R v Blackman - [2018] NSWSC 395

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Blackman [2018] NSWSC 395
Hearing dates: 5 March 2018 – 23 March 2018
Decision date: 29 March 2018
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) All five sets of admissions objected to are excluded.

Catchwords:
CRIMINAL LAW – count of murder – special hearing – judge alone – lengthy voir dire – judicial discretion to admit or exclude evidence – objections under s 84, 85, 90, 138 and 139 of the Evidence Act – objection under s 281 of the Criminal Procedure Act – all admissions excluded under s 84 of the Evidence Act – ancillary rulings provided

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 281
Evidence Act 1995 (NSW), ss 84, 85, 86A, 90, 138, 139
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 8, Part 9
Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
R v Donnelly (1997) 96 A Crim R 432
R v Naa (2009) 76 NSWLR 271; NSWSC 851

Category: Procedural rulings
Parties: Regina
Gary Clifford Blackman
Representation:
Counsel:
P Rosser QC (Crown)
J Watts (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Universal Law (Accused)

File Number(s): 2014/00104664
Publication restriction: Name of the child is a pseudonym

Judgment

Introduction

On 5 March 2018, Gary Clifford Blackman (the accused) was arraigned on a count of murder in the Supreme Court sitting at Lismore. The proceedings were a special hearing, not a criminal trial, because the accused was unfit to stand trial. Because neither party had sought to have the proceedings conducted before a jury, the special hearing proceeded before me alone.
A lengthy voir dire was conducted with regard to the admissibility of a number of admissions the accused had allegedly made with regard to having fatally assaulted Ms Nicole Weate (the deceased) at the relevant time.
This judgment constitutes my reasons for excluding all of those admissions at the conclusion of the voir dire.

Various aspects of the proceedings and of this judgment

A number of logistical and procedural aspects can conveniently be noted at this stage.
First, the majority of the evidence placed before me was expressed to be on the voir dire alone. Some of it, however, was expressed to be received in the special hearing. That was done to avoid the inconvenience of some witnesses possibly needing to be called twice. The parties (each of whom was represented by counsel extremely experienced in criminal law) were agreed that all of the evidence received in the special hearing could be taken into account in the voir dire. In due course, as necessary, evidence on the voir dire could be “re-tendered” in the special hearing. The transcript makes perfectly clear which evidence was tendered on the special hearing and in the voir dire.
Secondly, it will be understood that all of the admissions are merely alleged to have been made. For the convenience of the reader, however, I shall not repeatedly refer to them in this judgment as “alleged admissions”; it will be understood that every reference to an admission is merely to an allegation thereof that the tribunal of fact in the special hearing would need to determine in due course.
Thirdly, a significant portion of the evidence-in-chief of witnesses of both parties on the voir dire was placed before me by way of statements, and without any cross-examination. I have proceeded on the basis that, with regard to any such witness, opposing counsel conceded the correctness of the contents of the statement of that witness.
Fourthly, I have referred to all police officers by their ranks as at the time when they gave evidence. The exception to that is if the officer gave evidence by way of a written statement.
Fifthly, although I received evidence from a large number of medically qualified persons, in this judgment I have used the term “medical experts” to refer to such persons who provided me with expert medical evidence but who did not treat the accused.

Undisputed facts

I commence by setting out, in generally chronological form, the circumstances and events that I understand to be undisputed between the parties.

The property and its occupants at mid-March 2014

As at mid-March 2014, a number of persons were living in semi-rural premises of about three acres at 904 Tomewin Road, Tomewin (“the property”). The property was located some distance out of the Northern Rivers town of Murwillumbah, close to the Queensland border. It had been purchased some years before by the accused and his sister, Ms Jennifer Smith, with funds inherited from their grandfather. The property was part of some form of community title. It had been purchased with an eye to exploring the concept of permaculture, which I understand to be an alternative approach to cultivation that places emphasis on sustainable environmental practices, in particular by way of focusing upon cultivating vegetables rather than raising livestock.
The property featured a block that sloped away from the road, and a semi-circular driveway. There were two buildings on the property: a basic cabin closer to the road and encircled by the driveway that was referred to in the proceedings as “the shed”, and a substantial three-storey house that was adjacent to the furthest part of the driveway from the road, and therefore down the hill from the shed. The front door of the home led onto its second level, due to the slope of the property. There was also a veranda attached. During the proceedings, the house was referred to as “the big house”.
Turning to the persons living there, the accused was then aged 61 years. Born in the inner northern suburbs of Sydney, he had enjoyed an unremarkable upbringing. He had completed an apprenticeship as a mechanic, and had worked in that role for a few years before working as a labourer. He had led an itinerant lifestyle, and travelled around Australia. Regrettably, he had been a heavy drinker from an early age, and as long ago as February 2002 he had been spoken of in medical records as a person who had abused alcohol, and who suffered from a damaged liver and memory loss. His life had also been a lonely one, in that he had had only one short-lived romantic relationship, and that was in his early 20s. Notably, he had suffered cognitive impairment as a result of his chronic abuse of alcohol, and was also suffering Hepatitis C. Having said that, in his day he had been a fit, strong man, and had spoken of being a boxer in the past.
Also living at the property was the deceased. At the time, she was aged 53 years. Born and raised on the northern beaches of Sydney, she had developed emotional problems from an early age, due in part to the fact that she did not fit the then-prevalent stereotype of a blonde haired, blue-eyed surfer. Sadly, she had abused heroin for many decades by 2014, and had worked as a sex worker in Kings Cross as long ago as the late 1970s. It seems that she had suffered some form of brain damage or cognitive impairment as a result of a brain disease in 1987. Although she had experienced periods of sobriety, her life had been severely damaged by abuse of prohibited drugs, not least the fact that many members of her family had cut themselves off from her decades before.
As at early March 2014, the deceased was in some sort of intimate relationship with the accused, they having met in a hotel in Murwillumbah approximately twelve months before. A significant aspect of their relationship was drinking very heavily together.
A third resident of the property as at mid-March 2014 was Mr Thomas Miringaorangi. He had known the deceased decades before, when she had been a sex worker. He had been living in the Northern Rivers with the adult son of the deceased, and came to meet her and the accused in Murwillumbah in a park or a hotel. Very soon after meeting them, he moved to the property. By mid-March 2014, he had been living at the property for a number of weeks.
Mr Miringaorangi had a lengthy record for violence in New Zealand and a number of Australian jurisdictions. In 1993, he had been sentenced to a head sentence of imprisonment for four years, with a non-parole period of 12 months, for a sexual offence. He had served a sentence of six years imprisonment with a non-parole period of four years, relating to what appears to have been a “home invasion,” that commenced in 2005 and expired in 2009. On occasions, he had been diverted from the criminal justice system on the basis that he was mentally ill. His criminal record also supported the proposition that he had been a long-standing abuser of prohibited drugs.
Also living on the property was Ms Billie Rose Bignell. At the time she was aged 23 years. She had been invited to live at the property by an old friend, Mr Ian Wolfe, who himself had recently been invited to stay there by Mr Miringaorangi some weeks beforehand. By mid-March, she had been living there for perhaps two or three weeks. Living with her was her young son, whom I shall call by the pseudonym Jack, who attended primary school. On occasions, Mr Andrew Johnson, the boyfriend of Ms Bignell, would also stay over at the property.
As at mid-March 2014, those four persons were staying at the big house. None of them was paying rent to the accused or his sister; their general position was that the accused had permitted them to stay on the property rent free, so long as they did various maintenance jobs, and kept the place clean.
Earlier in 2014, Ms Bignell had spent time in a mental hospital after a serious disagreement with her mother. At around that time, she had been using a large amount of drugs.
As I understand it, apart from Mr Andrew Johnson and the boy Jack, none of the persons living or staying at the property was in paid employment, studying, or otherwise leading a life that had any structure to it. Many of them were abusing prohibited drugs or alcohol or both. Notably, as at mid-March 2014, Mr Miringaorangi and the deceased were injecting crystal methylamphetamine (“ice”). Ms Bignell did not inject it, but was in the habit of smoking it.
Ms Jennifer Smith, the sister of the accused and co-owner of the property, was not living at the property at that time. She had visited in the past, but did not get on at all well with the deceased. Ms Smith gave evidence that she had seen the accused at the property not to be in the habit of wearing shoes, not only because of the informal standard of dress that was adopted there, but also because his feet were swollen and scabrous.
Speaking generally, the property was not well cared for. Although the big house was a substantial edifice, nothing was well maintained. To give but one example, there was no garbage service at the property. However, it seems that waste was neither transported to a tip, nor buried, nor composted. Bags of rubbish were simply thrown onto a large pile in the vicinity of the shed. One can infer that that pile was a magnet for all kinds of vermin.
There was also a crop of cannabis of indeterminate size and sophistication growing on the property. The upper level of the big house, referred to as the loft, was used to dry harvested cannabis plants.
Various neighbours whose homes were part of the community title knew the accused, and had met the other persons at the property.
Mr Brent Gallagher had known the accused for six years as at mid-March 2014 and spoke of him as being the “most agreeable man” he had ever met. They were in the habit of playing chess together.
Mr Bruce Freeman, a neighbour, had met the accused five years previously. He described him as being “overly trusting to the point of being stupid”.
In about 2013, Mr Perry Phillips, a friend of Mr Gallagher, had visited him and met the accused. He described the accused as a “seasoned drinker”, and the state of the property as “disgraceful”. He had also met the deceased, and had seen her smack the accused in the head open-handedly more than once.
Mr Liam Emzin lived in Queensland, but visited the community often. He had known the accused for quite some time. He had met the deceased about seven months before March 2014, and felt that she was “perfect” for the accused.
Mr Bruce Freeman had also noted the arrival of the deceased at the property about six months previously. He described her as the “new drinking buddy” of the accused. He said that the accused “almost came across as a simpleton”.
Many neighbours had also met Mr Miringaorangi by mid-March 2014. He had introduced himself by the nickname of “Tom Tom”. Mr Gallagher, Mr Phillips, Mr Freeman and Mr Emzin all found Mr Miringaorangi to be an intimidating person, who was in the habit of ordering around other persons at the property, including the deceased. Mr Gallagher felt that Mr Miringaorangi was also “standing over” the accused. Others, including Ms Bignell and Mr Wolfe, gave evidence in their statements describing Mr Miringaorangi in similar terms.
Mr Gallagher had also noted that, recently, the relationship between Mr Miringaorangi and the deceased became closer. He thought that they may have been sleeping together, and enquired of the accused whether a three-way sexual relationship had developed. The accused ignored this question and denied to Mr Gallagher that Mr Miringaorangi was standing over the accused.
Ms Smith had come to visit her property approximately six weeks prior to April 2014, and stayed overnight. Ms Smith felt frightened of Mr Miringaorangi, as “if you didn't listen to him singing and started talking he would start saying all these things he'd done, like, talked about killing and guns.”
The following morning, Ms Smith recalls seeing Mr Miringaorangi, the deceased and the accused. The accused and Mr Miringaorangi said they were both sleeping with the deceased, and the deceased then sat on the lap of Mr Miringaorangi and passionately kissed him. After kissing Mr Miringaorangi, the deceased then sat on the lap of the accused and passionately kissed him.
Ms Bignell described the relationship between the accused and the deceased as including yelling at times. On one occasion, the deceased spoke to her of the accused having inflicted a black eye upon the deceased. When Ms Bignell looked at the face of the deceased, she could not see any such injury.
In short, living in the shed were the accused and the deceased. Living in the big house were Mr Wolfe, Ms Bignell, her son Jack, and staying over on occasions was Mr Andrew Johnson.
Where Mr Miringaorangi was living as at mid-March 2014 is a matter of dispute. His evidence was that, by that stage, he had moved from the shed to the big house. The position other witnesses is that he had remained living in the shed.

Events of late March 2014

Turning now to the events at the property of late March 2014, it will be appreciated that, due to the unstructured lifestyles that were lived at the property, combined with abuse of prohibited drugs and alcohol, many witnesses were incapable of providing firm dates and times of events.
Many witnesses spoke of a decline in the health of the accused in late March 2014. That included a precipitous loss of weight. It also seems that the scabs, sores and blisters from which he suffered got worse. At some stage, Ms Bignell saw him lying in his own faeces.
More than one witness spoke of the understanding that the accused – who had abused alcohol, cannabis, and morphine in the past – was introduced to intravenous ingestion of ice at some stage in March 2014, perhaps by Mr Miringaorangi or the deceased.
Ms Bignell gave evidence that both the accused and Mr Miringaorangi would speak of the belief that the deceased was having sex with other men who would visit the property. Ms Bignell rejected that belief as fantastic (it is to be recalled that, at the least, Mr Miringaorangi was injecting ice, and the accused was a chronic alcoholic).
In late March, Mr Wolfe pinched the nipple of the deceased through her clothing. She took exception to that, and slapped him in the face. At around the same time, Mr Miringaorangi spoke to Mr Wolfe of his ability to sleep with Ms Bignell whenever Mr Miringaorangi wished, because he would simply pay her. That led to an argument between Mr Miringaorangi and Mr Wolfe, with Ms Bignell in tears. Because the atmosphere was deteriorating, Mr Wolfe decided to leave. He announced his departure at the shed to the accused, the deceased and Mr Miringaorangi. The accused became enraged, and a struggle developed between him and Mr Wolfe. The accused threatened to kill Mr Wolfe, and spoke of burying him. Eventually, Mr Miringaorangi grabbed hold of the accused and started to pull him off Mr Wolfe, who then left the property.
On Friday, 28 March 2014, Mr Kip Johnson came to stay at the property, as he had done previously. At that stage, he was aged 39 years. He was an old friend of Ms Smith, had led a nomadic lifestyle, and regarded himself as something of a healer. He stayed at a location on the middle level of the big house.
On Saturday, 29 March 2014, Ms Bignell and Mr Kip Johnson left the big house and went to the shed. At the shed, Mr Kip Johnson was offered heroin and ice by Mr Miringaorangi, but he refused. Mr Miringaorangi spoke to Mr Kip Johnson about “all the people he’s killed” and other stories about Mr Miringaorangi’s past. Mr Kip Johnson said to Mr Miringaorangi that Ms Smith would not “be happy with Billie living here”, to which Mr Miringaorangi replied “Don’t worry about it, we’ll leave her under a tree. Martha’s law”.
Later that same evening, both the accused and Mr Miringaorangi, accused Mr Kip Johnson of sleeping with the deceased. According to Ms Bignell, that accusation was consistent with the general belief of the accused and Mr Miringaorangi that other men were sleeping with the deceased. Mr Miringaorangi said to Mr Kip Johnson that, if it were proven that Mr Kip Johnson had slept with the deceased, Mr Kip Johnson would have to give Mr Miringaorangi his car. Mr Kip Johnson gave Mr Miringaorangi the car keys, not to admit to sleeping with the deceased, but to appease Mr Miringaorangi, as Mr Miringaorangi was “a standover dude” and a “really powerful person”. Mr Kip Johnson described the appearance of the accused that night as “covered in these like lesions and weird scaly skin” and “looked nearly dead”. Mr Kip Johnson then returned to the big house for the night.
On Sunday, 30 March 2014, Mr Kip Johnson was at the big house with Ms Bignell, Mr Andrew Johnson and Jack. Mr Miringaorangi came by the big house. Ms Bignell and Mr Miringaorangi told Mr Kip Johnson that Ms Bignell was Mr Miringaorangi’s daughter. Later in the evening, Mr Kip Johnson could hear the accused yelling out from the shed “you’re sleazy,” which was directed to Mr Kip Johnson. The yelling continued for approximately 20 minutes until Mr Kip Johnson yelled back at the accused “shut up, there’s people here.” The accused was then quiet for the rest of the evening.
On Monday morning, 31 March 2014, Mr Kip Johnson did some gardening around the property. He went to the shed to give the accused some healing leaves, and saw Mr Miringaorangi and the deceased sleeping together on a low mattress. Mr Miringaorangi yelled at Mr Kip Johnson “really loudly” to “get out of here”, that the house is “not yours anymore” and shouted he was a paedophile. Mr Kip Johnson was worried that Mr Miringaorangi was dangerous. The accused also yelled at Mr Kip Johnson “Get out of here. Fuck off. You’re sleazy. You’re a paedophile.” Mr Kip Johnson left two explanatory notes for Ms Bignell before leaving the property.
The accused spent most of that weekend pulling out weeds. His hands and legs became grossly blistered and infected as a result.

Events of early April 2014

On Tuesday, 1 April 2014 at about lunchtime, Mr Chris Lawler, a neighbour who had lived on Tomewin Road for many years, was driving into Murwillumbah. He saw the deceased standing by the side of the road with Mr Miringaorangi, and gave them a lift into that town. During the trip, Mr Miringaorangi said words to the effect of “Gary’s really sick, he can’t get out of bed”.

On Wednesday, 2 April 2014, Ms Bignell put her son Jack on the school bus at Tomewin Road early in the morning. Whilst walking back to the big house, she saw spots of blood. She followed the trail, and came across a large, thick puddle of blood. She used buckets of water to wash it. She noticed that blood had splashed up against a wall. She had a dog with her, and it located something in the bushes. The deceased appeared from the bushes. Her clothes, face and head were covered in blood, some of which was fresh and some of which had dried. Ms Bignell insisted that the deceased accompany her to the big house. The deceased replied “I can’t come to your house. I was told not to come to your house”. The deceased told Ms Bignell that the deceased was infected with Hepatitis C, with the result that Ms Bignell took care not to touch her.
Eventually, the two women entered the big house. Ms Bignell assisted the deceased to clean herself up. Ms Bignell noted that the injuries of the deceased were severe. Ms Bignell recorded that “half of her face looked like someone had booted it”. Ms Bignell spoke of her own experience of domestic violence, and advised the deceased to leave the property.
The evidence of Ms Bignell in her statement of Saturday, 5 April 2014 was that the deceased refused to say who had assaulted her. In contrast, during a “video run around” with police of Monday, 7 April 2014, Ms Bignell said that the deceased had repeatedly spoken of the injuries as having been inflicted by “both of them”. I interpolate that the Crown prosecutor made it clear to me that the Crown case is that the accused committed the offence alone, and was not part of a joint criminal enterprise.
At about 1 or 2 pm on the Wednesday, Mr Miringaorangi came to the big house. He said repeatedly to the deceased in the presence of Ms Bignell “You know that I didn’t do this to you”. The deceased responded to that proposition by nodding.
Ms Bignell spoke of the deceased being given a lift into town so that she could stay with her sister, Ondine, and her family. Mr Miringaorangi said that that was impossible, because the deceased had had an affair with the husband of her sister, and was therefore unwelcome in that home. I interpolate that the evidence by statement of Ms Ondine Weate was that no such thing had occurred.
The deceased and Mr Miringaorangi remained on the lower level of the big house, whilst Ms Bignell went to the kitchen on the middle level. She could hear the deceased and Mr Miringaorangi talking, and on occasions his tone got louder. More than once, Ms Bignell went downstairs and told Mr Miringaorangi to “[l]ose your tone”.
At about 4pm, the boy Jack returned from school. He was shielded from the brutalised appearance of the deceased.
Later in the evening, at about 6 pm, the accused appeared. Ms Bignell permitted him to speak to the deceased. He also spoke to the deceased in the presence of Mr Miringaorangi. The deceased nodded to Ms Bignell that she was content for both men to be in the room with her. Ms Bignell did not hear anything that the accused, the deceased and Mr Miringaorangi spoke about.
Later again, at about 7.30 or 8 pm, Mr Andrew Johnson returned to the big house. At the request of Ms Bignell, Mr Andrew Johnson offered to take the deceased into town. She declined. In the absence of the accused and Mr Miringaorangi, Ms Bignell confirmed with the deceased that she did not wish to leave the property. The deceased replied “No it is okay, I want to stay. Tom has more self-control than Gazza”.
Eventually, the deceased, the accused and Mr Miringaorangi all left the big house. Ms Bignell, Jack, and Mr Andrew Johnson all went to bed. Ms Bignell did not hear anything, including any noises from the shed, that evening.
At about 8 pm on the Wednesday, Mr Emzin popped in to the property. He had not seen the accused for approximately two weeks. Mr Miringaorangi came out to the front of the shed and welcomed him inside. The accused was not there. Mr Miringaorangi told Mr Emzin that the accused was at the big house, and was not walking at the time due to a spider bite. Mr Miringaorangi said that his daughter (that was how he spoke of Ms Bignell) was at the big house looking after the accused.
Mr Emzin took a seat inside the shed. Mr Miringaorangi asked the deceased to come out from the bedroom within that structure. She declined. The request was repeated, and again declined. Mr Miringaorangi ordered the deceased out of the room. At the time, his tone was stern and intimidating. The deceased appeared, and Mr Emzin saw immediately that she had significant injuries to her face. The deceased apologised for her “attire”.
Mr Miringaorangi obtained a belt from a wardrobe in the shed that Mr Emzin described as having holes in it, dark, and being of significant width. In the presence of Mr Emzin, Mr Miringaorangi wrapped the belt around his fist and said to the deceased “You like my games don’t you Nikki”.
Mr Emzin was afraid, and wanted to leave the shed. Whilst Mr Miringaorangi was momentarily out of the shed, Mr Emzin took the opportunity to do so. Mr Miringaorangi followed him, and spoke of the possibility of Mr Miringaorangi buying the property. Mr Emzin left and visited Mr Gallagher, and told him what he had seen.
During a “video run around” with police of Monday, 7 April 2014, Ms Bignell stated that she made a coffee for the accused on the morning of Thursday, 3 April 2014, and delivered it to the accused, who was lying on the bed in the loft of the big house. At this time, Ms Bignell described the accused as “in pain,” as “his hands were extreme,” with infectious blisters on them. Ms Bignell placed the coffee on the bedside table because she did not want her hands to be near the hands of the accused. She left the loft saying “I have to get [Jack] ready for school”.
Later on the morning of Thursday, 3 April 2014, Mr Gallagher went to the property with Mr Phillips. The two of them alighted from a car and walked towards the shed. Mr Miringaorangi was sitting on a chair near the front door. He stood up and said “You can’t go in there”. Mr Gallagher and Mr Phillips disregarded him, and found a way in through a side entrance.
Mr Gallagher noted that blankets had been placed up against the interior of the windows of the shed, thereby blocking any view from the outside. It was dark inside the shed. Mr Gallagher called out to the accused, who answered from a small, low bed on which he was sitting. The accused was naked and drinking from a beer stubbie. The witness feared that the accused had been bashed by Mr Miringaorangi. Mr Gallagher saw that the accused had scabs and sores all over his hands and legs. Mr Miringaorangi spoke of the accused having suffered a spider bite. He also spoke incoherently of somebody “[l]ooking at the girl through the bushes. Had to touch up”.
Mr Gallagher saw the deceased lying on the bed in the bedroom. She was lying in a neat position, and had a blanket drawn up to her chin. Although her head looked bigger than usual, Mr Gallagher did not notice injuries to her head. Mr Miringaorangi or the accused said “Leave her. She is resting”. I interpolate that one can infer that the deceased was dead by that time.
Mr Gallagher did not focus on the welfare of the deceased, because he was concerned about the welfare of the accused. He said that he would return the next morning and, if there were no change to the condition of the accused, Mr Gallagher would call an ambulance. Mr Gallagher and Mr Phillips left.
Mr Phillips gave evidence confirmatory of the above. He described the accused as looking like the inmate of a prisoner of war camp (I infer that he meant a camp maintained by the Japanese Army during World War II). After the two men had left the shed, Mr Phillips spoke to Mr Gallagher of the possibility of obtaining an ambulance right away. Mr Gallagher expressed concern about the cannabis plants that were growing on the property being discovered by the authorities.
Meanwhile, on the same morning, Ms Bignell had walked Jack up to the road in order to put him on the school bus. She had gone back to bed, and slept in for a time. Later, at about 2.30 pm, she was visited at the big house by both the accused and Mr Miringaorangi. They both told her that “Nikki is gone. We put her on a bus”. Ms Bignell thought that was a positive outcome, because she was disgusted by the injuries inflicted upon the deceased. Ms Bignell inferred that the deceased had travelled by bus back to her hometown, Sydney.
The undisputed evidence of Ms Bignell was that the Thursday evening was quiet. She slept in the big house and heard nothing from the shed.
On the morning of Friday, 4 April 2014, Ms Bignell put her son on the school bus in accordance with usual practice. She decided that she would like to have a day away from the property, and spoke to her friend Melanie, who agreed to a day out. Mr Miringaorangi dropped round to the big house, and she told him of her planned day out. Mr Miringaorangi asked for a lift.
At about 9.30 am, the female friend of Ms Bignell arrived in her car at the property. The friend Melanie, Ms Bignell and Mr Miringaorangi travelled towards Coolangatta. Mr Miringaorangi was quiet. He was dropped off on the main street of Coolangatta.
Ms Bignell enjoyed her day out with her friend. She returned to the property at 3.40 pm. Mr Miringaorangi was already at the big house; the arrangement had been that he would make his own way home from Coolangatta. On arrival, Mr Miringaorangi told Ms Bignell “I took Gazz to the Murwillumbah Hospital”. Mr Miringaorangi subsequently helped Ms Bignell clean the kitchen.
On the same morning, the Friday, Mr Gallagher had returned to the shed with his friend Mr Phillips. Mr Miringaorangi was not present. The two men climbed in the same window, and saw the accused in the same position as the day before. Mr Gallagher expressed to the accused the need for an ambulance to be called. The accused said “No. Don’t call the ambulance”. According to Mr Gallagher, the accused kept talking but was not making sense. He was speaking of “The Kip the Kippa. You know the paedophiles downtown. You know the double jeopardy”. The evidence of Mr Gallagher was that the accused was “ranting”.
The evidence of Mr Phillips was that the accused was babbling, his eyes were wide open and rolling around in his head and flashing, and he was speaking of double jeopardy, paedophiles and “the kipper”.
An ambulance was called, and Mr Phillips and Mr Gallagher waited for it at the main road. Whilst they were waiting, Mr Miringaorangi turned up in a taxi. Mr Phillips thought that was unusual, because of the expense involved. The ambulance arrived shortly thereafter. Mr Phillips and Mr Gallagher left, and took some items to a rubbish tip that had been at the property of Mr Gallagher.
Ambulance officers Quinn and Nye arrived at 12.46 pm. According to Officer Quinn, they were met by two men, who one can infer were Mr Gallagher and Mr Phillips. At the shed, they met Mr Miringaorangi. He took them to the accused, and remained in the shed the whole time.
The accused had a swollen left leg that was painful to the touch and hot. He was conscious and speaking. He gave a history of having been bitten by a spider one week before whilst out on the grass. He spoke of his leg having been swollen for three days and being unable to bear weight on it. His speech was continuous and he obeyed commands. Cuts to his hands were noted, and he explained that he had been handling glass whilst weeding. He was cooperative and answered all questions asked of him.
The accused stood with assistance and was able to hop to the door of the shed. Mr Miringaorangi remained at the shed, and was standing outside when the ambulance drove off with the accused. The ambulance arrived at Murwillumbah Hospital at 1.35 pm.
According to Officer Nye, Mr Miringaorangi seemed quite concerned about the accused. Mr Miringaorangi said that he himself lived nearby.
Officer Nye described the accused as conscious, oriented, communicative, and not intoxicated. She also noted the history given of the leg becoming swollen and unable to bear weight about three days previously. She saw numerous lacerations to the arms legs and feet of the accused, which she opined were not from the Friday but were not particularly old either. Because the lacerations travelled up the arms of the accused, she did not regard the history of handling glass as being consistent with them.
Her evidence was that the accused seemed to wish to cover his legs with a blanket, rather than – perhaps as one might expect – his genitals in the presence of the two female ambulance officers. He was transported to the ambulance in the cradle carry. On his departure, Mr Miringaorangi said that he would look after the property.

Events after the accused was admitted to Murwillumbah Hospital

Ms Kristy Hughes, a triage nurse, spoke of the accused being brought into the emergency department of Murwillumbah Hospital at 1.50 pm on Friday, 4 April 2014. She was the first nurse to look after him. He had a swollen and painful left leg, and blisters and sores on his arms and hands. He had a high temperature with pain in his left leg. She gave him morphine for pain relief. He said something about having been bitten by a spider and having crawled through broken glass. She described him as dishevelled, unkempt and “vague however compliant with my questioning”.
The next nurse to care for the accused was Ms Susan Lu. She saw him in the emergency department at about 2 pm on Friday 4 April. The accused had a swollen left leg and a fever. He spoke of being a pumpkin farmer who lived at Tomewin Road. The accused appeared dishevelled, unclean, and weak both physically and mentally. He was blinking slowly and with his eyes wide. He did not appear intoxicated.
He answered the questions of Ms Lu, but did not volunteer information and used simple language in his answers. Ms Lu thought that he may have been cognitively impaired.
The accused was given anti-inflammatories and a non-prescription analgesic at 1.55 pm. At 2 pm he was given antibiotics. At 2.05 pm and 2.25 pm, morphine was administered. At 3 pm he was given another antibiotic. At 3.55 pm, the accused was given more morphine.
Dr Polong saw the accused in the emergency department at about 2.30 pm. He examined the accused for about 30 to 45 minutes. The accused gave a history of having been crawling in the dark on the ground in order to pull out tall grasses about two days previously. He also spoke of living alone. He complained of itchy eyes.
Dr Polong noted multiple abrasions on the hands and legs of the accused that were forming scabs. His left leg was moderately swollen. No abnormality was detected in the eyes of the accused. The left leg was diagnosed as suffering from cellulitis. Antibiotics were prescribed, and eye drops were given.
Dr Polong was of the opinion that the liver of the accused may have been working sub-optimally. There was also an indication that the accused was malnourished.
At 4.40 pm, the accused was transferred from the emergency department to the medical ward. It was difficult moving the accused, because he had trouble walking. There, the accused was handed over to Nurse Goehring.
Nurse Goehring made notes on the admission of the accused to the medical ward. She spoke of the accused looking unkempt, having a swollen left leg that he was unable to bend and could only lift with difficulty, and a rash over his entire body. She was told at the handover of the patient that he was a pumpkin farmer. The accused said that he lived with and looked after a dog. The record of the admission of the accused into the ward at 4.40 pm was completed 20 minutes later.
Nurse Goehring recorded that the accused said that he lived alone. He spoke of drinking six stubbies of beer a day and spoke of smoking daily. His speech was recorded as being normal. There was no record of the accused being seen to be disoriented, or intellectually disabled. He denied using amphetamines or drugs of dependence. The accused answered in the negative with regard to questions designed to elicit issues with mental health. He answered questions in simple language and did not initiate conversation. Although he was recorded as being oriented with regard to person and place, he could not answer questions with regard to the date, month or year.
Nurse Vicki Dale commenced work at about 1 or 1.30 pm on the Friday in the medical ward. She did not record the time when she first saw the accused. Nurse Dale regarded him as unable to walk. When she first saw the accused, he was filthy, and looked like he may not have showered for six months.
Nurse Dale recalled receiving a call from a woman who identified herself as the niece of the accused at about 9 pm on the Friday. I interpolate that I understand that the parties agree that that person was in fact Ms Bignell. The purported niece told Nurse Dale that the accused would be difficult to shower, was “vague”, and had no clean clothes.
Ms Stacey Byrnes was working as a nurse in the medical ward. She did not have anything to do with his admission, but knew he was on the ward.
Ms Joy Wade was working as a nurse at the hospital as well. She began her shift in the medical ward at 9.30 pm on Friday, 4 April. She made notes about the accused at about 6 or 6.30 am on Saturday, 5 April 2014. She described the accused as very vague or confused, and not making sense. He was picking at many of his scabs, and plucking out body hair. Nurse Wade asked him to stop picking at his scabs. In her opinion, the accused had a cognitive impairment. He was unsteady in his movements. He was polite and thankful for his medical care.
Meanwhile, back at Tomewin on the Friday evening, Mr Emzin spoke to Mr Freeman, and told him that the accused had gone to hospital. Mr Emzin also told Mr Freeman that Mr Emzin had been to the property on the Wednesday night and seen the bruises to the face of the deceased. He also spoke of Mr Miringaorangi having wrapped the belt around his hand. Mr Emzin expressed the opinion to Mr Freeman that Mr Miringaorangi had beaten the deceased. Mr Freeman and Mr Emzin consumed a few beers, and decided to go to the property that night.
They drove there and parked near the shed. All was in darkness. Mr Freeman was yelling out “Nikki, turn on the lights”. Mr Freeman went to open a sliding door of the shed. Mr Freeman was punched to the right side of the head. There was a struggle, and Mr Freeman hit his head on the concrete. The other person disappeared into the darkness. Mr Emzin pulled Mr Freeman from the ground. The latter was dazed. They left the property. Mr Emzin stayed at the home of Mr Freeman until about 5 am on the Saturday. On the Saturday morning, Mr Freeman woke up with numerous injuries.
The evidence of Ms Bignell about the events of the Friday evening at the property was as follows.
Because it was a Friday night, Jack was allowed to stay up late, and went to bed at about 10 pm. Mr Miringaorangi was down at the big house, and sat outside on the veranda playing his guitar.
At about 10.40 pm, Ms Bignell heard a car come down the driveway and park near the shed. Mr Miringaorangi was still at the big house at that stage. He came into the house and asked Ms Bignell to turn all the lights off. Ms Bignell armed herself with a machete from the big house. She heard the voices of Mr Emzin and Mr Freeman. One of the voices spoke of killing one or more of the occupants of the shed. The vehicle that she had heard departed, but returned five minutes later. Again, men were shouting and speaking of killing.
Mr Miringaorangi hid under the veranda of the big house. In the opinion of Ms Bignell, he was paranoid, and believed that people were outside even after the vehicle was heard to depart a second time, and Ms Bignell was confident that no one else was present. Ms Bignell put the state of mind of Mr Miringaorangi down to his abuse of ice. She herself smoked a small amount of ice in order to calm her nerves that evening. It was only at 5 am on the Saturday that the episode came to an end, with Ms Bignell going down to the lower level of the big house and retiring to bed.

Ms Bignell woke up at about 9.30 am on the Saturday. Mr Miringaorangi came down to the lower level of the big house. He continued to believe that intruders were on the property, and accused Ms Bignell of being part of it. Mr Miringaorangi used his own mobile phone to call the police, and then put Ms Bignell on the phone to them. She asked the police to attend the property. She saw a police car drive slowly past the entrance to the property, but it did not stop.
Jack was ready to go into town by way of a lift from Mr Andrew Johnson. Mr Miringaorangi insisted upon being given a lift himself. Mr Andrew Johnson agreed and said he would do two trips, with Mr Miringaorangi as the first passenger. Mr Miringaorangi asked Mr Andrew Johnson to drop him at the police station in Murwillumbah. It was not until 1.30 or 2 pm on the Saturday that Ms Bignell, Mr Andrew Johnson, and Jack drove into town.
Returning to Murwillumbah Hospital, on the Saturday morning Nurse Dale was caring for the accused again. She arranged a shower for him, and took the step of providing antiseptic for use in the shower. The accused talked about bringing Nurse Dale a pumpkin.
The accused, in the opinion of Nurse Dale, generally showed no emotion at all. He always seemed flat, neither happy nor sad. He was, in her opinion, quiet and vague.
Later, Nurse Dale saw that the accused was sitting on a veranda of the ward. She saw a man with dark skin walk over to the accused; there was no dispute between the parties that that was Mr Miringaorangi. Nurse Dale had a recollection of seeing Mr Miringaorangi coming up to the medical ward with a hammer. She recalled approaching him and taking the hammer from him. Nurse Dale could hear Mr Miringaorangi talking loudly, but she could not understand what he was saying. She could hear the accused saying “No. No. No” over the voice of Mr Miringaorangi. She did not believe a fight was going to occur, and if she had held that belief she would have phoned security.
Nurse Stacey Byrnes was working in the medical ward on Saturday 5 April. She saw a colleague, Ms Sue McIntyre, with Mr Miringaorangi. Ms McIntyre had a hammer in her hand. Nurse Byrnes saw the supervisor arrive, and saw her to be standing in the entrance to the office with Mr Miringaorangi. Twenty minutes later, Nurse Byrnes saw Mr Miringaorangi walk towards the women’s section of the ward. He was talking to another male. Ms Byrnes was concerned about the safety of patients, but could not hear what the two men were saying. Later that day, Nurse Byrnes saw a household hammer with a wooden handle on a desk at the hospital.
Ms Carolyn Brodbeck was also working as a nurse at Murwillumbah Hospital in April 2014. She was working in the medical ward and was caring for the accused. She made note of his blisters and wounds. He gave a history of injuring himself whilst gardening, which Nurse Brodbeck thought was unlikely.
To her recollection, one or two days after speaking to the accused she heard people whispering on a veranda near to where she was. She heard the phrase “fucking cunt” being yelled. She saw a person of dark complexion literally standing over the accused, who was seated. Again, there is no dispute between the parties that that person was Mr Miringaorangi. Mr Miringaorangi was pointing at the chest of the accused. The accused was observed by Nurse Brodbeck to push himself back in the chair and appeared “very frightened”. Nurse Brodbeck could not hear what was said by Mr Miringaorangi other than swear words. The accused was listening and not talking back to Mr Miringaorangi.
Nurse Brodbeck asked that the bad language cease. Mr Miringaorangi and the accused looked at her. Mr Miringaorangi took a few steps back. It was then that Nurse Brodbeck noted another gentleman in company with Mr Miringaorangi. She described him as a man with a tanned complexion whom she regularly saw around Murwillumbah, who seemed to be engaging in arguments with himself. When she first saw him he was standing up against the door jam, but when she involved herself he walked off the veranda into the hallway.
Nurse Brodbeck stayed there for a few minutes. Mr Miringaorangi stayed talking to the accused for about five or 10 minutes, but not “in his face”. After that, Mr Miringaorangi and the other man left. After Nurse Brodbeck involved herself, she heard no more yelling from either Mr Miringaorangi or the accused.
Ms Patricia Casson was also a nurse who cared for the accused on the Saturday. She recalled seeing a man whom she thought could have been a Maori with another, white male.
On the Saturday, Dr Wellm saw the accused in the medical ward. Dr Wellm queried whether the accused was suffering from septic arthritis, and changed the antibiotic. When asked about the medical records of the accused created by Dr Wellm, Dr Polong agreed that a doctor in the medical ward would be provided with more time and information about a patient than a doctor in the emergency department.
Nurse Casson was also present with Dr Wellm when he made his medical notes. Her evidence was that the accused was unable to walk very well, and had damaged his knees. The accused was dishevelled, and vague as to how he obtained his injuries.
Whilst the accused was in hospital at Murwillumbah, he was monitored for symptoms of alcohol withdrawal. Speaking generally, he did not suffer from notable adverse symptoms. There was a spike in his level of anxiety, which I shall discuss later.
After having visited the accused at the hospital, Mr Miringaorangi attended Murwillumbah police station. Although there is no direct evidence from any police officer about that attendance, one can infer that Mr Miringaorangi spoke of there being a body at the property. He travelled from Murwillumbah police station to the property with uniformed police officers. He showed them the body of the deceased lying on the bed in the bedroom of the shed.
Inspector Telfer was at that time attached to Tweed Heads Police Station. On the afternoon of Saturday, 5 April, he was the supervisor of general duties police officers. At about 2 pm he heard many radio broadcasts about a person having taken police to a body at Tomewin. He drove a police vehicle with a colleague to the property and saw the deceased there. Numerous other police officers attended. A crime scene warrant was handed to Inspector Telfer.
At 2.15 pm, Detective Sergeant Frost spoke with a police inspector about the possibility of a dead body being at the property. In due course, Detective Sergeant Frost became the officer in charge of the investigation. He arrived at the property at 3.05 pm. He inspected the scene. No clothes were found on the floor of the shed. No shoes were found with a triangular pattern on the sole. A belt was located in the wardrobe of the shed. One vehicle at the scene was later swabbed for DNA. None was found.
Detective Sergeant Frost and his colleague Detective Senior Constable Hughes thereafter engaged in an electronically recorded interview with Mr Miringaorangi. The interview extended over 90 minutes, only a portion of which was tendered in evidence on the voir dire. The detectives drew attention to a number of injuries on the hands of Mr Miringaorangi. He explained at least one of them on the basis that he had been working on a vehicle at the property, and the bonnet fell onto his hand. At around the time of the interview, police divested Mr Miringaorangi of a Medicare card that was in the name of the accused.
In his electronically recorded interview, Mr Miringaorangi implicated the accused in the murder of the deceased. At the conclusion of the interview, Mr Miringaorangi signed a separate statement to the effect that he was prepared to give evidence in accordance with his interview. A number of forensic procedures were subsequently carried out on Mr Miringaorangi.
Detective Sergeant Frost was aware that the accused was currently in hospital in Murwillumbah. He believed that there was sufficient evidence to arrest the accused for the murder of the deceased. Detective Sergeant Frost asked Detective Senior Constable Straume to speak to the accused at the hospital, place him under arrest, and to audio record their interaction. Detective Sergeant Frost did not ask Detective Senior Constable Straume to provide the accused with his “Part 9 rights,” pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). Detective Sergeant Frost directed Senior Constable Holiday, who had been the custody manager earlier that day, to read those rights to the accused. Subsequently, Senior Constable Holiday did not comply with the direction of Detective Sergeant Frost in that regard because of “operational requirements”.
In accordance with the direction of Detective Sergeant Frost, Detective Senior Constable Straume and Sergeant Amos attended Murwillumbah Hospital. They spoke to the accused. Detective Senior Constable Straume asked most of the questions. The interview was audio recorded. It commenced at 7.20 pm and concluded at 7.30 pm on Saturday, 5 April 2014.
At the start of the interview, Detective Senior Constable Straume warned the accused that he was not required to say anything unless he wished to do so; and that anything he did say or do would be electronically recorded. She did not warn the accused that anything he said could be used in evidence against him. The accused gave generally monosyllabic answers to the introductory questions of Detective Senior Constable Straume.
When asked about any incident at the property, the accused spoke of having been defending the property of his Uncle Jack. He spoke of the property as belonging to his uncle. He also spoke of his uncle having fought on the Kokoda Track, and having been a prisoner of war in Japan. I interpolate that the sister of the accused, Ms Smith, gave evidence that the uncle in question had indeed served in the Pacific in World War II, but had nothing to do with the property at Tomewin.
The accused admitted that he knew the deceased. The following passed between him and Detective Senior Constable Straume:

“Q16    What can you tell us about her?
A   I hit her.
Q17   What else can you tell us about that?
A   Badly.
Q18   You hit her badly? Where did you hit her?
A    In the face.
Q19   In the face? When did you hit her?
A   Two or three nights ago now.”

When asked why things had come to that, the accused spoke of the deceased bringing paedophiles to the property who had tried to get in and take the property. He spoke of the deceased being “somewhere on the property”.
The accused spoke of having collapsed, and having been in agony for about seven days as a result of his leg.
When questioned further about the location of the deceased, he said that she was currently in the shed.
When asked by Sergeant Amos how the deceased was when the accused saw her, he replied “I punched her and broke her eye socket and hosed her off I done her in”. At that stage the accused was crying.
Detective Senior Constable Straume then place the accused under arrest for the murder of the deceased.
When asked by Sergeant Amos how many times he had hit the deceased, the accused replied “about eight or nine times, I think”, and later said “I broke her eye socket in the last punch”. He said that he had hit her with his right hand.
As for motive, the accused told Detective Senior Constable Straume that he had hit the deceased because he had tried to give her a chance and she had said she would do the right thing for 12 months; she spoke of changing her ways; he gave her half the property; but the deceased lied to him, and still wanted to take the property.
He said that when he last saw the deceased she was “no good”. He said that when he last saw her she was in bed, not saying anything. When asked whether she was still alive at that stage, the accused replied in the negative. He spoke of having picked up the deceased and “hosed her off”.
When asked why medical assistance had not been obtained for the deceased, the accused spoke of having no phone because it had been stolen. He said that he was unable to drive because he owed a fine. In answer to a question of why he did not drive the deceased to hospital in light of her medical emergency, the accused explained that he could not walk. In answer to a question as to whether anyone else at the property could have driven the deceased to hospital, he posited that no one else had a license. When asked whether anybody else at the property had a phone, he said that they had been stolen, and spoke of “these paedophile people”. When asked to explain that reference, he spoke of people coming to the property, raping the deceased there whilst the accused was working, and doing terrible things to her. The accused spoke of an old friend, “my mate Tom”, having pointed out what was occurring.
The accused went on to say “I did the damage” and “I warned her I said if you ever played up I’ll smash your face in and you won’t be able to do it anymore. I did it, I killed her.” At that stage the accused can be heard to be crying on the audio recording. Near the conclusion of the recording the accused said “I did it. I’m sorry.”
In the rest of this judgment, I shall refer generally to the things said by the accused between 7.20 and 7.30 pm on Saturday, 5 April 2014 to Detective Senior Constable Straume and Sergeant Amos to be found in voir dire exhibit A (with regard to which MFI 10 is an aide memoire) as “the first admissions”.
Neither Detective Senior Constable Straume nor Sergeant Amos at any stage advised the accused about any of his rights to a support person, a lawyer, and so forth, in accordance with Part 9 of LEPRA.
On their way out of the hospital, the two police officers took possession of the hammer that the nurses had seized from Mr Miringaorangi earlier that morning.
Ms Bignell gave a written statement to police on Saturday, 5 April. Thereafter, very many witnesses, civilian and police, commenced to give signed statements to police about the events in question.
At 7.30 pm on the Saturday, Senior Constable Curtis was directed to take over the guarding of the accused at Murwillumbah Hospital. Whilst doing so, Senior Constable Curtis maintained a log, and made contemporaneous notes.
At 9.30 pm, the accused woke up and said “you know a bloke for nine years and he has sex with your wife” and “he took my soul, he took my soul away from me”.
At 11.15 pm, Senior Constable Holiday arrived at the hospital, and, according to Senior Constable Curtis, fulfilled the role of a custody manager by reading his rights to the accused, and allowing the accused to read a summary of Part 9 of LEPRA.
Senior Constable Holiday gave evidence that he was the custody manager from 6 pm on the Saturday until 6.30 am on the Sunday at Tweed Heads Police Station. At 8.30 pm on the Saturday, somebody gave him a field arrest form, and informed him that the accused had been arrested at 7.25 pm at Murwillumbah Hospital. Senior Constable Holiday updated the custody management record, backdated it to 7.25 pm, and noted nothing unusual in it. I interpolate that that was a rather pointless exercise, in that, at that stage, the custody manager had not seen or spoken to the accused.
The custody manager drove to Murwillumbah Hospital to advise the accused of his Part 9 rights, but due to “operational requirements” only arrived at 11.15 pm on the Saturday. The accused was asked whether he understood the rights read to him and whether he could read. The accused answered in the affirmative, and appeared to read the document. He was asked to sign his name, and did so.
It was at 12.42 am on the Sunday that the custody manager updated the custody management records to show that the accused was advised of his rights at 11.24 pm on the Saturday evening.
At 11.55 pm, Senior Constable Robinson commenced undertaking forensic procedures upon the accused. The accused incorrectly repeated that the date was 7 April. In response to a question of whether the accused wanted to see a lawyer, the accused said he did not need one. The forensic procedure was being recorded, however there was a battery failure at 12.07 am. The forensic procedures concluded at 1.31 am.
Returning to the evidence of medical practitioners, Nurse Wade recorded that she gave the accused Panadol at 10 pm on the Saturday. At midnight she gave him antibiotics. The accused was polite, and more coherent than he had been the night before.
At 1.55 am on Sunday, 6 April 2014, Nurse Wade gave the accused morphine for pain. She gave him antibiotics at 6 am. Her evidence was that the accused needed assistance in being able to access the toilet. Nurse Wade believed that she had been told at the shift handover that the accused had said that he wanted to commit suicide. No symptoms of withdrawal from alcohol were noted.
Separately, a “spike” in the anxiety level of the accused is recorded in the alcohol withdrawal record as having occurred at 7.30 pm; that is, very shortly after the accused had been told that he was under arrest for the murder of the deceased. The alcohol withdrawal assessment was discontinued on the Sunday, on the basis that it was unnecessary.
Meanwhile, people connected to the property began to be aware that the body of the deceased had been located there by police.
On the Saturday, Mr Gallagher was informed of the presence of police at the property. He thought it was the accused who had died. He also had a conversation with Mr Freeman, who told Mr Gallagher of having been king hit during his visit to the property the evening before. Mr Gallagher saw swelling to the face of Mr Freeman.
Ms Smith was told on the Sunday morning that the deceased was dead and that the accused had been taken to hospital by ambulance. She commenced to drive from Queensland to the hospital, and dropped into the property on her way.
Returning to Murwillumbah Hospital, on the Sunday morning, Ms Catherine Rogers cared for the accused in her role as a nurse. She commenced her duties at 7 am. She described the accused as “unkempt but calm”. He did not engage in conversation unless prompted. When prompted, he would do what he was asked. Whilst being showered on a chair, the accused was physically incapable of reaching the showerhead. He was agitated, and was rubbing his hands on the skin of his arms and legs. He drew blood from his scratching, but when asked to stop he did so. When returned to bed he was no longer agitated. He was administered morphine at 11.55 am and 12.40 pm on the Sunday.
Ms Stacey Byrnes was also one of the nurses caring for the accused in the medical ward of Murwillumbah Hospital on the Sunday. She recalled helping Nurse Rogers getting the accused into the shower chair. She described the accused as chatting and not making much sense. He seemed to her to be in a confused state, though he would comply with basic directions.
On Sunday, 6 April 2014 at 6.45 am, Senior Constable Keller went to Murwillumbah Hospital in order to guard the accused. He was on duty with Senior Constable Woods. Senior Constable Keller took over from Senior Constable Curtis.
The accused was calm and content, but distressed by pain in his leg. Senior Constable Keller saw that one of the legs of the accused was grossly swollen, and also saw a number of small sores over the body of the accused. Mr Gallagher attended the hospital in order to visit the accused, but was not permitted to do so. Detective Senior Constable Hughes spoke to Senior Constable Keller, and asked him to obtain details of the medical condition of the accused. He also asked Senior Constable Keller to make sure that any visitor of the accused did not whisper with him.
Later, Ms Smith telephoned and indicated that she would visit the accused. At about 11.15 am on the Sunday, she arrived along with her son, Mr Ben Blackman, and his wife.
Senior Constable Keller heard the accused say to his sister “I did the job I killed her”. He also heard the accused say “I’m guilty I did it, she shouldn’t have done the wrong thing, you know what I’m like when I get angry she shouldn’t have done it.” Each of Senior Constable Keller and Senior Constable Woods signed a notebook record of Senior Constable Keller to that effect.

Later, when the accused was speaking to his nephew, the accused said “Yeah I did it”. He spoke of having used his fists. When asked by Mr Ben Blackman why, the accused said “So she could see it was me”. When Mr Ben Blackman asked “Was it Tom?”, the accused replied “Not Tom”. Mr Ben Blackman subsequently signed the notebook of Senior Constable Woods, although in evidence on the voir dire he suggested that the words recorded there were slightly different from the words the accused had actually used.
According to the evidence of Ms Smith on the voir dire, when she visited the accused on the Sunday, one of his legs was grossly larger than the other. The accused appeared to her to have lost a lot of weight, to be drugged, delirious, shaking, and repeating himself. A police officer asked the two of them to stop whispering. The accused said to her words to the effect of “I did it, I hit her with my fists”. He also said that he wished to die, and that the love of his life was dead. He said that Mr Miringaorangi was his mate; that he had not done “it”; and that Mr Miringaorangi had “done his time”. The accused also spoke of having already “done a statement”.
According to the evidence of Mr Ben Blackman on the voir dire, the accused was very different from how he had previously appeared. He was gaunt, unhealthy, aggressive, and agitated. Normally, the accused was very submissive, but on this occasion he was direct and angry. In the opinion of Mr Ben Blackman, the accused had lost 15 kilograms.
Mr Ben Blackman said in evidence that the accused had not used the exact words “I just use my fists”, but rather had said “knuckled her”. His recollection was also that, in fact, the accused had not spoken of doing so in order for the deceased to see the accused. Mr Ben Blackman noted that the accused was missing a fingernail on one of his little fingers.
In the remainder of this judgment, I shall refer to the things said by the accused to his sister and his nephew collectively as “the second admissions”.
At 11 am, Inspector Telfer, the supervisor of general duties police, attended the Murwillumbah Hospital and spoke to Senior Constable Keller and Senior Constable Woods about the second admissions. He asked them to make a note of what they had heard. Later, those two officers spoke to Detective Sergeant Frost about the same topic.

Events after the accused was admitted to Tweed Heads Hospital

At 1.15 pm, the accused was transferred by ambulance to Tweed Heads Hospital. Senior Constable Keller and Senior Constable Woods followed in a police vehicle. They were the guards of the accused at that latter hospital until 5 pm on the Sunday.
Meanwhile, back at the property, at about 11.45 am, Detective Sergeant Frost spoke to Ms Bignell, and found the two farewell notes left by Mr Kip Johnson. Later that day, the officer-in-charge informed Ms Ondine Weate of the death of her sister.
Senior Constable Dutton was rostered to work at Byron Bay Police Station at 3.30 pm on Sunday 6 April. On arrival, she was asked to attend Tweed Heads Hospital and perform guard duties with regard to the accused. There she relieved Senior Constable Woods. She had her laptop with her in order to do some police work.
At 6.15 pm Senior Constable Cecil, who was to work with her, arrived. At 7.15 pm a nurse came into the room, and spoke with Senior Constable Dutton. The advice given was that Mr Miringaorangi had come to Tweed Heads Hospital. Senior Constable Dutton was shown CCTV footage from Murwillumbah Hospital said to depict Mr Miringaorangi. Mr Miringaorangi had no contact with the accused at Tweed Heads Hospital.
About 8.30 pm on Sunday 6 April, Dr Saeed Baboli examined the accused at Tweed Heads Hospital. He noted that the accused presented with “5 days of left knee swelling”. Fluid was taken from the knee of the swollen leg of the accused. In the opinion of Dr Baboli, the swelling did not seem to be a septic condition, but rather some kind of inflammation. Accordingly, the treatment with antibiotics was stopped and the accused monitored.
At 8.30 pm, the accused urinated in his bed. Shortly after that, a male nurse came to change the sheets. The nurse suggested that the accused must have done something wrong to have police officers with him. The accused said “Yeah I’ve done something alright”. After that, the accused said that he had told the truth. Senior Constable Dutton typed into her laptop what she heard the accused saying.
At about 5 am on Monday 7 April, Senior Constable Dutton heard the accused claim that he had given the deceased the same tablets as he had been given. Senior Constable Dutton believed that the accused had been given endone. The accused became upset and started crying. He said “I shouldn’t have done what I’d done”, and “I am all fucked up.” He said that he should not have looked at the phone. He also said “I couldn’t stand it any longer, just finish it. Dragged her outside and hosed down, turned her over and she died from the pain”.
A little later, he spoke of the last form of defence; going in and out of consciousness; the swelling in his leg never going away; being able to breathe a bit; and having no strength left.
A little after 5.31 am, in answer to a question as to whether he was all right, the accused said “Yeah I’m alright, my eyes are better. Closure.” He spoke of being unable to make a full confession until he got his “eyesight back”. A little later, he said “I went through all the pain to get the truth. I didn’t know what to do to get the answers.” He indicated to the police officers that he had no pain in his leg, but then asked “Do you reckon I should cut my leg off?” Senior Constable Dutton dissuaded him.
Senior Constable Dutton made contemporaneous notes in her laptop as the accused spoke. Later, she transcribed those notes to her notebook. She and Senior Constable Cecil adopted the contents of the notebook.
Although the accused was being treated with eye drops through the night, there was no suggestion from any witnesses that his ability to see was compromised at any stage.
I shall refer to the things said by the accused in the presence of Senior Constable Dutton and Senior Constable Cecil as “the third admissions”.
On Monday 7 April, Detective Sergeant Frost and Detective Senior Constable Hughes attended at Tweed Heads Hospital. They spoke to a doctor about the condition of the accused. The doctor advised that the accused had oxycodone in his system, and that it would not be advisable to speak to him at that stage.

Events after the accused was in custody at Tweed Heads Police Station

The accused was released from hospital at 3.45 pm, and taken to Tweed Heads Police Station. Detective Sergeant Frost directed the custody manager, Senior Constable Jones, to read the accused his rights.
Detective Sergeant Frost spoke to the accused in the charge room at 4.15 pm in the presence of Detective Hughes. The conversation was recorded on an audio recorder. It concluded at 4.20 pm.
During that conversation, the accused said “I can let you know everything you want to know…” He also spoke of “full response of my guilt”. When asked how his leg was, he said that it was “just like a knife in me leg for about 12 days”.
Detective Sergeant Frost then had the custody manager explain the rights of the accused to him. Detective Sergeant Frost was told that the accused wished to see a solicitor, and one was arranged for him. After that, Detective Sergeant Frost was informed that the accused did not wish to answer any questions, on legal advice.
At approximately 5.19 pm the recording device was reactivated. Detective Sergeant Frost said “But you’ve indicated to me that you don’t wish to answer any questions at this point. Is that right?” The accused replied “Yes, because I don’t remember very much of what happened…”
Detective Sergeant Frost administered the so-called “special caution” to the accused, in accordance with section 89A of the Evidence Act 1995 (NSW). When asked by Detective Sergeant Frost to “tell me back what was your understanding”, the accused replied “I understand anything I might say that might implicate me in… (Indistinct)… My defence… Yeah, yeah – – – I guess. All right.””.
The recording ceased at 5.22 pm.
The accused was thereafter charged with the murder of the deceased. During the charge process, the accused was distraught, crying and upset.
Detective Sergeant Frost returned to duty at about 7 am on Tuesday, 8 April 2014. He read an email from Inspector Telfer, who had been the supervisor on the Monday evening. The email from Inspector Telfer indicated that the accused may wish to speak further with investigators.
At about 8.05 am on the Tuesday, Detective Sergeant Frost went with Detective Senior Constable Hughes to the cell in which the accused was located. The accused was having breakfast. In a nutshell, he asked the police to come back when he was more properly awake.
The police returned at 9.51 am. By that stage the accused had consulted a second solicitor. He was forceful in exercising his right to silence. In explaining what he had been told by his solicitor, the accused said “and she advised me not to speak to anybody or out loud, any, any, like any statement – – – may incriminate me for, for, for, for anything.” The interview concluded at 9.52 am.
I shall refer to the things said by the accused to Detective Sergeant Frost and Detective Senior Constable Hughes – in particular, the claim to acceptance of responsibility – as “the fourth admissions”.
In between those interactions between the accused and the two detectives, he also spoke to Inspector Telfer on the evening of Monday 7 April. Inspector Telfer had become the custody manager sometime after 6 pm on that evening. As I have said, the accused had arrived at Tweed Heads Police Station in the afternoon.
At about 9.15 pm, Inspector Telfer consulted the accused about his position with regard to bail. Inspector Telfer said words to the effect of “Gary what are your thoughts on bail?” He did not read anything formally to the accused.
The accused said “What do you do, I don’t want bail, I just want to face the music, I’ve done what I’ve done and it’s time for me to face up to it”. Inspector Telfer said “Do you mean the lady?” The accused replied in the affirmative, and repeated a number of times the proposition “I’m fucked now I’m going to do a long stretch”. Only a portion of that interaction was recorded by Inspector Telfer in the custody management record.
Inspector Telfer gave evidence that the accused was difficult to understand. When the accused was speaking to him, the accused was looking at the ground and sighing heavily.
At about 10.15 pm on that Monday evening, when his fingerprints were taken, Inspector Telfer made observations of the accused that suggested that he had been crying.
Inspector Telfer informed the custody manager who relieved him of the things the accused had said.
I shall refer to the admissions made to Inspector Telfer as “the fifth admissions”, whilst appreciating that they are in fact interleaved between the conversations that the accused had with Detective Sergeant Frost.
On Monday 7 April, Ms Bignell engaged in a “video run-around” with police at the property. What she said to police was generally consistent with the summary I have provided of her statement, except for the reference to the deceased having spoken on the Wednesday about having been severely injured by “both”.
She also confirmed that she had seen Mr Miringaorangi drinking alcohol on more than one occasion.
She told police that, by the Thursday, the accused was screaming in pain each time he took a step and placed weight on his swollen leg.
She described his hands as being in “atrocious” condition, and spoke of an occasion when they were bleeding freely when the accused was chopping up cannabis leaves.
She also spoke of Mr Miringaorangi on the Saturday morning having changed out of the boots that he was in the habit of wearing, and into a pair of running shoes before he left the property (that is, before Mr Miringaorangi visited the hospital and thereafter attended the police station).

Events after the accused was incarcerated

By Wednesday, 9 April 2014, the accused was in custody in Grafton Gaol. The following day, Thursday 10 April, he was taken to Grafton Hospital because he was suffering from delirium and hallucinations. To give one example, he believed that he had been cleaning a picture of Julius Caesar off the wall of his cell.
There was no dispute between the parties that, from that point on, the accused became manifestly divorced from reality.
On 15 April, he consulted a Justice Health psychiatrist by video link, who spoke to him for 30 minutes. That was after the psychiatrist had been contacted by a mental health nurse with an eye to determining whether the accused should be diagnosed with delirium.
On Wednesday, 16 April 2014, the accused was admitted to Port Macquarie Hospital from Kempsey Correctional Centre for treatment of septic arthritis in his left knee.
On Thursday, 17 April 2014, the accused was reportedly “severely agitated and aggressive”, which was suggested to be due to ice use or withdrawal. The staff at the hospital administered several doses of various medications to settle the accused. Two further episodes of agitation were recorded on 23 April 2014. The accused was also found to have septic arthritis, and was commenced on antibiotics. The accused was also reported to occasionally engage in “bizarre conversation”. He told the staff at Port Macquarie Hospital that the sores on his fingers and legs were “from a fire in the back of the police van”. He was discharged from that hospital and returned to prison on 24 April 2014.
On 29 and 30 April 2014, the accused was seen by Justice Health psychiatrist Dr Simonelli. The accused spoke of having been in custody since late February or early March (although in fact he had been in custody since 9 April 2014). He spoke of living at the property alone. The doctor was aware that the accused had served short sentences in Australian jurisdictions for offences such as car stealing and the like. The accused spoke of the past two months (that is, since approximately late February 2014) as having been very painful due to a knee injury.
On 29 April, the accused spoke to the psychiatrist of his awareness of having been charged with murder, but said “I didn’t do it”. He also said that he “admitted to murder because…”, but never completed that sentence.
The accused told Dr Simonelli that he tried ice once, had smoked cannabis every day, and had drunk about six beers a day.
Dr Simonelli noted “bizarre facial gesturing”. The accused spoke in bursts, and his words were unclear and not fully articulated. He was agitated and picking at scabs. He spoke of “fighting the devil for the past two months” and said that he had “died a few times and came back to life”.
Dr Simonelli expressed the opinion that the accused was not aware that his beliefs were not in keeping with reality. He also felt that the accused had probably suffered cognitive impairment from his abuse of alcohol. Dr Simonelli prescribed anti-psychotic medication, combined with a suicide prevention plan which included a nurse observing the accused every 30 minutes.
On 30 April, when seen again by Dr Simonelli, the accused spoke of the devil; a black moon with no light for two hours; and the end of the world. He also referred to heart attacks that had been caused by the devil, and the accused being a dragon who could drain water out of people so that they had no fire in them to fight the accused.
He said “I did not kill that girl”. The accused also spoke of having “gotten rid of all the evil”, and said that “It’s gone back to the year 000 not 2014”. He spoke of his struggle with the devil as being beneficial to society.
The impression on that occasion was psychosis featuring delusions, and cognitive impairment secondary to alcohol abuse and possible previous head injuries.
Ms Jennifer Smith gave evidence that she received a phone call from the accused while he was in custody, however was unsure whether he was calling from Kempsey Correctional Centre or Long Bay. Ms Smith asked the accused “Should I be scared?” The accused told Ms Smith that Mr Miringaorangi told the accused “Any trouble with your sister I’ll plant her under a tree”. The accused told Ms Smith he was changing his plea to not guilty and that “he had to say that to protect me [that is, Ms Smith] and the kids”.
On 2 May 2014, psychiatrist Dr Chan saw the accused. He was gesturing bizarrely, rambling, and speaking of a dragon that was fighting the devil. Dr Chan diagnosed delirium, with a possible diagnosis of chronic psychosis.
Medical records of 10 May 2014 show that the accused had calmed, and there seemed to be no psychotic symptoms. The impression was that the functioning of the accused decreased as the day progressed (a phenomenon known as “sundowning”). The accused was noted to be incontinent.
On 12 May 2014, the accused spoke of needing to “camouflaged plants” as paedophiles would come around. He claimed to have seen them rape his girlfriend, although that was not against her will. He said that there were 19 of them. He claimed that a scar on his body was caused by him having been tasered.
Ms Smith gave evidence that, in December 2014, she visited the accused. Ms Smith gave evidence that the accused had told her “Tom Tom dragged him [the accused] up to the shed and said “She wouldn’t shut up so I [Mr Miringaorangi] had squashed her head, stomped on her head till her eye socket fell out.”
Subsequent to the events of March and April 2014, Mr Miringaorangi was convicted more than once of offences of violence.
Thereafter, forensic psychiatrist Dr Nielssen, forensic psychologist Dr White, and forensic psychiatrist Dr Sheehan saw the accused on his behalf. Professor Greenberg saw the accused on behalf of the Crown. I shall summarise their evidence in more detail later in this judgment; suffice to say all of them were of the view that the accused was not fit to stand trial, but their opinions differed about the question of the reliability of the five sets of admissions.
On 16 June 2016, an MRI brain scan was performed upon the accused. In a nutshell, it showed physical signs of changes to his brain, most likely caused by chronic abuse of alcohol.
On 26 February 2018, Dr Fu, forensic pharmacologist and toxicologist, prepared a report at the request of the Crown. Her focus was upon the various medications that had been provided to the accused whilst he was in hospital, and the effect they may have had on him (it will be recalled that that medication included morphine and endone). In a nutshell, Dr Fu was of the opinion that the medication with which the accused had been treated would have been unlikely to have affected the reliability of what he had said to various persons.

Summary of the evidence of Mr Miringaorangi

That concludes my chronological summary of the undisputed evidence.
Because of its importance to my decision on the voir dire, it is necessary to set out the evidence of Mr Miringaorangi in quite a bit of detail.
It is to be noted that, for reasons of convenience, the evidence was received on the trial. As I have said, the joint position of the parties, which I accept as entirely orthodox, was that all of the evidence tended in the trial was available to me on the voir dire.

Evidence-in-chief of Mr Miringaorangi

The witness gave evidence that he is a New Zealander by birth. He is 66 years of age.
He confirmed that he was living at the property in April 2014.
He claimed that it was he who put the accused on the ambulance.
He gave uncontroversial evidence about the layout of the property.
He claimed that he had been living at the property for about six weeks, having met the accused and the deceased in a hotel in Murwillumbah. He moved to the property that very evening. When he moved to the property he was sleeping in the shed. Whilst he slept in the shed, the accused and deceased slept in the bedroom. He only slept in the bedroom of the shed when the accused and the deceased were away.

In summary, if I be wrong in my analysis with regard to s 84 and s 85, I would nevertheless exercise my discretion to exclude all five sets of admissions pursuant to s 90. I would do so because I cannot accept that it would be appropriate to admit into evidence demonstrably unreliable admissions made by a man who was cognitively impaired, confused, physically unwell to the point of hospitalisation and medication, and – most importantly – who had recently been threatened with violence if he did not so confess by a very forceful and frightening person. I am convinced that all of those circumstances, in which the admissions had been made, would make it unfair to the unfit accused to use the evidence of his admissions against him in the special hearing.

Section 138 of the Evidence Act

Turning now contingently to s 138 of the Evidence Act, it can be seen from the first table that it was relied upon by defence counsel with regard to the first admissions, the second admissions, and the third admissions. In the case of the first admissions and the third admissions, s 138 of the Evidence Act was relied upon in conjunction with s 139 of the same Act.
The sections in their entirety are as follows:

138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.
139 Cautioning of persons
(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the person was under arrest for an offence at the time, and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and
(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or
(b) the official would not allow the person to leave if the person wished to do so, or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
(6) A person is not treated as being under arrest only because of subsection (5) if:
(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or
(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

As I understood it, this objection had two bases. The first and most straightforward was that, when she cautioned the accused at the beginning of the recorded interview that led to the first set of admissions, Detective Senior Constable Straume did not provide him with the complete caution in accordance with s 139(1)(c), in that she did not refer to the fact that anything the accused said or did could be used in evidence. As I understood it, that failing was said by defence counsel to “infect” not only the first set of admissions, but also the third set.
The Crown prosecutor accepted that there had not been full compliance with s 139 of the Evidence Act, but submitted, for the purposes of s 138(3), that that was neither here nor there.
The second basis of objection was more complex. It arose in the following circumstances.
To recap: it will be recalled from the above chronology of undisputed evidence that Detective Sergeant Frost instructed Detective Senior Constable Straume to travel to Murwillumbah Hospital and arrest the accused there. There was a custody manager on duty at Tweed Heads Police Station, but of course there was none at the hospital. No custody manager travelled with Detective Senior Constable Straume and Sergeant Amos to the hospital.
At the beginning of the recorded interview that includes the first set of admissions, Detective Senior Constable Straume (imperfectly) cautioned the accused. But having determined to arrest him, she did not provide him with any of his rights pursuant to LEPRA. Nor did she do so when she stated that she was arresting the accused halfway through that interview, and fully cautioned him at that stage. Nor did Sergeant Amos take any such step.
As I have said, Senior Constable Holiday, the custody manager, became involved at about 8.30 pm on that Saturday evening. He was informed that the accused had been arrested at the hospital at about 7.30 pm. He undertook the exercise of filling in the custody management record with regard to that event. In summary, he recorded nothing noteworthy about the arrest or the presentation of the accused. As I have remarked, that was something of a formalistic exercise, for the simple reason that, at that time, the custody manager had neither attended the hospital nor seen the accused, and in truth knew nothing of his presentation.
For operational reasons that were not explored in the evidence, Senior Constable Holiday did not arrive at Murwillumbah Hospital until about 11.15 pm that night; that is, hours after the first set of admissions had been made. At that stage, he made an effort to inform the accused of his rights. But, in the submission of defence counsel, bearing in mind the particular attributes of the accused, and the absence of any inquiries of medical staff with regard to them, that was not a satisfactory exercise either. In particular, it did not comply with the clauses of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) to do with vulnerable persons.
The second set of admissions were not accompanied by a caution. That is understandable, because the position of Senior Constable Keller and Senior Constable Woods was that they were mere guards, not investigators or interrogators.
The same may be said about the third set of admissions to Senior Constable Dutton and Senior Constable Cecil.
As I understand the submission of defence counsel, the result of all that was that the first set of admissions was not preceded by the provision to the accused of his statutory rights, despite the fact that the police had indeed decided beforehand to arrest the accused. Furthermore, the caution that was provided was incomplete. Finally, the procedure that was adopted by the custody manager hours later was itself unsatisfactory. All of that, as I understood the submission, not only applied to the first set of admissions, but also infected the second and third sets of admissions.
Turning to my determination of this ground of exclusion, it was not disputed before me that on the evening of Saturday, 5 April 2014, the police were entitled to arrest the accused without warrant, pursuant to s 99(1) of LEPRA.
Section 122 of the same Act, as at April 2014, was as follows:

122 Custody manager to caution, and give summary of Part to, detained person (cf Crimes Act 1900, s 356M)
(1) As soon as practicable after a person who is detained under this Part (a detained person) comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing:
(a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and
(b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person’s legal representative, may make representations to the authorised officer about the application.
(2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.
(3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given

I approach the matter on the basis that, although it was no doubt more inconvenient for the police to have the accused detained at a hospital rather than a police station, that did not, of course, relieve them from complying with s 122(1)(b) of LEPRA “as soon as practicable” after the accused was detained by way of being arrested. And it would surely have been possible for steps to have been taken for that to have been complied with by somebody well before the custody manager arrived at about 11.15 pm on 5 April 2014.
Indeed, I think there is force in the proposition of defence counsel that, if Detective Senior Constable Straume was fully intending to arrest the accused, whatever he might say, in accordance with the instruction of the Detective Sergeant Frost, then she should have complied with s 122 of LEPRA before even commencing the interview.
In short, to quote the evidence on the voir dire of Detective Sergeant Frost, at the least “I believe it could have been done a little better.”
In summary, I accept that the first set of admissions were obtained in contravention of an Australian law, in accordance with s 138(1)(a) and s 139 of the Evidence Act, not only with regard to the incomplete caution, but also with regard to the failure to inform the accused of his statutory rights.
Having said that, I do not accept the submission of defence counsel that those contraventions “infect” the second set of admissions and the third set of admissions. As I have shown, those admissions were not made as a result of questioning by police. They were spontaneous statements of the accused to other persons in the presence of the police. Separately, Senior Constable Holiday had made an effort, albeit perhaps an imperfect one, to explain the rights of the accused to him late on the Saturday evening. And in any event, there was no real question of the accused exercising his rights pursuant to LEPRA at the time of the second and third sets of admissions: he was not being questioned, but rather speaking spontaneously.
Returning to the first set of admissions, my finding that they were obtained in contravention of an Australian law is not, of course, the end of the matter. They are not to be admitted, unless the desirability of admitting them outweighs the undesirability of admitting evidence that had been in the obtained in the way that they had been obtained.
As for that evaluative judgment, I am firmly of the opinion that the Crown has established that they should be admitted. Without pausing, in this highly contingent analysis, to discuss in detail the factors mandated for consideration in s 138(3) of the Evidence Act, the probative value of the first set of admissions; their importance to these proceedings regarding a count of murder; and my acceptance of the proposition that the contraventions occurred, at worst, recklessly, as opposed to deliberately, leads me to the view that, despite the contraventions, the first set of admissions should be admitted.
In short, I would not contingently exclude the first set of admissions, the second set of admissions, or the third set of admissions pursuant to s 138 (and, as applicable, s 139) of the Evidence Act.

Section 281 of the Criminal Procedure Act

It can be seen from the first table that only the third set of admissions was objected to pursuant to s 281 of the Criminal Procedure Act; that is, the admissions made to Senior Constable Dutton and Senior Constable Cecil at Tweed Heads Hospital between 8.30 pm on Sunday 6 April, and 5 am on Monday, 7 April 2014. It will be recalled that they were typed into a laptop, but not electronically recorded.
Section 281 is as follows:

281 Admissions by suspects
(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).
(4) In this section:
investigating official means:
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.
official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
reasonable excuse includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
tape recording includes:
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.

In my respectful opinion, this ground of contingent objection can be dealt with shortly.
It can be seen from s 281(1)(b) that an essential pre-condition for the application of the section is that the admissions were made in the course of official questioning, as defined in s 281(4) of the Criminal Procedure Act.
But I do not consider that it has been established that Senior Constable Dutton was engaging in such questioning when the accused made the third set of admissions. The short clarifying questions that she asked do not establish that proposition. Leaving aside the complexities of what falls within and without the statutory definition of official questioning, I do not consider that Senior Constable Dutton was questioning the accused at all.
If I be wrong in that analysis and it was official questioning, I would contingently approach the section on the basis that, pursuant to s 281(2)(ii), the prosecution has established that there was a reasonable excuse for the absence of an audio recording at the time the third set of admissions were made. That is simply because Senior Constable Dutton and Senior Constable Cecil were not intending to question the accused. They were simply intending to guard him. They did so. The third set of admissions were not made in response to questions that they asked.
Following the many contingencies through to their conclusion, if I be wrong in that analysis, for the purposes of s 281(2)(a)(ii) and (b), I would also accept that the prosecution had established that there was a reasonable excuse for the absence of a subsequent audio recording in which the accused was asked to “adopt” the admissions previously made.
That is because I accept the evidence of Detective Sergeant Frost that, if the accused had not exercised his right to silence on legal advice, the Detective proposed to engage in an electronically recorded interview with the accused, and to ask him during it whether he adopted the third set of admissions.
In other words, the exercise of the right to silence by the accused, in the particular circumstances of this case, would, in my opinion, constitute a reasonable excuse for the absence of a subsequent electronically recorded adoption.

In short, if all of my preceding analyses about exclusion pursuant to other sections were wrong, I would not exclude the third set of admissions pursuant to s 281 of the Criminal Procedure Act.

Conclusion

In short, I exclude all five sets of admissions, pursuant to s 84 of the Evidence Act.
If I be wrong in that determination, I would nevertheless exclude the admissions on differing bases. For the convenience of the reader, I consider that all of my determinations, including the ancillary ones, can best be summarised by a further annexed table of determinations (“Table 2”) that closely follows the format of the table of objections (“Table 1”), and that is also annexed to this judgment.

Ruling

For the preceding reasons, I make the following evidentiary ruling:

All five sets of admissions objected to are excluded.

**********

Annexures

Table 1 Overview of Objections

Evidence of admissions by the accused

S84 EA

S85 EA

S90 EA

S138 EA

S139 EA

S281 CPA

1) Admissions to DSC Mandy Straume and S Adam Amos at Murwillumbah Hospital at 7.20-7.30pm on Saturday 5 April 2014

Objected to

Objected to

Objected to

Objected to

Objected to

2) Admissions to Jennifer Smith and Ben Blackman at Murwillumbah Hospital from 11.15am – 1pm on Sunday 6 April 2014 overheard by SC Anthony Keller and SC Nathan Woods

Objected to

Objected to

Objected to

Objected to

3) Admissions to SC Alicia Dutton and SC Ryan Cecil at Tweed Heads Hospital from 8.30pm on Sunday 6 April 2014 to 5am Monday 7 April 2014

Objected to

Objected to

Objected to

Objected to

Objected to

Objected to

4) Admissions to DS Terry Frost and DSC Richard Hughes at Tweed Heads Police Station from 4.15pm on Monday 7 April 2014 to 9.51 am on Tuesday 8 April 2014

Objected to

Objected to

Objected to

5) Admissions to I Adrian Telfer at Tweed Heads Police Station at 9.15pm on Monday 7 April 2014

Objected to

Objected to

Objected to

Evidence of admissions by the accused	S84 EA	S85 EA	S90 EA	S138 EA	S139 EA	S281 *CPA*
1) Admissions to DSC Mandy Straume and S Adam Amos at Murwillumbah Hospital at 7.20-7.30pm on Saturday 5 April 2014	Objected to	Objected to	Objected to	Objected to	Objected to
2) Admissions to Jennifer Smith and Ben Blackman at Murwillumbah Hospital from 11.15am – 1pm on Sunday 6 April 2014 overheard by SC Anthony Keller and SC Nathan Woods	Objected to	Objected to	Objected to	Objected to
3) Admissions to SC Alicia Dutton and SC Ryan Cecil at Tweed Heads Hospital from 8.30pm on Sunday 6 April 2014 to 5am Monday 7 April 2014	Objected to	Objected to	Objected to	Objected to	Objected to	Objected to
4) Admissions to DS Terry Frost and DSC Richard Hughes at Tweed Heads Police Station from 4.15pm on Monday 7 April 2014 to 9.51 am on Tuesday 8 April 2014	Objected to	Objected to	Objected to
5) Admissions to I Adrian Telfer at Tweed Heads Police Station at 9.15pm on Monday 7 April 2014	Objected to	Objected to	Objected to

Table 2 Overview of determinations

Evidence of admissions by the accused

S84 EA

S85 EA

S90 EA

S138 EA

S139 EA

S281 CPA

1) Admissions to DSC Mandy Straume and S Adam Amos at Murwillumbah Hospital at 7.20-7.30pm on Saturday 5 April 2014

Excluded

Excluded

Excluded

Admitted

Admitted

2) Admissions to Jennifer Smith and Ben Blackman at Murwillumbah Hospital from 11.15am – 1pm on Sunday 6 April 2014 overheard by SC Anthony Keller and SC Nathan Woods

Excluded

Admitted

Excluded

Admitted

3) Admissions to SC Alicia Dutton and SC Ryan Cecil at Tweed Heads Hospital from 8.30pm on Sunday 6 April 2014 to 5am Monday 7 April 2014

Excluded

Admitted

Excluded

Admitted

Admitted

Admitted

4) Admissions to DS Terry Frost and DSC Richard Hughes at Tweed Heads Police Station from 4.15pm on Monday 7 April 2014 to 9.51 am on Tuesday 8 April 2014

Excluded

Excluded

Excluded

5) Admissions to I Adrian Telfer at Tweed Heads Police Station at 9.15pm on Monday 7 April 2014

Excluded

Admitted

Excluded

Evidence of admissions by the accused	S84 EA	S85 EA	S90 EA	S138 EA	S139 EA	S281 *CPA*
1) Admissions to DSC Mandy Straume and S Adam Amos at Murwillumbah Hospital at 7.20-7.30pm on Saturday 5 April 2014	Excluded	Excluded	Excluded	Admitted	Admitted
2) Admissions to Jennifer Smith and Ben Blackman at Murwillumbah Hospital from 11.15am – 1pm on Sunday 6 April 2014 overheard by SC Anthony Keller and SC Nathan Woods	Excluded	Admitted	Excluded	Admitted
3) Admissions to SC Alicia Dutton and SC Ryan Cecil at Tweed Heads Hospital from 8.30pm on Sunday 6 April 2014 to 5am Monday 7 April 2014	Excluded	Admitted	Excluded	Admitted	Admitted	Admitted
4) Admissions to DS Terry Frost and DSC Richard Hughes at Tweed Heads Police Station from 4.15pm on Monday 7 April 2014 to 9.51 am on Tuesday 8 April 2014	Excluded	Excluded	Excluded
5) Admissions to I Adrian Telfer at Tweed Heads Police Station at 9.15pm on Monday 7 April 2014	Excluded	Admitted	Excluded

__________________________________________

Amendments

04 April 2018 - Child name changed to pseudonym.

06 April 2018 - Typographical errors amended.

08 November 2023 - In paragraph 185 amended the section to 89A.

Decision last updated: 08 November 2023

Medium Neutral Citation:	R v Blackman [2018] NSWSC 395
Hearing dates:	5 March 2018 – 23 March 2018
Decision date:	29 March 2018
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	(1) All five sets of admissions objected to are excluded.
Catchwords:	CRIMINAL LAW – count of murder – special hearing – judge alone – lengthy voir dire – judicial discretion to admit or exclude evidence – objections under s 84, 85, 90, 138 and 139 of the Evidence Act – objection under s 281 of the Criminal Procedure Act – all admissions excluded under s 84 of the Evidence Act – ancillary rulings provided
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 281 Evidence Act 1995 (NSW), ss 84, 85, 86A, 90, 138, 139 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 8, Part 9 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	R v Donnelly (1997) 96 A Crim R 432 R v Naa (2009) 76 NSWLR 271; NSWSC 851
Category:	Procedural rulings
Parties:	Regina Gary Clifford Blackman
Representation:	Counsel: P Rosser QC (Crown) J Watts (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Universal Law (Accused)
File Number(s):	2014/00104664
Publication restriction:	Name of the child is a pseudonym