R v R Abokhalil

[2015] NSWDC 48

District Court

New South Wales

Medium Neutral Citation:	R v R Abokhalil [2015] NSWDC 48
Hearing dates:	12,13, 16/03/2015
Decision date:	16 March 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Criminal - Evidence: exclusion of electronic interview, admissions, 'guidelines' for mentally disabled suspects.
Catchwords:	Criminal – Application, exclusion of electronic interview, admissions,
Legislation Cited:	Evidence Act 1995 - ss 85, 90,138 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) - Part 9 Schedule 2 Mental Health Act 2007 - s 22
Cases Cited:	EM v The Queen [2007] HCA 46 Forster v The Queen (1993) 67 ALJR 550 R v Fernando [1999] NSWCCA 66
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Raja Abokhalil – Accused.
Representation:	Counsel: Mr P Hogan – Crown Mr R McCrudden – Offender Solicitors: Director of Public Prosecutions Macquarie Lawyers Burwood – Offender
File Number(s):	2013/288153

Judgment

Introduction

1. HIS HONOUR: The prosecution seeks to tender in its case against the accused Raja Abokhalil the recording of the interview conducted with him between 6.09am and 6.52am on 24 September 2013 shortly after the accused's arrest. The accused seeks the exclusion of that recorded interview and the related transcript primarily on the basis that the prosecution has not demonstrated that the truth of the admissions recorded within the document was unlikely to have been adversely affected given the circumstances in which relevant admissions were made (s 85(2) Evidence Act 1995). It is further submitted on behalf of the accused that the Court would exercise its discretion pursuant to s 90 Evidence Act 1995, or, alternatively, the discretion available pursuant to s 138 Evidence Act 1995, to exclude the contents of the interview.

Issues

2. The primary issue identified relevant to consideration of both s 85 and s 90 of the Act is that the accused had a history of mental instability and a long-standing intellectual disability which relevant police who dealt with him after his arrest and during the interview either knew about, or reasonably ought to have known about, or ought to have made inquiry about, in the circumstances of the matter.

3. The presentation of the accused, it was submitted, during the interview and certain admissions he made during the recorded interview gave suggestion of him being affected by prohibited drugs, particularly methylamphetamine. Particularly in circumstances where part of the Crown case against the accused was the presence of an ice pipe nearby to the vehicle in which the accused was sitting at the time he was first seen and spoken to by police, shortly after 3.30am on 24 September. These circumstances were either known to police, or ought to have been known to relevant police officers it was submitted.

4. It is also submitted that a certain disclosure by the accused during the early part of the interview rendered the possibility that the accused was a ‘vulnerable person’ within the terms of the Law Enforcement (Powers and Responsibilities) Act 2002(LEPRA) and the related Regulation of 2005.

The Voir Dire

5. A voir dire examination was conducted in which was tendered the recording of the interview, as well as the transcript of it as an aide memoire, with oral evidence from the arresting police officer, Senior Constable Zammit, and Detective Otley, who was the officer in charge of the investigation and who, with Detective Maher, conducted the questioning of the accused. As well I have had oral evidence from Mr Watson-Munro, a clinical psychologist, who assessed the accused, as I understand the matter on Monday 9 March through a telephone interview; as well as relevant statements of the two police officers and two reports prepared in 2013 by a clinical psychologist Dr Zoran Protulipac and another report prepared on 11 February 2014 by Dr Ivan Lakicevic, a psychiatrist.

6. As I earlier indicated, the accused had been arrested approximately two and a half hours before the commencement of the interview. It is clear from the evidence on the voir dire that the accused was known to Senior Constable Zammit. He was also known to Detective Otley. It would seem, without any great particularity provided to me, that the accused had a number of prior dealings with police. The evidence establishes that there were a large number of COPS entries relating to him, particularly at least on two occasions when action was required by police in accordance with s 22 Mental Health Act 2007.

7. That particular provision requires a police officer who finds a person within police custody, or in contact with police, who is mentally ill or mentally disturbed, to take that person to a declared mental health facility if the police officer believes on reasonable grounds that certain events may occur that may cause a danger to that person or the community, or it would otherwise be beneficial to the person's welfare to be dealt with in accordance with the Mental Health Act rather than in accordance with the law.

8. The evidence of the two police officers on the voir dire was that, firstly, in the case of Senior Constable Zammit, although he knew that the accused was a drug user and was aware that an ice pipe had been found near the vehicle where the accused was seated when arrested, he was unaware that the accused had used "ice" that night, that he had not checked any relevant COPS entries in relation to the accused, and that he was largely ignorant of any mental health issues from which the accused may have suffered in the past.

9. Detective Senior Constable Otley had known the accused since 2007. He gave evidence that he was aware of the requirements of s 22 Mental Health Act 2007. He was also aware that if the accused had been dealt with pursuant to that Act by officers at the St George Local Area Command, with which officers he was familiar, they would have been required to enter such matters in the COPS system (the Police data base for activities relating to investigations). The COPS system could have been checked at any time prior to the interview that he conducted with the accused. Although he himself did not check the COPS system before the completion of the interview because, in the circumstances as he understood them, he did not believe there was a reason to do so. He said that he did not know the mental status of the accused or any history that the accused had of dealings with the Mental Health Liaison officer attached to the Kogarah offices of the St George Local Area Command. He had never dealt with any mental health issues in relation to the accused. I accept this evidence. Nor had he ever had occasion to review COPS entries in the past, that is, prior to 24 September 2013, reflecting upon the mental health issues of the accused, if any.

10. The evidence established that in April 2012 and again in July 2013 the accused had been dealt with by officers of the St George Local Area Command, one of whom was the Mental Health Liaison officer, either pursuant to s 22 requirements or in relation to matters requiring hospital and medical examination of the accused as to his mental status at the request of the Community Corrections Service. Part of the material presented to the Court was a collection of hospital notes from the St George Hospital relating to the treatment of the accused for a variety of complaints, including committal to a mental health facility at the hospital on 8 April 2012, in December 2012, and again in July 2013 when the accused was "handled" by Sergeant Quinn, the mental health liaison officer to whom I previously referred.

11. In April 2012 the accused was detained for a period of time exhibiting aggression, paranoia, mood swings including crying, with a history of having previously absconded from the mental health facility at the hospital. In July 2013 the Community Corrections officer, whose emails are part of the hospital record, reflected his concern about the accused's lack of insight into his mental health, his risk to himself and others, his paranoia and his hostility. When he was treated in December 2012 the hospital records reveal that he was suffering what was understood to be a drug induced psychosis arising from polysubstance abuse and "amphetamine intoxication."

12. The evidence in the reports of the psychologist and the psychiatrist not called to give evidence is primarily concerned with the issue of whether the accused suffered from, in 2013, an intellectual disability. If so, the degree to which he may have been disabled. Dr Protulipac's report concluded that the accused had an intellectual disability for a long period of time, was “low” in intelligence, and was unable to maintain any program designed for him because these programs were beyond his level of comprehension.

13. The sources of information upon which he reached his conclusion were consultations with the accused for the purposes of preparing the report, six sessions of psychological therapy, and access to a number of documents including a report from Community Corrections and historical documents relating to his criminal history, his custody record, as well as what was said to be an "agreed facts" for a matter for sentence with which I am not concerned. I have not been provided with that material but I understand in general terms what that material may be.

14. The only psychometric testing undertaken by the psychologist, however, were the Beck Depression and Anxiety Inventories. He said that what would distinguish the accused's mild intellectual disability from a more severe form was his reasonable ability to appreciate the outcome of planned actions.

15. The psychiatrist, Dr Lakicevic, with access to more presentence reports than the psychologist, criminal histories, as well as Dr Protulipac's psychological report, having conducted a clinical examination, came to the conclusion that the accused had a "substance use disorder", a “dysthymic disorder” and was of “subnormal intelligence". He had no access to any results of psychometric testing for intellectual and cognitive ability and considered the diagnosis of intellectual disability, as he expressed it, as being based upon a history of poor academic achievement and poor comprehension and his performance on what he described as "cognitive testing," which I take must have been either the Beck Inventories conducted by the psychologist or the Mini-Mental State Examination (MMSE) which he undertook.

16. The Mini-Mental State Examination is well known to be a shorthand method of getting what could be called a preliminary impression or assessment of a person's cognitive and memory capacities. It is certainly not an exhaustive cognitive test. From that latter examination, in the psychiatrist's view, the accused showed cognitive impairment in relation to memory and attention and also showed deficits in "frontal lobe testing". He was assessed on what the psychiatrist described, without explaining, as a "Global Assessment of Functioning" as having a score of 60 to 70, signifying "mild to moderate impairment and symptomology." He said the accused had basic literary skills and had a history of work in the past but that his overall social performance was indicative of "moderate to mild intellectual impairment."

17. I am mindful of the fact that the psychiatrist also recorded a history of symptoms and behaviours suggestive of depressive illness, which led, I assume, to the assessment of the presence of a 'dysthymic' disorder.

18. Mr Watson-Munro, as I earlier indicated, prepared a report but also gave evidence. The report was primarily based upon a telephone conversation with the accused of relatively short duration. It included, in an overall 30 minute period, about 10 minutes of abbreviated verbal testing which might be described as cognitive assessment or a comprehension assessment which was all that was permitted having regard to the conditions of the interview.

19. His conclusion was that the accused suffered from an intellectual disability. He based that opinion upon the presentation in the interview, which was by telephone, although he did say in oral evidence it was confirmed by his meeting of the accused outside this Court last Friday; the accused's response to testing and the correlation of the findings he made on his own examination with that of previous reports. He noted the difficulties of the accused throughout his life in education attainment and employment. He noted poor comprehension in the testing and he also noted that the low level of cognition that he believed the accused was to be assessed in the context of the history of drug use. He referred to what he described as "the poor answers provided in the police record of interview." In that regard, as I understood his evidence, he had access to four pages of the transcript of the interview, not the entire interview. It is an assessment with which I could not agree in a global or detailed fashion having seen the interview and having regard to the full transcript of that interview.

20. I note in this regard that he obtained from the history given by the accused a claim of "no memory of part of the police interview" that was provided to him to consider. This aspect of the history in my view is not reliable.

21. The accused also claimed to Mr Watson-Munro that he had ingested between 0.5 to a gram of "ice" prior to the interview occurring, although it would appear Mr Watson-Munro did not actually record at what time this quantity of ice had been ingested. The history of "ice" consumption given by the accused in the interview at Q 322 is in my view at odds with the history that he gave to Mr Watson-Munro. He said in the course of the interview, that he and his brother had used "2.2 each" without further particulars.

22. It was posited by Mr Watson-Munro that his history of drug usage, including reference by him to the hospital records that he saw before he gave evidence that I have read in detail, had to be considered in the context of the findings of a paper by Dr Mary Holley published in the North Dakota Law Review of 2006. This article, which I believe I have seen before, reflects upon brain damage caused by the use of amphetamines through three major mechanisms that are set out in Part II of the paper. The effect upon amphetamines upon pre-existing mental illness and the restriction upon cognitive ability, attention span and emotional stability by methylamphetamine addiction over a period within 12 months after an "addict" ceases methylamphetamine use.

23. The paper reflects on physiological examination of brain damage through scans and the like caused by the use of methylamphetamines. It essentially urges sentencing officers in the United States, probation authorities, corrective services and those administering and supervising death penalty cases to reflect upon the long term damage caused by amphetamine use and its relevance to criminal behaviour. In her paper she pointed out that the extent of damage is very much a matter of degree depending upon usage, the period of time of usage, the intensity of usage and the like. I read that paper with interest. It provides some information that was not known to the Court but largely its relevant findings seem to me to be either uncontroversial well known. It is not of real significance in resolving this matter.

24. It must be said that in this particular case I have no detailed history of amphetamine use in the immediate period of time prior to the interview being undertaken or long term. But I do note, of course, the significant entries in the St George Hospital notes reflecting upon the effects of amphetamine use, particularly in April and December 2012.

25. Mr Watson-Munro accepted in his oral evidence that his testing was limited. It did not reflect the full psychometric testing, which is self-evident, and his opinions were in part based upon glimpses of history provided by the accused in conjunction with the opinions held in other reports. He accepted and noted that he did not have any school records or contemporaneous records to support matters of history provided by the accused. The time for a telephone assessment was limited. There were no comprehensive actuarial tests available to him, particularly tests undertaken when the accused was at school, although he was aware of the hospital records to which I have earlier referred.

26. So far as the relevant legislative provisions relevant to the consideration of this matter, I was taken, from the perspective of the accused, to a number of matters. Putting aside the relevant provisions of the Evidence Act to which I briefly made reference, I was taken to LEPRA, particularly the definitions section, s 3, s 109 setting out the ‘Objects’ of Pt 9 of the Act and particular provisions within Pt 9, a very important Part as it relates to police investigation, detention and questioning of suspects, specifically ss 122, 123 and 129.

27. With regard to the Regulation the Court was taken by the defence to Pt 3, Div 1 and Div 3. Particularly within Div 3, Regulations 23 to 34. The Crown very helpfully took the Court also to Schedule 2 of the Regulation, particularly Pt 1 para 3 to which I will refer in a moment.

Submissions

28. I was assisted by detailed written submissions by counsel for the accused and oral submissions by him and from the learned Crown Prosecutor. In summarising the written submissions of the accused, bearing in mind of course the evidence on the voir dire included other material that had previously been tendered, including most notably exhibit 4, the Custody Management Record prepared by a custody manager who had first assessed the accused on his arrival at the Kogarah Police Station, it was submitted that up until an early part of the electronic interview the position of the accused was not "exceptional," having regard to the relevant requirements that LEPRA places upon relevant custody managers.

29. For the purposes of this voir dire examination it was submitted, and I did not hear the Crown to demur, that by reference to the definition of "custody manager" in the Act it could be said that not only was the custody manager Sergeant Bennie who completed the Custody Management Record, but also Senior Constable Otley and/or Maher, because at relevant times each of these officers had the care and management and care of the accused within their thrall.

30. The written submissions make reference to the requirements of s 122, but in the context of the obligations of Sergeant Bennie, and particularly the entries made relevant to this accused in the Custody Management Record, no special obligation fell upon Sergeant Bennie, given his recorded observations of the accused of that time.

31. The critical matter, however, it was submitted in the written submissions, and this is very much a summary in an attempt to extract the essence of those submissions, arose in the context of questions 31 to 34 of the questions recorded in the transcript. Question 31 reads relevantly:

“...And what do you do for work?

A. Looking for a job, MTC and that.

Q32. Okay, is that traffic management?

A. The mental health sends me there.

Q33. Okay.

A. Upstairs just to look for a job up there.

Q34. Which mental health clinic do you go to?

A. ...And it's under Mental Health Act, 22, number 22.”

32. I should also cite, for the purposes of this judgment ,question 35, the officer’s next question :

“Q. Okay. It's been alleged that at about 2.55 on Tuesday 24 September 2013..etc.”…

when the general allegation of a robbery having been committed is put.

33. It is submitted on behalf of the accused that at that point the interview should have been terminated for the reasons set out in paragraph 12 of the written submissions filed on behalf of the accused. Such inquiries as are suggested could have been made would have permitted the protective requirements of provisions of LEPRA and the related Regulation to be considered and, if need be, invoked. This could have led to the termination of the interview completely or a suspension to arrange the presence of a support person that is permitted under the Regulation in respect of a vulnerable suspect. This may have ultimately caused the interview to take a different course, which at that stage, at question 34, had primarily dealt with personal matters and formal matters but not the substance of the allegations against the accused.

33. In the submissions filed on behalf of the accused complaint is made that the evidence suggests, based upon the account given by the accused to the police at Q 55, that he, the accused, did not have reasonable rest before being interviewed. Further, there is complaint that the accused, in the circumstances in which he presented himself, had not been given medical attention as may be required by s 129 LEPRA, flowing amongst other things, it was said, from Constable Zammit's observations of the accused, the indicia of drug use by the presence of the drug pipe and, if need be, the knowledge of either Mr Zammit or Mr Otley of the accused's background in the context of the hospital records relating to the accused's prior contact with police.

34. Further, it is submitted that the Court could not be satisfied that the rights of the accused were understood by him or objectively explained to him properly in the circumstances, particularly noting the Objects of Pt 9 include, as set out in s 109(c), providing for "the rights of the person detained."

35. In that regard it is submitted, having regard to the psychological and medical evidence, in the context of the submission that relevant police were aware of his drug use in the past and his use of prohibited drugs some time shortly before his arrest, the accused would not have had the capacity to understand or comprehend the rights he had not to be interviewed, would not have understood any caution administered and had no capability of exercising his rights as afforded by Pt 9 of the legislation.

36. These matters, it was submitted, were pertinent to the test of admissibility arising in s 85(2) Evidence Act 1995.

37. Admissions are an exception to the ‘hearsay evidence rule’ in the Evidence Act. In a criminal proceeding an admission made by an accused person to an investigating officer in the course of the investigation of the commission or possible commission of an offence, amongst other matters, is not admissible unless the circumstances in which the admission was made was such as to make it unlikely that the truth of the admission was adversely affected. This means that if issues arise in relation to consideration of s 85(2), the prosecution must establish that the circumstances in which the admission were made were such as to make it unlikely that the truth of the admission was adversely affected.

38. Further, it is submitted that all these matters need to be assessed in the context of the wider New South Wales Police Code of Conduct and Ethics and the Code of Practice for CRIME, that I need not dilate upon.

39. The court was also taken to extracts of the decision of the High Court in EM v The Queen [2007] HCA 46 particularly at [109] in the observations of Gummow J and Hayne J and the observations of Giles J in an uncited case at [54] and [58].

40. The oral submissions of counsel for the accused concentrated on the proposition that the accused's history of drug use, admissions of recent drug use, references to "22" and "mental health" in the interview, the interviewing officers knowledge of him in the context of the psychiatric and psychological assessments and medical histories, the contact with other police and the like ,should have at least caused the interview to be suspended at Q 34 and that what followed either had a taint of unreliability such as to warrant exclusion pursuant to s 85(2) of the Act or constitute an unfairness to warrant exercise of a discretion available pursuant to s. 90 of the Act.

41. The Crown very helpfully submitted that the issue of the intellectual disability was a matter of degree and even if the accused was relevantly on the evidence "a vulnerable person" within the meaning of the Act and the Regulation, this could only lead to an arrangement for a support person to be organised and would not affect the integrity of the interview given by the accused.

42. The Crown pointed out as I had discussed earlier with counsel for the accused that Reg 24 of the Act, which refers to vulnerable persons, including "a person who has quite impaired intellectual function" which is the particular aspect of the matter raised by the accused, does not include a person "whom the custody manager reasonably believes is not a person falling within any of those categories".

43. It is submitted that Sergeant Benny, the initial custody manager and then Detective Otley as "a custody manager” for the time being could not be said to have a reasonable basis for concluding that the accused was a vulnerable person all matters taken into account having regard to the evidence.

44. It is submitted by the Crown that on - if I could call it using my words - the empirical evidence, that is in the contents of the interview itself and on the unsatisfactory character of the medical and psychological evidence, there was no reasonable basis objectively and certainly none arising from the understanding of, for example Senior Constable Otley, in circumstances of the interview that there was no reasonable basis to conclude that he was vulnerable person or that the circumstances of the interview such that his condition was likely to affect the truthfulness of the admissions made by the accused.

45. The Crown said that the ‘Guidelines’ of the Schedule of the Regulation demonstrated that the conduct of the police was reasonable. There was nothing in the evidence to show that the accused satisfied any of characteristics of a person who would warrant further inquiry or which would flag concern, particularly having regard to Sch 2 setting out "Guidelines for custody managers and other police officers".

46. Those particular ‘Guidelines’ provide that, in considering whether a detained person has total or partial loss of his or her mental function or a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, the custody manager for the detained person should have regard to whether the person appears to have difficulty understanding questions and instructions; to respond inappropriately or inconsistently to questions or have a short attention span, or receives a disability support pension or resides at a group home or institution or is employed at a sheltered workshop or undertakes education, or has been educated at a special school or special education classes at a mainstream school, or has an inability to understand a caution given to the person under s 122 of the Act.

47. The Crown says that is when one has regard to those Guidelines even if one were to accept them as being inclusive not exclusive as clearly they must be, the accused could not be said to satisfy any of those matters. There was no evidence that the accused was on a disability support pension and the contents of the interview speak for themselves. The accused was not subject to any special educational or other arrangements.

Consideration

49. The submissions made in the written submissions, although not particularly pressed in the oral submissions, about the conduct of the initial custody manager who prepared the custody record and what he may or may not have done pursuant to Pt 9 particularly by regard to s 122 and the endeavours to ensure that the accused understood the caution, in my view, failed in limine, having regard particularly to the Custody Management Record itself. In any event, the custody manager who prepared that record was never requested to attend to give evidence and to explain any potential shortfalls or gaps said to arise in the circumstances of the case but which are not contained within the record. The record in its terms shows no basis for concern particularly having regard to the Guidelines to which I have earlier referred. Nor is there any basis to conclude, notwithstanding that the accused stated he had been awake for eighteen hours until 6am ,that the accused required a rest period in accordance with the relevant Pt 9 obligations.

50. I might compare this accused's presentation to that of Mr Youssef in his interview. The accused was alert and alive and perhaps a little hyperactive it might be said and I hasten to say in some part from methylamphetamine use. But that of itself, is not significant.

51. The presentation of the accused during the course of the interview and the Custody Management Record demonstrate that the accused was alert. In the interview he was aware of his surroundings and he was able to answer questions put to him in a reasonably direct fashion. I also note, as I must, in the course of the interview the responses given by the accused in regard to the formal questions obliged under Pt 9, at the beginning of the interview and the final questions asked of him, both by him and the interviewing police and then the "independent officer“.

52. Although the accused did not have any difficulty, in my view, understanding questions and instructions on the evidence of the interview, it might be said there may have been some inconsistency to questions, some slight inappropriateness of expression from him on occasions, although that was not to a major extent. It may be said also that aspects of his responses might reflect some short attention span.  But those matters in my view were not decisive and if they stood alone would not provide a basis for exclusion.

53. Ultimately, the evidence demonstrates that there was nothing exceptional about the conduct of Senior Constable Zammit or of Senior Constable Otley up until the commencement of the interview and in the general conduct of the interview save for a one material matter. There was nothing exceptional about the conduct of the original custody management officer.

54. In relation to Senior Constable Zammit's evidence, there was no admission or statement made by the accused to explain his connection with the "ice pipe" and there was no evidence available to Mr Zammit as to who used it and when.

55. In any event, the accused later told the interviewers as earlier explained, particularly at Q. 322 that he had used methyl-amphetamine, as I understand it, late that previous evening.

56. I accept however on the totality of the evidence that it has been established on balance that the accused has an intellectual disability that has existed most likely during his life and certainly is not initially attributable to the methylamphetamine use, although it may possibly have been aggravated to some degree by the use of that drug. But I have no particular evidence beyond the matters set out in Dr Holley's paper.

57. However, the psychological evidence and the psychiatric evidence, such as it is, is not specific enough nor empirically precise enough to establish the extent of that disability. It may be, "slight" or "mild" or "borderline", but the totality of the evidence establishes that the accused was at the time “intellectually impaired”. Accepted and well known methods of assessing the level of intellectual functioning and rating a particular person within a particular age group in a range of cognitive and other intellectual functions was not undertaken. Ultimately it might be said that the opinions of each of the experts are impressionistic, limited to a large extent of the history dependent upon the truthfulness and reliability of the accused. A dangerous course for example with a person who has a proven intellectual disability I hasten to say. I note his clinical presentation in the 2013 reports and more recently to Mr Watson-Munro who conducted what was an inadequate and incomplete psychometric examination. I am not criticising any of these reporters but this is just the bold fact of the matter and it denies the Court information within the expertise of the psychologists to point to what could be called "an objective evidence" that can assist the Court to make a more precise conclusion.

58. In relation to Mr Watson-Munro, I noted in his assessment of the accused, he described him at the commencement of the report as being "quite intellectually dull". However this comment could only have been based, at that point of writing, upon the telephone conversation he had with him. There are dangers to be had with having telephone interviews with people just as there are dangers to be had with having one on one interview with people, as the case of Bill Bayeh demonstrated through the evidence of the Royal Commission into the NSW Police Service. Ultimately, having regard to the evidence of Mr Watson-Munro of his contact with the accused last Friday, I am satisfied that it was the accused to whom he spoke.

59. He may have given the same "quite intellectually dull" appearance to police officers with whom he dealt with, particularly Detective Otley, but Detective Otley could not be said or could be expected to have the clinical skills required to reach any firm conclusions on this matter through brief face to face meetings or in any past experience of him. In general terms, I accept the evidence of Detective Otley about his extent of the contact with the accused. Neither were the police qualified to assess his level or method of communication, which, as I would understand it from my limited understanding of the accused's background could well be affected by cultural issues and limited educational opportunity. To my mind, in the context of my understanding of the character of psychological examinations for a number of years as a judge and then before that as a lawyer, Mr Watson-Munro's testing on only limited verbal subsets is made less reliable by what I perceive to be educational attainment and cultural matters. Of course, the education of the accused, the history of which I do not doubt may well be greatly influenced by his intellectual disability.

60. As I said earlier, the interview itself shows that the accused was able to understand the questions asked of him by police and he appeared to give coherent account of himself, admittedly in a pleading, sometimes emotional manner, begging to be believed in the context of him clearly understanding that he was being interviewed about a serious matter. He clearly understood that he is arrested in compromising circumstances.

61. I understand on the evidence with no detail provided that he would have been concerned further because of his apparently regular recent contact with police in relation to other unrelated matters. There is no evidence that Constable Zammit or Detective Otley reviewed COPS records before the interview was conducted or that they had any specific knowledge of mental health issues before the interview commenced. No evidence exists of them having any connection with the matters the subject of s 22 Mental Health Act, actions by police officers.

62. Nothing arises from Exhibit 4 to suggest that the custody manager would, on the basis of the responses that he recorded, be enlivened to consider the impact of Regs 23 to 34, within the terms of the Guidelines under Sch 2, or for other reasons. It would seem that there was nothing about the accused that would have prompted concern. There was nothing about the accused's status with government benefits that would have prompted concern given that he told one of the psychologists in 2013 that he was in receipt of Centrelink "New Start" allowance, which is not a disability pension.

63. However, as to the interview itself the reference to s 22 Mental Health Act by the accused was a matter that required consideration from the officer. He in fact gave evidence about this aspect of the matter.

64. In the cross-examination of him by Mr McCrudden, this is what occurred at p 63 of the evidence of 12 March 2015:

“Q. Having regard to the fact that Raja had indicated to you that he was operating pursuant to s 22, is there any reason you didn't stop the interview to investigate that aspect?

A. When someone mentions to me that they are mentally ill I like to ask them further questions and see what their responses are to see if they are coherent. I have dealt with mental health for seven years, both on and off work, and I don't believe that Raja at the time was under any form of mental illness?

Q. You said you would like to ask a few more questions to determine the lay of the land, as it were?

A. I continued with the interview and assessed him as the interview continued.

Q. In carrying out that assessment you weighed up the for and against in relation to whether or not he appeared to you to have any sort of mental illness?

A. Yes, he was obviously visually upset in the interview but that's what Raja is like when he's in custody."

65. That may be all well and good, but there lies the nub of the matter in the context of what I have earlier pointed out. After being told about the relevance of "mental health 22" the police officer pressed on questioning the accused about the very subject matter of the investigation. I appreciate that in the difficult tasks that he performs as a policeman no doubt he has dealt with many people that he subsequently discovered, or has viewed at the time, to be suffering from some form of mental illness or mental disability. But he provided no evidence to me of having any particular clinical skill or even qualification to assess the impact of a mental illness or a disability, intellectually or otherwise, upon a person's capacity to do justice to themselves or to understand precisely what is going on.

66. Most importantly in this matter, on his own account, he said he was ignorant of the actual medical and/or mental health condition of the accused but, importantly, he knew the implications of the action under s 22 Mental Health Act. He determined, as he said in his evidence, that he was satisfying himself on those matters by further questioning the accused about the subject matter of the investigation, as I would understand it, in order to conclude whether the accused was fit to be interviewed and required any protection or consideration in accordance with Pt 9 of LEPRA and the Regulation concerning people that were relevantly "vulnerable".

67. I do not mean to be at all critical of Mr Otley doing a difficult job, trying to deal with the three accused suspects, they having been recently arrested in relation to a recently conducted crime, but with respect, on his account, he put the ‘cart before the horse’ so to speak. The approach he took precluded doing precisely what the legislation and the Regulation are specifically enacted to require. What he did involved taking a course that can only be taken when all relevant protections under the Act or Regulation have either been provided or considered and discounted. Mr McCrudden drew my attention to the Objects of Pt 9 of the Act in s 109. He took me to a consideration of the general ethical considerations that obviously permeate police work. These matters arise that from this legislation are not there by chance. This legislation was introduced ultimately to provide both protection to police and suspects and was legislation ultimately created in the wake of the Wood Royal Commission into the Police and brought an end of course to the heinous practices of verballing and to some extent other matters of which a great deal of evidence was given before the Royal Commission for which there was then no legislative protection.

68. On Mr Otley's own account, having been alerted that the accused had some connection with s 22 Mental Health Act, a section that is concerned with the responsibility of police officers, he could not know at that point that the accused did not have a mental illness that was chronic or did not have a mental disorder that required medical treatment or had some other conditions that otherwise would mandate the need for a support person or, most importantly, to assist the accused to ensure that he understood his rights. Nor was he in a position to understand whether the special measures, such as provided for in s 122 of the Act, would be implemented. The legislative purpose and intent of this provision was not observed simply by continuing to ask questions and assuming that incriminating answers or admissions were in fact reliable or were given in full understanding of the right to remain silent. Given that the inquiry on COPS, if it had been made at that point, would have revealed specific matters that were flagged on the computer system, as I understand it, relevant to “s 22” action and given a later admission of the ingestion of amphetamines by the accused prior to the interview, although the accused does not give the appearance of intoxication or psychosis, the failure to stop at Q 34 and consider the situation to determine whether the implications of Regs 23, 24, 25 and 26, were satisfied was a substantial failing on his part. If he had done so he would have been required to take appropriate action to ensure fairness in the interview situation. As it was he permitted himself to ask further questions of the suspect who objectively was "a vulnerable person", because he was "intellectually impaired" to some extent at that time and may have had other mental disorders at the time now undetectable.

65. In considering the matter I have examined the contents of the interview of the accused and his manner and demeanour in answering the questions. In the context of what I understand to be other evidence in the Crown case, I have satisfied myself that the prosecution has discharged the obligation upon it that arises under s 85(2). The accused's responses may be partially exculpatory of the particular allegations that arise given, as I would understand it, some objective features of the Crown case.

66. However, whilst the reliability of the subsequent answers by the accused after Q 34 are not impugned or are unlikely to be impugned by his apparent condition at the time, I regard the failure to do what the spirit of Pt 9 and the particulars of the Regulations required, that is to provide protection to a ‘vulnerable person’, rendered the subsequent questioning of the accused to be unfair and to warrant exercise of the discretion to exclude the contents of the interview. Reliability of the answers may have been affected in any event by intellectual disability, ingestion of drugs or underlying mental disorder previously treated. But it would seem to be not to do so on balance. However, reliability is not critical to the exercise of this function. This was discussed in the common law context in Forster v The Queen (1993) 67 ALJR 550 (at 554-7).

67. The consideration of s 90, in the context of understanding past common law principles relevant to the “fairness discretion” has been had by a number of courts, particularly the High Court in EM v The Queen [2007] HCA 46. I bear in mind the observations of the Gummow and Hayne JJ at [109] of that case and also the observations of the Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 at [30]. There are also observations about the width of meaning of s 90 by Gleeson CJ and Hayne J in EM, particularly in para [56]. This is not a case where the police were taking advantage of the accused's stupidity about which Gleeson CJ and Hayne J spoke at [77] in EM: It is not a case of "deliberate deception". It is a case in my view of being put on notice of a relevant matter then failing to examine and consider the protection that LEPRA and its Regulations permitted and, if need be, required. I might point out also, being put on notice of relevant matters, quite inadvertently by the accused, that required further inquiry (see EM at [112]).

68. It may be said that the admissions that the accused made, could be seen as exculpatory, particularly in relation to count 2, the alternative count. There may not be any ready admission of knowledge of material facts essential to the proof of guilt. This is very much in the thrall of the trier of fact. But this is not a matter that ultimately warrants, in my view in the consideration of the exercise of a discretion, the admission of the interview given its potential to prove matters relevant to the counts in the indictment if admitted. The account given by the accused, if admitted, could be rejected by the tribunal of fact material having regard to the other evidence which is available to establish his guilt on the Crown case.

69. It must be said that proof of guilt in relation specifically to count 2 is not dependent necessarily solely and substantially upon the contents of the interview. This is certainly a matter for the triers of fact. The facts of the matter are, however, that objection was taken to it and in the context of the evidence available to me on the voir dire I have concluded, in exercise of that discretion, I should exclude it.

70. In my view there is thus no need to consider the terms of s 138 Evidence Act 1995.

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Decision last updated: 21 April 2015