R v SAUNDERS (No 1) - [2022] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SAUNDERS (No 1)
[2022] SADC 21
Reasons for Ruling of his Honour Judge Soulio (ex tempore)
19 August 2021
CRIMINAL LAW
Accused charged with aggravated serious criminal trespass in a place of residence, and two counts of theft - accused was interviewed by police and made certain admissions - application to exclude the interview on basis of accused's level of intellectual function - preliminary decision as to whether appropriate issue for determination prior to trial.
District Court Criminal Rules 2014 (SA) r 49, referred to.
R v Pfitzner (1996) 66 SASR 161; Morris v The Queen (1987) 163 CLR 454; R v Starecki [1960] VR 141; Klemenko v Huffa (1978) 17 SASR 549; Sinclair v The King (1946) 73 CLR 316; R v Collie & Ors (1991) 56 SASR 302, considered.

R v SAUNDERS (No 1)
[2022] SADC 21

The accused is charged with aggravated serious criminal trespass in a place of residence, and two counts of theft arising from an incident on 31 March 2020 when, it is said, he entered a house at Royal Park when the lawful occupants were present and there stole various items. He gave an interview to police in which admissions were made.
There is an application brought pursuant to r 49 District Court Criminal Rules to exclude the interview.
One of the grounds encompasses the questions of whether the accused suffers from reduced intellectual functioning such that he is vulnerable to confabulate or to make false admissions; whether the admissions made in the interview were false; and whether the interview should be excluded on that basis. The application relied in part on the evidence of Dr Fitzgerald, a neuropsychologist who had assessed the accused.
This ruling is on the preliminary issue as to whether the exclusion of the record of the accused’s interview on that ground is an appropriate issue for determination prior to trial, and whether I should hear evidence as to the accused’s level of intellectual functioning at all.
Counsel for the Director of Public Prosecutions (‘DPP’) made the submission that the question of whether the interview should be excluded on that ground should not be considered as a pre-trial issue. Rather, the issue ought be left for the trier of fact on the basis that the evidence proposed to be called on the pre-trial application could be led before the trier of fact, whether judge or jury, in order to determine whether any, and if so, what weight should be attached to the admissions.
Counsel for the DPP relied on the decision of the Court of Criminal Appeal in this state in R v Pfitzner,[1] where the court was considering, amongst other things, whether the interview in that case should have been admitted in circumstances where the accused's admissions were said to be made as the result of a voice telling the appellant what to say to police, or a dream he had had indicating to him what he was to say to police. In that case there was expert psychiatric and neuropsychological evidence to the effect that the appellant suffered psychotic symptoms; that the interviews were thought-disordered, contradictory, and provided distorted descriptions; that the appellant was repeating beliefs he had come to hold when psychotic; and that it was difficult to tell how much of what he had said was based on recollection of factual events and how much was a product of his own mind.
[1] R v Pfitzner (1996) 66 SASR 161.
In considering the appeal there, Doyle CJ said:[2]
In my opinion it is clear enough from this that the presence of a mental disorder which makes it possible that a confession is unreliable, in the sense that the mental disorder is such that one cannot accept it as intrinsically likely to be true, is not sufficient to render a confession inadmissible. That is a matter which goes to weight, and obviously involves a consideration of the terms of the confession and, most importantly, the extent to which the contents, of the confession are confirmed by independent proof of the events to which it relates.
[2] R v Pfitzner (1996) 66 SASR 161 p 177.
He went on to say:[3]
It also seems to me that the tenor of the judgments is that it will only be in an exceptional case that the confessional statement will be excluded, and that ordinarily one would expect issues of unreliability to be dealt with by the jury in deciding the weight to be given to the confession, rather than by the judge in making a decision to exclude the confession.
[3] R v Pfitzner (1996) 66 SASR 161 p 177.
Doyle CJ said that he was not aware of any later case law taking the matter any further. He referred to Morris v The Queen,[4] R v Starecki,[5] and Klemenko v Huffa,[6] all of which referred in turn to the judgment of Dixon J in Sinclair v The King.[7]
[4]     Morris v The Queen (1987) 163 CLR 454.
[5]     R v Starecki [1960] VR 141.
[6]     Klemenko v Huffa (1978) 17 SASR 549.
[7]     Sinclair v The King (1946) 73 CLR 316.
In R v Collie & Ors[8] King CJ had also referred to the judgments of Latham CJ and Dixon J in Sinclair v The King, and had prefaced his reference to those judgments saying:[9]
The fact that a confessional statement is made by a person who is suffering from schizophrenia, or is otherwise of unsound mind, does not necessarily render it inadmissible nor require that it be excluded in the exercise of the judge's discretion. The judge must consider whether the accused person was so mentally deficient at the time of the statement that its admission into evidence would be unfair to him.
[8] R v Collie, Kranz & Lovegrove (1991) 56 SASR 302.
[9] R v Pfitzner (1996) 66 SASR 161 p 178.
Doyle CJ went on to consider the facts applicable in R v Pfitzner. He referred to the assessment of Dr Raeside of the appellant in that case. Doyle CJ said:[10]
In this respect the condition of the appellant seems to have been worse than was that of Sinclair, and the evidence goes beyond a mere possibility that the appellant's condition makes it possible that what he said was unreliable. Indeed, in a passage of evidence already quoted, Dr Raeside said that he would place ‘little credence’ on what the appellant was saying and would ‘seek corroborative evidence’ of what he said. And Dr Raeside said he thought that the appellant did not know if he had killed his mother.
[10] R v Pfitzner (1996) 66 SASR 161 p 178.
Doyle CJ described that evidence as troubling. He said the case for exclusion was stronger than it was in Sinclair:[11]
The evidence suggests to me that the appellant's statements were in fact unreliable, but the trial judge, who had the benefit of hearing and seeing the witnesses, did not so find. As well, I must remind myself, there are portions of interviews which exhibit no bizarre features and which were supported by other evidence, and this indicates that the appellant was not in fact generally incapable of distinguishing fact from illusion or delusion, not generally incapable of telling the truth. … Dr Raeside did not say that what he said could not be believed, he said he would seek corroborative evidence, although he did say that in the context of saying he would ‘place no reliance’ on the appellant's testimony.
[11] R v Pfitzner (1996) 66 SASR 161 p 178.
Doyle CJ reminded himself of Dixon J's observation in Sinclair that the tendency in the law is not to include testimony as incompetent, but to admit it and to leave it to the tribunal of fact to determine its weight.
He concluded:[12]
In the end, with some hesitation, I have reached the conclusion that I cannot say that the trial judge was wrong in finding that the appellant's state was not such that the evidence of the interviews should have been excluded on the grounds of unreliability.
It follows that, whether Sinclair is an example of the operation of an exclusionary rule or an example of the discretion to exclude a statement because its use would be unfair, I am not able to say that the judge was wrong in the present case. Even if a discretion is invoked, the factual basis for its exercise was not established.
[12] R v Pfitzner (1996) 66 SASR 161 p 179.
What that that means, in terms of the present case, it seems to me, is that the determination of whether this case is one which is so exceptional as to justify the exclusion of the interview, rather than leaving the assessment of the weight of the evidence to the trier of fact, in this case a jury, is that an inquiry is required and that I ought hear the evidence of Dr Fitzgerald on that topic before determining whether the discretion is enlivened and whether it should be exercised.