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[2016] VSC 26
General information, not legal advice.
Supreme Court of Victoria
2016-02-03
T FORREST J
Original judgment source is linked above.
CRIMINAL LAW - Evidence - Admissions - Record of interview - Application of Evidence Act 2008 (Vic) ss 85 and 90 - Whether or not circumstances of admission make it unlikely that the truth of admission adversely affected - Reliability - Whether or not it would be unfair to the accused to use evidence of the admission - Whether or not accused psychotic at time of record of interview - Whether or not mental state of accused likely to affect reliability of admissions - Record of interview excluded.
**1 The accused, who is now 19 years old, is charged with attempted murder, intentionally causing serious injury and recklessly causing serious injury. The relevant events are said to have occurred on 3 February 2015.
2 The physical facts are largely undisputed. Early in the morning of 3 February 2015, Colin Rowling, the uncle of the accused, was allegedly struck by the accused twice to the head with a hatchet. He sustained serious injuries including deep lacerations and a fractured cheekbone. The accused was subsequently interviewed by police. During that interview he made admissions.
3 The issue on this application is whether I should exclude the admissions contained within that record of interview ('ROI'). The accused relies on ss 85 and 90 of the Evidence Act 2008 (Vic) ('Act') to argue that these admissions, and the ROI in its entirety, ought be excluded.
4 The accused was 18 at the time of this incident. He has no prior criminal convictions. At the time of the alleged offending he lived with his mother, her de facto partner, and Colin Rowling.
5 The accused attended Knox Police Complex on 9 February 2015, and the relevant interview began at 11:46 am, was suspended at 11:53 am, and resumed at 2:35 pm.[1] The accused was assessed by Dr Jason Schreiber to determine his fitness for interview from 12:50 pm. It is common ground between the parties that this fitness assessment occurred prior to the substantive portion of the police interview. Dr Schreiber considered the accused fit to be interviewed with an independent third person ('ITP') present. Ms Raewyn Clark was the ITP contacted by the police and was present throughout the interview.
6 The substantial part of the interview commenced at Question 86 when the accused was asked in a non-leading form to give an account of the events of "last Tuesday". From that point on, the interview is replete with admissions. I here set out some of the accused's admissions about his intentions. They are expressed in an idiosyncratic form:**
Q.194 What did you do next?---
He just stood - after the first one (strike) "Are you thinking about taking a second swing?" Like I'm not just gunna let a man sit there in pain or - or whatever - just let him be a witness and then go aerate.
Q.195 So what did you think?
I just had to finish the job.
Q.196 And what was that job?
Just finish him. It was me or him, 'cause I wasn't gunna leave the house. I fuckin' live there.
Q.197 Yeah
Yeah.
Q.198 So when you say you wanted to finish the job, what's the job?
Have him cease to exist.
Q.199 OK. What would be another term for that?
What do you mean?
Q.200 You have him cease to exist?
Yeah.
Q.201 What does that mean?
To leave him - to have him leave these mortal plains.
Q.202 OK. So when you say you - you wanted to - you weren't gunna leave him there, you wanted to finish the job...
Yeah, I didn't want him - I didn't want to see him.
Q.203 OK. Are you talking about killing him?
Yeah, of course.
Q.204 OK. So what were you thinking at that point in time?
It was just 'Get the fuck out of my sights - - -'.
Q.205 OK, so...
'- - - you pathetic little cunt.'
Shortly thereafter the following exchange occurred:
Q.208 I understand. So you've hit him once and then you need to think to yourself that you need to get the job done?
Yeah.
Q.209 That's what you've said to me.
Oh well, I wasn't gunna stop but there's that moment in time between the first and second swing.
Q.210 OK. So you weren't gunna stop. All right. Then - so - so - what do you do next?
Well, you display ruthless tendencies and, you know, you look at what you've done - you look at what has developed.
Q.211 Mm, hm. And then the second swing?
Oh no. then you remove what's developed.
Q.212 Tell me, what do you mean by that?
Well, if there's a corpse, you remove the corpse.
Q.213 OK.
I'm not sure quite why, other than, you'd be fucked having, like, flies and maggots just buzzing around in the kitchen...cause you've left the corpse in the house.
7 Later in the interview the accused made equally stark admissions at Q.289ff and at Q.344ff.
8 Section 85 of the Act applies to admissions made by an accused in a criminal proceeding and which are made to an investigating official performing functions in relation to the investigation of an offence. It is undisputed that Detective Senior Constable Graham (the interviewing police officer) was an investigating official investigating the commission of an offence. I shall reproduce ss 85(2) and (3).
85 Criminal proceedings - reliability of admissions by accused
...
(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.
There is no suggestion that the police behaved improperly in any way. The accused's contention is simply this: the circumstances of the admissions, including the accused's mental state, were such as to make it likely that the truth of the admissions was adversely affected. For clarity I have expressed this contention in positive language, although it will be understood that where there is a real question as to whether circumstances may have adversely affected the truth of an admission the prosecution must establish on balance that this outcome is unlikely.
9 The inquiry is not concerned with whether the admission was or was not made, or whether the admission was true. These are jury questions.[2] The focus of the inquiry concerns the circumstances in which the admission was made and the impact of those circumstances upon the probable reliability of that admission.[3] The 'circumstances' referred to in s 85(2) are not confined to those known to the interrogator, nor to the conduct of the interrogator.[4] It is clear that Parliament intended any mental disability that operated upon the accused at the time he was interviewed to be considered along with other relevant factors.[5]
**10 Section 90 of the Act provides me with a discretion to refuse to admit evidence of an admission if the evidence is sought to be adduced by the prosecution and it would be unfair to the defendant to admit the evidence in all the circumstances. The burden of demonstrating this unfairness lies with the accused.[6] The focus of s 90 falls upon the fairness of using the impugned evidence at trial and not directly upon characterising the circumstances in which the admissions were made (including the means by which the admissions were elicited) as 'fair' or 'unfair'.[7] The scope of the discretion defies exhaustive definition,[8] and the application of it is likely to be 'highly fact specific'.[9] The section is a 'safety net' provision which may catch those cases which are not expressly caught by other specific provisions of the Act.[10] In the particular circumstances of this case, it seemed to me that if the prosecution were able to satisfy the requirement that the circumstances in which the admission were made were such as to make it unlikely that the truth of the admission was adversely affected, then there was no work left for s 90 to do. This was because there were no additional factors which could relate to the s 90 argument beyond those already considered in the s 85 argument. Both counsel agreed with this analysis.
11 I shall approach this matter by considering the evidence relevant to the circumstances in which the admissions were made. I shall then consider the application of s 85 to that evidence.**
**12 Detective Senior Constable Kelly Graham spoke to the accused's mother and uncle (the victim) shortly after the offending. She was informed that 'something wasn't quite right'[11] with the accused and that 'some kind of medical (mental) condition'[12] may have affected the accused. As a consequence the detective arranged for the accused to be assessed by a doctor prior to interview.
13 As I have described above, Dr Schreiber, a Forensic Medical Officer, assessed the accused as fit to participate in the police interview with an independent third person present. He gave evidence in this court on a voir dire. He described the accused as 'vulnerable'.[13] He concluded this on the basis of his age and the 'entire picture of a young man'. A shadowing doctor, Dr Giles, was also present during the fitness assessment, although she took no formal part in that assessment. Notwithstanding this, Dr Schreiber felt some comfort in his assessment, as he thought Dr Giles felt comfortable with his recommendations.
14 Dr Schreiber had no independent recollection of this assessment and was totally reliant on his notes. He accepted that his assessment took about 10 minutes[14] and that he had no psychiatric training.[15] He conducted no exhaustive cognitive test[16] but merely a 'mini-mental state examination' and an incomplete one at that.[17] Ultimately Dr Schreiber concluded that the accused's cognition was 'working sufficiently'.[18] He accepted he had never met the accused before.
15 The ITP, Ms Clark, also gave evidence on the voir dire. She felt the accused 'was ready to be interviewed by police'[19] after speaking to him for approximately 13 minutes.[20] She could not recall his precise responses.[21] She could not recall whether he had already been seen by a Forensic Medical Officer.[22] In a pro forma, she had ticked a box marked 'intellectual disability'. She believed the police had given her this information but could provide no further details of what was said to her.[23] She had had no previous dealings with the accused.
16 On the voir dire, the defence called Dr Adam Deacon who is a specialist child and adolescent psychiatrist, and also a forensic psychiatrist.[24] He is employed by Forensicare. Dr Deacon has previously worked over many years with young offenders. He has been the visiting psychiatrist at Barwon Prison. His current clinical practice deals mainly with children, adolescents, and their families.[25] In the forensic area, he estimates that he has been called upon to assess fitness to plead or mental impairment on roughly 100 occasions over the ten years of his psychiatric practice.[26] He first interviewed the accused on 16 February 2015, a second time via videolink on 22 May 2015, and a third time on 11 September 2015[27]. In extensive evidence and cross-examination, the following evidence and opinions are relevant to the current application:**
**17 I have viewed the interview twice - once before reading or hearing any evidence and again after I heard oral submissions. To my untrained eye I considered Mr Munday to be guileless, occasionally with a fatuous affect, and very idiosyncratic in his choice of language. I would not be able to discern whether a person was psychotic unless the episode was very frank. In lay terms, I was left with the distinct impression that there was something peculiar or odd about Mr Munday's interview.
18 Dr Schreiber concluded that the accused was fit to participate in the record of interview. He was called in, as I have observed, because the police had reviewed reports from both the accused's mother and the victim himself that the accused was suffering from some mental condition - 'there was something going on.'[41] I consider the weight I ought accord to Dr Schreiber's opinion is diminished by the following factors:**
**19 The ITP, Ms Clark, was present throughout the ROI. I have set out earlier that she concluded that the accused 'was ready to be interviewed'.[42] She, like Dr Schreiber, only spoke to the accused for a short time before the interview, did not know him, and could not recall the content of their pre-interview conversation. She has no medical or psychological training and could not recall why it was in her notes that she had ticked a box marked 'intellectual impairment.'
20 I have no doubt that over a short period in the pre-interview stage the accused appeared to be a clear speaker with normal content and articulation. I also accept that the accused appeared to both Dr Schreiber and Ms Clark as thinking clearly enough, ostensibly capable of understanding questions, and responding coherently. If this is where the evidence rested (together with, of course, the interview itself), I would have little difficulty in concluding that the Crown had discharged its s 85(2) burden.
21 Dr Deacon's evidence is the only expert psychiatric evidence before me on this issue. Ms Coombes, who prosecutes, contended that given the evidence of Dr Schreiber and Ms Clark I ought not accept Dr Deacon's opinion that the accused was in a psychotic state (albeit a subtle one) throughout the interview. Alternatively, she submitted that if I were so satisfied, given the objective presentation of the accused during the interview, I ought conclude that any such state was not at a level that affected the accused's ability to defend his own interests or exercise appropriate judgments.
22 I am not prepared to reject Dr Deacon's evidence on this issue. He is highly qualified and experienced and the transcript of his evidence reveals that he was a measured, thoughtful witness. I am satisfied, on balance, that at the time that the interview was conducted the accused presented as 'superficially intact' but likely to be quite thought disordered and psychotic as a consequence of a likely diagnosis of schizophrenia. I am also satisfied, largely on the basis of Dr Deacon's evidence, but also from my own observations of the videoed ROI, that the accused's ability to represent himself in his best interest was compromised. Further, like Dr Deacon, I am decidedly uncomfortable with the proposition that the accused had the capacity to offer reliable responses to the very fair questions of Detective Graham, particularly insofar as his intentions were concerned. In a psychotic state he was asked to recall the events and thoughts of the six days earlier, when, on balance, he was also psychotic.
23 For these reasons that I am not satisfied that the circumstances in which the admissions were made were such as to make it unlikely that the truth of those admissions was adversely affected. In this case, s 85 applies only to admissions within the ROI. That interview is replete with admissions, pretty much from start to finish, and I propose to rule that the entire interview is inadmissible pursuant to s 85(2) of the Act.
24 It is unnecessary to consider s 90.**
[1] Transcript of Record of Interview of Gareth Mark Munday, 9 February 2015, page 1, 7.
[2] R v Esposito (1998) 45 NSWLR 442; R v El-Hugue (2007) A.Crim.R 348.
[3] R v McLaughlin [2008] ACTSC 49 ('R v McLaughlin') at [58] per Refshauge J.
[4] R v McNiven [2011] VSC 397 at [65].
[5] The plain words of s 85(3)(a) lead inexorably to this conclusion. See also R v McLaughlin at [67].
[6] R v Grant (2001) 127 A Crim R. 312 [85]; Em v The Queen [2007] HCA 46; (2007) 232 CLR 67.
[7] Em v The Queen [2007] HCA 46 ('Em v The Queen') per Gummow and Hayne JJ at [107].
[8] Em v The Queen per Gummow and Hayne JJ at [90].
[9] Em v The Queen per Gleeson CJ and Heydon J at [50].
[10] Em v The Queen per Gummow and Hayne JJ at [114].
[11] Transcript of proceedings before the Honourable Justice Lasry at the Supreme Court of Victoria, 8, 9 December 2015 ('Transcript'), 77. Information to this effect came from a 'variety of different people' (Transcript 77).
[27] I am advised by Counsel of the accused that Dr Deacon has also seen the accused 'very recently', after he gave evidence on this issue.
[38] See Transcript 100-104 for examples.
The Queen
Munday
(1998) 45 NSWLR 442
(2007) 232 CLR 67