R v Dean

[2019] NSWDC 711

District Court

New South Wales

Medium Neutral Citation:	R v Dean [2019] NSWDC 711
Hearing dates:	18 November 2019
Date of orders:	19 November 2019
Decision date:	19 November 2019
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 89 – 90.
Catchwords:	EVIDENCE – pre-trial applications to reject evidence – ERISP interviews – references to Apprehended Violence Order against accused – admission to police regarding accused’s state of mind – relevance of intoxication – unfairness – discretion to exclude.
Legislation Cited:	Crimes Act 1900 (NSW) s 33B(1)(a) Evidence Act 1995 (NSW)
Cases Cited:	Edwards v R (1993) 178 CLR 193 Papakosmas v The Queen (1999) 196 CLR 297 R v Dalley (2002) 132 A Crim R 169 R v Esposito (1998) 105 A Crim R 27 R v GK (2001) 53 NSWLR 317 R v Howard (2005) 156 A Crim R 343 R v Moffatt (2000) 112 A Crim R 201 R v Naa (2009) 76 NSWLR 271 R v Ostojic (1978) 18 SASR 188 R v Parker (1990) 19 NSWLR 177 R v Plevac (1995) 84 A Crim R 570 R v Shamouil [2006] NSWCCA 112 R v Swaffield (1998) 192 CLR 159 R v Taylor (NSWCCA, 18 April 1995) Zoneff v The Queen (2000) 200 CLR 234
Texts Cited:	Odgers, Uniform Evidence Law (14th ed)
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr G Dean
Representation:	Counsel: Mr M Paish for the Director of Public Prosecutions Mr T Ramrakha   Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid NSW
File Number(s):	2015/204183

Judgment

Introduction

1. The accused has been arraigned on two counts on an indictment; the latter being an alternative charge to the former. They are:

1. That on 12 July 2015, at Fairfield West in the state of NSW, he possessed an offensive weapon with intent to commit the indictable offence of murder, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW).

2. That on 12 July 2015, at Fairfield West in the state of NSW, he possessed an offensive weapon with intent to commit the indictable offence of intimidation, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW).

2. Upon arraignment, the accused pleaded not guilty to the first count and guilty on the second.

3. By notice of motion dated 18 November 2019, the accused agitated for the following orders:

The trial of the Accused is to proceed on the whole of the indictment as presented notwithstanding the plea of guilty to the alternative charge on the indictment.

Pursuant to ss 56, 102 and/or 137 of the Evidence Act, the evidence of the following questions and/or answers in the Accused’s police interview of 13 July 2015 is not to be adduced into evidence at the trial of the accused:

The whole of QAs 73 – 95

Part of Q 113 – the words “from your shed”

The whole of QA 138

Part of A 142 – the words “Well my brother, he, he, we just scare cockies.”

The whole of QAs 146 – 149

The whole of QA 172

The whole of QAs 180 – 188

The whole of QAs 191 – 200

The whole of QAs 298 – 315

The whole of QAs 382 – 385

Pursuant to ss 56, 102 and/or 137 of the Evidence Act, the evidence of the Accused’s police interview on 18 January 2016 is not to be adduced into evidence at the trial of the Accused.

Pursuant to s 137 of the Evidence Act, the evidence of the Apprehended Violence Order being in place, and/or the evidence of the alleged previous acts of violence and/or the evidence of alleged previous threats of violence by the Accused towards Anne Dean, is not to be adduced into evidence at the trial of the Accused.

If evidence of an AVO being in place at the time of the offence is to be adduced into evidence, it is to be adduced on a limited basis that it was a “court order” and that it was in place to prevent the Accused from contacting or approaching Ms Dean within 12 hours of consuming alcohol after he was verbally abusive towards Ms Dean in a telephone call on 16 February 2015.

Pursuant to ss 85 and/or 86 and/or 138 of the Evidence Act, the evidence of the alleged admissions made by the accused in the presence of Constable Daniel Wong is not to be adduced into evidence at the trial of the accused.

4. After having ascertained the Crown’s attitude to these orders, order 1 is not contested; but not before the accused’s Counsel submitted that the intoxication of the accused at the time of the alleged offending conduct is a matter that will need to be determined by the Jury as negativing the mental element of specific intent.

5. It may be seen from the accused’s pleas, and the way in which the arguments on the motion progressed, that what will truly be in issue in the trial is the specific intention of the accused and, in particular, whether the accused had the firearm with the intention to threaten or intimidate his former wife, or to murder her.

6. Counsel for the parties have, already, usefully engaged in dialogue in a way that might minimize the length of the trial. An agreed statement of facts will be put before the Jury. I will refer to some of those facts below. But what is also material to point out, at this stage, is that the Agreed Statement of Facts indicate that some of the statements made by the accused to the police in the ERISP on both 13 July 2015 and 18 January 2016, respectively, are erroneous.

Evidence of the accused’s intoxication

7. This leaves for the Court’s determination proposed orders 2 – 6 inclusive. All concern rulings on evidence in the Crown’s case. A common thread to orders 2-3 and 6 is the aspect of the accused’s intoxication; albeit at differing points.

8. It is relevant to commence these reasons with what the evidence discloses on the subject of the accused’s intoxication.

9. On 12 July 2015, at about 8:40pm, the accused was arrested. This was after the police had intercepted a white Ford Ranger vehicle that the accused had been driving. The accused was intoxicated: he was observed to be displaying slurred and slow speech and sluggish movements. He had a strong smell of alcohol on his breath. He underwent an alcohol breath analysis and produced a result of 0.257.

10. In the vehicle he was driving, there was located (amongst other things) 22 unopened cans of ‘Hooten’ beer.

11. On 12 July 2015, at 9:30pm, the accused arrived at Fairfield Police station. A brief assessment at that time indicated that he was observed to be “slightly intoxicated” and a reference was made to a report that the accused had had two alcoholic drinks. On presentation generally, towards the conclusion of the assessment, he was described (at about 9:50pm) as being “calm”.

12. At 10:50pm, Constable Meechan performed a breath analysis on the accused and made some observations of him. He saw that the accused looked well affected by alcohol as his eyes were bloodshot and he was slurring his speech. There was also a strong smell of alcohol from the accused’s breath.

13. From late on 12 July 2015 and into the early hours of 13 July 2015, the accused was monitored in custody. The custody management record indicated that he was asleep between about midnight, apparently up to 1:45am, but at 1:45am, he was spoken to. This was evidently in reference to a forthcoming ERISP interview. This process was apparently explained to the accused and the record shows that the accused understood the process, had his rights read and explained to him, and declined the offer of having a solicitor or support person accompany him. At 2:08am, he was taken by detectives into the ERISP room. Attempts were made to interview him at 2:10am and 2:36am, but they were unsuccessful.

14. The ERISP interview eventually commenced at 2:38am. For the purpose of the application, the transcript of the interview was before the Court and video recording of the interview was played to the Court. The early part of the questioning contained familiar cautions and warnings and the interview concluded with the accused accepting, in effect, that the answers he gave were made of his own free will.

15. In terms of matters of substance, during the interview, the accused said that throughout the afternoon on the day before he had had two drinks, a can of Bundaberg rum and a ‘Hooten’ beer (a Mexican brand) at about 6:30pm the evening before (A 180 – A 180). The accused appeared to express surprise that he might be regarded by the police as drunk – he had been breath tested three times (A 191-199). I note that these extracts from his evidence are objected to in the trial.

16. Mr Crown and the accused’s Counsel made submissions as to what observations I might make of the accused during the ERISP. In my view, the accused presented in a generally alert fashion. He was able to recall quite specific questions such as his mobile telephone number, the circumstances how he met his former wife’s current partner (being his former friend) and what dialogue he had with various persons. He showed a level of some insight, at least to justify what he did – he stated, for example, that if his former wife had let him speak to his children, ‘none of this would have happened’.

17. I am satisfied that he was not intoxicated when he gave the ERISP, at least in any way that might materially impair his ability to comprehend the questions and answer them. Put another way, I do not regard his mental state as being so affected by alcohol as to render the content of his answers in the ERISP unreliable on that account alone.

Order 2 of the motion

18. Counsel for the accused raised two points in objection to the parts of his ERISP to which I have referred. The first is that when the accused gave evidence he was intoxicated. I have already indicated why I reject this basis for objection.

19. The second basis is that the accused says that there is no legitimate forensic purpose served by the Crown seeking to rely upon the impugned statements made in the ERISP (on both occasions) particularly in circumstances where the accused has, through the Agreed Statement of Facts, admitted that the impugned statements were erroneous.

20. Counsel for the accused submits that the only basis upon which the impugned statements is sought to be admitted is to establish that, by telling lies, the accused evinced a consciousness of guilt of the offences with which he is charged (in the alternative).

21. But, the accused’s counsel submitted, the false statements may be attributable to the effect of intoxication and, under the conditions set out in Edwards v R (1993) 178 CLR 193, the Crown would need to prove that any lies were both deliberate and referable to the specific offences of which he is charged.

22. Counsel submitted that an ERISP can only be admissible to the extent that admissions are made. Given that the evidence could not sustain a platform for an assertion that the accused was conscious of guilt, there was no other basis for admission of the contents of the ERISP.

23. If there was, Counsel submits, the evidence should be excluded in the exercise of the Court’s discretion under s 137 of the Evidence Act.

24. In response, Mr Crown says that, as crown prosecutor, he is necessarily placed in the position where he is required to keep his options open. If the accused elected to give evidence, and the Crown failed to tender the ERISP, the Crown could not rely upon the contents of the ERISP when cross-examining him.

25. Generally, Mr Crown says that the impugned statements fall into one or more of three categories, all of which relate to the ultimate fact in issue being whether the accused had the intent to murder or the intent to intimidate. That ultimate fact in issue necessarily would have to be inferred by the jury on the basis of all of the circumstances. These three categories, individually but also in combination, would lend weight to the Crown case that the accused’s intention was to murder; not intimidate: (i) the state of his intoxication; (ii) his capacity to discharge the weapon; and (iii) the place where he got the gun from.

26. Specifically, I would classify QAs 180-188, 191-200 of the interview on 13 July 2015 as falling within category (i); QAs 138-139, 142, 146-149, 172, 267 falling within category (ii) and QAs 73-95, 113, falling within category (iii).

27. I would regard QAs 298-315 as falling outside of these three categories. These were in the nature of answers that go to declarations or statements of intent by the accused. By their terms the answers are mainly exculpatory. I do not really understand the basis of objection to those answers.

28. I accept that this framework of considering the objections by reference to these three categories is appropriate. As I understood the Crown prosecutor, it would be contended that the asserted fact that the accused deliberately minimized his intake of alcohol on the afternoon could be because he understood that if the evidence was that he had drunk a great deal more, the jury might infer that his intent was consistent with intent to kill, rather than the state of mind of an intent to intimidate. I understood the Crown to submit that if the accused deliberately said that if the gun could not be discharged, then the jury might (if it accepted what he said) infer that he intended only to intimidate. Finally, I understood that if the accused deliberately gave false information that the firearm was only picked up in the shed out the back of his residence, involving only minimal preparation, then this would suggest a level of spontaneity consistent with a desire only to intimidate.

29. The Crown indicated that it would, ultimately, seek an Edwards direction, and emphasised that this direction contained various in-built protections for an accused; which the jury was bound to follow. This was further so if a Zoneff direction was given in the event that the accused elected to give evidence.

30. I am not persuaded by the accused that the various statements to which objection is taken on the stated grounds are made out. In my view, it is open to the Crown to seek to establish that the accused made the statements deliberately and that they were false, to his knowledge in a material way relevant to his state of mind as to the circumstances in which he possessed the firearm. It is a matter for the jury to determine whether a lie, or lies were told and, if so, it would then be for the jury to determine whether the lie or lies related to a particular circumstance. Here that would be the accused’s state of mind. If that stage was to be reached, it would finally be necessary for the jury to determine that the lie or lies were told by the accused because he feared the truth would implicate him in relation to the offences of which the accused is now on trial.

31. These are all questions for the jury and it is inappropriate for the Crown to be prevented them being so put at this stage. In due course, the accused will have opportunity to submit to the jury that any lie, or lies by the accused were made for other possible reasons, but even if he does not, the jury will be directed substantially in such terms. If those conditions are satisfied, then an Edwards direction can be made and, if appropriate, a further warning might be given consistent with Zoneff. In either case, it will be tolerably apparent to the jury that it could not reason simply from finding that the accused lied to an adjudication of his guilt.

32. It is appropriate for the Crown to make it clear at the outset of the trial that it intends to rely upon lies as evidence to constitute the consciousness of guilt[1] and for those lies to be identified with reasonable precision.

    1. R v Howard (2005) 156 A Crim R 343 at 351.

Order 3 of the motion

33. This order is something of a follow on from the argument in relation to order 2. Here, however, Counsel for the accused took the narrower approach of submitting that it was impermissible for the Crown to use the information in the second interview which had been avowedly conducted for the sole purpose of investigating a shooting incident that had occurred earlier on 12 July.

34. As I have touched upon in relation to the last order, in my view, any lie about the circumstances of a discharge of the firearm might be probative of the accused’s intention to use the firearm to kill. For example, if the accused could establish to his satisfaction that the gun could be discharged, then this would assist the Crown to prove that he intended to use it to kill; rather than an intention to intimidate (such as by either waving it around or using it to assault the intended victim). This circumstance, along with other circumstances pertaining to the accused’s state of mind, was probative and any lies could assist the Crown in establishing a consciousness of guilt.

35. That being so, and repeating that an Edwards direction, with or without a Zoneff variation, might be utilised in a way to confer protection upon the accused, I reject the objection to this evidence.

Orders 4 & 5

36. An Apprehended Violence Order was made against the accused on 1 April 2015. This was slightly more than 3 months before the alleged offending conduct. The ‘protected person’ was his ex-wife, the person whom the Crown says that the accused intended to kill or intimidate with the firearm. There were standard orders made with this ultimate order.

37. Some of the circumstances explaining why the AVO was made are set out in a handwritten statement of the accused’s former wife.

38. Counsel for the offender objects that evidence of the fact of the AVO being made go before the jury, and/or the facts that formed the basis of the order.

39. In my view, the solution to arresting this concern is not to exclude the evidence of the AVO but to allow for the accused opportunity to explain that how it was procured. If, which I infer the position is here, the AVO was procured because of, in the sense of a connection with, language or threats made by the accused to his former wife, then prima facie, that is relevant to the accused’s state of mind.

40. When, during the course of argument, I raised with counsel the variety of ways that an AVO may be obtained, even without contest, it appeared to me that the accused’s real concern was the impression that the jury might think that, because of the fact that an AVO was made at all, the accused was a violent man or had a violent tendency. There is no tendency notice by which the Crown intends to establish that the accused had any tendency to engage in violent conduct towards the former wife.

41. In my view, the jury would readily understand that the circumstance of an AVO was made may not have been challenged by the person who is subjected to it and does not, in isolation, mean that the offender has any violent tendency towards the ex-wife.

42. I indicated in argument that it would be appropriate if the parties can attempt to supplement their agreed facts in a way consistent with what the accused’s former wife stated and in a way that does not suggest any violent tendency. If, after such attempt is made, no consensus can be reached, there will be further scope for the parties to submit what use the jury might make of the fact of the AVO in the circumstances it was obtained.

Order 6

43. As explained from the Bar Table by the Crown prosecutor, Constable Wong had been with the accused’s former wife during the day, prior to the alleged offending conduct and, so it was put, had no involvement in the accused’s arrest. I took the Crown prosecutor to mean that he performed some kind of counselling role with the former wife. He was at least privy to a complaint by her of a domestic incident earlier in the day that was alleged by her. He gave advice to her.

44. The accused had been arrested not long after 8:40pm, after a struggle which involved the accused being handcuffed. Senior Constable Daniel Smith assessed the accused as being moderately to well affected by alcohol: his eyes were glazed and bloodshot; his speech was slow and slurred and his overall movements were slow and sluggish. He had a strong smell of alcohol on his breath. The accused’s car was searched and after the discovery of a rifle in the back seat of the car, Constable Detar arrested the accused. Constable Detar told him he was under arrest for possession of a firearm and intimidation (nothing was said about him being arrested for possession of a firearm with an intent to kill). The accused was cautioned that anything he said or did could be used in evidence in Court. The accused said he understood.

43. In my view, an investigation into the commission or ‘possible’ commission of a crime, at least, was in contemplation.

44. Constable Wong arrived at the scene of the arrest at about 9pm on 12 July 2015. He was in the company of Constable Meechan. He saw that the accused was handcuffed. He noticed that the informant was the same victim – the accused’s ex-wife. Constable Wong said he walked to the accused and spoke to him. In his statement, he did not state the purpose for his talking with the accused.

45. In these circumstances, the accused objects to evidence attributed by Constable Wong about the accused’s statements. The sequence was as follows:

Constable Wong said:   “Mate what are you doing trying to shoot your partner, you have kids with her.”

The accused said:      “I don’t care, when I get out they are dead.”

Constable Wong said:      “What’s wrong with you?”

The accused said:      “Just wait til I get out, I’m coming for her.”

48. These statements were written in the police book. They were not acknowledged by the accused in writing.

49. But there are multiple other problems with the statements in the manner in which they were procured.

50. First, the statements were made at a time when, the objective evidence, the police believed that the accused was intoxicated. In my view, it matters not whether Constable Wong himself subjectively was aware of this: he did not venture any opinion himself as to the sobriety of the accused at the time the statements were made.

51. Secondly, the questions raised by Constable Wong were more than just ‘provocative’, as the Crown contended. They were in fact, loaded questions premised upon conclusions or inferences drawn from Constable Wong’s earlier communications with the accused’s former wife and Constable Wong’s acceptance of what the former wife had to say. The questions were not of a kind that would be expected of any dispassionate investigating official. Nor, indeed, were they prefaced by any specific caution administered by Constable Wong. In my view, it would not be unexpected that an intoxicated person would react angrily to them.

52. Thirdly, Constable Wong did not articulate his purpose in engaging in conversation with the accused at this point. It could not have been because he was trying to apprehend the accused – the accused by this point was already handcuffed, something clearly observed by Constable Wong.

Section 85

53. In my opinion, Constable Wong, as a police officer, satisfies the broad definition of an ‘investigation official’ in the Dictionary definition accorded to the term in the Evidence Act. As noted, the accused, at the point of the admission, was handcuffed. I am also satisfied that when Constable Wong spoke to the accused, who was then handcuffed, he did so in connection, at least with an investigation into the possible commission of a crime (s 85(1)(a)). This is not like the situation in R v Naa (2009) 76 NSWLR 271 where the admission to police officers was made in circumstances where the police were trying to disarm the man or protect themselves. Here Constable Wong did not articulate his purpose in speaking with the accused, but he had seen him handcuffed and would have inferred that an investigation into a possible offence was on foot.

54. The second question is whether, by s 85(2), the reliability of the admission may have been impaired by the way in which it was obtained. It is notable that the question is not whether the circumstances in which an admission is made actually affected the truth of an admission, but whether they were likely to do so.

55. In relation to the burden of proof, it is for the accused to establish one of the alternatives in s 85(1), but once he has done so, it is for the Crown to discharge the burden of proof in relation to s 85(2) [2] .

    2. R v Esposito (1998) 105 A Crim R 27 at 44

56. Relevant to this assessment is all the circumstances affecting the admission, including the characteristics of the accused, and whether there was misconduct by those interrogating and whether the ability of the person to make the admission was significantly impaired (see paragraph 765 of the ALRC Report Vol 26), and also the nature of the questions and manner in which they were put.

57. There are concerns about the admissions here. First, the accused was intoxicated when he made the statements. Under general law, the circumstance that the accused person was intoxicated when he made the admission did not generally render the admission inadmissible: R v Parker (1990) 19 NSWLR 177 and R v Ostojic (1978) 18 SASR 188. Part of the reasoning is that the jury might be directed to the unreliability of that evidence. However, commentary on the statutory provision indicates that a suspect’s vulnerability or circumstances, independently of actions taken by the police, may be taken into account in applying s 85 [3] . The possibility that the intoxication may have rendered the admission unreliable would, I think, be a matter for the jury, properly directed as to the reliability of admissions generally.

    3. R v Moffatt (2000) 112 A Crim R 201; see Odgers, Uniform Evidence Law (14th ed) [EA.85.210], p 636

58. Secondly, it was, in my view, not consistent with proper standards of investigation to put the provocative, if not inflammatory statements to the accused, based upon inferences he formed which themselves were influenced by what he had been told by the former wife. The proper conduct of police questioning was considered in R v Plevac (1995) 84 A Crim R 570 where it was said, amongst other things, that questioning must be fair and not amount to ‘intimidation, persistent importunity or sustained or undue insistence or pressure’ [4] . That said, for the purposes of s 85(3), although the questioning was hostile, there was no threat, promise or other inducement and it is not obviously apparent that the accused did not understand the question.

    4. Although questioning is not unfair simply because it is persistent: R v Taylor (NSWCCA, 18 April 1995).

59. Nevertheless, the ultimate question, for the purposes of this provision is whether the circumstances, including the intoxication and some unfairness by Constable Wong, were such as to make it unlikely that the truth of what the accused said was adversely affected.

60. In my opinion, the Crown has discharged its burden under s 85(2). I would not reject the admissions under that provision.

Section 86(2)

61. The written record of Constable Wong’s evidence is inadmissible within the meaning of s 86(2) because of the omission of any written acknowledgement by the accused that it is true record of what he represented.

Section 90

62. The accused’s Counsel did not direct argument to this provision, although he did make complaint of a lack of fairness in allowing the Crown to adduce the evidence. The Crown prosecutor was on notice of the substance of the complaint of unfairness and I do not see why the accused should be precluded from relying upon this provision.

63. In R v Swaffield (1998) 192 CLR 159, the High Court considered s 90 and emphasised that, generally, the admissibility of admissions in criminal proceedings turned on considerations of voluntariness, reliability and the overall discretion which takes into account all circumstances of the case, to determine whether the admission of the evidence is bought at a price which is unacceptable having regard to contemporary standards.

64. I have addressed the matter of intoxication. In my view, there is no real concern about voluntariness. The accused had already been cautioned, at least in a general sense, by other officers, before he spoke to Constable Wong. Although there was, I think, a level of impropriety in what Constable Wong did, this is not a serious case of his freedom to speak (or privilege against self-incrimination) being infringed. There was no suggestion here, as I have said, of any threat or inducement or any misapprehension under which the accused laboured when he spoke with Constable Wong.

Section 137

65. If I am wrong about s 85 (or s 90), it is appropriate to consider the accused’s arguments about the exercise of the Court’s discretion to exclude the evidence.

66. Although he did not expressly refer to it in his argument, Counsel for the accused’s reference to unfairness imports considerations of the kind alluded to in s 137 of the Evidence Act. This provision was the subject of argument by the Crown so I propose to treat with it as well. Technically, it may not be classified as a discretion at all.

67. The Crown does not seriously contest these findings. The Crown prosecutor’s point is that the declaration of intent by the accused, manifested by his statements, is of such probative value as to outweigh the danger of unfair prejudice, within the meaning of s 137 of the Evidence Act.

68. The authorities suggest that a trial judge must perform the balancing task mandated by the provision and if the probative value is outweighed by the danger of unfair prejudice, there is no residual discretion[5] .

    5. R v GK (2001) 53 NSWLR 317 per Sheller JA at [74]

69. ‘Probative value’ in this context, means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. This assessment has been said to involve considerations of reliability (Papakosmas v The Queen (1999) 196 CLR 297 per McHugh J). However, in R v Shamouil [2006] NSWCCA 112, the Court of Criminal Appeal noted (at [60] the preponderant body of authority in the Court that restricts the circumstances in which the issues of reliability and credibility are taken into account in determining probative value for the purposes of determining admissibility; and the issue is whether evidence was capable of supporting a verdict of guilty.

70. I accept the Crown’s submission that the verbal statements made by the accused, shorn of the concern of reliability which could be said to be the province of the jury, are highly probative. They indicate a contemporaneous state of mind of a desire to kill; and not simply to intimidate the accused’s former wife. That is, precisely, the choice that will confront the jury.

71. But there is also a danger of unfair prejudice to the accused. It might, for example, given the evidence undue weight having regard to the circumstances, as I have found them to be, of improper questioning.

72. I am not persuaded that the probative value of the evidence is outweighed by the danger of unfair prejudice.

Section 138

73. The accused did not suggest that the evidence of what the accused said to Constable Wong involved a contravention of an Australian law. The accused’s complaint was that the evidence of what the accused said to Constable Wong was evidence obtained improperly or in consequence of an impropriety.

74. Section 138(2) of the Evidence Act provides that an evidence of an admission made during or in consequence of questioning is (relevantly) taken to have been obtained improperly if the person conducting the questioning did, or omitted to do, an act in the course of questioning even though he knew or ought reasonably should have known that the act or omission was likely to substantially impair the accused’s ability to respond rationally to the questioning.

75. It is not necessary for the Court to consider the applicability of s 139, although prima facie, it appears as though s 139(2) may also appear to have application so as to found the aspect of impropriety.

76. For reasons I have referred to above in connection with s 85, I am satisfied that the evidence of the accused’s admissions were taken to have been obtained improperly since Constable Wong gratuitously took the opportunity, without specific caution by himself, whilst the accused was in a vulnerable state (through his intoxication) to goad him into making incriminating statements outside of the recognised procedure of the ERISP. In this regard, the evidence suggests that the police were aware that it would be improper to officially question the accused until the effects of intoxication had worn off. This is why the ERISP was conducted, much later than it was.

77. Once the accused establishes that the evidence was improperly obtained, it is for the Crown to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the way in which it was obtained.

78. This brings to the fore the non-exhaustive list of considerations in s 138(3).

79. I have noted that the admission has significant probative value; which supports its admission.

80. It is not apparent that other equally cogent evidence about the accused’s state of mind, untainted by impropriety, is available. This also supports its admission.

81. This is a serious crime: the maximum penalty is 12 years’ imprisonment. It has been said that the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in cases of crimes of greater gravity[6] . I consider that the offence charged on the indictment is one such grave crime; which favours the admission of the evidence.

    6. R v Dalley (2002) 132 A Crim R 169 per Spigelman CJ (with whom Blanch AJ agreed) at [7]

82. The impropriety here – the failure to caution- was I think grave; in the sense that it violated the accused’s civil liberties. But it was not impropriety of the worse kind, such as entrapment. It occurred in a context where there was a spontaneous exchange between Constable Wong and the accused.

83. But I do not regard the impropriety as deliberate or reckless (in the sense of advertence to the possibility of breach of standards of propriety). In the circumstances, I consider that the content of the questioning and the omission to caution was more inadvertent.

84. It is not obviously apparent that Constable Wong’s conduct, in the manner and form of his questioning and the failure to caution involves any infringement of rights under the ICCPR.

85. There is no evidence to indicate that Constable Wong has, or is likely to be disciplined.

86. As I believe I have intimated, the exchange between Constable Wong and the accused occurred in a fluid environment. It is unlikely that it would or could have been procured in other circumstances.

87. Of the enumerated considerations in s 138(3), nearly all of them tend to favour admission of the evidence.

88. Were it not for my view of s 85, I would have been inclined to exercise the discretion in s 138 to admit the evidence.

Orders

89. I order that the trial of the Accused proceed on the whole of the indictment as presented, notwithstanding the plea of guilty to the alternative charge on the indictment.

90. Otherwise, the notice of motion is dismissed.

**********

Endnotes

Decision last updated: 29 November 2019