Solicitors:
Office of the Director Public Prosecutions NSW (Crown)
Maguire & McInerney (Accused)
File Number(s): 2016/7801
[2]
Judgment
HIS HONOUR: Kevin James Russell, the accused, is charged with the murder of Allan Dempsey, the deceased. The alleged murder occurred at or about 7:22 pm on 8 January 2016 and death was occasioned by a single stab wound to the back.
There is, allegedly, an eyewitness to the stabbing. The accused is said to have been very drunk at the time that it is alleged he stabbed the deceased.
A trial by jury is due to commence on Thursday, 15 March 2018 and this judgment deals with objections to evidence that is sought to be adduced by the Crown in the proceedings. The evidence to which objection is taken falls into a number of categories.
First, there is evidence arising from comments or statements made by the accused to Police who arrested him. It is said that the accused made a number of admissions to the effect that he, had stabbed the deceased in the back.
The objection to that material is taken faintly. The statements by the accused did not arise from any questioning by Police. Rather, it is said the accused was acting belligerently towards Police and made the admission of stabbing the deceased in the course of those comments.
In the scheme of a trial, in ordinary circumstances, an admission to the act of stabbing would be crucial. However, in this trial, it seems no issue is taken (at least at this stage informally) that the accused stabbed the deceased. Rather, the trial turns on whether, amongst other things, the accused could form an intent of the kind that is required for the Crown to prove murder in his severe state of inebriation.
Nevertheless, the material is relevant and highly probative, even if it were confined to evidence that the accused was aware of that which he had done at the time, or shortly after the time, that he did it.
The second aspect of the evidence to which objection is taken is again admissions allegedly made by the accused to Police at Wollongong Police Station while the accused was in a corridor, being escorted to and from the interview room. The statements made on the way to the interview room are unsolicited.
These admissions or statements on return from the interview room, commence with the accused enquiring as to whether the victim had died from injuries sustained. After the Police Officer informed the accused that he is unaware of the whether the victim had died, the accused is said to have made a statement, the effect of which would be probative of an intention to kill or cause grievous bodily harm at the time of the infliction of the injuries.
Once more, since it goes to intention, the evidence would be highly probative. It is also relevant to the issue of whether the accused was aware, at that time, that he had inflicted injuries on the victim.
The third piece of evidence to which objection is taken relates to a forensic procedure in which a Senior Police Officer ordered, in the absence of consent, for photographs to be taken and a swab to be taken, of blood or a substance that appeared to be blood, on the hands of the accused. The blood on the hands of the accused did not emanate from any injury on the accused.
As a consequence of the presence of substance that seemed to be blood on the accused's hands, Police undertook the unusual step of handcuffing the accused to the rear and covering his hands with evidence bags in order to ensure that the blood was not wiped off, washed off or otherwise contaminated or destroyed. The forensic procedure occurred, notwithstanding the absence of consent of the accused, and the result of the forensic procedure was that the blood on the hands of the accused was the blood of the deceased.
In accordance with appropriate procedure, the forensic procedure was recorded by video and sound recording equipment. During the course of the forensic procedure, the accused made further comments to the effect that he, the accused, had stabbed the deceased. Initially, the accused made the comment that "Yes, I know what I did". To that comment, one of the Police Officers engaged in the forensic procedure, asked the accused "What do you mean by that?" to which the accused said: "Yeah, I stabbed him". That conversation occurred at about 8:28 pm on the evening of 8 January 2016.
The next aspect of the evidence to which objection is taken is a recording in which the accused was interviewed by the officer in charge of the investigation, Detective Senior Constable Liam Watson, in the company of Detective Senior Constable Simpson. This recording (Ex D on the Voir Dire) consists of video recording obtained from the Police CCTV camera and sound recording, that is matched, or purportedly matched, to the CCTV footage obtained by Detective Senior Constable Watson on his mobile telephone.
It is not an "ERISP" in the sense of a formal Electronic Recorded Interview of Suspected Person, conducted in an interview room on timed equipment, which is constructed in a way that renders it difficult, at least, to tamper with the recording. The interview, Ex D on the Voir Dire, occurred in the dock or holding room at Wollongong Police Station.
The statements alleged to have been made during the course of the interview relate to admissions of the infliction of the wound upon the deceased by the accused and comments as to the "motive" or circumstance in which that assault was said to have occurred.
The next evidence to which objection is taken is evidence of Tanya Dunn, who attests to statements by the accused, some time in September 2015 and on a later occasion, but well before the date of the alleged murder, that the accused would kill the deceased.
Lastly, there is evidence from William Cooley that in a conversation, again some time much earlier than the date of the alleged offence, the accused the expressed an intention in or to the same effect as that to which Ms Dunn attests.
[3]
Legislative and procedural requirements
Largely the objections are taken under the rubric of s 137 of the Evidence Act 1995 and, to the extent applicable, under s 138 of the Evidence Act. On the face of the material adduced, and the objections taken to the material, the provisions of ss 84, 85, 86, 137 and 138 of the Evidence Act are relevant. Those provisions are in the following terms:
"84 Exclusion of admissions influenced by violence and certain other conduct
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or
(b) a threat of conduct of that kind.
(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
85 Criminal proceedings: reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(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; or
(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Note: Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(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.
86 Exclusion of records of oral questioning
(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.
(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.
(3) The acknowledgment must be made by signing, initialling or otherwise marking the document.
(4) In this section:
"document" does not include:
(a) a sound recording, or a transcript of a sound recording; or
(b) a recording of visual images and sounds, or a transcript of the sounds so recorded.
…
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
138 Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1),it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986."
Further, it is necessary to set out certain procedural requirements and provisions relevant to the process to be adopted by Police. Those procedures come from the Crimes (Forensic Procedures) Act 2000 ("Forensic Procedures Act") and the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA").
Relevantly, the Forensic Procedures Act defines an "incapable person" as an adult who is "incapable of understanding the general nature and effect of a forensic procedure, or … incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out".
Section 17 of the Forensic Procedures Act allows a Senior Police Officer (being a person of the rank of Sergeant or above) to authorise another to carry out a non-intimate forensic procedure on a person who has not consented to the forensic procedure: s 17(1) of the Forensic Procedures Act. However, subs 17(2) of the Forensic Procedures Act denies the capacity of a Senior Police Officer to authorise such a forensic procedure on a suspect who is an incapable person, as defined above.
Section 82 of the Forensic Procedures Act provides that where there has been a breach of any of the provisions of the Act, relating to procedures, including consent or appropriate orders, or a failure to comply with such procedures, a forensic procedure carried out on a person is not admissible in any proceeding against the person: s 82(1) of the Forensic Procedures Act.
Nevertheless, by the same subs 82(4) of the Forensic Procedures Act, the aforesaid prohibition on admissibility is qualified by non-objection to the admission of the evidence, or if the court is of the opinion that "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions"; or the breach or failure to comply arises out of a mistaken but reasonable belief as to the age of the child (the last mentioned provision is irrelevant to the current proceedings).
The provisions of LEPRA that are relevant are, generally, contained in Pt 9 of the Act, which commences at s 109. Before dealing with the provisions of the Act, it should be noted that the status of the accused at Wollongong Police Station was that he was under arrest and was not, as a consequence, a "protected suspect" within the meaning of that term in s 110 of LEPRA.
Section 122 of LEPRA requires a person detained under Pt 9 (a "detained person") to be informed, both orally and in writing, as soon as practicable after detention, of a caution that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and giving the person a summary of the provisions of the Part in the form prescribed by the Regulations. Further s 123 of LEPRA requires the custody manager, not only to caution the detained person and provide them with a summary of the provision, but also to inform the detained person, again both orally and in writing, that the person may communicate or attempt to communicate with a friend or independent person, or with an Australian legal practitioner of the person's choice, and provide the detained person with reasonable facilities, if so requested, to enable such communication to be effected. Until such steps are implemented, the custody manager must defer for a reasonable period any investigation procedure relating to the person.
The Regulations made pursuant to LEPRA ("LEPRA Regulations") define a vulnerable person to include persons who are of Aboriginal descent (reg 28) and require the custody manager for a detained person who is a vulnerable person to assist the person in exercising the person's rights under Pt 9 of LEPRA, including any right to make a telephone call to a legal practitioner (reg 29).
The process in relation to detained persons of Aboriginal descent is that Police, in particular the custody manager, are required to contact the Aboriginal Legal Service (ALS) and also a support person (LEPRA Regulations, cl 37). Form 31 of the LEPRA Regulations is a prescribed summary of Pt 9 for use by custody managers in informing detained persons of their rights and Sch 2 to the LEPRA Regulations are specific guidelines for custody managers including, in the case of an Aboriginal person or Torres Strait Islander, ensuring that a person placed in the cells is accompanied by another Aboriginal person and is not otherwise placed alone in a cell. That last mentioned provision arises, specifically, from the recommendations arising from the Royal Commission into Aboriginal Deaths in Custody.
[4]
Short Facts
A caution was issued by Police in relation to the statements made by the accused at the arrest location but none of the statements are the subject of any recording as prescribed. That is to be expected. The statements were made in an unsolicited manner and not during the course of any questioning or investigative procedure.
At the time of the alleged incident, the accused was, as earlier stated, extremely intoxicated. One of the major issues in this trial, if not the only issue, is whether the accused was so inebriated as to be unable to form an intention, such that the inferences that would otherwise arise from the conduct as to an intent (at least, to inflict grievous bodily harm) do not arise and the Crown has, therefore, not proved murder.
When the accused arrived at the Police Station, the custody manager, Sergeant Probst, who gave evidence in these proceedings on the Voir Dire, assessed the accused as being too drunk to be able to understand or give instructions on the issues associated with the Pt 9 procedures. The Pt 9 procedures were therefore not followed at that time.
The consequence of the foregoing is that the statements made by the accused in the corridor (again unsolicited), were made in circumstances where no warnings had been given and no procedures had been followed in respect to a vulnerable person such as the accused.
When appropriate warnings and procedures were sought to be undertaken for the purpose of the forensic procedure associated with the swab of the victim's blood, the accused was belligerent and drunk and continued to speak over the Police Officer who was seeking to provide the material prescribed by the Forensic Procedures Act.
The Pt 9 procedures and contact with the ALS was not effected until after the recorded interview in Ex D on the Voir Dire. Therefore, again, the interview occurred in circumstances where the procedures for a vulnerable person had not been carried out.
Further, it is clear from the CCTV footage recorded on Ex D on the Voir Dire and the sound recording matched thereto that the accused was asleep and woken by the Detective for the purpose of the questions that were asked. On being woken, the accused was noticeably groggy and, notwithstanding his answers, clearly did not comprehend all that he was being told.
For example, the accused had been told that he was now charged with murder. That was one of the first pieces of information that the Detectives told him.
Notwithstanding that information, the accused shortly thereafter asked if the victim was dead. One does not need any training beyond ordinary common experience and understanding to understand that a murder charge relates to the victim being dead. Yet, the information, provided to the accused that he had been charged with murder did not allow the accused to comprehend that the victim was, necessarily, dead.
The transcript of the recording is in evidence as part of Ex A on the Voir Dire and I do not recite the transcript. It is clear that the Detectives in question cautioned the accused that he did not have to say anything, and anything that he did say would be recorded and may be used in evidence against him.
I also make it clear that I make no criticism of the custody manager for deferring the Pt 9 process until the accused had sobered up sufficiently to be able to understand it. The process prescribed by the legislature is a process that is intended to allow an accused person to understand the rights afforded; to make conscious decisions as to whether a support person will be utilised; to receive and understand advice from a legal representative; and to decide whether to follow that advice.
Until such time as a person, who was in the physical condition of the accused, is sufficiently recovered to be able to carry out those functions, a custody manager would not be carrying out the duties prescribed of the custody manager adequately, appropriately or properly. If all that was done was that information was conveyed to a person who was not in a state to be able to utilise that information and act upon it, then the requirements of Pt 9 would not be satisfied.
[5]
Consideration
The first issue with which the Court will deal is the issue associated with the admissibility of the results of the forensic procedure. The Court is concerned that the proper procedures for the obtaining of a forensic procedure were not followed. I do not cast blame on the Police Officers.
In this case, the evidence that was sought to be obtained, was evidence that could easily be destroyed or contaminated. There was a significant degree of urgency required in obtaining the swab. Further, as explained in oral evidence, the accused was handcuffed to the rear, with his hands "bagged" so as to avoid contamination of the blood on his hands.
As a consequence of that procedure, both the safety and welfare of the accused was significantly affected by the steps taken to avoid destruction or contamination of the evidence. The sooner that the swab of the blood could be taken, the better for everyone.
Nevertheless, given the assessment of the custody manager on the accused's arrival at the Police Station that the accused was too intoxicated to understand the Pt 9 procedures, the accused was also more likely than not incapable of understanding the general nature and effect of the forensic procedure or, at least, more likely than not incapable of indicating whether he consented or did not consent to the procedure being carried out. He certainly purported to refuse consent and at a later time to consent.
As such, the accused was an "incapable person" within the meaning of s 3 of the Forensic Procedures Act. Because the accused was, more likely than not, an incapable person, Pt 4 of the Forensic Procedures Act, and in particular s 17(2)(b), did not authorise the carrying out of a non-intimate forensic procedure by order of a Senior Police Officer under s 18 of the aforesaid Act.
There can be no doubt that the Senior Police Officer was satisfied of those matters considered relevant to the process and prescribed by s 20 of the Forensic Procedures Act. Nevertheless, those provisions do not apply to an incapable person.
As a consequence, it was necessary for the Police to obtain an order of a Magistrate under s 24 of the Forensic Procedures Act. If a Magistrate cannot be found then, pursuant to the terms of s 32, an authorised officer being a Magistrate or Registrar of the Local Court or an employee of the Attorney General's Department authorised for that purpose, or the holder of a specified office can make an interim order. In the circumstances of urgency in this matter, such an order can be made by telephone and, if the interim order is then made, the swab would be taken, but not analysed (s 38 of the Forensic Procedures Act) until an order is made by a Magistrate under s 24 and s 26 of the Forensic Procedures Act.
Section 82 of the Forensic Procedures Act applies in circumstances where there has been a breach of, or failure to comply with, the provisions of the Act. By s 82(4), evidence obtained in breach of the procedures is not admissible in any proceedings, unless the Court is of the opinion that "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act".
I do not take the view that the persons conducting the forensic procedure deliberately and knowingly failed to abide by the procedures prescribed. It seems that the course undertaken was one of expediency, in which it was assumed, firstly, that there was no consent and, secondly, that the Senior Police Officer was able to authorise the procedure in the absence of consent. It does not appear that anyone had turned their minds to whether the accused was an "incapable person" as prescribed.
In circumstances where the fact of the stabbing is otherwise not put in issue and is the subject of eyewitness evidence, it can be said that the forensic procedure results do not have great probative value. On the other hand, they also cause no prejudice and certainly no unfair prejudice.
Given the absence of any deliberate, or even reckless, failure to abide by the procedures, it seems to me that the desirability of admitting the evidence to confirm the presence of the accused at the crime scene and the circumstance that the blood of the deceased was on the accused's hands, outweighs the undesirability of not admitting the evidence because of the failure to proceed in accordance with the prescribed process. In those circumstances, I allow in the forensic procedure and the results thereof.
However, the Court distinguishes, and treats differently the forensic procedure taken under the Forensic Procedures Act, and the alleged admissions made during the course of the procedure. Material obtained "in connection with" the forensic procedure is governed by the same procedural requirements. Thus, the statements made by the accused during the procedure and recorded on the video are to be dealt with, at least in part, under the same provisions as the results of the test.
Further, the statements are also governed by the provisions of Pt 9 of LEPRA. It is clear from the overall evidence that the accused did not make any statements once he was sufficiently sober (or less inebriated) to take advice from the ALS, which advice, as is usual (see Ex 1 on the Voir Dire), was not to make any statements.
The failure of the Police, generally, to accord this vulnerable person the prescribed protections afforded him by the Legislature, largely as a result of past problems associated with the lack of such procedures, may have caused the accused, either because he did not receive such advice or was too drunk to understand that which was proceeding, to make statements he would not otherwise have made.
It is to be recalled that at least one of the purposes of the procedures that have been prescribed is to address the vulnerability of Aboriginal persons when in custody. Another purpose of the procedures, unrelated to the vulnerability of the detained person, is to overcome the issues associated with the history of "verbals" to which the Wood Royal Commission referred and which, to some extent, was addressed by the High Court in Driscoll v the Queen (1977) 137 CLR 517; [1977] HCA 43. In the words of Gibbs J (as His Honour then was) at CLR 539 in referring to a jury's task in deciding whether an oral confession that has been denied has, in fact, been made:
"It is very common for an accused person to deny that he made an oral confession which police witnesses swear that he made. The accused has an obvious motive to claim that police testimony of this kind is false. On the other hand it would be unreal to imagine that every police officer in every case is too scrupulous to succumb to the temptation to attempt to secure the conviction of a person whom he believes to be guilty by saying that he has confessed to the crime with which he is charged when in fact he has not done so. In some cases the evidence that an oral confession was made will be the only, or the vital, evidence against the accused. It is of special importance that a jury which has to decide such a question should have before it evidence of all facts which tend to prove or disprove the making of the alleged confession. The fact that a police officer has attempted to prevent a solicitor from getting in touch with a client who is held for questioning, and has refused to allow the solicitor to be present when the questions are asked, is relevant to the question whether the admissions, alleged by the police to have been made in the course of the interrogation, were in fact made. It is not of course conclusive."
These comments were expressly adopted by Mason, Jacobs and Murphy JJ and formed the rationale of the majority of the High Court.
In circumstances where the Legislature has deliberately prescribed restrictions on the obtaining of an admission or confessions, it would be very easy to circumvent those provisions by unscrupulous Police Officers inventing unsolicited comments by an accused, which prove the accused's guilt. I do not suggest, in the foregoing comment, that any of the Police Officers in these proceedings or involved in the investigation were "unscrupulous".
Nevertheless, adherence to the legislatively required procedures is extremely important. The notion that a court would easily admit purportedly unsolicited comments from an accused that have been made in the absence of the protections prescribed by the Legislature might well encourage those that are unscrupulous to use that method to circumvent the legislatively prescribed procedures. This is particularly so after the Police have commenced their investigation process and, possibly, not obtained information as inculpatory as they would have desired.
In Driscoll, supra, the Court considered it important that the accused denied making the statements. In this case, on the material before the Court, the accused has limited recollection of the events of the night, at least at the time of the offence. This is unsurprising. The pharmacology report discloses a blood alcohol reading of extremely high levels.
I turn then to the contested evidence. There seems little to suggest that the comments made by the accused to Police on arrest were not, in fact, made. The accused makes no such suggestion. The comments were not made as a result of any investigation or questioning, nor after the investigation had commenced, and the statements have been obtained otherwise than in contravention of any law and otherwise than improperly.
Therefore, the discretion of the Court falls to be exercised under s 137 of the Evidence Act. I do not consider the statements "unfairly prejudicial" as the authorities have defined that term. I would allow those statements to be admitted into evidence. They are probative of the act of stabbing and the state of mind of the accused.
For similar reasons I would allow in the statements made to Senior Constable Wood by the accused while he was being escorted to the interview room at Wollongong Police Station.
For the reasons already established, including the failure to follow the procedures in Pt 9 of LEPRA; the intoxicated state of the accused; and the fact that, if the accused had been taken through the Pt 9 procedures, it is unlikely that he would have made any comment to the Police, I consider the comments made after the swab was taken to be in a different category. The investigative process had commenced and the undesirability of admitting statements by the desirability of admitting the material made after the investigation commences is important and not outweighed. Accordingly, I refuse admission of those comments. I do not consider there has been any wrongdoing by the Police Officer, but allowing the statements in the circumstances would leave a gaping hole in the need to comply with the legislative procedures. The foregoing does not affect the admissibility of the swab itself or the results thereof.
The recorded statement during the swab cannot be fabricated and is largely a result of the accused's belligerence, rather than questioning by Police or any other investigative process. I admit that statement.
I turn next to the ERISP being Ex 2 on the Voir Dire. The accused was warned by Detective Senior Constable Watson. The last substantive passage in the interview discloses that detective Senior Constable Watson was aware that no contact had been made by the accused with the ALS and that his Pt 9 rights were still to occur.
While there can be little doubt that the statements were made and they were made in circumstances where there was a deliberate circumvention of the Pt 9 procedures for a vulnerable person. It is now unnecessary to discuss this evidence further as the Crown and accused have resolved the issues of its admissibility.
Next the Court turns to the statements of Tanya Dunn and William Cooley. Little material has been adduced in relation to this intended evidence.
The material that has been adduced in relation to Ms Dunn suggests that she had a motive to be untruthful about the accused. If so, her reliability is a matter for the jury and not a matter for the Judge to determine as to admissibility.
I have heard nothing in relation to the evidence of Mr Cooley, the evidence of whom, because of its potentially racist content, may be significantly prejudicial to the accused and unfairly so, in that the evidence may be misused by the jury. The Court should await further evidence before any rulings made by the Court.
The rulings of the Court, as already indicated, are as follows:
1. The forensic procedure and results thereof are admissible as evidence;
2. The statements made by the accused at the scene of the arrest are admissible;
3. The statements made by the accused at the Police Station before and during the forensic procedure are admissible;
4. The statements made by the accused at the Police Station on the return from the interview room are inadmissible;
5. The ERISP of the accused dated 08 January 2018 is no longer subject to objections and is admitted by consent;
6. The evidence of Ms Dunn is admissible and the ruling on the evidence of Mr Cooley must await further context;
7. The parties have leave to raise any particular aspect of the forgoing material, not dealt with as part of these more general rulings.
[6]
Amendments
07 August 2018 - Trial concluded on 28 March 2018 with a Guilty Verdict. Proceedings listed for Submissions on Sentence on 19 October 2018 at 10.00am.
Matter can now be the subject of publication.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 07 August 2018