R (Respondent) v Alan Wayne Garth (Appellant) No. SCCRM 93/488 Judgment No. 4623 Number of Pages 29 Criminal Law and Procedure

[1994] SASC 4623

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MATHESON(1), PRIOR(3) AND OLSSON(2) JJ

CWDS
Criminal law and procedure - Manslaughter - conviction by jury on a joint charge with two others of murder - chronic alcoholic with very high blood alcohol concentration - whether his admissions to the police should have been admitted - whether verdict was in any event unsafe and satisfactory - sufficiency of direction on intoxication - whether trial Judge put the defence adequately to the jury. R v Smith (1992) 58 SASR 491; Morris v The Queen
(1987) 163 CLR 454; R v Rudd (1948) 32 CAR 138; Knight v The Queen (1992) 175 CLR 495; Palmer v R (1992) 106 ALR 1 and The Queen v Martin (1984) 58 ALJR
217, considered.

HRNG ADELAIDE, 22 March 1994 #DATE 23:6:1994

Counsel for appellant:     Mr C J Kourakis

Solicitors for appellant:    Douglas Wardle

Counsel for respondent:     Mr B J Jennings QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 MATHESON J At the end of the argument on this appeal, I felt decidedly uneasy about the learned trial Judge's decision to admit the appellant's admissions to the police of some involvement in the attack on the deceased, and decidedly uneasy about the safety of the appellant's conviction for manslaughter. Having now read the relevant evidence, the addresses of all counsel, the summing up and the transcript of argument before this Court, that unease has increased, and I have reached the conclusion that the appeal should be allowed.

2. Many of the facts are set out in the judgment of Olsson J. I will not repeat or add to them except where it is necessary to explain my decision.

3. There are four grounds of appeal, grounds l and 2 being the original grounds in respect of which leave to appeal was granted, grounds 3 and 4 being originally described as "Proposed Amended Grounds of Appeal". Because notice of them had only been given to the Director of Public Prosecutions immediately prior to the application for leave to appeal, the judge granting leave to appeal did not consider them. Mr Jennings Q.C., who appeared on the appeal for the Director, said with respect to them, "The Crown has got no objection to leave being granted. I think they are arguable grounds". I would allow them to be added. The four grounds then are:
    "1. The Learned Trial Judge was in error in not
    excluding the accused's video record of interview.

2. The verdict is unsafe and unsatisfactory.

3. The Learned Trial Judge erred in directing the jury
    that they could decide not to use the accused's alleged
    admissions as evidence if 'because of their intoxication
    (they) have been talking nonsense or saying things which
    are so inconsistent that you find them completely
    unreliable'.

4. The Learned Trial Judge failed to adequately relate
    the issue of the reliability of Garth's confession to the
    facts and in particular to:-
    (a) the evidence of his state of intoxication;
    (b) the evidence of Dr James;
    (c) the forensic evidence which was inconsistent with his
    admissions;
    (d) the inconsistency between his recorded interview and
    his statement to McLean and
    (e) his repeated statements that he was simply taking the
    rap for the others."

4. Prior to the commencement of the trial. Mr Wardle, who then appeared for the appellant, applied for orders which included:
    "The exclusion of the following conversations between the
    accused and
    i. Edward Breda.
    ii. The video record of interview with David George
    Modra.
    iii. Richard Desborough Wilkins."

5. He gave the following particulars:
    "The accused was so adversely affected by alcohol that he
    was incapable of firstly appreciating that he had a
    choice to speak or remain silent and in any event his
    utterances contain numerous examples of drunken bravado
    which ought to result in the exclusion as a matter of
    fairness to the accused."

6. The application stated that the questions of law included "the voluntariness of the accused's utterances and the need to consider excluding them as a matter of fairness in any event".

7. On 2 November, 1993, and before the jury was empanelled, his Honour held a voir dire on this application and on the same day he ruled as follows:
    "Mr Whittle, I feel that this evidence should all go to
    the jury. I don't propose to uphold Mr Wardle's
    submission, although I think there are a number of
    factual issues that the jury will need to iron out, and
    no doubt in due course the jury will need to be carefully
    directed about various aspects of what was a fairly long
    interview with a man who had obviously consumed a great
    amount of alcohol, but I'm going to overrule that
    particular objection. I make a ruling that the evidence
    of Detective Modra relating to this conversation with the
    accused Garth from the moment when Garth said to him
    'Look, I will take the rap for it all if you let the
    other two go' including the whole of the video tape which
    I have seen this afternoon, will not be excluded."

8. On 2 December, after a number of Crown witnesses had given evidence before the jury, Mr Wardle asked his Honour to reconsider his earlier ruling and the following exchange occurred :
    "MR WARDLE: I will put it this way, that there is a real
    risk of what he said was the result of alcohol or
    incapability of deciding what he was doing. So if you
    accept what these witnesses from the Westcare Mission
    say, it would be very difficult to say 'Well, here is a
    man who within minutes of being seen by Dunkley, Parish
    and so on, was able to appropriately decide that - I am
    going to speak to the police, and that he was in a
    sufficient condition to make a voluntary choice about the
    matter. So, in my respectful submission it is very hard
    to say that. He was just too drunk.
    HIS HONOUR: That seems to me to be a classic type of
    question of fact for a jury to decide.
    MR WARDLE: It can be, but is has got to get in there
    first. It has got to be before the jury first and of
    course your Honour has to say whether that material is to
    be admitted and although I have put to your Honour it
    really relates to discretion, it does come back to that
    voluntary question as well, if your Honour, now having
    heard these witnesses said - and I think your Honour said
    this before from memory - 'Well, it will be a matter of
    the jury deciding between Mr Parish perhaps and Detective
    Modra.' Those are not your exact words but before it gets
    to that, your Honour has to determine that. Your Honour
    has heard Mr Modra and what he said, you have heard Mr
    Parish. If the Crown has not persuaded you in effect
    that Mr Parish's assessment, Mr Dunkley's and Ms
    Norsworthy's assessment of this man's drunkenness are
    wrong and that the police are to be preferred by you on
    balance, then they have not proved that anything said was
    voluntary, simply because the man was too drunk. So it
    comes back firstly to that voluntariness question, but
    secondly it comes back to the discretionary question,
    because you now have evidence about just how drunk he
    was, and what I say is it's totally unfair to allow
    anything that he said to go before the jury. It's just
    inappropriate to allow the jury to try and sort that out,
    because of the evidence about his alcohol consumption and
    how affected he was. The first question really is, is
    your Honour satisfied that this man was able to exercise
    his right to silence, to refuse to answer questions like
    the others did. That's a question of voluntariness, and
    having heard the evidence from the mission people, I say
    you could never be satisfied of that on balance, and if
    that's the case, the Crown hasn't persuaded you that the
    statements made by the accused to the police officers
    that I mentioned, are voluntary statements, even if you
    think that somehow or other the accused was sufficiently
    in command of his faculties to be able to make that
    choice, there is now such a weight of material about how
    drunk he was that the conversations ought to be excluded.
    I am sorry to have raised it at this stage, but it seems
    to me that is something that is going to happen more and
    more."

9. Counsel for one of the other accused then addressed his Honour, and then Mr Whittle, who prosecuted, addressed his Honour. The exchange between Mr Whittle and his Honour included the following:
    "MR WHITTLE: On Monday I have taken it, given the nature
    of Mr Wardle's application, your Honour made a finding
    that the statements by the accused Garth were voluntary,
    and declined thereafter to exclude them in the exercise
    of your Honour's discretion.
    HIS HONOUR: On the evidence as it then stood.
    MR WHITTLE: On the evidence as it then stood
    ...
    MR WHITTLE: On the voir dire, if I can just speak, the
    test of course your Honour firstly, on the voir dire,
    must decide whether the statements are proved on the
    balance of probabilities to be voluntary, and secondly,
    whether some basis exists for excluding, in the exercise
    of your Honour's discretion. I wasn't called on on that
    point in the voir dire.
    HIS HONOUR: No, you weren't.
    MR WHITTLE: I unfortunately haven't got the authorities,
    to which I would have referred, here at the moment. I
    would have submitted then that there was no basis for
    excluding the evidence, no basis for finding that to lead
    it would be unfair to the accused Garth, and certainly,
    on the basis of what was said, looked at it on its face,
    no reason to believe firstly, in relation to the
    voluntariness question, that he was incapable of making a
    free choice as to whether to speak or be silent, and
    secondly, no reason to think that he was otherwise so
    drunk that it would be unfair to use his statements
    against him. Again, in relation to that, I would have
    then asked your Honour to bear in mind the evidence of Dr
    James, and assess the conversations, as your Honour heard
    they took place, and as your Honour saw they took place.
    Those remain the best reference to answer those
    questions, firstly, was the statement voluntary in the
    sense that it was made in the exercise of a free choice
    to speak or be silent, and secondly, whether there were
    circumstances which rendered it or would render it unfair
    to lead them against him, and again, whilst adopting what
    has fallen from your Honour as to that which your Honour
    sees as the Crown's best point, I submit that the
    assessment your Honour, I would say I presume must have
    made, having heard Dr James's evidence, is something that
    would not be changed by any evidence that your Honour has
    now heard about what happened at West Care. There are
    all sorts of explanations for what happened at West Care,
    but the best way to assess those statements is as Dr
    James said, and your Honour has done that, and I submit
    that nothing that has fallen from any witness is
    something which ought to cause any doubt in your Honour's
    mind as to the correctness of the ruling.
    HIS HONOUR: Those matters all go to the question of
    voluntariness, and basically I accept what you say about
    that as far as the voluntariness is concerned I am
    satisfied that you have established that the statements,
    both in the street, and in the motor car, and in the
    video room, were voluntarily made within the principles
    laid down by the authorities."

10. His Honour refused the application, and as he put it, "basically for the reasons that I have just articulated".

11. The appellant was convicted by the jury of manslaughter on 16 December, and applied for leave to appeal the following day. In his report to the Registrar dated 12 January, 1994 the learned trial Judge said:
    "In reply to your letter dated 22 December 1993, relating
    to the Notice of Application for Leave to Appeal against
    conviction in the above matter, I report only on the
    ground of appeal concerning the record of interviews with
    the applicant including the video record of interviews.
    The applicant made a formal application in writing
    pre-trial claiming that his statements to the police
    should, in the exercise of the Court's discretion, be
    excluded. Evidence was called on the voir dire by the
    Crown, including Dr James and several police officers.
    The applicant did not give evidence. I rejected the
    application but did not give reasons at the time. I have
    subsequently prepared and published my reasons for that
    preliminary ruling. There were two further applications
    made by counsel for the applicant during the trial. I
    rejected both of the oral applications. The last
    application was made late in the Crown case and resulted
    in a number of witnesses being called on the voir dire.
    I have incorporated my reasons for rejecting those
    further applications in my published reasons referred to
    above. I have nothing further to report on the Notice of
    Application for leave to appeal."

12. In his published reasons, his Honour did say:
    "Counsel submitted that the two questions to be resolved
    on the voir dire were: 1. Was Garth sufficiently in
    control of his faculties to be able to make a choice as
    to whether to talk to the police or not? 2. Would it be
    fair to use what he said against his own interests at the
    video recorded interview given his inebriated state?"

13. However, nowhere in those reasons did he appear to deal precisely with the question which he called No. 1, or refer to the relevant authorities, and in particular R. v. Smith (1992) 58 SASR 491 upon which the appellant strongly relied. In fairness there is no indication in the transcript that they were cited to his Honour, although they were undoubtedly very relevant. In R. v. Smith, Perry J said at pp 498-499 (after quoting from the judgment of Wells J in R. v. Ostojic (1978) 18 SASR 188 at p 196),:
    "With respect to the first sentence of that dictum, I
    will add some further observations. It may be that if a
    person is, to use his Honour's expression, 'just
    gabbling', no reliance whatever could be put upon what he
    had to say. In such circumstances the evidence would not
    be probative and would be inadmissible for that reason.
    It would not be a question of discretion. Such a
    category was recognised by the High Court in Sinclair v
The King (1946) 73 CLR 316 where it was held that if the
    mental condition of the author of an out-of-court
    statement could be equated to that of a witness called to
    give evidence who was 'obviously insane or incapable of
    answering questions put to him and of making intelligible
    answers' the judge would be obliged to exclude the
    evidence (see per Latham CJ at 324). There is no
    discretion to exclude the evidence of a witness who is
    incompetent to give evidence; it is simply inadmissible.
    Likewise, an out-of-court statement made by such a person
    is inadmissible. It does seem to me, however, that a
    lesser state of intoxication may induce in the accused a
    state of mind in which he or she was incapable of making
    a free choice as to whether to speak or remain silent.
    The accused may be incapable of understanding a caution
    which was administered, or even if a caution was
    understood, of evaluating it so as to make a reasoned
    decision as to whether to answer questions. In such a
    case, the evidence may be excluded on the ground that it
    was not voluntary in the sense that I have mentioned.
    Such a view of the law is consistent with the
    observations of Gleeson CJ, with whom Hunt and Loveday JJ
agreed, in R v Parker (1990) 19 NSWLR 177. Gleeson CJ
    there set out a number of principles (at 183), the first
    four of which I respectfully adopt and which are in the
    following terms:
    '1. The fact that an accused person who has allegedly
    confessed to committing a crime was, at the time of the
    alleged confession, suffering from some form of
    unsoundness of mind or psychiatric disorder may,
    depending upon the circumstances, be of importance in
    considering the evidentiary value of the confession, and
    may in some circumstances deprive it of all evidentiary
value: Jackson v The Queen (1962) 108 CLR 591. It does
    not, however, necessarily make evidence of the confession
    inadmissible: Sinclair v The King and R v Starecki (1960)
    VR 141. As Dixon J observed in Sinclair, an insane
    person is not necessarily an incompetent witness.
    Persons who are intellectually handicapped or who suffer
    from disease or disorder of the mind are by no means
    necessarily incapable of telling, or admitting, the
    truth.

2. Even if such evidence is admissible, a consideration
    of the quality of the evidence may, in a given case,
    result in a conclusion that a verdict founded upon it is
    unsafe and unsatisfactory: Morris v The Queen (1987) 163
    CLR 454.

3. The intellectual capacity of the accused, or the
    existence of some disease or disorder of the mind, may go
    to the issue of whether the confession was voluntary and
    may in that respect bear upon the admissibility of the
    evidence. It may be relevant to the question whether the
    confession was made in the exercise of free choice, or of
    understanding his right to choose between speaking and
    remaining silent. Depending upon the circumstances, it
    may have an important bearing upon whether the statement
    was made as the result of duress, intimidation or undue
    insistence or pressure. The circumstances in which such
    a fact may be relevant to an issue as to the
    voluntariness of a confession are multifarious: cf R v
    Lee and Van der Meer v The Queen.

4. Further, even if the confessional evidence is
    admissible, the intellectual or mental state of the
    accused may, in a number of possible ways, go to the
    exercise of a trial judge's discretion to reject the
evidence: cf McDermott v The King (1948) 76 CLR 501; R v
    Lee. It may, for example, touch upon the propriety of
    the means by which the confessional statement was
    obtained, the reliability of the statement itself, and
    the fairness involved in permitting the statement to be
    used against the accused.'

It seems to me that the third of those principles is
    apposite to the present situation, and in particular the
    observation that the accused's intellectual capacity may
    be relevant to the question of voluntariness. An
    impairment of intellectual capacity may, of course,
    result from the consumption of alcohol."

14. It is convenient to mention here that in relation to the second ground of appeal, counsel for the appellant also relied strongly on the decision of the High Court in Morris v The Queen (1987) 163 CLR 454, where the facts were not dissimilar. To quote from the headnote:
    "the prosecution case against a person charged with the
    murder of two men was that he had thrown methylated
    spirits over them and set fire to them causing injuries
    from which they later died. There was evidence from
    which the jury could have been satisfied that the accused
    had thrown the liquid over the men, but the only evidence
    that he and not others present had ignited it was
    constituted by an admission made (to a Mrs Bargo)
    shortly after the incident. The accused was a chronic
    alcoholic, and there was medical evidence that at the
    time he made the admission he had consumed enough spirit
    to produce a state of intoxication in which it was likely
    that he would be prone to confabulation. The accused was
    convicted of manslaughter on the basis of diminished
    responsibility. An appeal to the Court of Criminal
    Appeal was dismissed. That Court said that the accused's
    admission had been plainly sufficient to justify the jury

    in finding that it was he who had set the men alight and
    that the medical evidence about his condition when he
    made the admission, which was relevant to the reliability
    of the admission, was essentially a question for the jury
    and depended on an assessment of the credibility of the
    witnesses."

15. At pp.463-464, Mason CJ said:
    "In failing to direct its attention specifically to an
    examination of the reliability of the admission, the
    Court of Criminal Appeal did not carry out an independent
    assessment of the evidence which it was required to do in
    dealing with the ground of appeal advanced by the
    applicant. The making of a careful independent
    assessment was essential to the making of an informed
    judgment on the question whether the jury could
    reasonably convict on the materials before them. The
    Court's duty was to satisfy itself that there was 'a
    sufficiency of legal evidence to satisfy reasonable men
    to the exclusion of any reasonable doubt', in the words
    of Dixon J in McKay v. The King (1935) 54 CLR l, at p 9.
    The performance of that duty extends to an examination of
    the probative value of a confession, notwithstanding that
    there is sufficient confessional evidence to be submitted
    to the jury. In McKay Dixon J went on to say: 'Even if
    confessional evidence might appear sufficient to submit
    to a jury, yet a conviction would doubtless be quashed if
    it appeared that the jury had been allowed or encouraged
    to act upon views of it which are unsafe. It is
    conceivable that a direction to a jury that they might
    convict, although they were unable to find confirmatory
    evidence, or to accept it, might in some circumstances
    have this result.'"

16. At p.471, in a joint judgment, Deane, Toohey and Gaudron JJ said:
    "In the present case no objection was made at the trial
    to the admission of Mrs Bargo's evidence of the
    accused's confessional statement. However, the
    reliability of the confessional material was put in issue
    by evidence of the applicant's intelligence, which was
    close to borderline mental defective, his defective
    memory and brain damage, including frontal lobe damage,
    as a result of his severe alcoholism. There was evidence
    from Mrs Bargo that the applicant had been drinking
    prior to her conversation with him. The applicant also
    testified as to his consumption of methylated spirits on
    the morning in question. Evidence was called from Dr.
    Quinn, a psychiatrist with extensive experience of the
    effects of alcoholism. Dr Quinn assessed the alcohol
    content of the quantity of methylated spirits which the
    applicant deposed to drinking on the morning in question
    as equivalent to that contained in a bottle of scotch.
    He gave evidence that that intake would result in a state
    of intoxication such that it was likely that the
    applicant would be prone to confabulation. Confabulation
    is a process whereby defective recall, a condition which
    may be experienced by severe alcoholics, is hidden by the
    imparting of modified information, including information
    based in delusion. Information so imparted may be based
    entirely on fantasy, although it may on occasions have a
    factual basis, even though not accurate in the
    circumstances. It is in the context of this evidence,
    and evidence that when interviewed by the investigating
    police on the afternoon of 30 September the applicant
    denied any involvement in the events causing the injuries
    to the deceased persons, that it is necessary to consider
    the decision of the Court of Criminal Appeal that it
    could not be said that the jury must have entertained a
    reasonable doubt about the guilt of the applicant."

17. At p.473, their Honours said:
    "... it is clear that the question whether a verdict is
    unsafe or unsatisfactory involves a Court of Criminal
    Appeal undertaking an independent examination of the
    relevant evidence to determine whether it was open to the
    jury to be satisfied beyond reasonable doubt as to the
    guilt of the accused. That function is not discharged
    merely by a consideration of whether there was a
    sufficiency of evidence to sustain a conviction, for it
    is clear that a verdict may be unsafe or unsatisfactory
    notwithstanding that there was evidence sufficient to
    entitle a reasonable jury to convict. So much is clear
    from the following passage in the joint judgment of Gibbs
    CJ and Mason J in Chamberlain (No. 2) (1984) 153
    CLR at p 531: 'In Raspor v. The Queen and Plomp v.
    The Queen, it was recognized that a court of criminal
    appeal may interfere with a verdict which is unsafe or
    unsatisfactory even if there is sufficient evidence to
    support it as a matter of law, and even though there has
    been no misdirection, erroneous reception or rejection of
    evidence, and no other complaint as to the course of the
    trial. In other words, even if there is some evidence on
    which a reasonable jury might be entitled to convict, a
    Court of Criminal Appeal has the responsibility to
    consider whether "none the less it would be dangerous in
    all the circumstances to allow the verdict of guilty to
stand": Hayes v. The Queen (1973) 47 ALJR 603, at
    p 604.'

A Court of Criminal Appeal must make an independent
    assessment of the evidence, both as to its sufficiency
    and its quality. In the present case, the Court of
    Criminal Appeal held, correctly, that the evidence of
    Mrs Bargo 'was plainly sufficient to justify a
    conclusion on the part of the jury that the accused was
    responsible for the act of throwing the methylated
    spirits on the deceased and setting them alight'.
    However, there was a further obligation upon the Court of
    Criminal Appeal to assess the reliability of the
    admission to which Mrs Bargo deposed."

18. Finally, at p.474, their Honours said:
    "... the question was not simply a question of the
    credibility of witnesses, or even a question of the
    credibility of Dr Quinn. It was a question of the
    reliability of an admission, uncorroborated by any other
    evidence as to the applicant's setting fire to the
    deceased persons. That reliability had to be assessed in
    the light of the applicant having consumed a quantity of
    alcohol prior to the making of the admission, in the
    light of his mental capacities, and in the light of his
    impaired brain function. It also had to be assessed in
    the context of his later denial of any involvement in the
    incident when interviewed by police that afternoon. Even
    apart from Dr Quinn's evidence as to the likelihood of
    the applicant having engaged in the process of
    confabulation, these were matters which rendered it
    doubtful that any confessional statement made by the
    applicant was, in the words of Dixon J in Sinclair
    (1946) 73 CLR, at p.338, 'intrinsically likely to be
    true'. In the absence of any other evidence to connect
    the applicant with setting fire to the deceased persons,
    these matters, when considered in the context of the
    prosecution's obligation to prove beyond reasonable doubt
    that the applicant set fire to the deceased persons,
    should have caused the jury to entertain a reasonable
    doubt as to the reliability of any admission made to Mrs.
    Bargo and accordingly as to the applicant's guilt.
    Because the Court of Criminal Appeal did not make the
    independent assessment of the evidence required of it, we
    are of the opinion that this is a proper case for the
    grant of special leave to appeal ... Because we are of
    the further opinion that the jury should have entertained
    a reasonable doubt as to the applicant's guilt, we would
    allow the appeal and set aside the convictions."

19. The appellant here gave evidence before the jury. He stated that he was 42 years of age and that alcohol had taken over his life since he was 15. He said that he was on a disability pension because of the condition of his liver, presumably alcohol induced and that his drinking had affected his memory.

20. The evidence established that the appellant's blood alcohol reading at the Salvation Army Detoxication Unit at 10.45 pm on the evening prior to the deceased's death was .3%. When he was discharged at 9 am on the following morning his reading was.185%.

21. A witness called for the prosecution, Mr T F Lomas, saw the appellant later that day and before 1.50 p.m., and said he was drunk then. Dr James estimated the time of death as approximately 6 pm The appellant was seen at the Westcare Baptist Centre in Mellor court off Wright Street between 7 pm and 7.15 pm by a number of witnesses. One of those was a Baptist Minister, The Rev S J Parish, who described him then as being highly intoxicated, and that he was "having difficulty standing and (he) couldn't hold a conversation". He said that he had seen a lot of people affected by alcohol, and he would rate him "probably at the more extreme end". Another witness who saw him at the Centre was Mary Norsworthy, and she said that he appeared to be very drunk, that he was having trouble standing and walking unaided, so much so that she said to the other two accused, "you better look after him", or words to that effect.

22. It is true that none of the police officers were prepared to say that he was substantially affected when they saw him from 8.10 pm onwards, but Dr James' evidence to which I will refer later is relevant to that.

23. Detective McLean was the first police officer to speak to the appellant at what must have been about 8.10 pm Ultimately the appellant admitted to McLean that there had been a fight, and that it was started when Noblett called De Wulffe "a poof and that". He told McLean that Noblett started the fight, that he hit the other man and knocked him down, and that "he went berserk". He saw Noblett "hitting, punching and kicking". He said that he did nothing.

24. Olsson J has set out the conversation that Detective Modra had with the appellant at the time of his arrest at about 9.05 pm Modra also said that he sat next to the appellant in the police vehicle on the way to the Police Headquarters, and the appellant said to him, "Look I'll take the rap for it all if you let the other two go, OK?" A little later when he and the appellant went to the interview room at Police Headquarters, the appellant said, "what about I take the rap for the whole thing, OK?"

25. It is here convenient to refer to the evidence of Dr James, a very experienced forensic pathologist who conducted the autopsy on the deceased, and who was questioned by all counsel about the blood alcohol analyses and the effects of intoxicating liquor. Dr James said that every bone of the deceased's face and jaw were broken, and there were four fractures to the structures of the voice box. He said these were more likely to have been caused by kicks. He said that he died from the inhalation of blood whilst unconscious. The deceased's blood alcohol concentration was .3%. A blood sample was taken from the appellant at 2.45 am on 17 February, and indicated a blood alcohol concentration of.182%. According to Dr James a likely concentration at 8.10 pm was about.25%. Dr James said that in addition to liver damage, the appellant could also have suffered brain damage from the lifestyle he led. He said that a seasoned drinker has the ability to mask the effects of alcohol. His evidence included the following exchanges:
    "Q. Are there times when the ingestion of alcohol can
    lead, firstly, a chronic alcohol abuser to be incapable
    of understanding and responding rationally to questions.
    A. Yes.
    Q. What sorts of factors cause that - or can cause that.
    A. Their blood alcohol level. There are certain
    conditions of brain damage found in some alcoholics that
    make questions and answers extremely unreliable. That is
    not a function of their particular blood alcohol level.
    Some alcoholics have a sufficient degree of brain damage
    that their comments on almost anything are unreliable.
    HIS HONOUR Q. It doesn't matter what level their blood
    alcohol happens to be at that particular moment.
    A. Yes. Some will confabulate; that means they come out
    with a stream of quite eloquent nonsense in regard to
    almost any question.
    XN Q. When you say 'nonsense', do you mean patent
    nonsense.
    A. Yes. They will supply a stream of information that
    seems quite impressive, except that there is no basis
    whatsoever for it. Those cases will be well-documented,
    though; they are like that all the time, sober or drunk."

26. And later:
    "Q. In general terms, alcohol affects a person's
    judgment.
    A. Yes.
    Q. It can lead people to do acts of foolish bravado.
    A. Quite so.
    Q. And that is particularly common in persons attempting
    to drive a car.
    A. Certainly their judgment is impaired in the sense
    that frequently they judge that they are not particularly
    affected.
    Q. And that turns out to be quite wrong.
    A. That is their first lack of judgment.
    Q. Apart from acts of bravado, there are words of
    bravado, are there not.
    A. Oh yes.
    Q. And that is something else that can happen with
    alcohol consumption.
    A. People tend to say things or do things that they
    might not otherwise say or do.
    Q. Chronic alcoholics suffer from a number of problems
    as a result of their alcoholism, do they not.
    A. Yes.
    Q. Is loss of memory one.
    A. Can be.
    Q. You spoke in your evidence of confabulation.
    A. Yes.
    Q. And you gave an example of a patient in a hospital
    whom you had known had been in his room for the past few
    hours, and you have a conversation with him, and he would
    talk about a game of golf that he had just completed.
    A. Yes.
    Q. Could you ask him questions about how the game went,
    and how he went.
    A. Yes, they tend to give quite lucid, free-flowing
    answers.
    Q. For example, 'How did you go on the eight hole,
    that's particularly tricky', would you expect to get an
    answer 'I had to use a number 7 iron', or 'I hit a tree',
    or 'I came in in three', or something along those lines.
    A. Yes.
    Q. A seasoned drinker could mask the effects of alcohol
    upon his person, could he not.
    A. He is better equipped to do so than a naive or
    inexperienced drinker.
    Q. Does that mean, though, that the alcohol is having
    any less effect upon that person.
    A. Not necessarily."

27. Apart from the degree of intoxication of the appellant at the time of the video interview considered in the light of the evidence of Dr James, albeit in the interview he was not then slurring his speech or showing any physical unsteadiness, I have other concerns about the interview.

28. First, I refer to the following questions by Modra and the appellant's answers thereto early in the interview:
    "Q. If you wish to have a solicitor present, we can
    arrange to have one.
    A. As - well, put it this way, it's not going to do me
    any good, so no. I'll just - I'll just do it - do it,
    you know, just straight off 'cause -
    Q. All right. Now do you understand what I've just said
    to you.
    A. Yes.
    Q. All right. Alan, do you want to tell me what
    occurred tonight regarding - or what you know regarding
    the death of this man in the parklands near West Terrace.
    A. Yes. Uh - uh well there was - there was two of us -
    sorry, there was three of us and uh - and this guy turned
    around and he - he pulled Kerrie, he put him on the poof
    and I don't - ah, and then Kymbo, he turned around and he
    went, you know, and he hooked him and that and I don't
    know, everything just seemed - just seemed to got out of
    - out of hand, but what I want to do, I don't want the
    other two - the other two to be charged, I'll take the
    whole shooting box myself."

29. I agree with Mr Kourakis, counsel for the appellant, that a man arrested "on suspicion of murder" who thinks the presence of a solicitor at his interview by the police will not do him any good probably does not understand the gravity of his situation and the choice facing him.

30. Next, the appellant's offer to take "the rap" if the police let the other two go, when he had already told the police that Noblett had attacked the deceased and had gone berserk, also does not show he understood the gravity of his situation. On several occasions during the interview there was a reference to wanting to take "the rap". His attitude was more than just cavalier. Near the end of the interview, he was asked to read the record of the conversation that Modra had had with him earlier, and the following exchange occurred:
    "Q. Do you wish to sign each page as attesting to the
    fact that you've read them.
    A. Yes, all right, yeah.
    Q. You are not obliged to sign them unless you wish to.
    A. No, well that's all right, because as long as you'll
    let the other two go.
    Q. Well of that I cannot promise.
    A. Can that be put down on that too -
    Q. What's that.
    A. - if you don't mind. To let the - uh, I'll take the
    whole rap meself as long as the other two -"

31. In my opinion, the appellant's approach indicated an abnormal assessment of his situation.

32. It is convenient here to refer to the submission of Mr Kourakis that the appellant's admissions in the video interview were to some extent inconsistent with the forensic evidence lead by the Crown. The appellant told the police that he punched the victim in the head with his fist four to five times, but the evidence of Dr Long was that there was no indication of any punching on the appellant's hands. The appellant claimed that he had kicked the victim four to five times to the head, but the evidence of the scientist Tridico was that the appellant had not been involved in kicking a bloody object.

33. The only direct evidence of the critical incident came from the prosecution witness Bond and from the appellant's co-accused Noblett, who was convicted of murder. The other co-accused, De Wulffe did not give evidence.

34. Bond, whose evidence does not really appear to have been challenged, said that he saw Noblett stomp on the deceased with his foot fairly hard, four or five times and on or about his neck and head. At the time of these observations, Bond said that the person who it was accepted was the appellant was seated throughout his observations some distance away at a table.

35. As far as the evidence of Noblett is concerned, (and it must be remembered that "if a co-defendant goes into the witness box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case ...", see R v Rudd (1948) 32 CAR 138 at 140), he said they had all been drinking since 9.30 am and were all deeply affected. He said he was wearing boots, (the appellant was wearing runners). He said the deceased called him "a poof", which did not upset him, but then called him "a child molester", which did upset him. Noblett said the deceased punched him in the jaw, splitting his skin. Noblett said he then hit the deceased with his clenched fist four or five times. He said "it was just a volley of punches". The deceased "hit" the ground. He said that he then kicked him in the area of the shoulders and above. He did not know how many times he kicked him. He was trying to teach him a lesson. He denied that he stomped on the deceased, and could not explain the forensic finding of human hair on the heel of one of his boots. He said he was not out of the sight of Garth and De Wulffe for any period, and did not see either of them do anything to the deceased. I observe here that in his final address to the jury, Mr Whittle conceded that "at least the majority of the serious injury must have been caused by Noblett."

36. I acknowledge that there was some circumstantial evidence of blood on the appellant's runners and on his clothing, and of a footmark corresponding to his runners quite close to the body, but that evidence did not point irrisistably to an inference of guilt. There were competing hypotheses, including mere presence of the appellant near the body without giving Noblett any encouragement or assistance, or merely resulting from the passage of the appellant to the toilet, (compare Knight v. The Queen (1992) 175 CLR 495). The prosecution case against the three accused was one of joint enterprise, or alternatively that De Wulffe and the appellant aided and abetted Noblett. In the course of his summing up, the learned trial Judge said in relation to the case against the appellant and De Wulffe:

    "I must be frank with you ladies and gentlemen, that
    speaking for myself, and you don't have to take any
    notice of what I say, I find it extremely difficult to
    find any evidence which does implicate either of those
    two accused by way of a common enterprise, or common
    purpose, or as aiders or abettors,..."

37. Without the admission into evidence of the video interview of the appellant, what his Honour there says was undoubtedly correct. Having decided to admit that interview, and having regard to the undoubted arguments available against its reliability, I think his Honour should have told the jury that if they had any doubt about the truth of the appellant's admissions therein, or as to whether he was part of a joint enterprise or an aider or abettor, they could not convict the appellant even of manslaughter unless they were satisfied beyond reasonable doubt that any assault by him on the deceased caused his death.

38. Having reviewed the evidence, I now focus on the grounds of appeal. If it is correct that the learned trial Judge did rule on what I will call the R v Smith aspect of voluntariness, I think he erred to rule on the balance of probabilities that the admissions were voluntarily made. In any event, my view is that they should at least have been excluded in the exercise of his discretion. But even if my opinion as to the video interview is wrong and the evidence was properly admitted, I think the verdict was unsafe and unsatisfactory in the sense that I consider that no reasonable jury could have failed to entertain a doubt (see in addition to Morris v. R, supra, Palmer v R
(1992) 106 ALR 1).

39. I would not uphold the third ground. I think his Honour corrected the impugned direction by his re-direction at p.152.

40. As far as ground 4 is concerned, I do not overlook the fact that the learned Judge had an especially difficult task in summing up a case against three accused, requiring inter alia directions on self-defence, provocation, intoxication, mens rea, joint enterprise and aiding and abetting. However, bearing in mind his decision to admit the video interview, and the fact that the jury first retired to consider their verdict two days after the addresses of counsel had finished, I think his Honour should have covered the points made in (a) - (e) inclusive of ground 4. I think he should also have referred to Noblett's evidence when dealing with the case against the appellant.

41. There is a further difficulty about the verdict. The learned Judge was not asked to direct the jury to consider the very strong evidence of intoxication in determining whether the appellant was guilty of manslaughter, and he did not give any such direction, albeit he did so in relation to the charge of murder. Nevertheless, I think he should have done so. I refer to The Queen v. Martin, which is reported in (1983) 32 SASR 419, but I refer in particular to the joint judgment of the High Court on appeal reported in
(1984) 58 ALJR 217. At p 218, their Honours said:
    "The decision in O'Connor's case, however, establishes
    clearly that evidence of intoxication may be relevant
    whenever it is necessary to prove the mental element of a
    crime. And there can be no doubt that the Crown is
    required to prove in manslaughter, no less than in other
    crimes, that the actions of the accused upon which it
    relies were at least voluntary, since manslaughter is not
    only the unlawful, but also the voluntary, killing of
    another without malice: Hale's Pleas of the Crown, vol.
    1, p.466. The Court of Criminal Appeal did not proceed
    upon a misconception of the effect of O'Connor's case in
    taking the view, which it did, that the evidence of
    intoxication of the respondent might properly be
    considered by the jury in determining the respondent's
    guilt of manslaughter as well as murder. An appropriate
    direction from the trial judge was necessary in order to
    instruct the jury as to the relevance of intoxication."
(Compare The Queen v. Tucker (1984) 36 SASR 134 at
    pp 138-139, a judgment delivered six days after the High
    Court decision in Martin, but possibly before the latter
    was known. Certainly only the South Australian State
    Reports reference to Martin is given in Tucker.)

42. For all these reasons, I would allow the appeal and quash the conviction. Having regard to my opinion about the video interview and the concession of the prosecution both at trial and on appeal that there was no independent evidence that the appellant caused the fatal injury, I would not order a re-trial.

JUDGE2 OLSSON J This is an appeal, by leave, against the conviction of the appellant, by verdict of a jury, of the offence of manslaughter.

2. The appellant was originally presented for trial, jointly with two other persons named Noblett and de Wulffe, on a charge of the murder of one Sawyer on 16 February 1993. It was alleged that the three of them, acting in concert, had joined in assaulting Sawyer in the West Parklands and inflicted upon him injuries from which he died.

3. The Crown case was that Sawyer, an unemployed alcoholic said to have been between 40 and 50 years of age at the time of his death, had no fixed place of abode, lived in hostels and refuges and spent a good deal of his time drinking. On Tuesday, 16 February 1993, a number of persons, who obviously included Sawyer, were seen drinking in the West Parklands at or near the Glover Playground on West Terrace. It was alleged by the Crown that the three accused were also in that group. The evidence indicates that they went there relatively early in the morning. The witness Lomas, who was a member of the group until about 2.00 pm, deposed that, by lunch time, the accused fell asleep whilst sitting at the picnic table in or near the playground; and that he, Lomas, somehow manoeuvred him into a prostrate position under a nearby tree. A council employee, who was working in the general vicinity, testified that, when he left the area for the day at about 4.00 pm, there were two persons sitting at the picnic table in the playground and others of the original group were sleeping nearby.

4. Another Crown witness, a man named Bond, told the jury that, at about 5.40 pm, he left work and crossed, on foot, over to the western side of West Terrace and headed south along it towards Cemetery Road, where his car had been parked. In so doing he walked past the playground. As he did so he saw four men in the playground. Two were sitting at the picnic table, facing away from him to the west, one person was lying on the ground west of the table in the foetal position (with his head to the west) and the fourth was crouched over that man, shaking him as if to try to arouse him. It was common ground that the person lying on the ground must have been Sawyer and that it was de Wulffe who was crouched over him. Bond deposed that, as he watched, de Wulffe stood up and stepped back, whilst one of the men at the table got up, walked over and stomped hard on the man on the ground with his foot, four or five times, in the region of the neck or head. Bond kept on walking. He described the man who did the stomping as being very tall, broadly built and lanky, having long, unruly hair and a full bushy beard. He was not certain, but thought that the hair might be a reddish colour. (That description generally fitted Noblett.) Bond seems not to have noted much about the man who was crouching down, other than that he was not as tall as the man with the beard.

5. It was the Crown case that the man who was seen to do the stomping was the accused Noblett, and this became common ground on the appeal. The jury was told that Sawyer's body was found by the witness D'Alfonso at about 6.40 pm, who discovered it whilst on his way to soccer training at a venue close to the playground. As he jogged through the playground, en route to the soccer club rooms, he noticed Sawyer's body on the ground near the picnic table. There was a large amount of blood on the ground around the head, as well as on the face. He appeared to have been badly beaten and there was a hole in his forehead that looked like a gun shot wound. He did not seem to be breathing. The pathologist, Dr James, later estimated death to have been at about 6.00 pm.

6. As a consequence of this discovery the police were summoned to the scene. The first officers arrived at about 7.00 pm and secured the area. A subsequent post mortem examination revealed multiple, serious injuries to Sawyer's head and throat, consistent with kicking. Whilst the injuries to the throat would have proved fatal in themselves, death actually occurred from the inhalation of blood into the lungs, following facial fractures. A subsequent blood analysis revealed that Sawyer had a blood alcohol concentration of 0.3 per cent.

7. The three accused were first seen after the death of Sawyer by the witness Gordon at about 7.00 pm. He was visiting his former mother-in-law at her house at 273 Wright Street, Adelaide. As he left her premises he virtually encountered the trio near the front of the house. He noted that the tallest of the three, who had a reddish-brown beard, exhibited what appeared to be a substantial blood stain on the back of his right trouser leg, extending from the cuff up to higher than the mid calf. When Gordon initially exited the house he noted that one member of the group (who must have been the appellant) was about 20 metres west of the other two. He was leaning into a garden and appeared either to be resting or urinating.

8. The three men were last observed by Gordon walking east along Wright Street towards Whitmore Square. The three accused were seen to enter the Westcare Baptist Mission in Millers Court (off Wright Street) at a time between 7.00 and 7.30 pm. Some discussion ensued between Noblett and workers at the Mission concerning his stained jeans. He eventually asked for and was given a pair of clean jeans. He commented to the effect that he had been in a fight and that, when someone asks to kiss your boots, you let them. He said that the other fellow involved was "dead", but this statement was not taken literally at the time.

9. Consistent with what had been observed by the witness Gordon, it was noted at the Mission that, although all three were intoxicated to some degree, Noblett and de Wulffe did not exhibit overt signs of profound drunkenness, but the appellant was clearly very drunk. It was variously said of the appellant that, whilst at the Mission, he was having difficulty in standing and could not conduct a conversation; that, at one point, he was asleep on a chair; and that, later, he was a bit wobbly on his feet, although he could walk unaided. It was noted that de Wulffe had a cut on the back of his right hand across the knuckle. There was dried blood evident at that area.

10. The evidence indicated that the three accused must have left the Mission at shortly after 8.00 pm. They were encountered by police officers in Millers Court at about 8.15 pm. It was noted, at that time, that the appellant had what appeared to be a spot of blood on his right sandshoe, de Wulffe had splotches on the right thigh of his trousers and Noblett was wearing jeans (which appeared to be wet from the knee downwards) and was carrying a spare pair of jeans. At a later time police noted that the appellant also had blood stains on his coat and trousers. Detective Breda initially spoke to the appellant, who admitted that he had been at the West Terrace playground during the day, having a drink with his brother Kerrie (de Wulffe) and "Kymbo" (Noblett). When asked whether there had been a fight at the playground whilst he was there, the appellant did not reply. In response to a question as to how the blood stain came to be on his sandshoe the appellant responded that he had had a blood nose.

11. It should be mentioned that, when separately questioned, out of earshot of Noblett and the appellant, de Wulffe (who said that he was the appellant's half brother) told the police that Noblett had gone berserk when something was said about Vietnam; and had put the boots into Sawyer. This was, of course, not evidence against either Noblett or the appellant. At about the same time Detective Gittos spoke separately with Noblett. He said that all three had been at the playground drinking and that he had had a fight with a bloke who had hit him first, but that he had experienced a blackout. He indicated a cut on the inside of his top lip and a small cut under the right side of the chin. When asked what happened after the bloke hit him, Noblett responded "Mate, he kissed my boots". When asked where all the blood on his trousers and shoes came from Noblett's responses were:- "Oh mate, if someone hit you, what would you do. Mate, I made him kiss my boots." He further commented "Yeah mate, he kissed my boots with his mouth". He asserted that the other two had not been involved, but were drinking.

12. All three were detained and taken to the City Watchhouse. At the time of the arrest of the three accused the police officers all conceded that there were obvious signs that the three men had been drinking, but all of them insisted that there was nothing unusual in the way in which the three men walked and that they had no trouble in standing (although, at times, the appellant leant against the wall of an adjacent building, as if resting). Detective Breda said that the appellant was able to walk towards him unaided and was able to converse with him, apparently understand questions asked of him and give responsive answers. He was, Breda said, "nowhere near grossly affected". Constable McLean, who spoke with the appellant in Millers Lane noted a smell of liquor about him, but no overt sign of gross intoxication. He was able to conduct a rational conversation with him, in the course of which the appellant described Noblett going berserk and denied his own participation in any assault on Sawyer. Detective Modra, who actually arrested the appellant, described what transpired at the time in these terms (T443-4):-
    " I said 'Alan, I am now arresting you on suspicion of
    murder, do you understand?'
    He said 'Of what? You are arresting me on suspicion for
    what?'
    I said 'For murder. A few hours ago a man by the name of
    Alan Sawyer was murdered in the parklands by West
    Terrace. I have cause to suspect that you were involved
    in this murder, do you understand?'
    He said 'Yeah, what does murder get these days?'
    I said 'Now listen carefully. I'm going to be asking you
    questions in relation to the murder. You are not obliged
    to answer them, but what you do say will be recorded and
    may be given as evidence. Do you understand this?'
    He said 'Yeah.'
    I said 'Now listen carefully. I'm going to give you your
    rights. You have the right to refrain from answering any
    questions. You have the right to have a friend,
    relative, or solicitor present. You have the right to
    apply for bail, the right to a phone call and the right
    to an interpreter if you feel you need one. Do you
    understand these rights?
    He said 'Yeah, you're arresting me for murder, right?'
    I said 'Yes, that's right. Can you please stand still as
    I'm going to remove your shoes and socks, okay.'
    He said 'Yeah, look out, they're pretty well on the
    nose.'

At that time I removed his shoes and socks, one shoe at a
    time, then his sock, then his shoe, and then his sock.
    Of these items I placed each into a paper bag. As I was
    doing that Garth said 'I told you they would be on the
    nose, didn't I. I haven't had my socks off in four days,
    I couldn't roll them down'. I said 'Okay Alan.' After
    that conversation I conferred with the other police at
    the scene, and then I continued my conversation with
    Garth. I said 'Alan, I want you to come with me to
    police headquarters where we will talk about all this if
    you want to, okay?' He said 'Yeah, no worries.'

Q. What happened then.
    A. Then I asked Garth to come with me to the police
    vehicle. He then followed me to the police vehicle. He
    was placed in the police vehicle, and then I sat in the
    rear with him. Detective Rowe drove, and at that point
    of time, on the way to police headquarters, was when I
    started making my notes. Now on the way there he said to
    me 'Look, I'll take the rap for it all if you let the
    other two go, okay'. I made no reply to this. Garth was
    taken to police headquarters in Angas Street where I took
    him to the offices of the major crime task force. One of
    the offices there is where the record of interview is
    done on an audio and visual basis. I said to Alan when
    we went to the interview room, 'Alan, do you wish to
    answer my questions?' He said 'What about I take the rap
    for the whole thing okay.' I said 'Just hang on a minute
    until I have explained things to you. I want to
    interview you on video. Do you have any objections to
    this?' He said 'No.'

13. There was specific evidence placed before the jury as to the physiological state of intoxication of the accused on the day in question. It appeared that the appellant and Sawyer had both stayed at the Salvation Army detoxification unit the previous night. On discharge at about 9.00 am the appellant was subjected to a breath analysis. At that point he recorded a blood alcohol analysis of 0.185%. His reading on admission, at 10.45 pm the preceding evening, had been 0.3%. A blood sample was taken from the accused at 2.45 am on 17 February. On analysis this disclosed a blood alcohol concentration of 0.182%. According to Dr James this indicated a likely concentration, as at the preceding 8.10 pm, in the range 0.28 to 0.31%, dependent upon a number of factors. Eventually, when all possible factors had been identified to him, he opted for a likely concentration, on a count back basis, of about 0.25%.

14. In the course of his evidence, Dr James said that, although a good deal of data was available as to metabolic rates and likely effects of various concentrations of alcohol on casual or social drinkers, little empirical data was extant as to effects upon hardened alcoholics. All that he was able to say was that, in general, their metabolic rate tended to be lower and that such persons learnt, over time, to tolerate the effects of alcohol on their functions better than others; and could apparently function much more effectively than social drinkers at comparatively high concentrations. He expressed the opinion that, in the case of the appellant, the video interview conducted by police with him, commencing at 10.00 pm on 16 February 1993, would give the best indication of his level and competence of functioning.

15. During the appeal that video was played in full, so that the members of this court could gain a first hand impression in that regard. It is unnecessary to traverse the content of that video in detail. Suffice it to say that the appellant freely answered police questions. Whilst he related how all three men had participated in serious assaults on Sawyer, he said that he accepted sole responsibility for his death and wanted to take "the whole rap" himself. He admitted that, for his part, he struck Sawyer 4-5 "killer" punches and also kicked him four or five times, all in the head. The appellant related that de Wulffe kicked Sawyer twice in the testicles and punched him, whilst Noblett kicked him a number of times in the head with his boots and also punched him. The video ran for well in excess of an hour and there was ample opportunity to study the appellant and his responses to questions.

16. As I see the position, given the known blood alcohol concentration of the appellant at the time and the fact that, on occasions, his responses were somewhat studied, these points must be recorded:-
    - in general it is obvious that the appellant understood
    what was being asked of him. What he said was generally

    coherent and responsive to the questions asked. At times
    his answers were actually rapid and spontaneous.
    - when asked to read three pages of the detective's hand
    written notes he did so without apparent difficulty and
    even identified errors in them related to the spelling of
    his name. He chuckled at the reference to his malodorous
    socks. He had no difficulty in signing each page.
    - during the interview he made many gestures with his
    arms and body and appropriately turned around to excuse
    language used to a female police officer present. His
    motor functions were at all times co-ordinated,
    controlled and appropriate to the circumstances.
    - throughout the interview he exhibited a remarkable
    memory for various details of events of the day. He had
    an exact recollection of his blood alcohol reading that
    morning, he related his transaction involving pawning his
    Bowie knife early on the 16th (and thereupon reached for
    and produced the pawn ticket from his wallet and
    explained details of the transaction), he spoke of the
    council workers in the area of the playground, and gave
    details of his expenditures on wine and cigarettes.
    (Empty cartons of the brands nominated by him are clearly
    to be seen in police photographs of the locus in quo.) He
    was also able to identify about how much cash he had on
    his person.

17. Having viewed the video I entertain not the slightest doubt that, in the course of the interview, the appellant fully appreciated his situation, agreed to answer questions, understood what was asked of him and gave rational responses, the accuracy of a number of which were independently verified by other objective evidence. I do not accept the suggestion of Mr Kourakis, of counsel for the appellant, that the video was simply suggestive of an alcoholic who had learnt to control the slurring of his speech and had difficulty in responding adequately to some matters put to him. On the contrary he projected as a person who voluntarily and readily responded to police questions and answered them naturally and convincingly - even to the point of showing appropriate emotion at a point when he clearly appreciated the enormity of what had happened.

18. It need only be said that, had I been the learned trial judge I would, unhesitatingly, have admitted the video in evidence, in the context of the other evidence led on the voire dire. As Dr James inferred, the video speaks volumes for itself. It patently debunks any suggestion either that what was said by the appellant was involuntary, or that the circumstances were such as to render its admission unfair. What weight ought to have been attributed to the admissions contained in it was very much a matter for the jury.

19. On the hearing of this appeal Mr Kourakis sought to develop four separate grounds. The first of these was a contention that the learned trial judge erred in not excluding the accused's video record of interview. As to this the main attack focused upon an assertion that, on the whole of the evidence, the Crown had simply not discharged its onus of demonstrating that the statements made by the appellant to the police were voluntary in the relevant legal sense. He also contended that the learned trial judge had, seemingly, been distracted by issues related to fairness and exercise of discretion and had not separately and definitively applied his mind to the issue of voluntariness. The latter thesis may readily be debunked. A brief perusal of pages 277-8 of the transcript immediately reveals that he did apply his mind to this primary question, was sensitive to the correct legal test and decided the matter adversely to the appellant. It is trite to say that the test proper to be applied was that enunciated in MacPherson v R (1981) 37 ALR 81 at 85-8. Admissions made in a record of interview are only to be admitted if they are shown to have been made voluntarily, in the sense that there was, on the part of the accused, an exercise of a free choice to speak or be silent. That test, of course, implies that, at the time of the record of interview, the accused was in such a physical and mental condition as to be competent to make the choice in question. As Perry J reiterated in R v Smith (1992) 58 SASR 491 any apparent impairment of intellectual capacity of an accused, be it the product of intoxication or otherwise, may well go to the issue as to whether admissions made were voluntary in the relevant sense. To employ the phraseology used by the New South Wales Court of Criminal Appeal in R v Parker
(1990) 19 NSWLR 177 (at p183):-
    "It may be relevant to the question whether the
    confession was made in the exercise of free choice, or of
    understanding his right to chose between speaking and
    remaining silent."

20. As Perry J stressed in R v Smith the fact that statements made by an intoxicated person may, in law, be held to be voluntary does not automatically foreclose the quite separate question of whether, nevertheless, the circumstances were such that it would still be unfair to admit them as an exercise of discretion, or the fact that a consideration of the quality of the evidence may give rise to a conclusion that any verdict founded on it would patently be unsafe and unsatisfactory.

21. Applying those principles to the circumstances of this case it immediately becomes apparent, from what I have already said, that the decision of the learned trial judge was clearly correct. The record of interview was not only voluntary, but there was also no basis for denying its admission as an exercise of discretion. Its ultimate quality and probative weight were matters for the jury; and it simply cannot fairly be said that the evidence suggests that the appellant was out of touch with reality. In this regard it cannot escape comment that the appellant did not seek to give evidence on the voire dire to rebut the evidence called by the Crown and the inferences which naturally arise from it.

22. Quite apart from the points already made I am unable to accept the submissions of Mr Kourakis that there were such serious inconsistencies that the version of events related by the appellant could never have been accorded substantial probative weight. For example, a careful review of the evidence of the forensic scientist Tridico, renders it apparent that, on a possible scenario, the appellant could have contributed significantly to the injuries sustained by Sawyer by means of the blows and kicks which he said he delivered and that the state of his shoes and blood spotted clothing were not necessarily inconsistent with that situation. The blood spots were restricted to the front of his clothing and extended quite high up on to his chest. The blood on his footwear indicated that he must have been very close to the body and that a firm downward force (consistent with a stomping motion) would have been necessary to account for the blood on the sole of the sneaker shown in the photographs. Dr James deposed that the fatal damage to the larynx area must have occurred prior to the extensive facial damage with its associated profuse bleeding and that it was probably caused by a downward force whilst the victim was lying on his back. There was objective evidence of a footmark corresponding with the appellant's footwear quite close to Sawyer's body. Moreover, bruising in the area of the victim's scrotum lends force to the appellant's narrative that kicks were administered by a member of the group to that part of Sawyer's body. De Wulffe also exhibited injured knuckles consistent with the story told by the appellant of punches administered by the former. Additionally the medical evidence suggested that the absence of any injuries to the appellant's knuckles does not automatically lead to the conclusion that such a situation is necessarily inconsistent with the appellant striking the blows with his hands which he said he did.

23. That is not to say that there were not some residual, apparent inconsistencies in the appellant's narrative, but they were certainly not of sufficient magnitude to warrant an exclusion of the record of interview. It follows that the first ground of appeal clearly fails.

24. The second ground of appeal is necessarily intertwined, to some degree, with the first. It avers that the jury verdict was unsafe and unsatisfactory. As I understood what was put by Mr Kourakis, it was contended on behalf of the appellant that, due to the state of intoxication of the appellant and what were said to be patent inconsistencies on the face of the record of interview, no reasonable jury could have come to a conclusion, beyond reasonable doubt, that the appellant had inflicted sufficient blows contributing to Sawyer's death to give rise to a verdict of guilty of manslaughter. It is important to note that, as the High Court stressed in Chidiac v The Queen (1991) 171 CLR
432 and Knight v The Queen (1992) 175 CLR 495, it is not appropriate for this court to substitute its view of the quality of the evidence for the view which the jury were entitled to take. It must act on that view of the evidence which is most consistent with the conviction, except to the extent that it is satisfied that a reasonable jury would not have so acted. Given such an approach, the appellant bears the onus of demonstrating that the state of the evidence was such that it was not open to a reasonable jury to be satisfied beyond reasonable doubt of the accused's guilt. The essential thrust of the appellant's case in this regard was his attack on the video record of interview and, specifically, his intoxicated state at the time and the asserted inconsistencies and improbabilities in the narrative given.

25. I have, in large measure, already dealt with these aspects. True it was that the appellant was intoxicated at the time but, as was pointed out by Perry J in R v Smith, that does not automatically imply that any statements made were false, or that what was said was of no evidentiary value. It may merely indicate that the appellant's tongue was loosened and that his capacity to lie or invent was weakened.

26. I have already pointed out that independent objective facts supported important aspects of the narrative as accurate; and I certainly do not accept that the evidence of Dr James and Ms Tridico clearly negatived the version of events given by the appellant. On the contrary, properly understood, they supported a possible thesis whereby the appellant could well have contributed, in significant degree, to the death of Sawyer in a manner consistent with the objective signs found on the appellant's clothing and his footmark near the body. It should also be pointed out that the evidence strongly suggests that what was seen by the witness Bond was portion only of the attack on Sawyer, and had, in all likelihood, been preceded by earlier assaults. The scenario portrayed by him strongly indicates that sequence of events. Sawyer was already apparently comatosed in the foetal position and de Wulffe appeared to be endeavouring to arouse him.

27. In examining the totality of the evidence given by Dr James, against the background that the appellant had been a chronic alcoholic over many years, the following propositions emerge:-
    - habitual exposure to alcohol generally engenders
    acquired tolerance. Chronic abusers are likely to cope
    with its effects better than other persons.
    - with most chronic alcoholics they have a normal, or
    "resting", alcohol level of the order of 0.15 grams per
    cent and, in that state, "they are reasonably
    comfortable" and appear "essentially normal". What they
    then do is to top up their alcohol level. Indeed, with a
    level at or near nil "a chronic alcoholic can be in quite
    serious trouble" and have difficulty in functioning
    normally.
    - a chronic alcoholic with a high alcoholic level may
    behave in a disinhibited manner and then, when put in a
    situation of some formality, behave in a more inhibited
    fashion.
    - whilst it is true that some chronic alcoholics may be
    incapable of understanding and responding rationally to
    questions, this, when it occurs, is usually manifested by
    bizarre behaviour in the form of a stream of patent,
    eloquent nonsense - which is the consequence of a
    particular type of brain damage, rather than any
    particular blood alcohol level.
    - (as earlier recited) the video interview best indicates
    the likely level of functioning and reliability of such a
    person - it tends to speak for itself. It is stating the
    obvious that what was said by the appellant was not, on
    the face of it, patent nonsense. On the contrary, there
    was, as I have indicated, a body of objective,
    circumstantial evidence which lent it considerable
    credence, such as the pattern of blood stains on the
    shoes and clothing of the appellant, the bruising to the
    throat and scrotum of the deceased, the nature of the
    injuries to the face and larynx of the deceased in light
    of the expert evidence as to how bleeding would develop
    and the possible effects of "stomping", by way of
    contrast with direct kicking, the footprint near the body
    and so on.

28. The jury verdict indicates an acceptance of this material and the general reliability of the admissions made, but the existence of some doubt as to intention. It cannot be stressed too strongly that, in this case, the jury was not considering the situation of an ordinary person who had become intoxicated, but a long time, chronic alcoholic. Any review of the evidence and the trial must clearly reflect that fact. In my opinion the second ground of appeal also fails.

29. Mr Kourakis sought leave (and was permitted) to argue two additional grounds. First, he complained of a direction by the learned trial judge to the jury to the effect that they could decide not to use the accused's submissions as evidence if "because of their intoxication (they) have been talking nonsense or saying things which are so inconsistent that you find them completely unreliable". This direction was, it is to be noted, given in the context of dealing with the intoxication of the appellant at the times at which he spoke with the police officers.

30. Secondly, he asserted that, in the summing up, the learned trial judge failed adequately to relate the issue of the reliability of the appellant's confession to the other relevant evidence in the manner adverted to in The Queen v Shinner (Court of Criminal Appeal, 25 November 1993, unreported) and The Queen v Pope (Court of Criminal Appeal, 22 December 1993, unreported).

31. In essence these grounds assert that the learned trial judge did not adequately summarize relevant evidence related to the appellant's state of intoxication, that of Dr James, the forensic evidence said to be inconsistent with the admissions made, certain alleged inconsistencies as between the content of the record of interview and statements made to the witness McLean and the appellant's statements that he would take the rap to the exclusion of his companions; and then relate this to the issue of reliability of the admissions which were pivotal to the Crown case. The appellant was not, of course, entirely taking the rap, because his statements clearly implicated Noblett and de Wulffe. In reality, what Mr Kourakis really sought to argue was that the defence case had not adequately been put to the jury - specifically those aspects of the evidence which, it was asserted, tended to belie the validity and accuracy of the admissions made. In the course of his address Mr Kourakis ranged extensively over the evidentiary aspects which he said ought, specifically, to have been related in manner indicated by him.

32. As to the proposed third ground of appeal the short answer is that, whatever might have been deficiencies in the original direction given, the learned trial judge, in subsequently redirecting the jury, clarified the situation by telling the jury that they could only act upon the basis of the video record of interview if, in light of all of the relevant circumstances, they were satisfied of its truth. So far as the proposed fourth ground is concerned, what is essentially in issue is whether, on reading the summing up as a whole, it fairly exposed to the jury all of the salient issues which they needed to address.

33. Whilst, with the benefit of hindsight, it may have been desirable to approach some aspects in a little more detail, nevertheless, I find it impossible to say that, at the end of the day, the matter went to the jury on such a basis that its attention was not fairly drawn to all aspects which demanded consideration. The specific points adverted to by Mr Kourakis were patently implicit in what was said by the learned trial judge, against the background of the addresses of counsel, without spelling them out in the specific terms contended for by him. The jury was left in no doubt of the pivotal importance of the accuracy of the admissions made, bearing in mind the state of intoxication of the deceased, the forensic evidence (including that of Dr James) and the asserted inconsistencies in the record of interview, coupled with the repeated statements about taking the rap. These were at all times clearly identified and canvassed in the addresses and summing up and I consider that the jury were not left in any doubt, either as to the issues which had to be considered and the basis of the appellant's defence.

34. For those reasons I would not grant leave to appeal on the additional grounds sought to be relied on. I do not consider that the other matters argued reveal any reason to question the propriety of the jury verdict, for the reasons which I have expressed. I would dismiss the appeal.

JUDGE3 PRIOR J I am in substantial agreement with the reasons published by Justice Olsson. I agree that the learned trial Judge correctly found the appellant's confession was voluntary. No error is disclosed in his Honour's approach to the issue of the exercise of a discretion to exclude the interview from evidence at the trial. Reviewing the facts before the jury, it was open to return the verdict that it did. I cannot describe that verdict as either unsafe or unsatisfactory. It was open to the jury to conclude that in the video record of interview the appellant truthfully confessed to assaulting the deceased. The evidence about blood found on the appellant's clothing and on and in his shoes was consistent with the truthfulness of the admissions relied upon by the prosecution. There was nothing in the evidence inconsistent with the appellant having kicked the deceased in the head four or five times or with him having punched him. There was evidence consistent with the truthfulness of the appellant's reference to the deceased being kicked in the area of the scrotum too. I agree that the directions were sufficient. The defence was adequately identified in the summing-up. No miscarriage of justice has occurred. Leave to appeal on the additional grounds should be refused and the appeal dismissed.