R v Munce

[2001] NSWSC 1072

CITATION:	Regina v Munce [2001] NSWSC 1072
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC 70018/01
HEARING DATE(S):	12/11/01 - 14/11/01
JUDGMENT DATE:	14 November 2001
PARTIES :	The Crown John Raymond Munce
JUDGMENT OF:	McClellan J

COUNSEL :	L Babb (Crown) M Williams QC (Accused)
SOLICITORS:	Director of Public Prosecutions Greg Murray
CATCHWORDS:	CRIMINAL LAW - ADMISSIBILITY OF EVIDENCE - record of interview - admissibility of record of interview considered on a voir dire examination - where record of interview considered to have little probative value - weight to be given to record of interview matter for jury
LEGISLATION CITED:	Evidence Act 1995 s 85(1)(2)(3); s 90; s 135; s 137
CASES CITED:	Charajit Singh-Bal (1997) 92 A Crim R R v Rooke, unreported, CCANSW, 2 September 1997 R v Braun, unreported, SCNSW, 24 October 1997 R v Taylor [1999] ACTSC 47, 26 May 1999 R v Swaffied; Pavic v The Queen (1998) 192 CLR 159 Sinclair v The King [1946] 73 CLR 316 Papakosmas v The Queen (1999) CLR 297
DECISION:	See para 44

IN THE SUPREME COURT
OF NEW SOUTH WALES
criminal DIVISION

McCLELLAN J

WEDNESDAY, 14 NOVEMBER 2001

70018/01 - REGINA v John Raymond MUNCE

Judgment: Voir Dire on admissibility of Record of Interview.

1 HIS HONOUR: The accused, John Raymond Munce, has been charged with the murder of Leslie Forrest. Mr Forrest died on 21 January 1971, after he fell down the steps of a companionway leading from the deck at the level of the recreation room to the deck at the level of the mess room on the merchant ship “Ngahere”. The ship was berthed in Newcastle harbour.

2 Following a coronial inquiry, a finding of accidental death was brought in by the Coroner.

3 The “Ngahere” was a New Zealand vessel and many of its crew lived in New Zealand. The accused was a young seaman on the “Ngahere” at the time and continued as a seaman for some years after the incident. He has not been to sea for many years.

4 On 11 November 1999 the accused contacted police in Auckland and in a formal interview, by way of ERISP, admitted that he had kicked Forrest deliberately causing him to fall down the steps, where he died. However, he also made other statements and the ERISP contains both admissions from the accused that he caused or contributed to Forrest’s fall as well as statements which contradict those admissions.

5 The Crown has now indicated that during the course of the trial it proposes to tender the ERISP conducted at the Auckland Central police station. Apart from some evidence of Mr Bidgood, who was a seaman on the ship, and a psychiatrist, Dr O’Dea, the ERISP will constitute the Crown case.

6 Mr Bidgood did not see the incident, but gave evidence of an earlier incident, which may provide a motive for the accused to have harmed the deceased. Dr O’Dea examined the accused and also considered the ERISP.

7 The admissibility of the ERISP has been considered on a voir dire examination. Because of the indication from defence counsel of the grounds of the objection, said to be sections 85, 90, 135(b) and (c) and 137 of the Evidence Act, but mindful of the remarks of Hunt CJ at CL in Charajit Singh-Bal (1997) 92 A Crim R, I allowed the voir dire to occur.

8 I have viewed the ERISP and heard evidence from Dr O’Dea. A report from Dr O’Dea and another forensic psychiatrist, Dr Bruce Westmore, retained by the accused, have been tendered.

9 It is plain that the accused has had, for many years, very serious health problems. He is now aged forty-seven and is unemployed. His father, who died approximately ten years ago was a heavy drinker, coming home drunk most days at 6 pm. His mother had difficulty with the stresses imposed and became intolerant and would “yell and scream and give verbal and physical abuse.” His parents divorced and his mother turned to a religious faith.

10 The accused was a poorly behaved child and left school early to join the merchant navy at age fourteen, where he remained for ten years. After that he worked in Auckland in various capacities. He appears to have had at least two long term but difficult de facto relationships.

11 The accused has a long history of alcohol and drug abuse and dependence from his teenage years. On board ship he drank a carton of beer and a bottle of vodka on many days. He drank heavily after leaving the merchant navy, consuming alcohol continuously every day. He often drank methylated spirits in the morning to help him with his “shakes”. He reported to Dr O’Dea that he had flashbacks and nightmares about the alleged offence and often drank to be rid of these symptoms.

12 The accused has undergone a number of treatments for his alcohol abuse. He has also regularly smoked cannabis since about age fifteen and for ten years since the night of the alleged offence, had regularly used LSD. He has also experimented with heroin, amphetamines, opium and cocaine.

13 The accused reported to Dr O’Dea that he began having stressful psychiatric symptoms about two or three months after the alleged offence. He said that he started to get “intrusive “flashbacks” and “nightmares” when asleep.” He reported pictures in his mind of the deceased “lying at the bottom of the stairs with his brains hanging out and lots of blood around while I was standing at the top of the stairs looking down.”

14 Dr O’Dea reported:

“He said that the ‘nightmares’ were dreams he had in his sleep of the deceased whereby images of the deceased would ‘change into a snake charmer or pied piper with rats’. He said ‘[the deceased] became a martyr, a person who dominated my dreams’. He also said that the deceased ‘used to come and see me and I would think he was there … I thought he had come to visit me at [The Anchor Hostel in Newcastle in June 2001]’. He told me that he had also occasionally had ‘nightmares’ regarding the alleged physical abuse he had endured as a child and alleged sexual abuse he had experienced onboard the merchant navy ships.”

15 The accused has previously been diagnosed as alcohol dependent with depression and personality problems. Treatment has been attempted for these problems including a treatment of Eye Movement Desensitisation and Reprocessing for his “flashbacks.” His problems have continued, although they have been alleviated by a significant medication regime.

16 Dr O’Dea reports that the accused’s “flashbacks” began to occur two to three months after the death of Forrest. The accused told him that he “only began to imagine he had killed the deceased after experiencing the “flashbacks” and “nightmares”. On the day of the incident the accused said he drank and took one “trip” of LSD. The accused told Dr O’Dea that he did not remember pushing the deceased down the stairs, but he did remember him “lying at the bottom of the stairs with people standing around him.”

17 Again, he told Dr O’Dea:

“… that although he had worried for many years (as a result of the ‘flashbacks’ and ‘nightmares’) that he may have killed the deceased, he first confessed this belief to a fellow resident at Odyssey House in November 1999. He said that at the time he was on probation following conviction for DUI and Dangerous Driving. He said that he shared his story with the fellow resident who was telling him of his ‘nightmares’ and ‘flashbacks’ in relation to his experiences as a soldier in Northern Ireland. He said that the fellow resident disclosed their discussion to a staff member. Mr Munce told me that he thought that the staff member would tell the police.
He said that he left the program and that after a binge on alcohol, methylated spirits and cannabis for about 1 week, he contacted the police to ‘confess to the murder’. I note his repeated reference to his feelings of guilt in relation to the death. He said that he attempted suicide by overdose of sleeping tablets on the night after the ‘confession’.
He told me that with further psychiatric treatment since the ‘confession’ he had used less alcohol and other drugs and the intrusive ‘flashbacks’ and ‘nightmares’ had subsided. He told me that as a result of this he now did not believe that he pushed the deceased down the stairs.”

18 Dr O’Dea expressed the following opinion:

“The ‘flashbacks’ and ‘nightmares’ Mr Munce has reported in relation to the alleged offences could be understood in a variety of ways. They may represent an accurate recollection of the events of the alleged offence. However, they may also represent a revised account of the alleged offence shaped by time and Mr Munce’s substance use at the time of the alleged offence and subsequently. They may also represent a revised account of the alleged offence shaped by time and his emotional state at the time of the alleged offence and subsequently. They may also represent a revised account of the alleged offence shaped by time and his reaction to accounts of the alleged offence by others. The ‘flashbacks’ and ‘nightmares’ may also be a symptom of his apparently chronic depression and relate to this sense of guilt in general and in relation to the deceased.
It is speculative and difficult to identify which of the above approaches best helps with an understanding of the ‘flashbacks’ and ‘nightmares’ and it may be that they are a result of a combination of these possibilities.
Mr Munce appeared to have based his ‘confession’ more on the ‘flashbacks’ and ‘nightmares’ that began some months after the night of the alleged offence rather than on a clear recollection of events of the night of the alleged offence. His ‘confession’ appeared to have occurred at a time when he was having problems in his alcohol and other drug rehabilitation program including a 1 week ‘binge’ on alcohol and other drugs and ongoing problems with depression. His account of the alleged offence appeared vague and inconsistent with the account of witnesses giving evidence at the time of the death. In addition Mr Munce has significantly changed his view about the ‘confession’ and did not believe, at the time of our interviews, that he had in fact committed the alleged offence.
With this in mind I am not able to be confident of the reliability and accuracy of Mr Munce’s accounts of events in relation to the alleged offence. In the absence of corroborative evidence it would be difficult to be sure of the historical accuracy of Mr Munce’s accounts of the alleged offence.”

19 Dr O’Dea drew attention, in his oral evidence, to the inconsistencies in the accused’s memory of the events when reported at various times. An examination of the ERISP also reveals inconsistencies both as to the events which he recalls and the motivation for his actions. Dr O’Dea reports that before the interview the accused had drunk significant quantities of beer, had three joints of cannabis and taken Prozac. However, the officer conducting the interview says that he did not identify the accused as being under the influence of alcohol or any other drug.

20 The views of Dr O’Dea are generally shared by Dr Westmore, who concluded by saying this:

“This case differs from many other cases involving false confessions. In those cases an individual will make a false confession knowing or believing at the time they make the false confession that they are in fact not guilty of the offence to which they have confessed. This is certainly true for individuals not suffering overt mental illness such as psychotic disorders who make false confessions. In this particular case the history would suggest that this man may have genuinely held a belief about an event, that belief being untrue and to which he has subsequently, truthfully, that is to the best of his ability, confessed to. I do have concerns about the reliability of the record of interview; not about its truthfulness, but its accuracy.”

21 As I indicated, counsel for the defence objects to the tender of the ERISP, having regard to a number of provisions of the Evidence Act. I shall consider each ground of the objection separately.

Section 85

22 Section 85 provides as follows:

“85 (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) in the course of official questioning, or
(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put, and
(ii) the nature of any threat, promise or other inducement made to the person questioned.”

23 It is plain that the ERISP was obtained in the course of official questioning. Accordingly, as the proceedings are of a criminal nature and the relevant evidence an admission s 85 must be considered. Subsection (2) provides that the evidence cannot be admitted unless the circumstances make it unlikely that the truth of the admission was adversely affected. Subsection (3) invites consideration of any condition or characteristic of the person who makes the admission including personality, mental or intellectual disability. The court must also have regard to the nature of the questions and the manner in which they were put during the interview.

24 Counsel for the accused points to the fact that the accused is suffering from the effects of alcohol and substance abuse which, in the opinion of the two psychiatrists, make his admission unreliable. It is submitted that, together with the apparent inconsistencies in the ERISP which would suggest that it could not be accepted, I should decline to admit it because these factors make it likely that the truth of the admission has been affected by the personality and psychiatric problems of the accused and, accordingly, the Crown has not discharged the onus which it carries having regard to s 85(2).

25 Section 85(2) was authoritatively considered by the Court of Criminal Appeal in R v Rooke, unreported, CCANSW, 2 September 1997 where Barr J said:

“I think that the expression ‘the circumstances in which the admission was made’ as used as in subs (2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the lain meaning of the words. Secondly, it follows because subs (1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under para (1)(b)). So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions - adversely to affect their truth - the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury.”

26 I acknowledge the discussion by Odgers in the informative text, Uniform Evidence Law, 4th ed, p 199 ff, but must, of course, apply the decision in Rooke in this case. I do so mindful also of the decision of Hidden J in R v Braun, unreported, SCNSW, 24 October 1997 and Higgins J in R v Taylor, [1999] ACTSC 47, 26 May 1999.

27 In the present case the accused’s questioning arose from his voluntary presentation at the Auckland police station where he agreed to a formal interview. There is no suggestion that that interview was other than scrupulously fair. Although the accused had consumed significant alcohol and cannabis during the course of the day, it is not suggested that he was intoxicated or unable to understand and respond to the questions he was asked. No doubt his long-term abuse of both substances gave him a tolerance beyond that of an ordinary person.

28 Although, by reason of his undoubted psychiatric problems there may be real doubt as to whether the accused was giving an accurate account of the events, there is nothing arising from the objective circumstances of the interview which would impact upon the truth of the admission.

29 In my opinion s 85 does not allow me to reject the ERISP. Whether the admissions should be accepted is a matter for the jury.

Section 90

30 Section 90 is in the following terms:

“90. In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”

31 The section is concerned with the circumstances “in which the admission was made.” In the present case as I have indicated, although those circumstances were unusual, the questioning process was voluntarily undertaken by the accused and in my judgment was scrupulously fair. My only concern about the process arises from the accused’s ingestion of alcohol and other drugs on the day in question. However, I accept the evidence of Det King that the accused appeared unaffected and observation of the ERISP itself raises no concern in this respect.

32 The Crown submitted that if I came to the view that the evidence was unreliable, I could reject it for this reason alone, having regard to the decision of the High Court in R v Swaffield, and Pavic v The Queen (1998) 192 CLR 159.

33 The accused submitted that, having regard to the mental instability which has been identified by the doctors and the real possibility that the accused has fabricated the events in his own mind, I should conclude that the admissions are unreliable and it would be relevantly unfair to allow them into evidence.

34 I do not share the view inherent in the submissions of both the Crown and the accused. Swaffield and Pavic were concerned with the circumstances where the process of eliciting the admission brought about an unfairness. That is not the position here.

35 Although a circumstance may arise where evidence is so unreliable that no account should be taken of it, neither mental illness nor intoxication dictate its exclusion. (see Sinclair v The King, [1946] 73 CLR 316). It remains for the jury, appropriately instructed, to determine the weight, if any, which should be given to the admissions.

36 In the present case, although I have considerable reservations about whether the admission alone could be the basis for a conviction, I cannot conclude that it is so unreliable that no weight could be given to it.

37 For these reasons, I cannot conclude that it would be unfair, in the relevant sense, to allow the ERISP into evidence.

Section 135

38 Section 135 provides:

“135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.”

39 Reliance was placed by counsel for the accused on s 135(b) and (c). The submission with respect to (c) cannot be sustained. Whatever the time which may be consumed by the trial and whether or not an acquittal is inevitable, are not relevant considerations. The evidence is clearly relevant to the fundamental issue which must be determined in the proceedings.

40 I have already indicated that, in my opinion, the evidence contained in the ERISP is burdened by internal inconsistencies and the medical evidence as to the acused’s psychiatric condition. Mindful of the discussion in Odgers about the meaning to be attributed to the term “probative value” for my part I would adopt the view suggested by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297:

“Probative value is defined in the Dictionary of the Act as being ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.’ That assessment, of course, would necessarily involve considerations of reliability. ‘Probative value’ is an important consideration in the exercise of the powers conferred by ss 135 and 137.”

41 Adopting that approach to the problem I have little hesitation in concluding that the ERISP has some, but little, probative value. However, I do not believe it has any capacity to mislead or confuse. Once instructed no doubt the jury will give the ERISP the weight which it believes it deserves.

Section 137

42 This section provides:

“137. In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

43 Having regard to my conclusion with respect to s 90 it will be apparent that I do not believe an objection under this section can be sustained. Although I am of the view that the ERISP has little probative value, once any question of its tendency to prove the alleged guilt of the accused is set aside (Papakosmas para 91, 98) no relevant prejudice can be identified.

44 It will be apparent that I have identified in these reasons the considerable difficulties in the Crown case if it depends (as I understand to be the position) almost entirely on the admission made by the accused in the ERISP. However, the weight to be given to the ERISP is a matter for the jury. There is no basis upon which I can exclude it from evidence.

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Last Modified: 12/13/2001