R v Klein (No.2)

[2008] NSWSC 335

CITATION:	R v Klein (No.2) [2008] NSWSC 335
JUDGMENT DATE :	2 April 2008
JUDGMENT OF:	Buddin J
DECISION:	Objection upheld.
CATCHWORDS:	Objection to material in accused's interview with police
LEGISLATION CITED:	Evidence Act
CATEGORY:	Procedural and other rulings
PARTIES:	Regina Gaby Michael Klein
FILE NUMBER(S):	SC 2002/2281
COUNSEL:	G Tabuteau (Crown) P McGrath (Accused)
SOLICITORS:	S Kavanagh (Director of Public Prosecutions) Crown Andrews Solicitors (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

Wednesday 2 APRIL 2008

2002/2281 – R v GABY MICHAEL KLEIN

JUDGMENT – Objection to material in accused’s interview with police (No.2)

1 HIS HONOUR: Objection is taken on behalf of the accused, pursuant to s 137 of the Evidence Act, to parts of two answers provided by the accused in a record of interview conducted with him by police on 16 February 2001. In order to put the objection in some sort of context, it is necessary to set out in full the particular questions and answers. It is nevertheless only the portions which are underlined to which objection is taken:

Q 116 That’s fine.
A I explained it to you in there before we went recording, my, memory at the moment, these last few weeks have been….for me, the last month type thing, I haven’t been working. I haven’t been doing anything constructive, I’ve been, I have been abusing my body, time hasn’t been of an essence as what time I get up in the morning is I open my eyes, I get up in the morning and I’ll reach for something to keep me going through the day. It’s, I’ll have a scotch, I’ll, something I’m not meant to have , whatever it is, but that’s how it’s been the last few weeks for me.
…
Q 416 Do you know if you made the phone call before or after you purchased something?
A I don’t even know if I purchased…these are just memory things for me. So can I just, can I explain something to you guys, because you’re recording me on the record, I’ve spoken to you off the record, but just to explain on the record, about my state at the moment, the way I am over these last few weeks. I have been abusing drugs , I have been abusing alcohol and please don’t let my body language or, or my answers, they’re not meant to be vague, they’re not meant to be … please believe it’s frustrating for me not answering these questions as well.

2 It is convenient to first deal with the part of the answer to Q416 to which objection is taken. It is clear from that answer that the accused is seeking to provide police with some understanding of his frame of mind at the relevant time in order to explain what problems he was then having with his memory. Plainly enough that demonstrates the relevance of this material. However, the fact that the accused admits that he was abusing drugs as well as alcohol adds little, in my view, to the probative value of the evidence. It is not otherwise relevant to, or probative of, any of the issues in the trial. On the other hand, there is a very considerable risk that the jury will, if the evidence is admitted, form an adverse view of the accused as a person who is a self-confessed drug user. In my view it is almost inevitable that the jury will interpret the reference as being a reference to illicit drugs. That being so, I indicated to counsel that the objection to that part of the evidence would he upheld. In those circumstances, Mr McGrath did not press the objection to the answer to Q 116 which will remain in its unedited form.

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