Luo v The Queen
[2022] WASC 201
•18 OCTOBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GAMMELL [2022] WASC 201
CORAM: FIANNACA J
HEARD: 1 MARCH 2022
DELIVERED : 25 MAY 2022
FILE NO/S: INS 13 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DANIEL BADEN RALF GAMMELL
Accused
Catchwords:
Admissibility of evidence of admissions - No audiovisual recording of admissions - Whether admissions made before there were reasonable grounds for suspicion - No reasonable excuse - Criminal Investigation Act 2006 (WA), s 155 - Failure to caution - Voluntariness - Whether discretion to exclude voluntary admissions should be exercised on fairness grounds - Reliability of admissions - Psychological evidence - Whether evidence of dissociative state - Road Traffic Act 1974 (WA), s 57 - Turns on own facts
Rulings on admissibility of expert evidence - Psychological evidence going to reliability of admissions - Whether evidence beyond the ordinary experience of jurors - Biomechanical engineering evidence - Issue as to driver of vehicle - Turns on own facts
Legislation:
Criminal Code
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Result:
Evidence of admissions against interest admitted
Expert evidence of psychologist ruled inadmissible
Expert evidence of biomechanical engineer ruled admissible in part
Category: B
Representation:
Counsel:
| Applicant | : | Mr B Stanwix |
| Accused | : | Mr AT Oswald |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Oswald Legal |
Cases referred to in decision:
Arthurs v The State of Western Australia [2007] WASCA 209
Bunning v Cross (1978) 141 CLR 54
Collins v The Queen (1980) 31 ALR 257
Dodd v The State of Western Australia [2014] WASCA 13
Harling (1997) 94 A Crim R 437
Johns v Australian Securities Commission (1993) 178 CLR 408
Katsuno v The Queen (1999) 199 CLR 40
Kelly v The State of Western Australia [2017] WASCA 221
Kempley v The King (1944) 18 ALJ 118; (1944) 50 Argus LR 249
Luo v The Queen [2020] WASCA 184
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McDermott v R (1948) 76 CLR 501
Naniseni v The Queen [1971] NZLR 269
Norton v The Queen [2001] WASCA 207; (2001) WAR 488
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
R v Azar (1991) 56 A Crim R 414
R v Bonython (1984) 38 SASR 45
R v Buchanan [1966] VR 9
R v Burnett [1944] VLR 115
R v Collins (1979) 4 NTR 1
R v Ireland (1970) 126 CLR 321
R v Kempley (1944) 44 SR (NSW) 416
R v Lee (1950) 82 CLR 133
R v Phillips [1949] NZLR 316
R v Runjanjic (1991) 56 SASR 114
R v Starecki [1960] VR 141
R v Swaffield (1998) 192 CLR 159
R v Zion [1986] VR 609
Sinclair v The King (1946) 73 CLR 316
The Queen v Williams [1959] NZ Police Law Rp 1; [1959] NZLR 502
The State of Western Australia v Carlino [No 2] [2014] WASC 404
The State of Western Australia v Spenceley [2018] WASC 118
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen (1988) 82 ALR 10
Zanon v The State of Western Australia [2016] WASCA 91
Table of Contents
Introduction
The State's case
The defence case
The applications
The structure of the balance of these reasons
Evidence of SC Whisler in relation to admissions made by the accused
The evidence
Other evidence relevant to consideration of the evidence of SC Whisler
Findings in respect of the evidence of SC Whisler
Evidence to be given by Adam Leigh Browne and Robert John O'Donnell
Mr Browne's evidence
Mr O'Donnell's evidence
The video record of interview on 18 October 2019
Evidence of Professor Richard Bryant
Statutory provisions and legal principles relevant to the admissibility of the accused's alleged admissions
Admissions against interest - common law
Statutory provisions
Voluntariness and discretionary exclusion
Admissibility of unrecorded admissions to SC Whisler
Section 118 of the CIA
Voluntariness
Whether the evidence should be excluded in the exercise of discretion
Conclusion
Admissibility of recorded admissions to SC Whisler
Voluntariness
Whether the evidence should be excluded in the exercise of discretion
Probative value, prejudice and unfairness
Absence of caution
Conclusion
Unrecorded admissions to ambulance officers
Conclusion
Recorded admission to SC Frankel on 18 October 2019
Conclusion
Legal principles in respect of expert evidence
Admissibility of the expert evidence of Professor Bryant
Conclusion
Admissibility of the evidence of Mr Johnston
Form of the evidence in the pre-trial hearing
Qualifications and expertise
Purpose of evidence
Summary of evidence proposed to be adduced at trial
Information relied on by Mr Johnston
The issues addressed by Mr Johnston and approach taken
Pre-impact movement of vehicle and occupants
Movement of occupants at time of and after impact
Differentiation between passenger and driver in this case
Mr Johnston's conclusions
The State's objection
The accused's submissions
Consideration
Parts of the proposed evidence of Mr Johnston are admissible
Parts of the proposed evidence of Mr Johnston are not admissible
Conclusion
Summary of rulings
Suppression order
FIANNACA J:
Introduction
The accused, Daniel Baden Ralf Gammell, is charged on an indictment dated 13 May 2021 that, on 16 October 2019 at Wickham, he unlawfully killed Carlos Alberto Cabrita Antonio (the deceased), which is the offence of manslaughter under s 280 of the Criminal Code (WA) (the Code). The accused has pleaded not guilty to the charge, and the matter is expected to proceed to trial. The trial is listed to commence on 22 June 2022.
Both the State and the accused have made pre-trial applications under s 98(2)(a) of the Criminal Procedure Act 2004 (WA) (CPA) for rulings as to the admissibility or discretionary exclusion of various items of evidence, which involve the determination of questions of law. The applications were heard by me on 1 March 2022. On 25 May 2022, I gave my rulings in the applications, as set out in the Summary of Rulings at the end of these reasons, with detailed written reasons to follow. These are my reasons for those rulings.
In essence, the State alleges that the accused, while intoxicated, drove a Nissan Patrol Wagon motor vehicle (the vehicle) in an erratic manner on a gravel road in an area of bush near the Wickham townsite, while the deceased was a passenger in the front of the vehicle. It is alleged that the accused's driving caused the vehicle to roll onto its side, resulting in a neck injury to the deceased, from which he died at the scene. The State's case is that 'the accused's driving of the vehicle in a manner that caused it to roll onto its side caused, directly or indirectly, the death of the deceased and the accused therefore killed the deceased', and the killing was unlawful because it was not authorised, justified or excused by law.[1] Particularised in that way, the case does not rely on the criminal negligence provisions of s 266 of the Code. However, having regard to the facts alleged by the State, which I will outline in more detail below, s 266 could well provide a basis for criminal responsibility, in that the accused is alleged, in essence, to have failed to exercise reasonable care and take reasonable precautions in his use or management of the vehicle, which was a thing of such a nature that, in the absence of such care or precaution, the life or safety of a person may be endangered, and the deceased's death resulted from the accused's failure to exercise such care or precaution. To the extent that there may be a difference between the two bases for criminal responsibility, it does not affect the resolution of the issues to be determined in this hearing.
[1] Amended Statement of Material Facts, 14 May 2021 [15].
A key issue at the trial will be whether the accused was the driver of the vehicle. The various items of evidence that are the subject of the applications in this pre-trial hearing concern that issue, directly or indirectly.
The first category of evidence comprises statements made by the accused which contain admissions against interest, particularly that he was the driver of the vehicle. On the one hand, the State applies for the admission into evidence of such statements made by the accused which were not recorded by audiovisual means. On the other hand, the accused opposes that application and applies for the exclusion of all statements made by the accused, which were recorded by audiovisual means, which amount to admissions against interest.
The second category of evidence comprises the evidence of two experts the accused intends to call, although the proposal to adduce such evidence appears to be contingent on whether any evidence of admissions made by the accused that he was the driver is admitted into evidence. The proposed evidence is from a clinical psychologist, Professor Richard Bryant, and a biomechanical engineer, Mr Grant Johnston. The State objects to the admission of the evidence of both experts.
In respect of the first category of evidence, the accused's objection to the evidence of his admissions for which there is no audiovisual recording is on two bases. The first is that the admissions are prima facie inadmissible by virtue of s 118(3) of the Criminal Investigation Act 2006 (WA) (CIA). The second is that the admissions were not made voluntarily. Alternatively, the accused submits that the evidence should be excluded in the exercise of discretion on the basis that admitting the evidence would result in an unfair trial. The accused's objection to the evidence of his admissions for which there is an audiovisual recording also engages the issues of voluntariness and unfairness.
The matter is complicated by the fact that the accused sought to rely on the evidence of Professor Bryant, which is in the second category of evidence, in support of his case on the issue of voluntariness and discretionary exclusion of the evidence of his admissions. In essence, it was submitted that Professor Bryant's evidence was relevant to assessing the accused's psychological state at the time he made the admissions against interest, which is relevant to whether he made them voluntarily and to the reliability of the admissions, which bears upon the issue of unfairness.
If the evidence of the accused's admissions is not excluded, the accused intends to rely on Professor Bryant's evidence at trial to challenge the reliability of the admissions, particularly the admission that the accused was the driver of the vehicle. This assumes that Professor Bryant's evidence is admissible for that purpose, even though, notwithstanding his evidence in the pre-trial hearing, I am satisfied that the accused's admissions against interest were voluntary and should not be excluded in the exercise of discretion.
The accused also intends to rely on the evidence of Mr Johnston at trial to challenge the reliability of the accused's admission that he was the driver of the vehicle if evidence of those admissions is held to be admissible and is not excluded in the exercise of discretion.
Having regard to the accused's approach to the issues, I will set out the evidence in relation to the admissions and the evidence proposed to be adduced from Professor Bryant before making rulings in respect of those items of evidence.
Each of the applications by the State and the accused must be determined having regard to the State's case against the accused, and in the context of the whole of the evidence on which the State relies.
The State's case
The State's case is set out in a statement of material facts in the prosecution brief. The statement of material facts is based on the evidence of various witnesses, whose statements are in the prosecution brief, and various exhibits. The following outline of the State's case draws on the statement of material facts, with some additional matters from the witnesses' statements and other documents in the prosecution brief.
The accused and deceased were work colleagues at a mining company in Wickham.
On the morning of 16 October 2019, the accused, the deceased and two other colleagues, James Douglas[2] and Keith Hutch[3], met up to play golf. They played a round of nine holes at the Karratha Country Club, starting at around 9.00 am and finishing around 11.30 am. At least three of the men, including the accused, drank beer while they played. Mr Hutch was designated the skipper. It is not clear whether he drank alcohol when they were playing golf, but he states that he drank one beer later at the tavern.[4] At the golf course, the accused drank stubbies of VB beer.
[2] Statement at Prosecution Brief (PB) 1-24 - 1-27. (The brief is divided into 'chapters'. The first digit designates the chapter.)
[3] Statement at PB 1-72 - 1-75.
[4] PB 1-74 [20].
After the game, the four men went to a tavern for lunch, arriving around 12.30 pm. Mr Hutch drove. At the tavern, the men continued to drink alcohol over lunch and played pool. The accused continued to drink beer. In addition, CCTV footage from the tavern shows the accused having a 'shot' with the deceased just before all four men left the tavern at 2.01 pm and travelled back to Wickham. On the way, the accused purchased more alcohol to be consumed as 'roadies', namely cans of 'Bundy and coke', which he shared with the others in the car.
The four men arrived at Wickham around 2.30 pm. The accused and the deceased were dropped off at the accused's home in Jacaranda Place. The two of them continued to drink at the back of the unit.
Around 4.00 pm, the accused's partner, Rashelle Wilcox,[5] returned home and found the accused and the deceased drinking Irish whisky and coke at the back table. They were intoxicated. Ms Wilcox went to the local shops and got some food and cigarettes for them. Having brought them those items, she then left the house around 5.30 pm to visit a friend.
[5] Statement at PB 1-158 - 1-161. The witness's name is spelt differently at the top of her statement from the spelling in the signature block. I have adopted the spelling in the signature block.
Subsequently, the accused and the deceased also left the house in the accused's vehicle, a Nissan Station Sedan 4WD, registration number CGG4440 (the Nissan 4WD).
Shortly after 5.30 pm that day, the accused drove the Nissan 4WD in a westerly direction on an unnamed gravel road between Robe River Road and Walcott Drive, Wickham. The area was open to and used by the public. The road was a single lane carriageway aligned predominantly in a north-west/south-east direction and is suitable for four-wheel drive vehicles accessing the Wickham town site from Robe River Road. It was a loose gravel road, around 3 metres wide, and was generally straight, with minor undulations. It was bounded by low level shrubs and bush vegetation, leading to vacant bushland.
The accused was intoxicated as a result of the alcohol he had consumed over the course of the day. Although the statement of material facts alleged that neither the accused nor the deceased was wearing a seatbelt, counsel for the State clarified at the hearing that the allegation was included in error, and that the State will not seek to prove that the passenger was not wearing a seatbelt.[6] The State's position is that the evidence is somewhat equivocal as to whether seatbelts were worn.[7] I will come later to the evidence on which the defence relies in support of the propositions that the passenger was wearing a seatbelt and the driver was not.
[6] ts 45.
[7] ts 45.
Returning to the State's case, it alleges that, at the time that the accused was driving the Nissan 4WD on the gravel track, the weather was fine and clear, and visibility was good, with a clear line of sight in all directions.
The State's case is that, approximately 4 kilometres along the gravel road, the accused accelerated heavily to conduct a U-turn in a wide arc, entering the adjacent bushland and returning to the gravel road, at which stage he was travelling in an easterly direction. He then conducted a series of left to right manoeuvres (described in the statement of material facts as 'fishtailing'), travelling approximately 70 metres, before attempting to conduct another U-turn without slowing sufficiently to execute the manoeuvre in a safe manner. The right rear tyre of the Nissan 4WD dug into the gravel, causing the vehicle to roll onto the driver's side.
The alleged facts as to how the vehicle came to roll onto its side are inferred from the physical findings made at the scene by crash scene investigators, including marks in the gravel and the location and condition of the vehicle.
When the Nissan 4WD rolled onto the driver's side, it caused the deceased to move from his seat and sustain a heavy impact to the under-surface of his chin, which, in turn, caused a severe high neck injury. That high neck injury caused his death.
Those alleged facts are based on findings in relation to the state of the vehicle and the medical evidence, in particular the report of the forensic pathologist in respect of the post-mortem examination of the deceased.
As I noted earlier, the State's case is that the accused's driving of the vehicle in a manner that caused it to roll onto its side caused, directly or indirectly, the death of the deceased. Therefore, the accused killed the deceased, and the killing was unlawful because it was not authorised, justified or excused by law. In particular, the State alleges that the accused was intoxicated by alcohol and drove the vehicle erratically on a loose gravel road, and consequently caused the vehicle to roll onto its side.
The State's case is that, after the Nissan 4WD rolled over, the deceased was unconscious in the front passenger's seat. The accused removed the deceased from the car and attempted to revive him. He then left the scene and returned to Walcott Drive to seek assistance from residents in that area. He walked approximately 3.3 kilometres on foot and arrived at Walcott Drive around 6.30 pm. There, four witnesses, Emma Gregg,[8] Brenden Harvey,[9] Christopher Went[10] and Janel Went,[11] heard the accused yelling 'SOS', as he emerged from the bush, but while he was still on the bush track. He was wearing shorts and sandshoes but was shirtless.[12]
[8] Statement at PB 1-60 - 1-63.
[9] Statement at PB 1-64 - 1-69.
[10] Statement at PB 1-136 - 1-143.
[11] Statement at 1-144 - 1-146.
[12] PB 1-60 [7].
When Ms Gregg, who was with Christopher and Janel Went, first approached the accused, he reported that 'he had been in an accident and there was another person still in the car'.[13] Ms Gregg retrieved a first-aid kit from her home and returned to where the accused was, still on the bush track. At that stage, the accused was on the ground on his hands and knees and extremely distraught, but not injured.[14] Based on the statements of all witnesses who dealt with the accused at the time, the statement of material facts aptly describes his condition as 'exhausted and distressed'. He was also described as appearing to be dehydrated.[15] Mr Went also states that, when he spoke with the accused, there was a very strong smell of alcohol coming from the accused.[16]
[13] PB 1-60 [4].
[14] PB 1-60 - 1-61 [8] - [9].
[15] PB 1-65 [12] (Mr Harvey).
[16] PB 1-137 [17]. An ambulance officer, Adam Leigh Browne, who spoke with the accused later, also states that he noticed a strong smell of alcohol when he approached the accused: PB 1-166 [14].
The accused was 'yelling and crying' and saying that 'the rollover was back up that track'.[17] He said the vehicle was about 100 km 'that way', pointing in the direction to which he was referring.[18] Mr Brenden pointed out to the accused that his estimation would put the car on the other side of Karratha.[19]
[17] PB 1-61 [10].
[18] PB 1-61 [10] (Ms Gregg); PB 1-65 [14] (Mr Harvey); PB 1-137 [16] (Mr Went). I note that later, to a police officer, the accused said the deceased was 'like 50 km that way': PB 1-6 [15] (Statement of Rosalind Anne Bolt).
[19] PB 1-65 [15].
The accused told the witnesses that he had tried to resuscitate his friend but that he was dead. He referred to the deceased as Carlos Antonio, and he asked the witnesses to go find him. Mr Brenden and Mr Went then left in a vehicle to search for the deceased.
A call was made to 000 by Mr Went before leaving.
Police and ambulance officers arrived, soon after, at the accused's location. First Class Constable Bolt (Constable Bolt) states that the accused was 50 metres down the bush track, with a female standing nearby, who would appear to be Ms Gregg.[20]
[20] PB 1-5 [7].
The attending police officers spoke with the accused. The initial discussion was not recorded. However, at a certain point, one of the officers, Senior Constable Whisler (SC Whisler), activated her body-worn camera and a further conversation took place, which was recorded. The accused was not cautioned. The early part of the recorded conversation involved the police officer seeking to confirm with the accused what had been said before the camera was activated. During the unrecorded conversation, the accused is alleged to have made admissions, including that he was the driver of the vehicle. During the recorded conversation he confirmed those admissions. The admissibility of both conversations is challenged by the accused.
Subsequently, the accused was taken to Roebourne Hospital by ambulance. A trainee with the ambulance service, Adam Leigh Browne, spoke with the accused in the back of the ambulance during the trip. The accused is alleged to have made admissions to Mr Browne, including statements from which it can be inferred that he was the driver of the vehicle when it rolled over. A similar conversation (possibly the same conversation, but in different terms) is related by another ambulance officer, Robert John O'Donnell, who was also in the back of the ambulance, although, on his account, the conversation took place while they were still at the scene, before leaving for the hospital.
A blood sample was taken from the accused at 8.13 pm on 16 October 2019 by a registered nurse at the Roebourne Hospital. That sample was subsequently analysed by the Chemistry Centre of Western Australia, and it was found to contain 0.137 g of alcohol per 100 ml of blood (commonly referred to as a blood alcohol reading of 0.137%).
On 18 October 2019, the accused attended Roebourne Police Station where he participated in an interview with the police. The principal interviewing officer was Senior Constable Frankel (SC Frankel). Under s 57 of the Road Traffic Act 1974 (WA) (RTA), as the 'responsible person' for the vehicle (the accused having admitted that the vehicle belonged to him),[21] the accused was obliged, if able to do so, to identify the driver of the Nissan 4WD at the time when the use of the vehicle resulted in the death of the deceased. As will appear below, it was apparent from early in the interview that the accused was aware of that obligation and had gone to the police station ready to provide only that information. He admitted that he was the driver of the vehicle at the time of the crash.[22] He declined to take any further part in the interview.[23]
[21] PB 3-6. See s 5 RTA ('Terms used') and sections 4 and 6 of the Road Traffic (Administration) Act 2008 (WA) (RTAA) for the definition of 'responsible person'.
[22] PB 3-6.
[23] PB 3-7.
The defence case
For present purposes, the defence case is encapsulated adequately by the proposition that the State cannot prove beyond reasonable doubt that the accused was the driver of the vehicle at the time of the incident that resulted in the deceased's death. If its challenge to the admissibility of the evidence of admissions by the accused were to succeed, there would be no direct evidence that the accused was the driver of the vehicle. The State does not put its case on the basis that the circumstantial evidence could otherwise establish beyond reasonable doubt that the accused was the driver. Indeed, in its written submissions, the State accepted that, while there is other evidence that supports the fact that the accused was the driver of the vehicle (such as evidence that he was the last person seen driving the vehicle prior to the crash), the accused's admissions are indispensable to establishing that he was the driver at the time of the crash, so that the reliability of his admissions must be proved beyond reasonable doubt.[24]
[24] State's Submissions in Support of Applications for Directions on Evidence, dated 17 December 2021 (State's Submissions) [17].
Even if all or some of the evidence of the accused's admissions are admitted into evidence, the defence case is that there is reasonable doubt as to the reliability of the admissions, having regard to the forensic evidence and the proposed evidence of Professor Bryant and Mr Johnston. The evidence of those experts was disclosed in reports from them dated 10 November 2021 and 8 May 2021 respectively.
The applications
It is appropriate to make pre-trial rulings in respect of the issues raised by the applications, to ensure the efficient running of the trial.
The State's application, dated 17 December 2021, was for the following orders:
1.The evidence of Grant Johnston contained in his expert report dated 8 May 2021 is inadmissible in the trial of the accused.
2.The evidence of Professor Richard Bryant contained in his expert report dated 10 November 2021 is inadmissible in the trial of the accused.
3.The unrecorded admissions of the accused made to SC Whisler on 16 October 2019 and set out in the statement of SC Whisler at PB 1-149 [9] are admissible in the trial of the accused.
4.The recorded admissions of the accused captured on the body-worn camera of SC Corrine Whisler on 16 October 2019 are admissible in the trial of the accused.
In effect, the first two orders sought would be in terms that the evidence of those expert witnesses will not be admitted, and therefore may not be adduced, at the accused's trial. The third and fourth orders sought would be, in effect, in terms that the evidence of the admissions referred to in each instance will be admitted at the trial. The third order is required because of the operation of s 118 of the Criminal Investigation Act 2006 (WA) (CIA), as will be explained below. In respect of the evidence the subject of the fourth order sought, the State submits that the evidence is prima facie admissible. However, if the court were to find that the accused should have been cautioned, then there is a need for the State to apply for an order that the evidence will be admitted at the accused's trial, for reasons explained below.
The accused's application, dated 2 February 2022, was for the following orders:
1.The unrecorded admissions [of the accused] made to SC Whisler on 16 October 2019 and set out in the statement of SC Whisler at PB 1 - 149 [9] is (sic) inadmissible in the trial of [the accused].
2.The recorded admissions [of the accused] captured on the body-worn camera of SC Whisler on 16 October 2019 is (sic) inadmissible.
3.The unrecorded admission made to Ambulance Officer Adam Leigh Browne set out in the statement of [Mr Browne] [20] is inadmissible.
4.The recorded admission made [by the accused] to SC Ross David Frankel on 18 October 2019, whereby SC Frankel placed a section 57 [RTA] requirement upon [the accused] is inadmissible.
The first order sought is, in the first instance, a rebuttal of the State's application to adduce the evidence of unrecorded admissions by the accused to SC Whisler. However, if the court were to find that the evidence is admissible, the application for the first order, as argued, is, in effect, for the exclusion of the evidence on the basis that the State has not proved that the admissions were made voluntarily, alternatively that the evidence should be excluded in the exercise of discretion on the basis that it would be unfair to admit it at trial.
The accused's application for the second order relied principally on the fact that SC Whisler did not caution the accused, but also relied on the same arguments advanced in respect of the first order concerning voluntariness and discretionary exclusion.
The application for the third order was argued on the basis that the evidence does not disclose an unequivocal admission, and, in any event should be excluded in the court's exercise of the fairness discretion. At the hearing, the objection, as argued by counsel for the accused, extended to the evidence of Mr O'Donnell, concerning statements made by the accused in his presence, which are also relied on by the State as admissions against interest. I will deal with the application as argued, and will rule on the admissibility of Mr O'Donnell's evidence, as well as Mr Browne's evidence.
The application for the fourth order relied on the same arguments advanced in respect of the first two orders concerning voluntariness and discretionary exclusion.
The argument in respect of voluntariness, which also informs the argument for discretionary exclusion, is encapsulated in the following submission from the Accused's Submissions in Response [to the State's application]:[25]
The accused submits that … the admissions, were not voluntary and made whilst [he was] highly affected by psychological and physical trauma to the extent that the reliability as to the truthfulness of the admissions must be extremely doubtful.
[25] 'Applicant's Submissions in Response to the State of Western Australia's Application', dated 14 January 2022 (Accused's Submissions in Response) 15 - 16 [39]. (The page numbers are specified because there is an error in the paragraph numbering, with numbers being repeated later in the submissions.)
As will appear below, this does not rely on the orthodox approach to the issue of voluntariness, in that it does not directly raise the issue of the accused's will being overborne. Further, the authority relied on by the accused was not an apt comparison to the circumstances of his case, as revealed by the evidence.
The structure of the balance of these reasons
Before dealing with my analysis of each of the applications and the submissions in relation to them, I will outline the evidence as follows:
(i)SC Whisler.
(ii)Adam Leigh Browne and Robert John O'Donnell (ambulance officers).
(iii)The video record of interview on 18 October 2019.
(iv)Professor Richard Bryant.
In outlining the evidence of Professor Bryant, I will analyse the evidence for the purpose of determining what weight, if any, I will give to it in determining the admissibility of the evidence of admissions allegedly made by the accused. That analysis will also have a bearing on my determination of the application by the State for an order that the evidence of Professor Bryant is not admissible for the purposes of the trial.
I will then deal with the applications in the following order:
(i)The applications in relation to the unrecorded admissions allegedly made by the accused to SC Whisler.
(ii)The applications in relation to the video-recorded admissions made by the accused to SC Whisler.
(iii)The accused's application to exclude the evidence of alleged admissions made by the accused to the ambulance officers.
(iv)The accused's application to exclude the admission in the record of interview of 18 October 2019.
(v)The State's application for an order that the evidence of Professor Bryant is not admissible for the purposes of the trial.
(vi)The State's application for an order that the evidence of Mr Grant Johnston is not admissible for the purposes of the trial.
I will set out the proposed evidence of Mr Johnston in dealing with the last application. For reasons that appear at [223] to [226] below, and in the section dealing with the last application, I do not consider it necessary to outline Mr Johnston's evidence before dealing with the accused's admissions.
I turn then to the evidence relevant to the first five categories of applications.
Evidence of SC Whisler in relation to admissions made by the accused
The evidence
At the pre-trial hearing on 1 March 2022, SC Whisler was called to give evidence, which she did on oath. She gave evidence consistent with her statement in terms of the things said by the accused. The audiovisual recording of what the accused said after SC Whisler activated her body-worn camera was tendered as an exhibit on a DVD.[26] As the application to adduce her evidence of admissions made by the accused, and the application to exclude the evidence of admissions in the recording from the body-worn camera both refer to SC Whisler's statement, it is convenient to set out the evidence she would give at trial by reference to the content of her statement, and to then outline additional matters in her oral evidence. I have watched the recording in Exhibit 1 and am satisfied that the content of SC Whisler's statement is substantially correct insofar as it transcribes the exchange between her and the accused after the body-worn camera was activated. To the extent that it varies from what can be heard on the recording, I have set out below what I consider to be the correct transcription.
[26] ts 17; Exhibit 1.
By way of background, after the emergency call was received by police on 16 October 2019, SC Whisler attended the location in the vicinity of Walcott Drive in Wickham, where the accused had remained. She was on duty with Constable Bolt. They received a call on the police radio, requesting they attend the address 'for a male person distressed calling out SOS, stating someone was hurt in a car'.[27] They drove to the scene under 'priority 2' conditions, with lights and sirens in operation.[28]
[27] PB 1-148 [4].
[28] PB 1-148 [5].
What followed is set out in SC Whisler's statement as follows (I have added bold text in brackets to more accurately reflect what is in the recording from the body-worn camera):[29]
[29] PB 1-148 - 1-150 [6] - [33]. The syntax has been corrected where speech is quoted.
When we arrived we observe a male person who I now know to be Daniel GAMMELL, he was wearing shorts but had no shirt on, he had what appeared to be mud and dirt over his upper body.
He appeared frantic stating his mate was out there and pointed into the bush area, he said, "He's dead."
A female approached us and advised her husband, Christopher WENT and neighbour Brendan HARVEY had taken the four wheeled drive out along the track to try and locate the vehicle.
GAMMELL stated he had been driving the vehicle and went to conduct a u-turn at about 40 km and the car rolled, he said Carlos fell on him and was coughing up blood and he pulled him from the vehicle and tried to give him mouth to mouth.
I activated my body-worn camera and spoke with GAMMELL again, I have reviewed the footage prior to completing this statement.
I said, "What time did you leave Wickham?" ("Alright mate, what time did you leave Wickham?")
He said, "I don't know."
I said, "Don't know? Have you been consuming any alcohol?"
He said, "Yeah, I had a couple of beers."
(SC Whisler said, "Yeah, okay.")
Our conversation continued in relation to the location of the vehicle, he told me to follow the dirt track about 3 hills over and we would run into him.
I said, "So you were driving the vehicle?"
He said, "Yep."
I said, "He was in the passenger seat?" (Referring to the deceased.)
He said, "Correct."
I said, "And you rolled?" ("And you've rolled?")
He said, "Correct."
He said, "We were turning around to come fucking back."
I said, "You were doing about 40 kilometres you said?" ("And you were doing about 40 Ks you said?")
He said, "Maximum."
I said, "So what happened?" ("Yep. And what's happened?")
He said, "That's it." ("That's it. We were (indistinct) out.")
I said, "Were you ejected from the vehicle or is he still in the vehicle?"
He said, "I pulled him out and started mouth to mouth." ("I pulled him out and performed mouth to mouth.")
He began to cry and said, "He was vomiting blood, he was vomiting blood, he was vomiting blood."
(SC Whisler interjects, "I'm sorry mate. I'm sorry."
I said, "He was vomiting blood, was he still breathing when you left?"
He said, "No."
I said, "He wasn't?"
GAMMELL then broke down crying.
It is apt to note that the conversation about the location of the vehicle, which is referred to by SC Whisler in narrative form, commenced with SC Whisler saying, 'Sorry, mate, I have to get this clear, because we've got people out looking, alright?' She then sought confirmation that the accused had followed 'this track today when you left Wickham', with which the accused agreed, before giving the description set out in the narrative.
In oral evidence, SC Whisler said that, before arriving at the scene, she and Constable Bolt had received information, by radio and the police computer system in their vehicle, that a distressed male person was calling out, 'SOS, SOS.'[30] She said that her thought at the time was that it was an odd way to ask for help, and perhaps the person had mental health issues.[31] When asked if she knew anything about the incident (that is, the crash) at that stage, she said:[32]
No. I don't believe so. I - I went there not aware that someone had been hurt in a car crash.
[30] ts 13.
[31] ts 13.
[32] ts 13.
However, in cross-examination, SC Whisler agreed that the details of the CAD[33] job, which she read on the computer screen in the vehicle, included that someone had been hurt in a car.[34] That is consistent with what she said in her statement, referred to above.[35] She maintained, nevertheless, that she thought she was attending something odd because someone was calling 'SOS'.[36]
[33] Computer aided dispatch.
[34] ts 18.
[35] See [56] above.
[36] ts 18.
SC Whisler gave evidence that she believed the first thing the accused said to her was that his mate was dead.[37] The accused was crying.[38] SC Whisler said:[39]
I wasn't sure at that stage still was (sic) going on. He was covered in dirt and - and I, for some reason, just thought maybe - I was thinking of quad bikes. I don't know why I was doing that but - and I just remember thinking he wasn't well and I wasn't sure why.
[37] ts 14.
[38] ts 14.
[39] ts 14.
She said that the accused then went on to say the things set out above, explaining what had happened up to the point at which he attempted to give the deceased 'mouth to mouth'. She confirmed that, as part of that explanation, the accused admitted that he was driving the vehicle.[40] She said that, until that point in time, she had not asked the accused any questions.[41] She believed that the reason the accused spoke about what happened at that stage was that she was approached by the wife of the gentleman who had gone to look for the car (Ms Went),[42] who said 'they had gone to look for the car', and:[43]
… from that the accused then still sitting on the ground, still quite frantic - and it's hard to put it into words because it was a frantic - he's out there. I was driving. We were coming home. Just doing a U-turn at 40 ks and … rolled it.
[40] ts 14.
[41] ts 14.
[42] PB 1-149 [8].
[43] ts 15.
SC Whisler said that, before the relevant events, she had only recently been issued with the body-worn camera. When asked why she did not activate it when she arrived at the scene, she gave the following explanation:[44]
Well, I initially thought that we were dealing with possibly a mental health issue and, again, because they were new to us I didn't really think to activate it until I knew what was happening.
…
We - we weren't in the habit of activating them unless we were going to a job that we … you know, believed we would need footage or for our protection … to have it activated.
[44] ts 15.
She went on to say:[45]
So after he said those things I thought, "Oh no. Maybe this - this is not what I thought it was," and I activated my camera.
[45] ts 15.
In cross-examination, SC Whisler said she had received online training in the use of the body-worn camera, but she could not recall how long it had been before the incident with the accused.[46] She said the equipment had been introduced after a shooting incident in Geraldton.[47] She said it was not a requirement to use the camera every time police conducted business.[48]
[46] ts 17.
[47] ts 17.
[48] ts 18.
She said that when she and her partner arrived at the scene, they went down the bush track, about 20 metres off the road, because a lady was pointing in the direction of the bush.[49] She said that, when she first saw the accused, he was sitting on the ground, was covered in dirt and was upset.[50] He had his head in his hands 'in the frantic sort of thing' and he was moving his legs back and forth.[51] He kept pulling his hands away from his face, and would then put them back up to his face.[52] He was distressed and did not look SC Whisler in the eye.[53]
[49] ts 18 - 19.
[50] ts 19.
[51] ts 19.
[52] ts 19.
[53] ts 19.
SC Whisler confirmed in cross-examination that the first words said by the accused were, 'He's out there' and 'He's dead'. When asked whether her suspicions were aroused by the fact that the accused had said someone was dead, SC Whisler said:[54]
So I suppose in my mind I was still thinking along the lines of some sort of mental health issue and when he said that to me I still had no idea who he was referring to, what he was referring to …
[54] ts 19.
She said there was no reason why she did not switch on the body-worn camera at that stage.[55] However, she reiterated that she thought she was going to deal with someone suffering a mental health episode.[56] She agreed she had not said that in her statement.[57] She rejected the proposition that her evidence about that was a recent invention.[58] She explained the absence of that aspect of her evidence from her statement on the basis that her statement was about what she did, not what she was thinking.[59]
[55] ts 20.
[56] ts 20.
[57] ts 20.
[58] ts 20.
[59] ts 20.
SC Whisler was asked whether she recalled that the CAD job said:[60]
… believes the male is under influence of drugs, alcohol prior to hearing the SOS. Saw a quad bike.
[60] ts 20.
She said she remembered something about the quad bike.[61] As to the mention of the person being under the influence of drugs or alcohol, she indicated that, given the passage of time, she did not recall, but it may have been part of why she thought there may be a mental health issue.[62] She said it was possible the thought had crossed her mind that they were going to the scene of a car accident, but she did not conclude that at the time, and the 'quad bike thing was more prevalent' for her.[63]
[61] ts 20.
[62] ts 21.
[63] ts 21.
Asked again why she had not activated the body-worn camera immediately, SC Whisler said that, at the time, she did not think it was required. She said:[64]
I just thought I was going … to something that wasn't an offence. I didn't realise until it was said.
[64] ts 21.
She said she did not ask the accused about his driving before she activated her body-worn camera.[65] Asked why she did not caution the accused after activating the camera, she said:[66]
Yes. I didn't – I didn't caution him at the time. I – I – I should have. He was quite frantic. He was obviously very upset. He was – yes.
[65] ts 22.
[66] ts 22.
SC Whisler went on to say:[67]
So I was trying to – I was trying to establish if – if there was actually an offence that had been committed.
[67] ts 22.
She agreed that she was 'doing an investigation' at that stage, but said:[68]
[The accused] was distressed. He was upset and I still wasn't aware of whether an offence had been committed.
[68] ts 22.
She said she would not caution someone for the purpose of asking questions, if she did not believe the person was a 'suspect for something'.[69] She explained that the questions she asked of the accused as to what time he had left Wickham and whether he had consumed alcohol were directed at 'trying to establish where the vehicle could possibly be'.[70] She said she was also still unsure as to whether the other person was deceased.[71]
[69] ts 23.
[70] ts 23.
[71] ts 23.
She was challenged and responded as follows in respect of the absence of a caution:[72]
I put it to you that you simply neglected to issue the caution and just proceeded on with your investigation? – I – I did fail to issue a caution but I was actually still trying to establish if an offence had been committed.
[72] ts 23.
Later, when it was put to her that there was no reason why she could not have cautioned the accused, she said:[73]
There was no reason I couldn't have but the reason that I didn't was because I was still trying to establish there was an offence.
[73] ts 24.
When asked if the accused appeared to be understanding her, SC Whisler said she believed he knew what was going on.[74]
[74] ts 23.
In re-examination, SC Whisler was taken to the start of the recording made on the body-worn camera, where she said to the accused, 'Sorry, mate, I have to get this clear, because we've got people out looking, alright?'[75] When asked why she had said that, SC Whisler said:[76]
So I was trying to get some information in relation to whereabouts we would find the person that he had been talking about. We had two males out in a four-wheel drive who were driving around looking for the vehicle, so I said, "Sorry, mate. I need to get this straight." Obviously, certain things can play into what time we left, how long they were gone for, how far they could have gone in relation to where this vehicle could be.
[75] ts 25.
[76] ts 25 - 26.
She said she was 'just trying to establish where [they] might find the person [who] was hurt'.[77]
Other evidence relevant to consideration of the evidence of SC Whisler
[77] ts 26.
The State submits that SC Whisler's evidence should be assessed having regard to the information recorded in the CAD system, which is reproduced in the CAD 'Incident Detailed report' in the prosecution brief.[78] This shows the information available on the CAD system to SC Whisler as she was attending the scene, and the information she passed on to the police base after she arrived at the scene.
[78] PB 5-3 to 5-7.
The information that had been received and was available to SC Whisler initially was recorded, using a 24-hour time stamp, at 18:33:17 as follows:[79]
Caller states that there is a male across the road screaming "SOS" and "There is someone hurt in a car"[.] Caller states that the male is very very distressed and in the bush land across the A/A.
[79] PB 5-7. The caller was recorded as 'Jennelle Went'.
A physical description of the male was then given by the caller and recorded in the CAD report.[80]
[80] PB 5-7.
I note that, at the same time, an entry appears in the CAD system to the effect that 'if police officers hold any concerns in regards to a person's mental health, the Mental Health Emergency Response Line (MHERL) should always be contacted for advice'.[81] There is no evidence in respect of that entry, so I do not know whether it is a directive included on all occasions police are dispatched to a job, or whether it was included in this case because of the information conveyed in the initial call to the police. Irrespective of the explanation, it would be reasonable to infer that, in combination with the initial information received from the caller, the directive would at least give rise to a consideration of whether the incident involved a mental health issue. SC Whisler was not referred to that CAD entry, but it is clear from her evidence that the information on the CAD system was one of the sources of information (the other being the police radio) on which she relied as she responded to the job.
[81] PB 5-7.
According to the CAD report, the police 'unit' (that is, the vehicle), in which Constable Bolt and SC Whisler attended, was dispatched at 18:34:19.[82]
[82] PB 5-6. The unit was WP/PR 103. See also statement of SC Whisler at PB 1-148 [3].
At 18:35:01, the CAD report records:[83]
Caller states that her husband [Christopher Went] seems to believe the male is under the influence of drugs/alcohol[.] Caller states prior to hearing the 'SOS' call saw a quad bike go into the bush land[,] so whether he has crashed the quad bike.
[83] PB 5-6.
So, despite the initial indication of someone being hurt in a car, there was additional information raising the possibility of a quad bike being involved. It is also the entry referred to in cross-examination of SC Whisler that raised the possibility of the male being affected by drugs or alcohol.
At 18:36:14, the CAD report records that the caller's husband and their neighbour were going with the male to 'the spot he needs help within the bushland'.[84]
[84] PB 5-6.
At 18:37:40 the CAD records:[85]
Caller states they are not sure if anyone needs an ambulance at this stage as there is a lot of unknowns. Caller is at the A/A now and cannot see where the accident/incident has occurred.
[85] PB 5-6.
At 18:55:19, the CAD report records that the Department of Fire and Emergency Services had asked for attending police to update them as to whether they would be required to attend.
It is clear from the CAD report that SC Whisler had arrived at the scene by 18:59:48, as she was relaying to base the accused's personal details.[86] At 19:01:40, the CAD report records the information SC Whisler obtained from the accused, as follows:[87]
Gammell stated he drove on a bush track in a sedan west of Walcott Drive. He was driving approx 40 km per hour. Went to turn around and VOI (vehicle of interest) has rolled. Stated passenger is deceased, he started CPR but he has gone. Kept saying he's dead he's dead.
[86] PB 5-6. The officer is referred to by her police identification number, which is confirmed by SC Whisler's statement: PB 1-155.
[87] PB 5-6.
It was not until 19:46:21 that information was conveyed to the police base and recorded in the CAD system that the vehicle had been found and that there was a male deceased with no signs of life.[88] It may be inferred that the vehicle was located about that time.
Findings in respect of the evidence of SC Whisler
[88] PB 5-5.
It will be for the jury to assess the credibility and reliability of witnesses in the context of the trial. However, as the credibility of SC Whisler's evidence was challenged in some respects in the pre-trial hearing, including a suggestion of recent invention, it is necessary for me to make an assessment of her evidence for the limited purpose of determining the applications concerning the accused's admissions made to her.
I consider that SC Whisler gave her evidence in a forthright manner. There was nothing about her demeanour to give me concern that she was embellishing or being evasive. I formed the view that she was endeavouring to recall the relevant events accurately, but that her memory was lacking in some respects because of the passage of time, which she conceded. I am satisfied that her evidence was coherent and, generally, internally consistent. It was also consistent generally with the CAD system report and the body-worn camera footage.
The one area in which a potential inconsistency was identified in SC Whisler's evidence was in respect of whether she was aware, at the time she arrived at the accused's location, that he had said someone was hurt in a car. As was noted above, the initial information conveyed on the CAD system was that a male person was calling 'SOS' and said, 'There is someone hurt in a car.' That information did not refer to a crash, although the fact that the male was described as 'very, very distressed' would have suggested it could be a serious situation. However, that was put in doubt by the later information from the caller that they were not sure if anyone needed an ambulance at that stage, and that there were 'a lot of unknowns'. There was also reference to the possible involvement of a quad bike and the male appearing to be under the influence of drugs or alcohol.
SC Whisler's evidence initially was that she was 'not aware that someone had been hurt in a car crash',[89] but later, in cross-examination, she conceded the possibility that the thought had crossed her mind that they were going to the scene of a car accident, although she said she did not conclude that at the time.[90]
[89] [58] above.
[90] [70] above.
I do not consider that there is an unequivocal inconsistency between SC Whisler's evidence that she was 'not aware that someone had been hurt in a car crash' and the information in the CAD system. The information being received from the caller and conveyed by the CAD system was confusing and attended with uncertainty. I find that SC Whisler's explanation for thinking that the person referred to by the caller might have mental health issues is plausible, having regard to all the circumstances. Those circumstances include the information about the male person's behaviour (using the phrase 'SOS', which was unusual) and the possibility he was affected by drugs or alcohol, and the directive in the CAD system to police officers in respect of persons who may be suffering from mental health issues. I do not consider that the absence of any mention in SC Whisler's statement that she thought there could be a mental health issue detracts from the credibility of her account. Her explanation for that omission was reasonable.
In any event, as will appear later in these reasons, the issue affecting the admissibility of the evidence of the accused's admissions to SC Whisler is not whether SC Whisler thought she may be attending a scene involving a car crash, but whether there was a reasonable basis for suspecting that the accused had committed an offence, either before he made any admissions or at least before SC Whisler questioned him after turning on the body-worn camera. I accept SC Whisler's evidence that she did not know what she was dealing with when she attended the scene and that the accused first disclosed what happened when Ms Went approached and said her husband had gone to look for the car. I accept that her purpose was to determine what had happened. That continued to be the case once she activated the body-worn camera, at which time her focus was to determine the location of the vehicle and the accused's friend. This was in a context in which the accused had sought assistance and clearly wanted the police to find the deceased.
I accept SC Whisler's evidence that she did not caution the accused because she was still trying to determine whether an offence had been committed. However, the issue of whether a caution was required must be determined objectively, having regard to the circumstances as they presented and the information that was available at that stage. I will analyse those circumstances in determining the issue below.
I will turn next to the evidence of Adam Leigh Browne and Robert John O'Donnell concerning alleged admissions by the accused in the back of the ambulance.
Evidence to be given by Adam Leigh Browne and Robert John O'Donnell
Mr Browne and Mr O'Donnell were not called at the hearing. The accused's application to exclude their evidence concerning statements made by the accused whilst in the ambulance, is to be determined on the basis that each of the witnesses will give evidence in terms of the witness's statement.
Mr Browne's evidence
Mr Browne states that, at the relevant time, he was employed by Rio Tinto as an Emergency Services Officer, but he had also joined St John's Volunteer Ambulance and was attending St John Ambulance for weekly training. The call out for an ambulance on 16 October 2020 occurred while he was at training. He went along as a third person with the crew.[91]
[91] PB 1-165 [2] - [5].
Mr Browne states that when they arrived at the scene, he realised that the 'casualty' was the accused, who he knew from work. He states that, as he approached the accused, 'there was initially no response', until Mr Browne knelt beside the accused, at which time the accused 'got a bit of a shock' and was startled by Mr Browne being there.[92] He states that the accused[93] seemed to be in shock but did not appear to have any injuries.[94] He says that the first thing he noticed was a strong smell of alcohol.[95]
[92] PB 1-166 [10], [13].
[93] Mr Browne refers to the accused variously as 'the patient' and Daniel from this point in his statement.
[94] PB 1-166 [14].
[95] PB 1-166 [14].
Mr Browne states that he questioned the accused to find out what had happened and if he had any injuries, but the accused was more concerned for his friend, Carlos.[96] Mr Browne says he asked the accused where Carlos was and what had happened, but the accused was becoming agitated that the police were standing around doing nothing.[97] There was then a discussion about where Carlos was, in which the accused said he had been walking for three hours and was unsure of the exact location.[98]
[96] PB 1-167 [15].
[97] PB 1-167 [16].
[98] PB 1-167 [18].
Mr Browne states that the accused eventually agreed to be taken to Roebourne Hospital in the ambulance.[99] Mr Browne then states:[100]
On the way to hospital[,] I questioned Daniel as to what had happened, he stated that he and his friend Carlos were out the back of Wickham and as they were about to turn around and drive back to Wickham, he slowed down and went to turn the vehicle around and the vehicle fell into a rut and rolled.
Once the vehicle had rolled over he said Carlos was having issues not being able to breathe, so he dragged him from the vehicle and tried to do mouth to mouth resuscitation, but was unable to due to his friend coughing up blood.
[99] PB 1-167 [19].
[100] PB 1-168 [20] - [21] (syntax as in the witness's statement).
The statements made by the accused set out in both of those paragraphs in Mr Browne's statement constitute the alleged admissions on which the State relies from this evidence. However, Mr Browne's earlier interaction with the accused is relevant for context, as is what followed.
Mr Browne states that, after describing what had occurred, the accused asked what the chances were of someone surviving, if they were coughing up blood.[101] Finally, Mr Browne states that he asked the accused if he had been drinking that day, and the accused said he had only had a few beers earlier that day.[102]
[101] PB 1-168 [22].
[102] PB 1-168 [24].
The State submits that the effect of Mr Browne's evidence, that the accused said 'he slowed down and went to turn the vehicle', is that the accused admitted he was the driver of the vehicle. The accused's submission is that this aspect of Mr Browne's statement is ambiguous, in that the 'he' could have been a reference to the deceased. Therefore, it could not be admitted as an unambiguous admission against interest, and there is a risk that a jury would wrongly construe it as an admission against interest if the evidence were adduced.
The fact that the statements made by the accused to Mr Browne are related by the witness in indirect, rather than direct, language, does give rise to the potential for ambiguity. Having regard to the context in which the words appear, it seems to me that Mr Browne is describing something the accused said he did. However, Mr Browne should be asked to clarify that aspect of his evidence by providing, as best as he can remember, the words used by the accused. If the language is in the form of a direct quote, there could be no ambiguity as to whether the accused was referring to himself or to the deceased.
For present purposes, I will proceed on the assumption that the meaning of the relevant sentence in Mr Browne's statement is that the accused referred to himself as the person who slowed the vehicle down and attempted to turn the vehicle. On that basis, his statement would constitute an admission against interest. Should it transpire that the assumption is wrong, the admissibility of the evidence can be revisited.
Mr O'Donnell's evidence
Mr O'Donnell states that, at the relevant time, he was employed by Rio Tinto, but was also a level 2 Volunteer Ambulance Officer with St John's Ambulance.[103] He was on duty on the evening of 16 October 2019 and was called to a motor vehicle accident at 6.50 pm.[104] He attended with Mr Browne and another Volunteer Ambulance Officer, Rebekah Jenaway, at the location where the accused was with police.[105] Mr O'Donnell knew the accused from playing cricket and from the Rio Tinto site.[106]
[103] PB 1-176 [2].
[104] PB 1-176 [4].
[105] PB 1-176 [5] - [7].
[106] PB 1-176 [7].
Mr O'Donnell states that when they asked the accused what had happened, at first, he just stared at them.[107] When asked again, the accused said, 'I'm fine, but Carlos is dead, he is still in the car.'[108] The accused went on to say that he had been walking since 3.00 pm to get back to town for help, as he could not find his phone.[109] When asked if he had been drinking, he said he had had three drinks.[110] Mr O'Donnell states that he could smell a hint of alcohol on the accused and his eyes were glazed.[111]
[107] PB 1-177 [11].
[108] PB 1-177 [12].
[109] PB 1-177 [12].
[110] PB 1-177 [13].
[111] PB 1-177 [14].
Mr O'Donnell states that the accused was showing signs of shock, but he did not complain of injury or pain when asked at the scene, and he was able to walk unassisted to the ambulance.[112]
[112] PB 1-177 [15] - [16].
Mr O'Donnell then describes the following occurring in the back of the ambulance:[113]
When asked more questions in the ambulance as to the nature of the accident, he was uncertain in his answers.
He stated that they were turning around at slow speed, and the vehicle tipped over and landed on the driver's side, with the passenger falling onto him.
He said he was able to get himself and the passenger (Carlos) out of the vehicle, and started to perform CPR on Carlos, where he got a mouthful of his blood in his mouth, he then started to walk back for help.
[113] PB 1-178 [19] - [21].
It is the State's case that the accused's answers, as related by Mr O'Donnell, amount to an admission against interest, namely that he was driving, because the only reasonable inference from the account is that the deceased was in the passenger seat, as that is the only way in which the deceased could have fallen on the accused when the vehicle rolled onto the driver's side. It is a similar admission to the unrecorded admission allegedly made to SC Whisler.
The accused submits that Mr O'Donnell's description of the accused's answers as being 'uncertain' detracts from their reliability, rendering it unsafe for the jury to rely on the answers attributed to the accused by Mr O'Donnell. It is not obvious what Mr O'Donnell means by 'uncertain', for instance, whether it was the accused's manner of speaking or some other aspect of his demeanour, whether the answers were qualified by the accused or whether the uncertainty related to details other than those related by Mr O'Donnell. It is not evident from the accused's answers, as related by Mr O'Donnell, that there was anything uncertain about them. They amount to a coherent narrative and include several details that are consistent with the account the accused gave to SC Whisler.
In the absence of further explanation, Mr O'Donnell's reference to uncertainty does not preclude the statements made by the accused, as related by Mr O'Donnell, from being regarded as admissions against interest. Whether they are in fact regarded that way, and the weight to be given to the evidence, will be a matter for the jury at trial, if the evidence is admitted.
The same may be said of the evidence of Mr Browne.
The question of whether the evidence of Mr Browne and Mr O'Donnell should be excluded turns on whether the admission of the evidence would result in an unfair trial for the accused.
The video record of interview on 18 October 2019
The video record of interview with the accused at Roebourne Police Station on 18 October 2019 was tendered on a DVD as an exhibit in the pre-trial hearing.[114] SC Frankel was one of the two interviewing police officers. The circumstances leading up to the interview are described in his statement in the prosecution brief.[115] He was attached to the Major Crash Investigation Section, based in Midland, and was tasked to investigate the motor vehicle crash in Wickham.[116] He initially attended Roebourne Police Station and then the scene of the crash on 17 October 2019, after which he attended Karratha Police Station.[117] After commencing duty at 7.00 am on 18 October 2019, he spoke on the telephone with the accused, who agreed to attend the Roebourne Police Station.[118]
[114] ts 27; Exhibit 2. (The transcript is at PB 3-1 - 3-8.)
[115] PB 1-34 - 1-36.
[116] PB 1-34 [1] - [2].
[117] PB 1-34 - 1-35 [4], [5], [14].
[118] PB 1-26 [16].
SC Frankel attended the Roebourne Police Station around 11.30 am and was introduced to the accused. The accused's partner and brother were also present.[119]
[119] PB 1-36 [17], [18].
SC Frankel informed the accused that he wished to speak with him in relation to the motor vehicle crash and provided him with the police caution and the rights under s 28 of the CIA.[120] SC Frankel states that he advised the accused that he was not under arrest and was free to leave if he wished to, and that he did not have to speak with SC Frankel if he did not want to.[121] He states that the accused agreed to participate in a video record of interview to speak about who the driver was at the time of the crash, but he did not want to talk about the actual crash.[122] The accused requested that his brother be present during the interview.
[120] PB 1-36 [19] - [20].
[121] PB 1-36 [21].
[122] PB 1-36 [22].
The interview was then conducted.
After preliminary questions concerning the accused's personal details, the accused said he was not affected by alcohol but had taken anxiety medication prescribed to him.[123] He also said he was suffering from injury to his head, back, leg and neck which was from the accident.[124] The following exchange then occurred:[125]
[123] PB 3-2 - 3-3.
[124] PB 3-3.
[125] PB 3-3 - 3-4.
SC Frankel: But are you okay just to continue at the moment.
Accused: Yep.
Sgt May: [indistinct].
Accused: Just state that I'm – I was the person who was driving the vehicle.
SC Frankel: Yep. Yep. That's fine.
Accused: Yeah. Cool.
SC Frankel: Yep.
Sgt May: That's what the interview [indistinct].
Accused: Oh ---
SC Frankel: Yep. All right.
Accused: That's what I was saying.
SC Frankel: All right. So – all right – so … you're not under arrest at the moment. All right? Um, do you agree that you're here on a voluntary basis, uh, and [indistinct] to accompany police. So, when you've attended the police we've made an appointment, you've attended the Roebourne Police Station.
Accused: Yes.
SC Frankel: Yep – voluntarily.
Accused: Yep.
The accused then agreed that he had been told he was not under arrest and was free to leave at any time.[126] He was informed of his rights, including the right to speak with a lawyer. The accused then said, 'I seek legal advice.'[127] He was then asked if he wished to do that 'at the moment'.[128] He responded:[129]
No, we're doing the 57. Is that correct? That's all?
[126] PB 3-4.
[127] PB 3-4.
[128] PB 3-4.
[129] PB 3-4.
SC Frankel then explained that the interview was going to be structured, as he had already said, and that they were going to do the '57' first, after which he would issue the accused with a caution.[130] The references to '57' were to s 57 of the RTA. SC Frankel then identified the accused's other rights at that stage, being the right to medical attention, to an interpreter and to protection from the mass media.[131] The following exchange then occurred:[132]
SC Frankel: Okay. So what we wish to talk to you about is a traffic crash that occurred on the 16th of October. Okay? Uh, at about, um, well, between 5.30 and 6.30. Okay? Um, and as of what – what we're – that crash involved a Nissan – well, we've got station sedan – uh, registration C-G-G-4-4-4-0. Okay? And that vehicle – does that vehicle belong to you?
Accused: Yes.
SC Frankel: Yep. Okay. So, under section 57 of the Road Traffic Act, um, there's a requirement to identify the driver involved, at the time of that crash. Um, were you the driver at the time?
Accused: Yes.
[130] PB 3-5.
[131] PB 3-5.
[132] PB 3-5 - 3-6.
SC Frankel then cautioned the accused and said he wished to talk to him about the crash.[133] The accused then said he did not wish to take part in the interview.[134]
[133] PB 3-6.
[134] PB 3-7.
I next turn to the proposed evidence of Professor Bryant.
Evidence of Professor Richard Bryant
Professor Richard Bryant AC is Scientia Professor in the School of Psychology at the University of New South Wales. He has extensive academic qualifications, including a PhD in psychology, has worked as a clinical psychologist and has had leading research and fellowship roles with the National Health and Medical Research Council and the Australian Research Council.[135] There was no issue taken by the State with his qualifications and his statement that he is probably regarded as one of the world's experts in acute traumatic stress and Post Traumatic Stress Disorder (PTSD).
[135] ts 69 - 70.
Professor Bryant elaborated on his expertise as it pertains to the present matter and the contents of his report as follows:[136]
My particular expertise in post-traumatic stress disorder and particularly acute stress pertains to this matter because – and was the subject of my report. It's acute traumatic stress reactions that can impact how people remember events and process events and their general cognitive processing during those states which I have done a lot of work in, and that's really the … subject of my report.
[136] ts 70.
The accused sought to rely on Professor Bryant's expert evidence in support of the proposition that the accused's alleged admissions could not be regarded as accurate and reliable recollections of the car crash, in particular the recollection that he was driving, because of the trauma he experienced during the crash and the extreme stress he was in immediately after the crash, including at the time he spoke to SC Whisler and the ambulance officers. That proposition is relevant in the context of determining whether the evidence of the accused's alleged admissions should be admitted at trial. In the event that the evidence of admissions is ruled to be admissible, and is not excluded in the exercise of discretion, the accused intends to adduce the same evidence from Professor Bryant for the jury to consider in deciding whether the accused's admissions were accurate and reliable.
I am satisfied that Professor Bryant is eminently qualified to give expert evidence about the occurrence of acute traumatic stress and its potential impact on perceptions and recollections. The question is whether his evidence is relevant, in the sense that it addresses issues that are properly the subject of expertise in the context of this case.
Professor Bryant's report dated 10 November 2021 was received as an exhibit in the pre-trial hearing.[137] However, much of the report, including Professor Bryant's opinions relating to the accused's psychological state at the time of the car crash and, subsequently, when he is alleged to have made admissions, proceeded on the basis that the accused had previously suffered from an anxiety disorder and PTSD. No evidence was adduced in the pre-trial hearing to provide a foundation for the premise that the accused suffered from those conditions. Professor Bryant relied on the accused's medical records that had been provided to him. Those records were tendered as a bundle by the State during submissions,[138] because some of the records were referred to during the cross-examination of Professor Bryant, and provided the foundation for certain propositions that were put to him. The records were not relied on for the truth of their contents, except to the extent that they related to the propositions put to Professor Bryant.[139]
[137] ts 71 - 72; Exhibit 3.
[138] ts 117; Exhibit 5.
[139] ts 117.
In any event, Professor Bryant agreed in his oral evidence that there had not been a formal diagnosis of PTSD prior to the car crash on 16 October 2019. However, irrespective of whether the accused was more susceptible to an acute stress reaction because of a pre-existing trauma-related condition, Professor Bryant considered the real issue to be whether the accused was in a dissociative state as a result of the crash and its aftermath, such as to affect the reliability of his memories of the incident. He said the medical history was relevant but not a 'dealbreaker'.[140]
[140] ts 76.
The following passage from Professor Bryant's report is a helpful summary of the concepts involved:[141]
There is much empirical evidence that the elevated arousal caused by a trauma leads to marked alterations in awareness and attention. The reason for this is that under conditions of marked arousal, our working memory is over-loaded and we cannot allocate our attention to events in our surrounding in ways that we normally would. This can result in disorientation, poor memory of details of the event, and fragmented memory of the sequence of events. These altered states of awareness are often described as dissociative states because one is dissociated from normal awareness. This pattern is seen in healthy people during states of high arousal.
[141] Exhibit 3, 2 [1]. The scientific and somewhat technical explanations for these phenomena are set out earlier in Professor Bryant's report, but it serves no purpose to outline them here, as the summary provides an adequate explanation and is key to the question whether this evidence would assist the jury on an issue that would not be within the knowledge or appreciation of lay persons.
In his report, Professor Bryant went on to express opinions, in answer to questions put by the accused's lawyer in the letter of instruction, as to the accused's likely level of arousal at the relevant time and the likelihood that he was in a dissociative state. Professor Bryant relied on his observations of the accused in the recording from SC Whisler's body-worn camera, the description of the accused's presentation by the witnesses who dealt with him at the scene, and his observations of the accused in the formal record of interview on 18 October 2019.[142]
[142] ts 71, 76.
One of the questions Professor Bryant was asked to address specifically in his report was whether he was able to provide an opinion as to the state of the accused's mind at the time of speaking to the officers at the scene.[143] Professor Bryant said:[144]
I cannot conclude definitively about Mr Gammell's state of mind at the scene of the accident. However, my viewing of the footage indicates a man in very severe distress who would be most likely to be highly aroused, possibly dissociative, and prone to have poor awareness of the events involved in the event.
[143] Exhibit 3, 7 [17].
[144] Exhibit 3, 7 [17].
As the State submitted, the matters about which Professor Bryant has expressed views in that paragraph are issues for the jury to determine based on their assessment of the accused's presentation in the video, but also having regard to the other evidence in the trial. Notably, Professor Bryant does not appear to have considered the content of what the accused said, for the purpose of assessing its coherence and whether it appears to be consistent or inconsistent with objective facts disclosed by other evidence. It is difficult to comprehend how one could assess whether the accused was 'prone to have poor awareness of the events' without that kind of analysis. It also begs the question what 'poor awareness of the events' entails. It may be, for instance, that the accused was not aware of everything that was occurring but was aware of the details he related to SC Whisler and the ambulance officers.
More generally, Professor Bryant was asked to deal with 'dissociative amnesia' in his report. Professor Bryant explained as follows:[145]
Dissociative amnesia typically involves situations in which a person can be expected to recall certain information but they cannot do. It should not be applied to situations in which the person would not be expected to encode any information, such as severe traumatic brain injury. Dissociative amnesia typically occurs in situations where there is extreme arousal (which limits encoding) and/or distressing memories that the person is motivated to avoid. As noted above, one prevailing perspective on why memories may be formed differently in the context of traumatic responses to an event is that the high arousal associated with a traumatic experience results in a predominance of sensory information being encoded. Importantly, this perspective does not invoke models of dissociation or defense mechanisms. A prevailing model postulates that (sic) emphasizes 'data driven' nature of encoding of trauma memories, which involves heightened arousal resulting in people encoding sensory impressions of an experience rather than verbal thoughts. In this model a person may encode images of blood splattered across a windscreen after a car crash but lack the coherent narrative that would normally be encoded into one's autobiographical memory. As a result of this sensory encoding, trauma memories are often consolidated in a fragmented manner and lack a coherent narrative. When a dissociated memory has been properly encoded but one cannot access the memory, this typically occurs when the content of the memory is highly distressing.
[145] Exhibit 3, 4 [4] (footnotes omitted).
When he was asked whether dissociative amnesia could be 'triggered' by a car crash, Professor Bryant explained in his report:[146]
Dissociative amnesia can occur in any traumatic event in which a person experiences very strong arousal or has strong distress about an experience that they block from conscious awareness. Early studies found poorer memory for a critical item presented immediately prior to a violent event than prior to a nonviolent event. It has been proposed that very high levels of arousal deplete one's cognitive resources, and this simply limits one's capacity to encode and consolidate information adequately. A car accident can trigger dissociative amnesia by means of the extreme arousal at the time of the accident and/or because of the unconscious drive to avert recall of the memory. In the Traumatic Stress Clinic at the University of New South Wales, which has been treating PTSD since 1995, there have been numerous cases of PTSD in which the person mis-remembers key aspects of the accident. These cases can also involve experiences in which the person feels strong regret or guilt about what occurred in the accident, such as a fatality, because the person is reluctant to engage in full retrieval of what occurred. People often avoid thinking of distressing memories because they do not want to dwell on or experience the full brunt of the distress evoked by the memory. The more a person does not retrieve a memory, the more likely that it will not be accessible to the person. This can contribute to the amnesia because the event has not been rehearsed.
[146] Exhibit 3, 4 [5] (footnotes omitted).
It is evident, from those explanations, that the concept of dissociative amnesia would have no relevance to the jury's assessment of the accused's alleged admissions. The issue is not whether the accused was unable to encode or recall a coherent narrative, but whether the narrative he gave was correct. Further, it is not suggested by Professor Bryant in the second passage that the avoidance of distressing memories would account for a false memory, rather it is an explanation for a failure to recall certain information. It might be thought that the accused's accounts to SC Whisler and the ambulance officers included distressing memories (inconsistent with dissociative amnesia), including the fact that he was driving, that the deceased fell on him, and that the deceased coughed up blood when the accused attempted to administer CPR.
The reference in the second passage to cases dealt with at the University of New South Wales, in which persons misremembered key aspects of the accident, appears to be dealing with the separate issue of false memory, rather than dissociative amnesia. At the hearing, I asked Professor Bryant for further details of those cases:[147]
Are you saying that these are all cases involving motor vehicle accidents? – No. There are certainly some that have involved motor vehicle accidents, and the ones I can recall did actually involve fatalities or particularly bad accidents, but others had involved more interpersonal trauma.
Well, it's just that you referred – you used the word 'accident' so I was just trying to understand what you were referring to there? ‑‑ Sorry. That – that – that was probably – yes. It should be – should be interpreted more broadly.
Yes. All right. So probably incident rather than accident? – Or trauma, yes.
All right. So in terms of the ones that have involved motor vehicle accidents and death, what kind of misremembering are your referring to? What kind of facts have been misremembered? ‑‑ Without going into details of other cases, but the sorts of things can be – and – and let me say at the outset I will not … there is not an example of a case I – I will cite of somebody misremembering whether they were the passenger or the driver, which is a – probably a – potentially a question on people's minds. But there have been blatant misremembering of who was in the car and who was not in the car, the situation of … the accident in the terms of directions of where the car was coming, etcetera.
[147] ts 84 - 85.
Mr Johnston also had regard to the medical examination of the accused at Roebourne Hospital on the night of the incident and the accused's subsequent attendance at Karratha Health Campus.[369] The accused complained of neck and left leg pain when he was at Roebourne Hospital. Subsequently, on 4 November 2019, at Karratha, he complained of ongoing neck and back pain.
[369] Exhibit 4 [3.1] - [3.4].
Mr Johnston noted in his report that the treatment notes from Roebourne Hospital indicate that here were no visible markings on the accused, including an absence of any seatbelt injuries, although it was recorded that the accused said he was wearing a seatbelt. The admissibility of the latter statement is not a matter raised for determination in these proceedings, and it does not appear to have been taken into account by Mr Johnston in reaching his conclusions.
Mr Johnston's concluding opinions about the circumstances of this case are set out in paragraphs 4.24 to 4.29 of his report. As I said at [339], the accused does not intend to adduce the opinion in paragraph 4.25. The balance of the opinions are as follows (italics added):
4.24The injury patterns suggest that [the deceased] sustained a facial impact most probably with the interior surface of the vehicle which resulted in the chin laceration and the C3/C4 fracture. As noted in the previous section the restrained occupant especially in a moderate speed crash is far less likely to strike the interior surface of the vehicle as compared to an unrestrained occupant, especially when both occupants are in the same vehicle and experience the same approximate loading and one is restrained and one is not. The unrestrained occupant is far more likely [to be] the one who has the facial impact[,] the restrained occupant is likely to be held by the restraint.
...
4.26 If the seatbelt examination was wrong and both were restrained then it is possible for a restrained occupant to strike an interior surface despite being restrained but in this situation assuming again the same impact loading the driver is more likely to reach an internal surface with greater velocity than the passenger simply because the driver has the closer potential impact object with the steering wheel closer to the driver than the dashboard is to the passenger. Alternatively, if there is also some lateral movement to the right, then the driver also had the A-pillar whereas the passenger only had the dashboard. It is not impossible for a restrained passenger to strike an internal surface especially if there is significant lateral loading but in general it is still more likely for the driver than the passenger.
4.27 If the resulting force at the time of the rollover was predominantly lateral assuming that all of the longitudinal velocity was dissipated before the rollover occurred then the occupants would be accelerated rapidly towards the right side after the right side impacted the ground. The unrestrained driver was obviously more vulnerable to a heavy impact with the side of the vehicle and the ground than a restrained passenger whom if he remained restrained at least by the lower torso should not have reached the right side of the vehicle with his head.
4.28 Another possible mechanism, for neck injury in a rollover is roof contact if the occupant moves towards the roof or the roof moves towards the occupant. In this case this is unlikely as the vehicle only experienced a quarter rotation so did not land vertically on the roof and the roof was not deformed sufficiently to have struck the head of either occupant. In general terms however in a case where it is known that a part of the roof has not intruded into the occupant space then it would be far more likely that if either occupant were to strike the roof and injure the neck it would be the unrestrained occupant which in this case was the driver.
4.29 Even if one were to consider the incident at the most simplistic level the unrestrained occupant is more likely to have more serious injuries than the restrained occupant and the occupant on the side of the vehicle which made contact with the roadway is more likely to have more serious injuries than the occupant on the high side especially if the occupant on the high side is held by their restraint.
At the pre-trial hearing, I obtained clarification from Mr Johnston of the last sentence of paragraph 4.26, as follows:[370]
But do I also understand from your report that you cannot exclude the possibility that someone who was in the passenger's seat could have suffered injuries to their head by coming into contact with some part of the vehicle, the interior of the vehicle? ‑‑‑ I can't exclude it. No.
The State's objection
[370] ts 97.
The State objects to the evidence of Mr Johnston on the basis that it:
(1)merely describes uncontroversial evidence, including evidence in relation to the movement of the vehicle, that is available from other sources;
(2)outlines abstract mathematical concepts that will not assist the jury in deciding what occurred in this case, in the absence of any mathematical analysis specific to the circumstances of this case; and
(3)otherwise describes concepts that would be within the knowledge of ordinary members of a jury, about the operation of seatbelts and the relative likelihood of restrained and unrestrained occupants of vehicles being injured in a motor vehicle incident.
The State submits that Mr Johnston's deductions amount, essentially, to the following:
(1)The deceased had injuries that indicated, among other matters, an impact to his chin, which suggested that he came into contact with the interior of the vehicle.
(2)The accused did not have injuries that indicated any impact with objects in the interior of the vehicle.
(3)The vehicle examination suggests the passenger was wearing a seatbelt and the driver was not.
(4)It is therefore more likely that the deceased was in the driver's seat.
The State submits that it is within the capacity of a lay jury to determine whether such deductions should be made, without the need for an expert witness to explain the foundations for such deductions, as those foundations, in non-technical terms, are matters about which most jurors would have knowledge.
The accused's submissions
The essence of the accused's submission is that the jury's determination of whether it was the accused or the deceased who was driving the Nissan 4WD will be assisted by:
(1)a proper understanding of the physical forces affecting the vehicle in a roll-over such as occurred in this case, and, consequently, the physical forces affecting the occupants of the vehicle; and
(2)following from the first point, a proper understanding of the potential movements of the occupants of the vehicle, and the effect that being restrained, or unrestrained, by a seatbelt would have on such movement.
The accused submits that, while the jury may have a general understanding of the matters referred to by the State, the biomechanical expert evidence of Mr Johnston provides greater insight into the forces at play in the circumstances of this case, because of the manner in which the vehicle 'tripped' and rolled over. Further, he submits that some of the specific aspects of Mr Johnston's evidence concerning the way in which a seatbelt, properly worn, would affect the movement of the person restrained in a crash involving both longitudinal and lateral forces, may not be within the knowledge of lay jurors.
The accused submits that the evidence relating to the physical findings and the general expectations in respect of movement of the occupants of the vehicle, applying the principles of biomechanics, is relevant to the jury's consideration of whether the accused's admission that he was the driver of the Nissan 4WD at the relevant time was true. While the evidence may not be capable of positively establishing that the accused was in the passenger seat and that the deceased was the driver, it is capable of raising a reasonable doubt about the reliability of the accused's admissions that he was the driver. Whether it does raise a reasonable doubt is a matter for the jury to decide. Therefore, the evidence should be left to the jury to consider.
Consideration
Parts of the proposed evidence of Mr Johnston are admissible
I accept the State's submission that much of the evidence proposed to be adduced from Mr Johnston relates to matters that would be known or obvious to ordinary members of the jury, in relation to the operation of seatbelts and the relative vulnerability of occupants of vehicles to injury in a crash, depending on whether they are restrained or unrestrained, or the driver or passenger, in a case where the vehicle was not fitted with airbags. However, I consider, for reasons indicated earlier, in the context of outlining Mr Johnston's evidence, that there are some aspects of his evidence that may properly be regarded as being outside the common knowledge of members of the community, and in respect of which the jury may be assisted by expert evidence. An example, in relation to seatbelts, is Mr Johnston's evidence that a three-point seatbelt is limited in its ability to prevent sideways upper body movement in response to lateral forces.
Further, I do not agree that the effect of Mr Johnston's evidence is limited in the way set out at [385] above. There are aspects of his evidence in relation to the principles of biomechanics and their application to an incident in which a vehicle has 'tripped' and rolled over onto its side, that would not be within the knowledge of lay jurors, for instance, in relation to the forces of deceleration experienced in a roll-over compared with heavy breaking. Such evidence, in my opinion, could properly form part of the circumstantial evidence the jury could take into account together with the accused's admissions and the medical evidence, in determining whether the accused was the driver of the Nissan 4WD drive at the relevant time. It is evidence that might affect the jury's consideration of whether the accused's admissions that he was the driver are reliable. The weight to be given to the expert evidence will be a matter for the jury to determine.
Once it is accepted that there are aspects of Mr Johnston's evidence that are relevant and properly the subject of expert evidence, it is not a valid objection that some (perhaps much) of his evidence replicates evidence from other sources or may be about non-expert matters. Mr Johnston would be permitted to give that evidence in the latter categories provided it is necessary to give context for the expert evidence.
Accordingly, I am satisfied that the evidence outlined above in the following paragraphs is admissible as expert evidence, or to provide context for the expert evidence of Mr Johnston, and is relevant in the way I have described:
(1)[345], insofar as it is confined to a general statement of the methodology adopted, and does not suggest that it is possible, thereby, to determine the probability of who the driver was in this case.
(2)[346], provided it is made clear that there is no assumption about how the occupants of the vehicle were positioned in their respective seats.
(3)[347] to [354], which are concerned with the movement of the vehicle and the forces generated by the roll-over.
(4)[355] to [358], provided the evidence is confined to an explanation of the general principles as they would apply to a roll-over such as that in this case, and it is made clear that the forces calculated are illustrative and not indicative of the actual forces in this case. In relation to [357], the last sentence in the quote would not be admissible in that form, as it suggests an opinion about what occurred in this case, for which, as I will explain later, there is insufficient factual foundation for an expert opinion.
(5)[359] and [363], as evidence of the limitations that preclude quantification of the movement of the occupants of the vehicle in this case.
(6)[360], as general propositions.
(7)[367] to [371].
(8)[375] and [376], for the reasons given at [374].
Parts of the proposed evidence of Mr Johnston are not admissible
I am not satisfied that there is a proper factual foundation for Mr Johnston to be able to give an expert opinion in relation to the likely movement of the driver and the front passenger in this case, or the likelihood of either of them suffering injuries of the kind suffered by the deceased. My reasons for that conclusion follow.
Mr Johnston's opinions rely, in part, on the post-mortem examination report for a description of the injuries suffered by the deceased that were found to be the cause of death, or connected to that cause. That report states that 'it appears a high neck injury caused death', and that it was 'probably sustained as a result of a heavy impact to the undersurface of the chin' (emphasis added).[371] It is not clear whether Mr Johnston relied on that description as the only possible mechanism by which the neck injury was caused. The post-mortem report does not (and would not normally be expected to) describe the fracture and dislocation of the spine at C3/C4 in any further detail, nor the physical mechanism by which the fracture and dislocation could occur. The fact that it was considered probable that the neck injury was sustained as a result of a heavy impact to the undersurface of the deceased's chin suggests that a mechanism involving a backward movement of the head as a result of impact may have been involved. However, there is no information before the court at this stage, for instance, by way of a further report, to indicate whether the forensic pathologist might identify other possible mechanisms.
[371] PB 2-13.
Further, the forensic pathologist found a number of abrasions and lacerations to the deceased's body. Several of those injuries were to the right side of the deceased's body, but some were to the left side, including to the left side of his face. There is no opinion in the materials before the court at this stage as to the possible cause or causes of those injuries, and whether any of them could be associated with the physical mechanism that resulted in the neck injury. Mr Johnston does not refer to those other injuries.
The point is that the jury will be required to have regard to the whole of the evidence, including any opinions expressed by the forensic pathologist. It is difficult to see how an opinion could be reached about who was more likely, as between the driver and the front passenger, to have suffered the injuries suffered by the deceased, without having regard to all of the injuries.
The next point is that Mr Johnston's opinions about the likelihood of the driver and passenger hitting vehicle surfaces, and the consequent likelihood of each of them receiving injuries, appear to assume that each was seated in a normal sitting position in their respective seat at the moment the vehicle 'tripped' and rolled over, and that the expected physical forces resulting from the trip and roll-over would have caused them to move in a manner consistent with general modelling. Mr Johnston's opinions appear to assume passive occupants of the vehicle, who were subject to the laws of physics without any capacity to affect the way in which those laws may have manifested in their particular cases. If Mr Johnston is to be permitted to give those opinions as expert evidence, there must be an evidentiary foundation for the assumptions.
There is no direct evidence of how the occupants of the vehicle were positioned in their respective seats immediately before the roll-over in this case. The only direct evidence of what occurred is what the accused has said in his admissions. Those admissions place him in the driver's seat, and the deceased in the front passenger seat. There is no evidence as to which way each of the occupants was facing immediately before the roll-over, or whether they took any action to brace themselves. In the deceased's case, there is no evidence as to his level of alertness. There is no evidence as to when the front passenger's seatbelt was unbuckled.
Despite Mr Johnston's claim that, with an unlimited budget, he could mathematically model what happened to each of the occupants of the vehicle and provide a three-dimensional representation of that, what he went on to describe was a qualified methodology for predicting motion 'based on an assumed set of impact specifics or a range of impact specifics', which is not the same as reconstructing what actually happened, having regard to the actual behaviour of each of the occupants at the time of the incident, rather than assumptions. It is difficult to see how a 'range of impact specifics' could ever incorporate the myriad possibilities of how the occupant of a vehicle was behaving that might affect the prediction of motion. While that issue is academic, as Mr Johnston has not done the sort of analysis he described, the difficulties I have identified underscore the lack of a proper factual foundation for Mr Johnston to express an expert opinion about the way in which either the driver or the passenger was likely to have been affected, in terms of motion and risk of injury, by the roll-over incident in this case.
In the absence of mathematical modelling, Mr Johnston's concession that he cannot exclude the possibility that a restrained passenger could have suffered injuries to his head, begs the question whether his opinions about the likelihood of injury to the driver and passenger can properly be regarded as expert evidence, rather than reflecting processes of reasoning that a jury would be readily capable of undertaking without the assistance of an expert beyond the evidence I have already ruled to be admissible.
Turning to specific parts of the evidence, I am of the opinion that an adequate factual foundation has not been established for Mr Johnston to give, as an expert opinion, the evidence set out at [361] above about the specific direction of movement of the occupants of the vehicle in this case when the vehicle rolled. In my view, that opinion is not admissible.
The evidence given by Mr Johnston in the passage set out at [365] above concerns the approach he took to differentiating between the driver and the passenger. Given Mr Johnston's concession that the fact the driver's seatbelt was retracted may be equivocal, it will be a matter for the jury, having regard to all of the evidence, to determine whether the driver was wearing a seatbelt, and, for that matter, whether the passenger was wearing the seatbelt that was found extended. Otherwise, what Mr Johnston said in that passage is not something that requires expert evidence. To the extent that it is part of evidence to be given by Mr Johnston concerning who was more likely, between the driver and passenger, to suffer injuries such as those suffered by the deceased, I am of the view that the evidence is inadmissible.
The evidence outlined at [372] above is not relevant, and therefore, inadmissible, as it is concerned only with a forward impact collision. Similarly, as I said when dealing with Figure 4.7, in my view that simulation is not relevant and, therefore, inadmissible.[372]
[372] See [378] above.
In my opinion, except to the extent that it repeats general propositions that I have ruled admissible, evidence in terms of paragraph 4.24 of Mr Johnston's report is inadmissible.
In my opinion, the matters set out in paragraph 4.26 of Mr Johnston's report are either matters that would be obvious to a jury (the proximity (or lack thereof) of objects to the driver and the passenger that could cause injury) or matters of submission for the jury to consider. Otherwise, to the extent that Mr Johnston purports to express an opinion about the driver being more likely to strike a surface, it is not admissible because of the lack of sufficient factual foundation to support the assumptions, as I explained above.
As for paragraphs 4.27 and 4.28 of Mr Johnston's report, evidence in those terms is admissible to the extent that it reflects general propositions that I have already ruled to be admissible, but otherwise is inadmissible insofar as it purports to be an opinion about what occurred in this case.
The contents of paragraph 4.29 of Mr Johnston's report are not admissible for at least three reasons. First, the assumptions underpinning the opinion evidence lack sufficient foundation, as I discussed above, so that the evidence is not admissible as expert evidence. Secondly, to the extent that the paragraph contains general propositions, I am satisfied they are matters within the understanding of an ordinary jury, for which expert evidence is not necessary. Thirdly, the premise that the opinion considers the matter 'at the most simplistic level', it is contrary to the approach the jury will be required to take, which is to have regard to all of the evidence, rather than considering it in a piecemeal way. Further, the jury will be instructed not to speculate. An approach that considers the facts simplistically, is itself speculative. In my opinion, evidence in terms of that paragraph is inadmissible.
Conclusion
Accordingly, I rule that the evidence set out at [393] above, with the stated qualifications, is admissible. That evidence is essentially in three categories. First, Mr Johnston's evidence concerning general principles of physics and biomechanics as they relate to the movement of the vehicle in this case, the manner in which the vehicle came to roll onto its side, the forces that would be generated on the occupants of the vehicle and the potential movement of the occupants as a result of such forces in general terms. Secondly, Mr Johnston's evidence in relation to the manner in which a seatbelt generally affects the movement of a person restrained by a seatbelt, including in a rollover of the kind that occurred in this case. Thirdly, Mr Johnston's evidence about the behaviour of an inertia reel seatbelt when a vehicle is not in an upright position.
I rule that Mr Johnston's opinions about the likely movement of the occupants of the vehicle at the time of the rollover, or the likely location within the vehicle of the accused and the deceased at that time, are not admissible. Without limiting the effect of that ruling, specific parts of the evidence that are not admissible are set out in [402] to [408] above.
Summary of rulings
The following is a summary of my rulings, as stated on 25 May 2022:
1.Evidence of the unrecorded admissions made by the accused to SC Whisler is admissible and should not be excluded in the exercise of discretion. Therefore, the evidence may be adduced by the State at the accused's trial.
2.Evidence of the admissions made by the accused to SC Whisler, recorded by her body-worn camera, is admissible and should not be excluded in the exercise of discretion. Therefore, the evidence may be adduced by the State at the accused's trial by the tender of the audiovisual recording of the admissions through SC Whisler.
3.Evidence of admissions made by the accused to Adam Leigh Browne is admissible and should not be excluded in the exercise of discretion. Therefore, the evidence may be adduced by the State at the accused's trial.
4.Evidence of admissions made by the accused to Robert John O'Donnell is admissible and should not be excluded in the exercise of discretion. Therefore, the evidence may be adduced by the State at the accused's trial.
5.Evidence of the admission made by the accused to SC Frankel in the video record of interview of 18 October 2019, in relation to the driver of the vehicle, is admissible and should not be excluded in the exercise of discretion. Therefore, the evidence may be adduced by the State at the accused's trial by the tender of the video record of interview up to and including the admission. If any other part of the interview is sought to be admitted, the admissibility of that part is to be determined by the trial judge.
6.The proposed expert evidence of Professor Richard Bryant is not admissible at the accused's trial.
7.The proposed expert evidence of Mr Grant Johnston is admissible in part at the accused's trial. The following parts of his evidence are admissible:
(1)Mr Johnston's evidence concerning general principles of physics and biomechanics as they relate to the movement of the vehicle in this case, the manner in which the vehicle came to roll onto its side, the forces that would be generated on the occupants of the vehicle and the potential movement of the occupants as a result of such forces.
(2)Mr Johnston's evidence in relation to the manner in which a seatbelt generally affects the movement of a person restrained by a seatbelt, including in a rollover of the kind that occurred in this case.
(3)Mr Johnston's evidence about the behaviour of an inertia reel seatbelt when a vehicle is not in an upright position.
8.Mr Johnston's opinions about the likely movement of the occupants of the vehicle at the time of the rollover, or the likely location within the vehicle of the accused and the deceased at that time, are not admissible.
Suppression order
I order that there is to be no publication of my rulings or these reasons until the conclusion of the criminal proceedings in respect of the charge to which this decision relates, except that the rulings and these reasons may be made available to persons representing the State or the accused in the criminal proceedings, and any judicial officer and their staff involved in the criminal proceedings for the purposes of those proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZB
Associate to the Honourable Justice Fiannaca
18 OCTOBER 2022
0
26
5