason to doubt the reliability of the accused's utterance in which she claimed responsibility for drowning her daughter because, with the exception of her claim to be Jesus, every other piece of information which she provided to police in the rest of her conversation with them was demonstrably correct and thus reliable.

35 Finally, the accused's reply and particularly the statement that "I'm Jesus" is clearly relevant to the issue of her mental condition and is also admissible in respect of that issue. Indeed, her state of mind as evidenced in those and other utterances may well explain how and why she performed the act or acts which caused her daughter's tragic death. 36 Mr Austin expressly acknowledged that no challenge could be made pursuant to s 85 of the Evidence Act, given that the accused's statements were not made "in the course of official questioning". He did, as I have said, also rely upon the operation of s 137 of the Act. I have already dealt with certain aspects of this submission. In oral argument, Mr Austin conceded that if I was to conclude that the accused's utterance was capable of constituting an admission as to the mental element of the offence, then its probative value would be very high and the operation of s 137 would not be attracted.

37 In essence, the submission was confined to a contention that if the only basis upon which the material was held to be admissible was because it went to the issue of the accused's mental illness, then the utterance about her drowning her baby should be excluded because the jury could misuse it as an admission in respect of the other elements of the offence or offences which the Crown had to prove. This submission must fail in view of my having ruled that the material, including the claim by the accused that she drowned her daughter, is admissible in respect of those other elements (ie in addition to the issue concerning the accused's mental illness). 38 In the final analysis, the material to which objection is taken in my view raises a quintessential jury question and it is a matter for them to determine what weight should be attributed to it. It was for the aforementioned reasons that I overruled the objection and permitted the Crown to lead the evidence in question.

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