R v Ey (No 3) - [2012] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v EY (No 3)
[2012] SASC 134
Judgment of The Honourable Justice Sulan
2 August 2012
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY
Defendant charged with manslaughter - alleged offending involved defendant giving birth to infant in family home - infant left outside on neighbour's premises exposed to elements - application to exclude four conversations with police officers, one conversation with doctor, one conversation with social worker.
Whether conversations had been obtained unfairly and ought to be excluded in the exercise of the Judge's discretion - whether there existed sufficient ground for the police officers to form a reasonable suspicion that the defendant had been involved in an offence - whether in light of the defendant's intellectual disability the failure of the police officers to caution the defendant and to explain her right to legal advice resulted in unfairness.
Held: Application allowed - police officers should have cautioned defendant and informed her of her right to contact a solicitor - all five conversations to be excluded in the exercise of the Judge's discretion.
R v Kageregere [2011] SASC 154; R v Dolan (1992) 58 SASR 501, applied.
R v Swaffield (1998) 192 CLR 159; Cleland v The Queen (1982) 151 CLR 1; Duke v The Queen (1989) 180 CLR 508; R v Bueti (1997) 70 SASR 370, considered.

R v EY (No 3)
[2012] SASC 134
Criminal

SULAN J: The defendant, Lara Daphne Ey, is charged with manslaughter of an infant on 7 July 2008, that infant having been born on 6 or 7 July 2008. The circumstances leading to the defendant being charged with the offence is that it is alleged that she gave birth to a live male infant in the toilet of the family home at 31 Denmead Avenue, Campbelltown, either late on 6 July or in the early hours of the morning on 7 July 2008. It is alleged that no other family member was alerted to the fact that she was giving birth, or had given birth. It is alleged that she remained in the toilet for some time following the birth. She cleaned up the area, wrapped the infant in newspaper and deposited the baby on the driveway of the next-door neighbour’s premises. The following morning, the neighbour discovered the body of the infant. The infant had been exposed to the elements, and the body was uncovered. The infant had died.
Police were called. They attended at the premises where the baby had been discovered. Police conducted inquiries from residents in the street near where the baby was discovered.
When the police arrived to commence their inquiries, the defendant and her mother were absent from the house. The defendant had been taken to the doctor by her mother, as she had been bleeding. Whilst the police were outside the house, the defendant and her mother arrived home. Police were invited into the house. Constables Kirsty Marnane and Matthew Burrage, together with other officers, attended in the lounge room of the premises. Constable Marnane explained that the police were in the area because they had been called after the discovery of the baby. Constable Marnane had a conversation with Mrs Ey, the mother of the defendant, who told her that she had not noticed anything during the night. She said she was unaware of anyone in the area being pregnant. Constable Marnane asked the defendant whether she had heard anything unusual during the night, and whether she knew of anyone in the area who was pregnant, to which the defendant responded that she had not heard anything, nor did she know of anyone who was pregnant. The defendant told Constable Marnane that she had gone to the doctor that morning because she had had bad stomach cramps from her period. She told Constable Marnane that she had never been pregnant.
Constable Burrage conducted other inquiries whilst they were in the house. He looked into a bedroom and saw a single bed with no sheets on it. The mattress appeared to be stained with watered down blood. He then returned to the lounge room. Constable Burrage had initially spoken to the defendant’s brother Stefan who had told him he did not know of any pregnant females in the area. After observing the mattress he again spoke to Stefan who then told him that he suspected that his sister had been pregnant. She had been gaining weight and was sick on some mornings.
Constable Marnane also looked into the bedroom. She saw that there was a mattress with no sheets on it, and that there was a large amount of blood on the mattress. She returned to the lounge room and asked the defendant if she had given birth to a child overnight. The defendant denied having done so and said that she had suffered a heavy menstrual cycle.
Constable Marnane said (“the first conversation”):
I said‘Lara, there is a lot of blood on your bed. Lara have you given birth to a child overnight?’
She said‘No, I have heavy menstrual cycles and I was in a lot of pain yesterday and bled out heavily overnight.’
I said‘Have you ever been pregnant?’
She said‘No.’
I said‘Have you ever had sex?’
She said‘No, I’m not sexually active.’
Constable Marnane observed that the defendant appeared pale. The defendant became upset. The defendant said to her, “I want to get out of the house and I will talk away from Mum”. Constable Burrage observed the defendant’s mother and heard her say to the defendant that if she did not tell the police the truth, she will be committing a criminal offence. He said to the defendant that it was not against the law to get pregnant or to give birth to a baby, that he had seen the mattress and that they could get DNA from the baby which would tell them who the mother may be. He observed that the defendant was looking pale.
The defendant’s mother left the room. After she had gone, the defendant said to Constable Burrage, “I will tell you but not while Mum is here”. The defendant seeks the exclusion of the conversation with Constable Burrage (“the second conversation”). As the defendant appeared to be unwell, an ambulance had been called, which arrived at about 9.50 am. Later that morning, she was conveyed to the hospital. She was accompanied by Constable Marnane. The following conversation occurred (“the third conversation”):
I said‘I know we were talking before and you found it hard to talk with Mum around, can I ask you again, did you have a baby overnight?’
She said‘I don’t know what to do, I am eighteen (18) years old, I don’t know what to do.’ (EY was quite upset at saying this.)
I said‘Did anything happen last night?’
She said‘I had a baby.’
The defendant seeks to have that conversation excluded.
At the Royal Adelaide Hospital, the defendant was seen by a Dr Truc Huynh. He examined her. She told Dr Huynh that, on Sunday, 6 July, she thought she was experiencing period pain. At about 1 am on 7 July, she went to the toilet and gave birth to a baby. She told the doctor that the baby was moving after birth for maybe one hour. She told the doctor that she was too scared to tell her mother. She said she did not know who the baby’s father was (“the fourth conversation”). Dr Huynh noted that she was reluctant to talk about the situation without being prompted. He organised for her to be transferred to the Women’s and Children’s Hospital.
In cross-examination, Dr Huynh agreed that, throughout the time that he was with the defendant, a police officer was outside the door of the room. He said that the defendant was reluctant to answer some of the questions and took a bit of time in answering questions. A number of her answers were given after he prompted her into responding to leading questions. He did not inform her that anything she told him could be the subject of evidence at a subsequent trial. He did not tell her that a record of this conversation would be made available to be read by others including the police.
Prior to leaving the Royal Adelaide Hospital, Constable Marnane had a lengthy conversation with the defendant. The conversation was recorded (“the fifth conversation”). Early in the conversation, the following exchange took place:
Q15.And we were just door knocking the area to find out what the neighbours could tell us about that, okay. I’m now going to be asking you some further questions in relation to this matter –
A Mm mm.
Q16. You’re not obliged to answer my questions.
AYeah.
Q17.But anything you do say will be taken down and given in evidence. Do you understand that.
AYes.
Q18. And what do you understand by that.
AThat um –
Q19. You understand that you don’t have to answer my questions.
AYeah.
Q20. And that I have a video here going.
AYeah.
Q21. And that’s going to be recording our conversation.
AMm mm.
Q22. So if you need to rely on that later –
AYeah.
Q23. I can produce that video. So do you understand that.
AYes I do.
In that interview, the defendant admitted that she had given birth to a baby in the toilet of the house in the early hours of the morning; that she wrapped the baby in newspaper and placed the baby on the driveway where the baby was later found. She said that she was scared and that she did not want her parents to find out what had happened.
The conversation was detailed and continued for approximately two hours. At no stage during the conversation was the defendant informed that she was entitled to obtain legal advice.
After the defendant had been taken to the Women’s and Children’s Hospital, she was visited by a social worker, Ms Jayne McLaren. Ms McLaren gave evidence that, at the request of Constable Marnane, she went to see the defendant in order to assess the defendant’s mental state. The police intended to undertake a forensic examination of the defendant. Ms McLaren gave evidence that the defendant told her that she was well aware of her pregnancy, and that she had formed a plan in April 2008 but had not been able to act upon it. She told the social worker that she was frightened of how her father might react. She told the social worker that her labour had started on the Saturday evening, and that the baby was born between 1 and 2 am on 7 July 2008. She said that she was unable to look after the baby. The defendant told Ms McLaren that the baby was alive after it had been born (“the sixth conversation”).
In cross-examination, Ms McLaren said that, prior to seeing the defendant, she was aware of the police investigation and that it related to a “concealed pregnancy”.
During the period that Ms McLaren was with the defendant, the police were there for some of the time. They intended to conduct a forensic procedure. The question of whether the defendant should be represented was discussed at that time. She was initially reluctant but after a short time agreed to speak to a lawyer. The defendant spoke to a lawyer at the Legal Services Commission. Not long thereafter, the police conducted a forensic procedure.
On 11 July 2008, in the early hours of the morning, police attended at the defendant’s home where she was awakened and arrested. At that time, she contacted her solicitor and informed the police that, on the advice of her solicitor, she did not wish to answer questions. She was arrested and charged with murder.
The defendant seeks the exclusion of evidence relating to the first, second, third, fourth, fifth and sixth conversations.
The defendant gave evidence. She stated that when the police arrived and were at her home she did not want to talk to them. She had no recollection of what she told them. She recalled going to the hospital. She said she did not want the police to go with her to hospital. She recalled speaking to the police in the ambulance and she did so because she thought she had to answer the questions of the police officer. At the Royal Adelaide Hospital she said she did not recall speaking to medical staff. She recalled speaking to the police again. She was asked whether the police told her that she had a choice about answering questions put to her and that she did not have to answer them if she did not want to. She said that was not explained to her. She said she answered the questions because she thought she had to answer their questions. She said from the time she left the house the police were in her company. She believed that she could not leave the hospital or go anywhere without the police watching her and accompanying her.
At the Women’s and Children’s Hospital she recalled the social worker and she recalled speaking to Ms Waite, the lawyer, who told her not to say anything to the police and to remain silent and to say no comment. She recalled that she took her lawyer’s advice. She did not speak to the police again.
In cross‑examination, she stated that she had little recall of what the police said to her at her home. She did not recall a police officer telling her that the police could match DNA from the mattress with the DNA of the baby and determine who the mother may be. She did not recall that conversation. She said that she did not recall the police officer cautioning her at the hospital. She did not recall being cautioned later during the interview. She said that the police were very pleasant towards her but she had little recall of the details of any conversations she had with them.
Both Dr Raeside and Dr Tomasic were called in respect of the issue of mental incompetence. Both agreed that the defendant suffers an intellectual disability. I conclude that the defendant does suffer a mild intellectual disability. There is little doubt that she is unable to process information and make decisions and reason about them as one might expect a person of her age. I am satisfied that the defendant was confused on the day that she spoke to police and others.
The application to exclude evidence is based both on voluntariness and the Court’s discretion to exclude evidence which has been obtained unfairly. For the reasons that follow I have decided that all conversations complained of and sought to be excluded should be excluded in the exercise of my discretion. It is unnecessary for me to therefore decide the question of voluntariness.
The unfairness discretion
Much has been written about the unfairness discretion. In R v Swaffield the High Court discussed the unfairness discretion.[1]
[1] R v Swaffield (1998) 192 CLR 159.
In that case, the defendant Swaffield was charged with various offences including arson. Evidence had been obtained by an undercover police officer who recorded conversations with Swaffield without Swaffield’s knowledge. At trial counsel sought to have that evidence excluded on the grounds that the admissions had been obtained unfairly and that the police had disregarded the relevant Judges’ Rules. The trial judge admitted the evidence. The Court of Appeal of Queensland excluded the evidence and concluded that the trial judge erred in the exercise of his discretion by failing to give sufficient weight to the defendant’s right to silence. Brennan CJ discussed a number of the earlier authorities which sought to limit the exercise of the discretion to a consideration of whether, ultimately, the evidence sought to be excluded was in some way unreliable or untrustworthy.[2]
[2] Cleland v The Queen (1982) 151 CLR 1, 30 per Dawson J.
In Duke v The Queen,[3] Brennan CJ observed that the unfairness discretion could arise in a number of circumstances which included unreliability, but also included a confession or admissions which would not have been obtained if the investigation had been conducted properly. He gave examples of trickery and misrepresentation, cross-examination by a police officer failing to have regard to material matters, keeping a suspect in isolation or detaining him unreasonably, as examples of impropriety which may justify the rejection of evidence of a confession, even though the evidence was reliable. Brennan CJ discussed the public policy discretion and drew the distinction that the unfairness discretion focuses on the effect of police conduct on a particular accused whereas the public policy discretion focuses on considerations of public policy. He accepted that the two discretions do overlap and before either is enlivened there has to be some illegality or impropriety on the part of the law enforcement officers which results in the making of the confession.
[3] Duke v The Queen (1989) 180 CLR 508, 513.
In their joint judgment in Swaffield, Toohey, Gaudron and Gummow JJ observed that unfairness relates to the right of an accused to a fair trial and it includes not only considerations of whether the confession obtained was unreliable but also whether it would have been made at all. By its very nature, the unfairness discretion is difficult to precisely define. The Court has a broad discretion which is not limited to questions of unfairness to the accused but includes evidence which in the Court’s opinion might have been obtained at too high a price.[4]
[4] R v Swaffield (1998) 192 CLR 159, [91].
In R v Kageregere, Kourakis J observed:[5]
The common law rule of evidence excluding involuntary statements buttresses the privilege against self incrimination where the capacity to choose is completely overborne.[6] In less extreme cases a discretion may be exercised to protect the privilege. In the exercise of that discretion the public interest in the efficient police investigation of offences is given substantial weight by striking a balance between it and the competing public interest in fair trials. An evaluative judgment is called for having regard to a number of considerations including: the extent to which the interviewee’s capacity to choose has been compromised,[7] the likelihood, at the time that the statement was made, that he or she would be prosecuted,[8] impropriety associated with the questioning[9] and the reliability of the statement.[10] The admission of answers to a comprehensive police interrogation of a person who is likely to be charged, and is under substantial psychological pressure to answer police questions, would significantly undermine the privilege against self incrimination. It is for that reason that the admission of such a statement may be procedurally unfair and is liable to be excluded in the exercise of the discretion.
I agree with those observations.
[5]    R v Kageregere [2011] SASC 154, [56].
[6]    R v Swaffield (1998) 192 CLR 159, [74]
[7]    R v Swaffield (1998) 192 CLR 159, [95].
[8]    R v Swaffield (1998) 192 CLR 159, [94].
[9]    R v Swaffield (1998) 192 CLR 159, [77].
[10] R v Swaffield (1998) 192 CLR 159, [78]
The starting point when considering the unfairness discretion is that when a police officer has reasonable grounds to suspect a person of committing an offence the officer ought not to interrogate that person without advising the person of their right not to answer questions.[11] The unfairness discretion is enlivened in circumstances not only where it is considered that the admissions might be unreliable but also because no admissions might have been made if the investigation had been conducted properly.[12]
[11] R v Dolan (1992) 58 SASR 501, 505.
[12] Duke v The Queen (1989) 180 CLR 508, 513.
In R v Bueti,[13] Doyle CJ (with whom Lander and Bleby JJ agreed) considered the unfairness discretion and the failure of the police to administer a caution. In that case, Mr Bueti voluntarily came to the police station and spoke to the police. Mr Bueti denied being involved in an offence of robbery. The police gave evidence that they did not consider him to have been involved at the time that they obtained the statement from him.
[13] R v Bueti (1997) 70 SASR 370.

Doyle CJ observed in Bueti:[14]
As I said in R v Murphy at 414, the requirements of fairness are not to be turned into fixed categories, and the decided cases should not be taken as stating exhaustively what may be required if fairness is to be observed. While it is possible unfairness in the use of the answers at trial that enlivens the discretion, the fairness of the manner in which the police dealt with the suspect becomes relevant.
[14] R v Bueti (1997) 70 SASR 370, 378.
The circumstances in the present case
The police arrived at the defendant’s home in the course of investigating the death and concealment of birth of the baby that had been found on the driveway of the home next door to the defendant’s home. They observed that the defendant was returning from having obtained medical advice in respect of excessive bleeding. When they were in the house both Constable Burrage and Constable Marnane observed that the defendant was unwell. They also observed that there had been a large quantity of blood deposited on the mattress in the defendant’s bedroom. Additionally, Constable Burrage had been told of the suspicions of the defendant’s brother, Stefan, that the defendant had given birth to a baby. Constable Burrage was asked in cross-examination:
QYou then received further information that there’d been blood seen on a mattress.
AThat’s correct.
QAnd then the police go back.
AThat’s correct.
QAnd then there was, what, five or six police officers that were on the property, not necessarily in the house, that were then on the property.
APossibly, I can’t remember.
QAnd you saw Senior Constable Marnane talking to Lara in the living room when you went back in.
AI believe so, yes.
QYou were then asked to speak to Stefan again.
AI just went straight back to speak to Stefan again.
QHe was in his bedroom.
AThat’s correct.
QAnd you looked across from his bedroom and you could see a bloodstain on the mattress.
AIt looked like a watered-down one, yes.
QDid you go into the room and have a look.
ANo.
QBy now you realised that was probably a scene you didn’t want to contaminate.
AIt possibly could have been linked to it but it could have been another explanation as well, so at that point in time it wasn’t 100%.
QNot 100% but it’s looking like that’s probably where the birth happened.
AI wasn’t present at the birth so I couldn’t say.
QI’m sorry.
AI haven’t been present at a birth but to me I didn’t think there was that much. To me it looked like the mattress had been washed, so –
QBut the reason you’re returning is because now this is where the police suspect the birth must have happened.
AI went back in because there’s a possibility, yes.
QIt’s because of that sighting of blood that the police returned to the house.
AWell, some police didn’t leave the house. The reason why I returned to the house, yes.
QWell, Stefan had already been spoken to, hadn’t he.
AThat’s correct.
QHe said ‘I don’t know anything about it, I didn’t see anything’.
AThat was basically what he said, yes.
QYou’re going back inside to find out if he heard anything in the night consistent with a baby being born while he was there.
ANo, I didn’t do that at all. I initially spoke to him. He didn’t hear anything. He didn’t hear or see anything.
QBut you then had a further conversation with him.
AThat’s correct.
QAnd now you want to know whether in fact he suspected someone in the house had been pregnant.
AYes.
QAnd he said ‘Look, actually, I did think my sister had been pregnant’.
AYes.
QYou know that’s Lara.
AYes.
QAnd he said that she’d been putting on weight and he’d asked her about it but she denied it.
AYes. He didn’t ask her, from my recollection he didn’t ask her about it whatsoever.
QHe noticed her being sick in the mornings.
AYes.
QSo now the evidence is piling up a little that it’s Lara.
AMy suspicion was that at that point in time it became that [sic] she was possibly the mother, yes.
In these circumstances there were grounds upon which the police should have formed a reasonable suspicion that the defendant had given birth to a baby. If that were the case then there was a reasonable suspicion that the defendant either concealed the birth, or was a party to concealing the birth, by either removing, or knowingly participating with another person in removing, the child from the house and leaving it on the next door driveway. There was sufficient evidence to form a reasonable suspicion that the defendant was directly involved in placing the baby on the driveway, or that she knew and assisted in some other person placing the baby on the driveway. There was reasonable cause to suspect that she was responsible, either as a principal or in the second degree, in the offence of manslaughter.
I consider that once Constable Burrage had a belief that the defendant was the mother of the baby, then that was sufficient ground to form a reasonable suspicion that the defendant had been involved in an offence of concealment of birth, or that she had a greater involvement in the cause of the baby’s death.[15]
[15] Criminal Law Consolidation Act 1935 (SA) section 83.
Constable Marnane was aware that the defendant had come back from visiting the doctor, and that there was excessive blood on her mattress. There was a reasonable suspicion that the defendant may have been involved in an offence. In cross‑examination, Constable Marnane was asked:
QHad you been told that the placenta was still attached to the deceased baby.
ANo. Sorry, we may have been, yes. Yes.
QSo from that you would have known that whoever gave birth to the child would have been directly implicated somehow in the placing of it in the driveway. That is correct.
ASorry, can you say that again?
QBecause the placenta was still attached, you would have known from that that whoever gave birth would have been immediately implicated.
ANot immediately implicated because at that point we still didn’t known what had happened. We don’t know if it was a stillborn, we don’t know if the baby was alive but as you say, the placenta was still attached so what had happened – well, whatever had happened, the baby still had the placenta attached and it was placed outside.
QWhen I say that, so implicated in the placement of the baby outside.
AI don’t know. I don’t know who put the baby outside at that point.
QBut because the placenta is attached, it was pretty clear to you that the placement has happened pretty soon after the birth of the baby.
AYes. Sorry, yes.
QSo at the time you have attended at the Ey house you became aware that there had been blood found in the Ey house.
AThat was as we were about to leave, yes.
QThat was on the bed, that you became aware of that blood.
AYes.
QWere you also aware of the trail of blood in the driveway at that time.
ANot at that time, no.
QBut you knew that Lara had come back from the doctors and that she had been there because of stomach cramps; that’s right.
AYes.
QAssume that Officer Burrage said that he had observed Lara to look pale. Did you make the same observation.
AYes.
QOfficer Burrage spoke to Lara for a time in the living room; is that right.
AI believe so, yes.
QWere you present when Officer Burrage said to Lara ‘It’s not a crime to be pregnant, it’s not a crime to have a baby, we just want to make sure the mother is alright’.
AI believe I was there but as to what the actual conversation was, I don’t know.
QCan you recall something along those lines being said.
AI can recall it being a conversation. About what the context of the conversation was, no.
QCan you remember a reassurance from Officer Burrage that he was telling Ms Ey ‘We are worried about the mother’.
AAs I said, I can’t recall that conversation.
QWere you there when Heather Ey told Lara ‘You have to answer police questions or else they can charge you’.
AI was in – as I said, I was in that lounge room the whole time but as to certain other conversations, no, I don’t have a record of those conversations.
QAnd you can’t independently recall.
ANo.
I consider that both Constable Marnane and Constable Burrage should have concluded that there was reasonable suspicion to conclude that the defendant had committed an offence. In the circumstances, it would have been prudent to caution her and to inform her that she was entitled to contact a solicitor before any further questioning of her.
The defendant suffers from an intellectual disability. The question is: given the defendant’s low intelligence, did the failure of the police officers to caution her and to explain to her that she was entitled to obtain legal advice, result in unfairness in this case? The defendant was eventually informed of her right to obtain legal advice. She obtained it and then refused to answer any further questions. I consider it would be unfair to admit the evidence of the first, second and third conversations. The defendant was distressed. Her answers to questions were obtained in circumstances where if she had received legal advice, I am satisfied that she would have declined to answer questions.
Turning to the formal interview at the hospital. During the course of the interview Constable Marnane, after recording the name, address and personal details of the defendant, said:
Q13.Okay Lara, the reason I’m here talking to you today is, this morning I attended at your home address and spoke to both your mum and yourself.
A.Yeah.
Q14.In regards to a, I said to you a new born had been found next door.
A. Mm mm.
Q15.And we were just door knocking the area to find out what the neighbours could tell us about that, okay. I’m now going to be asking you some further questions in relation to this matter –
A.Mm mm.
Q16.You’re not obliged to answer my questions.
A.Yeah.
Q17.But anything you do say will be taken down and given in evidence. Do you understand that.
A.Yes.
Q18.And what do you understand by that.
A.That um –
Q19.You understand that you don’t have to answer my questions.
A.Yeah.
Q20.And that I have a video here going.
A.Yeah.
Q21.And that’s going to be recording our conversation.
A.Mm mm.
Q22.So if I need to rely on that later –
A.Yeah.
Q23.I can produce that video. So do you understand that.
A.Yes I do.
I have viewed the videotape of the interview. The defendant appears confused when the caution was administered. When she was asked to explain what she understood by her not being obliged to answer questions but that anything she said may be taken and given in evidence, she appeared hesitant. Constable Marnane did not wait for the defendant to respond. Constable Marnene continued with a number of leading questions to which the defendant replied in the affirmative. The defendant did not explain her understanding of the caution.
I am satisfied that she did not understand that she could refuse to answer the officer’s questions. It was clear that the defendant was distressed. She was in hospital. She was unwell and although the officer did not recognise it, she was also suffering from an intellectual disability. She should have been invited to obtain independent advice as to her rights. The failure of the police to invite the defendant to be independently advised and ensure that she received independent advice resulted in the interview being unfair. Again, I repeat that when the defendant was eventually advised she accepted that advice and refused to answer further questions. That suggests that if she had been advised of her rights she would have refrained from answering questions. In the circumstances I consider it unfair that the evidence of the interview be admitted and I exclude that evidence.
The conversation with Dr Huynh was conducted in the course of a medical examination. It was an unguarded conversation. A number of answers were in response to leading questions. The defendant was not informed that her statements to Dr Huynh could be subsequently used in criminal proceedings. Given her low intellect and the circumstances in which Dr Huynh spoke to her, the defendant should have been warned that her statements may be used in a criminal trial. If it was intended to use the statements to Dr Huynh against her at trial, she should have been advised and she should have been invited to speak to a lawyer.
As to the conversations with the social worker, the defendant should have been informed that anything she said could be used in evidence, and that independent legal advice should have been arranged. I therefore exclude that evidence.
I rule that the first, second, third, fourth, fifth and sixth conversations be excluded.