R v Ellis

[2022] NSWDC 3

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Ellis [2022] NSWDC 3

Hearing dates:

31 January 2022 – 2 February 2022

Date of orders:

1 February 2022

Decision date:

02 February 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [53 - 56] 

Catchwords:

EVIDENCE — Discretions — Exclusion of evidence — Criminal proceedings - ERISP

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) LEPRA

Evidence Act 1995 (NSW)

Cases Cited:

Cook v The Queen [2016] VSCA 174.

Phan (2001) 123 A Crim R 30

Clark (1997) 97 A Crim R 414

Ireland (1970) 126 CLR 321

Category:

Procedural rulings

Parties:

Regina (Crown)
Ellis (Accused)

Representation:

Morters SC Counsel for the DPP
Segal Counsel for the Accused

File Number(s):

2020/00257051

Publication restriction:

Restricted until after trial.
Restriction Lifted.

Judgment

Introduction

1. The accused, Keysha Ellis, is to be tried on an indictment containing 4 counts, with counts 2, 3 and 4 being alternative charges. Count 1 alleges armed robbery, count 2 robbery, count 3 maintaining and assisting Daniel Ashenhurst when knowing he had committed armed robbery and count 4 maintaining and assisting Daniel Ashenhurst knowing he had committed robbery.
2. The trial was listed to commence on 31 January 2022 and a jury was empanelled that day and asked to return on 2 February 2022 when it was anticipated certain pre-trial issues would be resolved. The accused had filed a notice of motion dated 17 January 2022 seeking the exclusion of evidence relating to a tracking device that had been worn allegedly by Mr Ashenhurst. Mr Ashenhurst has pleaded guilty to armed robbery and has been sentenced.  It remains for the Crown to prove in this trial that he committed the offence hence the relevance of the tracking device material.
3. As it has transpired that order sought by the motion was not pressed with the parties being able to resolve the issue.
4. In submissions provided by the accused and dated 16 January 2022 two further matters were raised. Firstly the accused seeks to exclude either entirely or in part the ERISP of the accused. The second issue related to the way in which character evidence would be treated at the trial.  The issue as to character had two different aspects. One related to evidence that the accused was on a methadone program. The second aspect was one the parties initially reached agreement on to the following effect, though just prior to the delivery of these rulings the Court was informed the agreement set out at [4.2] was no longer in place, and that this did not give rise to the need for any further ruling:
   1. It is agreed that the accused can in either cross examination of a Crown witness or in evidence in chief of the accused raise character in a limited respect namely to the extent that the accused has no criminal history as to robbery or armed robbery. The Crown has agreed to this and further that it will not seek to lead evidence or cross-examine the accused as to other criminal activity that may have been committed by the accused.
   2. That the accused may lead evidence of her relationship with Mr Ashenhurst so as to put the events of the evening in question in the context.  This is expected to include evidence of an abusive relationship subject to violence both verbal and physical, and harassment. The Crown does not object to this course and further agrees that it will not in response to this evidence seek to lead any evidence adverse to the character of the accused and further will not lead evidence of the apprehended violence order that was in place with the accused as the person in need of protection and Mr Ashenhurst as the defendant, an assurance that had been sought by the accused.
5. There then arose another issue with the accused objecting to the tender of three photographs served by the Crown. Those photographs were said to have been taken from the parking space in which the accused was said to be parked in her car across from the scene of the robbery by Mr Ashenhurst.  For reasons given orally in the course of these various applications, those photographs were excluded.
6. What therefore remains to be determined is whether part or all of the ERISP is excluded and what is to become of the methadone evidence.  The only evidence of the accused being on a methadone program comes from the ERISP.  In the event the ERISP is totally excluded the issue would be dealt with in that way.  However, should the accused give evidence and if the material about methadone was otherwise considered admissible on the basis argued for by the Crown then it may well be that the Crown seeks to adduce that evidence by way of cross examination.  It is therefore appropriate that a ruling be made as to the admissibility of such evidence. I will deal with the admissibility of the methadone evidence or potential methadone evidence first and then deal with the ERISP.

Methadone

7. The evidence on the Voir dire relevant to methadone concerning the accused is found at question and answers 72 to 76 and question-and-answer 63.  At question and answer 63 the accused says she is on a methadone program.  At question and answer 72 through to 76 she was asked if she takes any prescribed medication and said she was on a methadone program and then said it is dispensed from a chemist at Sawtell and that she goes out there every day and that she gets a takeaway on Saturday.
8. The argument for the accused as to why this should be excluded is because it is something associated in the public mind with someone who has had heroin which is illegal; in other words, evidence of bad character.  The submission continued that Mr Ashenhurst was stealing drugs for his own use, something the accused submitted was supported by a fact (actually an assertion made in submissions and not disputed) that Mr Ashenhurst had later overdosed on drugs that night. The submission was there was no evidence that the stolen drugs were intended for the accused.
9. The Crown contended that the Crown case as demonstrated by count 1 is of robbery by way of a joint criminal enterprise so that the Crown case is that both Mr Ashenhurst and the accused would have the benefit of the drugs. The Crown proposes leading further evidence which shows immediately or soon after the robbery the accused and Mr Ashenhurst went to another pharmacy and the accused purchased a syringe and needles (see VD exhibit E).  The drugs stolen included morphine in liquid form[1].  The Crown seeks to rely on the methadone evidence as a piece of circumstantial evidence making it more likely that the accused was taking part in the joint criminal enterprise. 
10. In support of its position the Crown relied on Cook v The Queen [2016] VSCA 174. In that case evidence was permitted of drug use by the accused in support of a charge of robbery. The argument for the accused in that case was precisely the same as being made here, namely that the evidence was prejudicial and that outweighed the probative value of establishing a motive for the offending. At [71] the Victorian Court of Appeal held

“… There is no general rule as to the relevance of involvement with drugs as to motive or to a case more generally. The probative value will differ in each case. Here for the reasons given the evidence of the applicant's drug use was by no means of marginal relevance. It was central to the context of the offending.”

Later in that passage reference was made to the fact that clear directions could be given as to the manner in which the evidence could and could not be used.

11. In addition to the question of motive it has become apparent in the conduct of this application that the accused intends to suggest that she was in a situation of duress relative to Mr Ashenhurst.  Evidence of motive of the type sought to be led by the Crown is argued by the Crown to be relevant to rebutt that argument also.
12. I was initially attracted to the argument for the Crown. Yet the evidence concerning the methadone use is very sparse and shows no more than the accused receiving a prescription drug in a controlled and organised way.  The point of somebody being on a methadone program was not something that was the subject of evidence but in this case as just noted the evidence was it is administered to the offender in a controlled way.  Methadone is commonly used by people as a substitute for heroin or other opiates; that is it is a drug that is used instead of the illegal drugs. True it may be that there are many cases where somebody on a methadone program also uses illegal drugs and may not adhere to the controlled program but there is no evidence of that in this case. The Crown argument has a defect in that it in an unqualified way identifies being on a methadone program as being interchangeable with a person who uses illegal drugs.  Whilst the Crown argues that this is simply a piece of circumstantial evidence, it is in fact no more than an invitation to the jury to speculate, something the jury should not do.
13. This reduces the probative value of this evidence, which in any event is not greatly significant to begin with, to the point that its prejudicial value outweighs its probative value. It is the point of difference from the otherwise persuasive case of Cook.  I note also the Crown will have available other evidence of the accused being involved with drug activity, such as the CCTV of the accused purchasing the syringe and needles after the robbery from a different chemist. 

The ERISP

14. The evidence on the Voir dire concerning the ERISP was the ERISP itself which was played to the court and a copy of the transcript was also made available, the evidence of the arresting officer and evidence of Detective Lindsay the officer in charge and who conducted the interview.  The accused also gave evidence.  A copy of part of the custody management record became VD A.
15. The date of the alleged offence was 5 August 2020. On 6 August 2020 the accused was spoken to by police and the body worn video of that exchange will be played at the trial.
16. On 3 September 2020 the accused was arrested. She sought legal advice.  The arresting officer confirmed that he believed the accused spoke to a solicitor but beyond that did not recall the accused being in custody at all. He did confirm the accused arrived at the police station at 13.35 PM, called the solicitor at 14.05 PM in a call that lasted until 14.14 p.m.  He said the accused went into the interview room at 4PM.
17. The interviewing officer Detective Lindsay said he was also aware the accused had spoken to a solicitor.  He said that before the interview he did not hear the accused say she wanted to make no comments but that she did say that during the interview.  It should be borne in mind that other officers dealt with the accused at that pre interview time.  He then said that the solicitor Mr Ritchie had told him what advice he had given the accused.  Mr Ritchie said he gave her the standard advice which was that she not go to the scene, not consent to an interview and not to consent to forensic procedures and not to partake in an interview.
18. Detective Lindsay was put the proposition that knowing the advice that had been given and being aware of her no comment responses during the interview there was no need to put the allegations further to her.  His answer was that it was his role to put the allegation and she was not required to answer.  He said she was told why she was there and she chose to answer.  He said it was his duty to put the allegations even after knowing her advice and disinclination.
19. He had been asked that he had continued to ask the questions and said that each time he did so he said she was not required to answer. No submission was made on that but that is not entirely accurate. That said there are numerous occasions where he did do that.
20. Having seen the video of the ERISP I would also comment that he appears to have conducted the interview in an appropriate manner but for the determination of the one issue that is raised about its admissibility overall, namely to persist as he did in the circumstances of this case. One area which is a little confused or unclear is where he says that the accused did not say she did not want to make a comment before the interview but she did say that during the interview. The accused’s evidence referred to below indicates that she did give that indication before the interview.  Query whether anything turns on this because it is accepted by Detective Lindsay that he had been told of the advice given to the accused and her conduct in the beginning of the interview certainly if not throughout was consistent with that advice namely her repeated statements of no comment.  Further her pre interview comments may have been made to a different officer.
21. The evidence of Detective Lindsay is silent as to just how it came to be that the accused, having been advised by Mr Ritchie, was then placed into an interview room.
22. The accused gave evidence consistent with the above as to receiving advice from Mr Ritchie. She was asked if she said anything to the police before the interview and she said that after speaking to Mr Ritchie she told the officer behind the desk that she had finished speaking with him and that he had advised her not to speak to anyone and make no comment. She then said that she had three girls at home and was worried about them. No police officer could remember this being said but it was not denied.
23. She then said that after the phone call she was put back in the dock and she asked about her children and whether she could go home. She asserted that the police told her that “if everything goes okay” or on another version that if she cooperated everything should go along nicely and they would talk to the police officer in charge.
24. Neither police officer could recollect that being said. The accused relies upon it as evidence of inducement to somehow pressure the accused to say things she might not otherwise say so she can be released to go to her children. I am not satisfied that that proposition has been made out. The words attributed to the police officers could equally be interpreted in a totally non-manipulative way to the effect that once this process is over you should be able to go home.
25. The accused said she did not want to participate and that she told them that and that she did not want to make a comment. She said that she said that because Mr Ritchie had told her not to make a comment.
26. I accept that evidence because it is entirely consistent with her comments at the beginning of the interview.  It seems to me most unlikely that a person would get such clear advice from a solicitor and adhere to that advice in an interview later that same day, but would not adhere to it in the intervening period immediately preceding the interview.  I accept this evidence because it is consistent with the advice that preceded it and the accused’s conduct that followed it.  It is important that that basis be made clear because in my view there is a very clear example of the accused giving very inconsistent evidence later in her cross examination concerning what occurred after the robbery which I touch on below. Despite that inconsistency or discrepancy or perhaps even outright falsehood I accept the evidence concerning the events of the interview just described.
27. As to how the accused came to be in the interview room, the accused, who it should be remembered was under arrest at this time, said the police said come in here and we will have a chat.  I accept that evidence.
28. When asked why she made statements having said that she did not wish to and also after saying no comment she said that she felt pushed and pressured and wanted to go back to see her children and wanted to get the process finished.  She said she did not wish to make comments. The accused said that she was very intimidated and referred to her autism which is not otherwise evidenced.  She said the situation scared her and that she had not been in trouble for a long time and had not been in that situation before.  She said she felt confused, overwhelmed and pressured and referred to suffering from ADD, autism and PTSD.
29. Exhibit VDA shows that she answered the question of whether she had any mental illness “no”.  It was put to her in cross examination that if she truly was suffering a mental condition she should have mentioned it at that time. There is no other evidence to support the assertions of ADD, autism and PTSD though they are rather specific matters to fabricate.  Given the other discrepancy just referred to and given any lack of evidence to support these assertions I do not accept them.  I do however consider that her assertion of being overwhelmed and confused and intimidated is established. I reach this conclusion for the following reasons:
    1. I accept that she was concerned for her children even noting that two of them were aged 16 and 19; the third was aged six. Despite the age of the elder two I do not consider it unlikely and indeed accept the accused was concerned for her children while she was being held in a police station, a conclusion more easily reached when the youngest of age 6 is considered.
    2. The accused was under arrest and was not free to leave.
    3. She had advice to not engage in an interview.
    4. The police knew of that advice directly from the solicitor, and also on my finding she told them of that advice. Despite that she was asked to come in “for a chat”. Whilst it was done politely the accused was being placed in a position that she had been advised not to be in and was powerless to influence.  A sense of intimidation could readily emerge.
    5. The fact that she was a female being interviewed by two male police officers would add to that sense of pressure and intimidation.
30. The Crown argues against this conclusion and relies on the answers given by the accused to questions at the end of the interview by the custody manager to the effect that she had no complaints about the way the interview was conducted, and that she had been advised of her rights under part 9 of LEPRA. These questions are at questions 141 through to question 153. The Crown relied question 145 in which the accused said that nothing was promised to her for giving the interview, a statement consistent with my conclusion stated above as to the effect of the words the accused relied on as inducement. At question 146 she said no advantage was offered to her for the interview and at question 147 she answered that she had no complaints about the way the interview was conducted. At question 151 she said that she understood that whilst in police custody she did not have to say or do anything she did not want to and that it would be recorded. She had no comment to make about the way she was interviewed.
31. However preceding those questions are questions 141, 142 and 143.  Firstly she was asked if she engaged in the interview of her own free will and she said “well I didn’t want to say anything but I was…”. Question 142 asked whether anyone forced her to take part in the interview and she said “um no I wouldn’t say force but…”.  And she then added “I quite told told them a few times I didn’t want to say anything and” and then at question 144 she added “didn’t stop pushing it and pushing it so…”.
32. Whilst those answers are followed by the answers favourable to the Crown the answers themselves are entirely consistent with the argument for the accused that she did not wish to give evidence or give an interview and sought to convey that but the police simply pressed on.
33. A large part of the cross examination of the accused sought to demonstrate deficits in the credibility of the accused by focusing on discrepancies between what she said on 6 August and what was said in the interview.  The credit issue which damages the case for the accused concerns the issue as to whether, as the accused told the police on 6 August, that she was unaware of the accused being in the vicinity and happened to be going to Woolworths when he approached her and her car.  In the statement of DSC Coffee on page 4 an unchallenged account of what the accused said is set out, including saying she was going shopping when Mr Ashenhurst jumped into her car and according to the accused “and he wouldn’t get out of my car and I drove and said if you don’t get out of my car I’m just going to drive straight around to the police station if you don’t get out. And then he just jumped out of my car around the corner like just abused me”

14. In my view the only sensible way to interpret that statement when the whole of the passage is read is that the accused is at Woolworths when Mr Ashenhurst got in the car and when she got to the bottom of the car park Mr Ashenhurst would not get out and after mentioning the police station he then just jumped out. Her evidence therefore on that version was of Mr Ashenhurst getting out of the car very soon after she left the Woolworth car park, namely just around the corner. The competing version given in evidence on the voir dire was that she had travelled to the Northside pharmacy some 7 km away with the Mr Ashenhurst.  A receipt in evidence shows the purchase of the syringe needles referred to earlier.  That version I find for the purposes of this application is irreconcilable with what was said on 6 August. The accused agreed that she had since 6 August 2020 had the benefit of being able to read the whole of the police brief and know what the evidence was so that she knows that there is CCTV evidence placing her at the other pharmacy. I have taken that discrepancy into account in assessing the accused evidence as referred to above.
15. As to the ERISP itself I note the following:
    1. Reference was made to the advice received from Mr Ritchie as noted above.
    2. Questions 1 to 12 might be described as introductory. Question 13 asked the accused if she agreed that detectives came to her house on 6 August with which she agreed.
    3. Question 14 is the first express direct question concerning the armed robbery allegations and the answer was to the effect of she did not wish to make any comment.
    4. Question 15 begins by the officer repeating “don’t want to make any comment” and then proceeds to explain the allegation which was really just an extended version with more details of question 14. Again the answer was no comment. Question 16 was “that’s all right. But that’s that’s what the allegation is, so you, you don’t want to comment on that? And the answer was “nuh”.
    5. Next a question was asked about her complying with the law in identifying herself as a driver on 6 August which she agreed. Then at question 18 another version of what occurred is put which runs into question 19 with the ultimate answer being no comment. Thus in the seven questions between 13 and 19 and bearing in mind 18 and 19 run together so really six the answer on four occasions has been to the effect of no comment.  These are among the first questions asked in an interview preceded by the interview, Det Lindsay, being told by Mr Ritchie that he had advised the accused to in effect say nothing, and after the accused had also told police that.
    6. Question 20 was also answered no comment and question 21 was to again repeat the words no comment and then say all right and then “in relation to this matter at all is there anything you want to say at all?”. There was no audible reply but the video recording of the interview clearly shows the accused shaking her head in a way that I infer is negative meaning that she does not wish to say anything at all.  Extending the analysis of [35.5] above, 6 out of 8 questions were answered “no comment”.
    7. After the first 22 questions the interview branched out into other topics, perhaps due to the lack of progress in connection with the alleged offending.  The other topics included cannabis found in the accused premises on 3 September which was really largely if not totally irrelevant to the robbery allegations, something reflected by the fact that those questions and answers were not pressed by the Crown.
    8. Then after almost stopping the interview at question 30 the interviewing officer Detective Lindsay asked his fellow officer whether he had any questions and the accused then said she did not know where her phone was which then led to a series of questions about phones totally unrelated to the alleged offending until question 45 with a question about what sort of phone Mr Ashenhurst had on 5 August and then at question 58 was a question about whether she had contact with him on that day being a reference to 5 August and again she said no comment.  A further question about the robbery was asked at question 64 and again the answer was no comment.
    9. The point to note here is that the interview had ebbed and flowed from the topic of the alleged robbery to other matters and then back to the robbery, whereupon the accused again adopted the position of no comment consistent with the advice the police knew that she had received.
    10. Then the interview which had almost ended at question 30 almost ends again at question 71 when the supporting officer was asked if he had anything to ask. This is when the accused is asked whether she takes any prescription medication and answered she was on the methadone program. There are then questions about that medication and also whether Mr Ashenhurst was on that medication before moving into questions as to how much contact the accused had with Mr Ashenhurst. Then at question 92 the express day of 5 August is referred to and whether the accused lent Mr Ashenhurst money.  At answer 95 the accused again states no comment.
16. The submission of the accused firstly relied upon section 85. It was said to be activated by the persistence in asking the questions in the face of the no comment responses so that it could be said the requirement for the truthfulness of the admissions to be unlikely to be adversely affected was not made out. In this case this is interesting, as the Crown submissions rely on the ERISP as containing untruths, so it is well arguable on the Crown case that this is made out on this view. The matter is I consider more easily determined by s90, and I do not determine the s85 question.
17. Next the accused relied on section 90 that and that it would be unfair to admit the evidence in circumstances where the accused had legal advice and had tried her best to stick to that advice. It was submitted that she clearly felt pushed and felt the pressure of authority. That is a very succinct statement of the circumstances the accused found herself in, and I so find.
18. The accused also submitted that there is a difference between not accepting answers and asking questions again and in asking questions of a person who does not want to make any comment. The submission was that once it has been made clear that they do not wish to make any comment it is inappropriate to press the matter.  I have some sympathy for that however it is not wholly supported by authority.  The accused needs to establish more than simply that the police continued to ask questions when the accused has indicated she objects to doing so. The facts of each case need to be considered to make that determination.
19. For reasons set out below, the passages of the interview referred to above support a conclusion that in all the facts of this case the ERISP should be excluded.
20. The reason for that is this is not a permissible case of persistence. The authorities that will be touched on below establish that persistence in questioning which includes repeated questions in the face of somebody saying they do not wish to answer them does not necessarily mean that the evidence should be excluded. In my view in this case having considered those authorities the evidence should be excluded. The reasons for that are as follows:
    1. The finding based on the facts found above that the accused was feeling pressured and intimidated and confused.
    2. The finding that she had indicated even before going into the interview room that she did not wish to make any comment.
    3. Because the police had been told by her solicitor that the accused had been advised not to make any comment and her conduct following that was consistent with that.
    4. The course of the interview, in that of 8 questions concerning the offending in the first 22 questions, no comment was the answer 6 times.  The interview then almost ends at question 30, and almost ends later in the interview.  On each occasion the interview continues on, the no comment answer is given when the events of 5 August are raised.
21. Thus, with a confused and intimidated and overwhelmed accused, who has sought to assert her rights as best she can, it is unfair to the accused, within the terms of s90, to use that evidence.
22. The Crown very helpfully referred to the cases of Phan (2001) 123 A Crim R 30 and Clark (1997) 97 A Crim R 414. The short point relied on by the Crown is that persistence in the face of objection does not determine the issue.
23. In Phan an ERISP had been admitted after the accused indicated he did not wish to answer questions. The Court of Criminal Appeal in the judgment of Justice Wood said it would have been preferable to exclude the ERISP but its use was adequately dealt with by directions so there was no miscarriage of justice. In his judgment reference was made to section 90. Justice Wood said there is no absolute rule that an interview conducted in the face of an objection by a suspect or continued in the face of an indication that he or she does not wish to participate any further in it should be rejected if tendered in evidence. After citing the passage in the Clark (1997) 97 A Crim 414 at 419-420 his Honour said:

“In an appropriate case it may well be that despite some initial reluctance the person interviewed may elect to continue with the interview and even see an advantage in providing further information with a view to dispelling doubts or answering matters which may give rise to suspicion”

44. His honour went on to say:

“each case must be determined upon its own facts and in particular by reference to the extent to which there is any unfair pressure placed upon the person being interviewed or unfair advantage taken of his position, for example because of his age, vulnerability, lack of familiarity with the English language and so on. Moreover in any weighing exercise the probative value of the evidence needs to be taken into account”.

45. At [57] his Honour said the ERISP did not provide any further lies that could be seen in earlier interviews and concluded at [58] the ERISP was therefore of limited probative value. 
46. The passage at [54] referred to above clearly refers to persistence in face of objection which is the case here.  That passage relies on the case of Clarke at page 419-420.  At page 417 the argument of the accused was noted that it was improper and unfair to continue to question a person once that person had purported to exercise his or her right of silence.  Reference was made then to sections 85 and 90 as well as section 138. In the judgment of Hunt CJ at CL those sections provide sufficient protection for suspected persons without needing to add rules of practice as had occurred in South Australia. In a passage relied upon by the Crown, Hunt CJ at CL said:

“it should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of the crime whether from the suspect or not and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation persistent importunity or sustained or undue insistence or pressure”

47. Significantly in my view at page 420 of Clarke it is noted that the appellant never refused to be interviewed or to answer any questions at all. What had been established was that she did not wish to say anything about the allegation against her that she had been involved in an armed robbery and she appeared to have been willing to give a version of everything which happened after the armed robbery.  His Honour stated that the fact that two or perhaps three of the 100 or so questions asked were relevant also to the armed robbery did not, to his mind, make the conduct of the police either improper or unfair or require the rejection of the answers upon the basis that it would be unfair to use them or that their truth was likely to be adversely affected
48. The facts of Clarke are very different to the facts of the current case.  In particular, that there was no objection to be interviewed at all, with any objection limited to a small aspect of what was asked about.  The decision was then applied in Phan, where the facts were that objection had been taken to answering questions. In the present case, the overall focus of the interview was on the very matter about which the accused had made plain she did not wish to make any comment. She may have become somewhat more unguarded in questions relating to issues such as her phone or methadone but that was by far the minority part of a short interview. 
49. At page 418 of Clarke reference is made to the High Court decision of Ireland (1970) 126 CLR 321 at 333. The point made in Clarke of that case was that the High Court made it clear that even a breach of the rule of practice laid down in South Australia does not require the exclusion of the evidence although it will afford a ground for considering the exercise of the judges discretion to exclude the evidence.
50. In Phan Justice Wood at paragraph 51 stated the admissibility of an interview conducted in the face of an indication by the interviewee that they do not wish to be interviewed needs to be considered in light of section 90. In other words in Phan it was found that the evidence was of admission and from [50] it is clear this is because the evidence on one view was capable of manifesting lies told by the accused so as to permit of the drawing of an inference of consciousness of guilt of the crime actually charged, that is, of admission. Section 90 is therefore engaged and it has not been argued otherwise.
51. The authorities support the general proposition put by the Crown that persistence in asking questions of a person who has objected to answering them does not render them inadmissible. The question is to be determined on the facts of each case. The conclusion I reach is that the whole of the interview should be excluded pursuant to section 90 of the Evidence Act on the basis that it has been that evidence obtained unfairly for the reasons set out at [40] (which incorporates [29]) and [41] above.
52. Notably, even if this conclusion was wrong, given that by the application of Cook questions and answers 14 and 15 would be excluded, and given the evidence as to methadone would be excluded for the reasons already stated which would exclude questions and answers 63 and 72 to 76 inclusive, and noting that the Crown did not press question and answers 16, 18, 19, 20, 21, 22, 26, 27, 28, 29, 30, 58, 60, 64, 65, 68, 69, 70, 71, 95, 96, 102, 103, 104, 105, 106, 117 to 131 inclusive, 134, 135 and 136, and noting also questions 1 to 12 are introductory, most of what remains of the interview are the questions commencing at question 31 about telephones about which no submissions were made and are answers that do not appear very probative and some questions commencing at paragraph 77 concerning the medication of Mr Ashenhurst and some other questions of a little probative value between question 87 and 93.  Perhaps the most probative part of the interview that remains is that at question 107 where there is the suggestion that there was some prior knowledge about the movements of Mr Ashenhurst before the meeting at the car park. The extent of that evidence however is brief to say the least.  Thus, had the global objection failed, the net result of the various other arguments is tantamount to achieving the same outcome.

Rulings

53. The ERISP is excluded from the evidence.
54. The photos marked exhibit VD D are excluded from the evidence for the reasons given in the course of the hearing of this application.
55. The Court notes the agreement of the parties that the accused can in either cross examination of a Crown witness or in evidence in chief of the accused raise character in a limited respect namely to the extent that the accused has no criminal history as to robbery or armed robbery. The Crown has agreed to this and further that it will not seek to lead evidence or cross-examine the accused as to other criminal activity that may have been committed by the accused.
56. The Court notes the accused’s argument as to electronic monitoring was not pressed.

Addendum

57. This addendum does not form part of the judgment.  The need for it arises from the events of the morning of Wednesday 2 February 2022.  The trial was to resume after the Wednesday call over.  The call over was expected to take 1 ½ hours.  To assist the parties I announced my rulings when Court commenced at 9.30am and said I would provide reasons during the day.  After announcing the rulings the Crown asked for more detail for the methadone ruling.  That part of the reasons was completed, so it was read on to the record.  The Crown identified a factual error, namely that the reasons stated that the stolen drugs included morphine, when in fact, as a subsequent check of the transcript confirmed, what had been referred to in evidence yesterday as being stolen was methadone.
58. The Crown submitted that this was an error of significance.  A debate ensued as to whether I was functus as to that ruling; Mr Segal for the accused expressed the view that I was, the Crown tended to that view without being definitive, and I was of the view it was a question that should be looked at.  Ultimately it was accepted by the parties that the matter proceed on the basis the Court was functus in respect of the ruling but that an addendum be added.  With some misgiving I adopt that course.
59. Revisiting the issue on the basis that the reference to morphine should be to methadone, my view is the result is the same, and for the same reasons.  That is, there is no evidence to show that the accused engages in illegal activity in the way the facts showed in the case of Cook.  That the accused is prescribed methadone does not, without more, add to or create a motive to steal methadone, just as a person taking prescribed morphine or OxyContin, or any prescribed drug, does not add to or create a motive to steal that prescribed drug.  This is particularly so when there is no evidence at all of the accused acting in any way other than the controlled way in connection with the methadone, and where the evidence is as brief as it is in this case.  The result is that the probative value if any is outweighed by the danger of unfair prejudice to the accused referred to above.
60. The ruling made relates to the evidence identified in these reasons in the ERISP at questions and answers 63 and 72 to 76.  Should there be evidence the Crown seeks to introduce that extends beyond that, then that issue would need to be determined at that time, assuming the accused maintained a position seeking the exclusion of such evidence.

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[1] See addendum at end of these reasons.

Amendments

14 April 2022 - Restriction Lifted.

Decision last updated: 14 April 2022