R v Smith - [2002] WASC 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- SMITH [2002] WASC 78

CORAM: WALLWORK J

HEARD: 29 & 30 JANUARY, 5 & 6 MARCH 2002

DELIVERED : 12 APRIL 2002

PUBLISHED : 9 JULY 2002

FILE NO/S: INS 148 of 2001

BETWEEN: THE QUEEN
AND
KELLY LOUISE SMITH

Catchwords:

Criminal law - Voir dire - Video interview - Accused in hospital - Had recently given birth - Psychological denial of pregnancy - Whether fair to admit video interview into evidence - Decided on facts

Legislation:

Nil

Result:

Video interview not to be admitted into evidence at trial

Category: A

Representation:

Counsel:

Applicant: Mr P D Yovich
Respondent: Mr J G Kitto

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Kitto & Kitto

Case(s) referred to in judgment(s):

Cleland v The Queen (1982) 151 CLR 1
R v Ostojic [1978] 18 SASR 188
R v Swaffield (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
Sinclair v The Queen (1946) 73 CLR 316
Van Der Meer v The Queen (1988) 62 ALJR 656

Case(s) also cited:

DeClercq v The Queen [1968] SCR 902
Frijaf v The Queen [1982] WAR 128
Kelly v The Queen (1994) 12 WAR 405
R v Ostojic [1978] 18 SASR 188
R v Parker (1990) 19 NSWLR 177
R v Semyraha [2000] QCA 303
Sell v The Queen (1995) 15 WAR 240
Wong Kam-Ming v The Queen [1980] AC 247

WALLWORK J: These are reasons for judgment after the hearing of a voir dire concerning a video record of interview which was conducted with Miss Smith whilst she was in hospital on the 1 July 2000.
It was submitted for Miss Smith that to allow the video recorded interview to be admitted into evidence would be unfair to her due to her alleged impaired physiological and mental state at the time the video interview was conducted. At the time of the video recording Miss Smith was 20 years of age. She had never previously had any dealings with the law.

Background

On the 30 June 2000 Miss Smith was too ill to go to work at the Beverley Hotel. At 1.45 pm she went to her room at her home to lie down. She stayed in the room all the afternoon. Miss Smith told members of her family who checked on her, that she was feeling unwell. At 7.30 pm she gave birth to a child in the shower/bath of the family home. It was her first child. She was alone at the time and had received no pain killers or other support.
At about 8.00 pm Miss Smith's mother checked on her and found her in the shower. Her mother observed blood on a wet towel on the floor. At 8.30 pm Miss Smith was taken to the Emergency Department at the Beverley Hospital. She was there examined by Dr Gogna. Dr Gogna diagnosed a possible inter‑uterine foetal death which was endangering Miss Smith's life. Dr Gogna and administered the following drugs:
(i)Two by intravenous cannulae for fluid resuscitation.
(ii)500 ml of normal saline rapid infusion. There was further normal saline infused over three hours.
(iii)500 ml of pethidine intravenous at 9.15 pm.
(iv)10 mg of moxolon intravenous at 9.15 pm.
(v)1 gram of rocephin intravenous at 9.50 pm.
(vi)50 mg of pethidine intravenous at 10.30 pm.
Dr Gogna considered Miss Smith's condition to be potentially life threatening and arranged for her to be transferred by ambulance from the Beverley Hospital to King Edward Memorial Hospital. Miss Smith was transferred to and from the ambulance by stretcher with intravenous drips in both arms. She was administered of oxygen whilst on route to Perth with a further 50 mg of pethidine. The ambulance arrived at Perth at 11.10 pm.
Upon her arrival at King Edward Hospital Miss Smith was further sedated. She was examined by Dr Lee who discovered retained placental material and part of an umbilical cord. Dr Lee advised Miss Smith that the umbilical cord and placenta was still in her uterus. Miss Smith denied giving birth. She was then prepared for general anaesthetic and the operating theatre.
Miss Smith was administered the following drugs for surgical procedure:
(i)Panadiene forte.
(ii)Naprosyn
(iii)Moxolon
A surgical procedure was performed at 2.48 am on the 1 July 2000. Miss Smith was transferred to the recovery room at 3.13 am. She was admitted to a ward at 4.00 am and administered Syntocinon to reduce dilation of the uterus. It was noted that the administration of that drug concluded at 8.45 am. It was apparently taking place during the video interview.

The Video Interview

It was submitted for Miss Smith that she had been roused at about 8.00 am to participate in the police video interview which commenced at 8.00 am. The interview concluded at 9.11 am. The tape runs for 70 minutes when played in a normal machine. It is submitted that it probably commenced at approximately 8.00 am.
Patient notes made at 12.25 pm on the same day refer to events after a registered midwife was assigned to the care of Miss Smith at approximately 7.20 am, that is before the relevant interview. The notes include the following:
1.Continuing post‑vaginal blood loss (although moderate).
2.Given analgesia and panadene.
3."Kelly appeared in shock i.e. stunned with the situation she had been through; also sleep deprived… felt the female detective was laughing at her while she was trying to recount events… Kelly replied how she had felt nauseous all morning… Her stomach felt as if she was experiencing an upset stomach and she had some diarrhoea."
At 10.30 am Miss Smith was examined by Dr Ludlow. She then appeared stunned and looked pale. She had only a vague recollection of the events of the previous evening (page 180 of brief (Dr Ludlow's report)). Dr Ludlow prescribed three different drugs for Miss Smith's asthma prophylaxis and two drugs (diazepam and temazepam) for sedation.
A blood picture provided by the hospital at 9.20 pm on the 1 July 2000 indicated a haemoglobin reading of 78 grams per litre with the minimum reference range being 110 grams per litre. This low level of haemoglobin was described as "consistent with acute blood loss".

Evidence on the Voir Dire

Dr J Rampono, a psychiatrist, said in evidence that he had worked in a number of settings including Heathcote Hospital, Graylands Hospital, Sir Charles Gairdner Hospital Psychiatric Unit and in private practice. For the last 5 1/2 years he has spent 95 per cent of his time as the Head of Department of Psychological Medicine at King Edward Hospital. Dr Rampono had seen the video recorded interview between Miss Smith and the police officers. He had studied Miss Smith's case history and her medical notes.
Dr Rampono said he had formed the view that it was highly likely that Miss Smith's mental state had been altered to a significant degree in the first 12 hours after giving birth. He said the world literature tends to say that the alteration of the mental state lasts for the first 24 hours, but the events he had been asked about had occurred within 12 hours. In this case the birth had been at about 7.30 pm. The video interview had commenced at approximately 8.00 am on the next morning.
Dr Rampono's opinion was that Miss Smith had described her baby in terms which were quite bizarre and which fitted with recorded evidence in cases where the mother's behaviour after the birth of the baby was quite dysfunctional. In his opinion it was highly likely that Miss Smith was not functioning with full cognitive capacity at the time of the interview. He said he would doubt her ability to understand questions fully and to understand the context of a question, to process the question correctly in her mind. He therefore had to question her responses. He was not saying that all of them were incorrect "but I have to say we cannot be sure".
With respect to the fact that Miss Smith had told a lie during the video interview concerning seeing a medical practitioner in Joondalup, Dr Rampono said:
"I think one cannot exclude the fact that the decision to tell a lie and the telling of the lie could have been influenced by her mental state at the time."
In cross examination Dr Rampono said that in his previous practice his principal area of interest was peri‑natal psychiatry "which is in this field." He said he had studied the witness statements in the police brief and had taken them into account in his opinion. When asked what aspect of the video record of interview had re‑enforced his diagnosis the doctor said "The naïve nature of the person's understanding of the circumstances." He said "There were intermittent times when he watched the video wondering whether the person had fully understood the questions and fully processed the questions …". When asked whether there were any instances in the video where Miss Smith plainly talked nonsense, or where she did not answer in a sensible way the doctor said: "I don't know about talking nonsense, but the focus was on trivia rather than on the content… discordancy rather than nonsense." When he was asked about his opinion of it being highly likely that her thought process was to some degree disordered Dr Rampono said: "And that's not just in terms of the video itself, but in the circumstances leading up to her being in that hospital bed." He was then asked "Do I understand you to say that the psychological denial of pregnancy, the events of giving birth in unassisted circumstances, having come to Perth, undergone the operation and all of that would necessarily have left her less than 100 per cent cognitively?" Dr Rampono answered "That's correct. All of those circumstances plus the general anaesthetic would make it, as I said, highly likely. I would have significant concerns about what her cognitive function was at that time."
Dr Rampono was asked "I note that Kelly, when confronted by Dr Miriam Lee with incontrovertible evidence that she was in fact post‑natal, that is, had already given birth, continued to deny that she had been pregnant or had delivered?" The doctor answered "That's correct." He was asked whether he regarded this as a significant finding. He said "One of them, yes". When asked about Miss Smith having later admitting to her mother what had happened, the doctor said: "I would see that as the early fragmentation of the denial, and then going in and out of denial and acceptance in that early phase post‑delivery". He said that dissociation was a prominent feature "of this whole clinical syndrome".
When asked whether Miss Smith had demonstrated any dissociated features in her interview the doctor said "The best answer I could give to that was that there were times in watching that interview when I felt - I wondered whether she was dissociating, but I could not say that specific point was a clear point of dissociation in terms of the absolute truth." When asked whether her physical behaviour in the interview provided some guide to her medical state the doctor said "I'm not sure I draw an enormous amount, other than that she was clearly restless, distressed… upset… nervous… embarrassed…" The doctor said there was no response in the video which clearly and incontroversially demonstrated cognitive impairment.
Counsel for the prosecution advised that his proposition ultimately to the Court would be, "assuming the evidence bears that out", that whilst it is accepted that Miss Smith had suffered from a psychological denial of pregnancy along the lines of what Dr Rampono had said, that of itself did not necessarily mean that Miss Smith was incapable of giving an accurate and reliable account of the events of the night. That was his first proposition. He said that Dr Rampono's opinion "unchallenged as it is, does not end the debate for your Honour's purposes".
In his statement of evidence which was submitted to the Court Dr Rampono had said "In terms of the available literature on this subject, I confirm that Kelly could easily be described as a 'text book' case of concealed pregnancy." He said "Primary indicators of this condition are the apparent absence of what must have been substantial pain, her irrational behaviour post‑delivery, especially with respect to the treatment of the newly delivered baby, and to a lesser extent to her conduct, especially in the 24 hours following delivery." Dr Rampono said: "My professional conclusion is that it was highly likely that Kelly's psychiatric state following the birth of her child (in a period up to 24 hours following the birth) was disordered to the point she was unable to make rational decisions, or that her ability to make rational decisions was to some degree impaired." He said "I note further that in her interview with the police approximately 12 hours after giving birth, it was quite likely that Kelly was in a state where the shattering of her psychological denial (brought about by the obvious event of the birth of the child) would have left her thinking, disordered and impaired. Accordingly, her answers to police interrogation may appear to be lucid and cogent and her responses appropriate. However her thinking may still have been quite disordered as a result of the turbulence caused by her deep seated psychological denial being shattered by the reality of giving birth."
The learned prosecutor put to Dr Rampono "You don’t think that the police interview then is helpful in determining the actual degree of her cognitive functioning?" His answer was "That's correct." He was asked "Can it provide evidence of her ability to describe events, or the critical events?" The doctor answered "Yes." He was then asked "Can it provide evidence of her understanding of the police questions?" He answered "No". The doctor continued "It can't provide evidence that she clearly understood. The nature of it is not - from what I saw of that particular interview and what I think you are asking is, can we draw conclusions about her cognitive state from that, and my answer is, no." Dr Rampono said it would require a detailed specific psychological, psychiatric enquiry to make that assessment. The doctor was asked "Are people suffering from psychological denial of pregnancy necessarily incapable of exercising legal rights that they have?" The doctor said "I would doubt whether they would fully understand, but are they necessarily? - I guess the answer is no."
Dr Rampono said he could not agree with the proposition that in terms of the interview which he had seen on the video, there was little positive evidence of specifically impaired cognitive function. He said that Miss Smith had not to his memory in the video taped interview, demonstrated or reported any disassociated symptoms or dissociation of any kind and had not specifically demonstrated any delusion or behaviour or symptoms, or demonstrated any specific psychotic symptoms.
The learned prosecutor submitted that the test to be applied as to whether the video interview should go before the jury, if it could be simply formulated, was "whether in all the circumstances, and that's all the circumstances, it would be unfair in the interests of justice to admit the interview."
Dr Rampono was asked "In all the circumstances would it be unfair to Miss Smith to admit this interview for the consideration of a jury when they are considering whether she intentionally killed the child?" He said "It's my opinion that it would be unfair." When asked why it would be unfair he said "In reaching that conclusion I had to take into account the total circumstances of that person leading up to that point." Dr Rampono continued: "As I have mentioned earlier in my evidence, the whole concept with any human being that leads to a psychological denial of pregnancy, the profound psychological and practical consequences of that, to actually bleed through the pregnancy, to feel no pain in the process of primiparous labour, we have to accept that - this is my view, that there was a very powerful process going on in that person's mind and brain; that that process was confronted at the moment that that baby was born." Dr Rampono said "If three quarters of the women in the series say they were actually psychotic, secondary to that confrontation, of that profound experience, we have to assume that those that didn't report it, either can't remember it or that they didn't - they were not disturbed enough to reach psychosis level. One would have to assume that they would be well into the continuum within their, and cannot - and that for at least 24 hours after that, there would be significant disturbance of cognitive function. … That's the basis on which I draw that conclusion."
Dr Rampono said that the nature of a psychological assault sufficient to produce a psychosis in 75 per cent of people, a reported psychosis, is such that "we have to see that as a profound assault." "We have to say that the assault must be seen as within the extreme end of human experience." When asked whether the nature and degree of the assault was the same for every patient, Dr Rampono said "From the literature it would appear to be. I would be concerned about saying those who have psychotic phenomena are clearly very much disturbed and dysfunctional and those who don't, are not. I would be concerned about that."
When asked by the learned prosecutor "Is that failure to do full justice to oneself as a consequence of the psychological condition something readily explicable in the aftermath by experts such as yourself?" The answer given by Dr Rampono was "I would think it would be highly unlikely that somebody could do justice to themselves in terms of the responses they gave in the first 24 hours."
Dr P McCarthy who is also a psychiatrist, said in evidence that in general he accepted Dr Rampono's opinion. Dr McCarthy said he would tend to emphasise the neuro‑psychiatric aspects of the case but would agree that Miss Smith had a psychological denial of her pregnancy.
Dr McCarthy had interviewed Miss Smith both before and after the relevant video interview. He said that despite her appearance in the interview he would have considerable doubts about the effectiveness and efficiency of her mental functioning particularly in terms of awareness and processing information and critically evaluating information or suggestions.
Dr McCarthy said that subsequent to the delivery of the child Miss Smith had been without sleep. Her haemoglobin had decreased in a manner which meant that there had been a quarter to a third loss of her haemoglobin. That was a significant haemorrhagic loss. Miss Smith had also been given a variety of drugs, all with significant half lives. So, irrespective of the events of pregnancy, subsequent to the birth she had had a significant neuro‑psychiatric challenge.
Dr McCarthy said that Miss Smith was probably still bleeding at the time she was being interviewed. She was still tired at the time. "I'm talking about someone whose consciousness and awareness and their ability to interpret and respond to external reality is compromised." When asked whether, in his opinion, what Miss Smith had said in the interview was reliable, Dr McCarthy said "Well, no, in my view."
Dr McCarthy said amongst other things that during the interview "there's a fluctuating mental state. At times she is groggy. At times she appears quite clear. She strikes me as suggestible. Then there is the lie: is it a lie or is it confabulation?" When asked to explain what he meant by "confabulation", Dr McCarthy said it is a term used in medicine, commonly seen in those who are either suffering the effect of a drug, or drug withdrawal. Superficially, in that condition the conversation appears quite plausible, when actually it can be quite misleading, because often there are problems with focus, with interpretation of events and also suggestibility. "One can easily lead them along a path, so they start making things up."
Dr McCarthy said "The argument is: their mental function at the time they are still recovering from the effects of the drugs is such that they are suggestible and they tend to be led along, simply to deal with the issue at hand without any great thinking or contemplation on their own part. That's quite common. She's picking at the clothing from time to time but the main thing I found was her suggestibility, and also her interpretation. She interprets the detective to be laughing at her. That wasn't my impression. So I think there is good reason to have some doubt about her interpretation of what was happening and her processing of the information, and her ability to formulate answers, and conceptualise what had happened, so to that extent I think there was impairment likely to be present."

Dr McCarthy said "I think it is most likely she had a disassociated disorder, but I totally agree she had a psychogenic denial of pregnancy, probably by disassociated means, but there might have been psychotic phenomena occurring too, certainly in terms of false beliefs."
With respect to Miss Smith's alleged lie about her seeing a doctor in Joondalup Dr McCarthy said "She may have been lying but I don't think that's the only interpretation. It's compatible with someone who is suggestible; someone who is fearful; someone who is trying to make sense of what's happening around her at the time. Grasping at any straws and then following along, but I didn't think it was a very sophisticated lie. I didn't think it was very well thought out at all. She could, I think, have been led down all kinds of paths."
Dr McCarthy said that at the time of the police interview he thought it highly likely that Miss Smith's ability was severely impaired. In cross examination he was asked whether he was able to say in all the circumstances, that Miss Smith was incapable of giving a reliable account of the events of the previous night. Dr McCarthy said that he was saying there was considerable doubt that she was able to - considerable doubt. He could not say much with certainty at all.
Dr McCarthy said it was his opinion that at the time Miss Smith gave birth to the child she was not consciously giving birth to a baby but to a thing that required considerable explanation. He said "In my opinion she had a concealed pregnancy and yet then at that birth she had an event occur that severely threatened the whole psychological framework she had been operating on for some months." He was asked "The psychological framework was that she didn't believe she was pregnant, correct?" His answer was "Correct, yes".
Dr McCarthy said "During the interview she had trouble absorbing, or dealing, or interpreting - dealing with, or interpreting, the questions. They had to be repeated …She often gives mumbling answers which just trail off." He was asked "If what you regard as a highly likely situation was in fact the case, that would lead you to the conclusion that she was not able to do herself justice in the interview?" He answered "It would lead me to the conclusion that she could not participate in the interview with a full mental state - whether in a compromised stated she can do herself or anybody else justice - it seems unlikely."
The prosecution called Dr Brown who is the consultant psychiatrist of the State's Mother and Baby Unit specialising in peri‑natal psychiatry and on‑call service. Dr Brown shares this appointment at King Edward Hospital with Dr Rampono.
At 9.00 am on the 1 July 2000 Dr Brown attended at King Edward Memorial Hospital for the express purpose of interviewing Miss Smith.
Dr Brown commenced interviewing Miss Smith at 9.30 and talked with her for about 45 minutes. The purpose of the conversation was to ascertain whether she needed any acute psychiatric intervention.
Dr Brown said that Miss Smith was not obviously psychiatrically disturbed. She found her levels of educational intellectual functioning to be within the normal range. Miss Smith had denied knowledge that she had been pregnant. Dr Brown said Miss Smith was confused about the events. She had the information that she had given birth to a baby and could then work backwards and realise she had been pregnant, but she was confused about the issue. What Dr Brown was told was consistent with the later diagnosis of psychological denial of pregnancy. Dr Brown said that her understanding of denial of pregnancy does not mean that someone necessarily has a psychotic disorder. It might be part of a dissociated disorder.
Dr Brown said that at the time she saw Miss Smith, she was "grossly cognitively intact". She had presented as a tired young lady. She was not trying to be obstructive. She really was trying her best to follow through with the interview process. The doctor said her assessment had been done on the understanding that she knew that Miss Smith had given birth in traumatic circumstances, that she had been awake all night, that she had been moved from hospital to hospital and she had had a general anaesthetic. Given those circumstances, she had behaved normally and appropriately. Her speech was coherent at a normal rate and flow.
Dr Brown had seen the video taped record of interview which had finished 15 or 20 minutes before her interview. The learned prosecutor asked Dr Brown whether Miss Smith's presentation and effect "and so forth" had varied much from the video to the doctor's examination of her. The doctor said "Yes. I found her in the video to be more distractible, more agitated, anxious, nervous, than in my interview with her."
Dr Brown said that the situation Miss Smith had been in with the police officers would naturally make her more nervous. She said Miss Smith's affect was "stunned". This meant Miss Smith was amazed by what had happened. "Could not understand it at all." Could not understand the context herself. Could not make sense of it all.
When asked by the learned prosecutor "… If she is sitting in the hospital bed but feeling like she is not there, does that affect reliability of the things she says to you?" Dr Brown said "Yes, I believe it would." She was then asked in what way. Dr Brown said "That she might not fully understand the question. She might not fully understand the implications of her answers."
Dr Brown said she agreed with the assessment of Dr Rampono and Dr McCarthy in that Miss Smith had been suffering from a denial of pregnancy. When asked by the learned prosecutor "In her video taped interview did she demonstrate any gross cognitive impairment?" The doctor said "In the video interview I believe she did, because I feel that her tension and concentration was very poor, as demonstrated by her psycho‑motor agitation, picking at the drips, moving around a lot, which in itself is a cognitive impairment. I also agree with Ms Somerville's comments about her vagueness in answering questions, in that she appeared at times not to really understand fully the nature of the questions." When asked by the learned prosecutor "Did she demonstrate any physical signs of being significantly under the influence of drugs?", the doctor said "Again, she appeared sedated to the level I would expect someone who had been awake for in excess of 24 hours and merely a few hours post‑op." When asked did that fact make her incapable of understanding the process of the police interview. The doctor said "I don't think that's an all or nothing question. I think it would impair her ability to fully understand the nature and content of the police interview."
When asked would it be fair to use the interview as evidence in a court case given the circumstances in which it was taken, Dr Brown said "I would say that I am not qualified to answer that question; that if asked at the time 'Is it fair that the police officers come in and question her?' I would have said no. But I wasn't given that opportunity and I cannot answer questions pertaining to the accuracy or not of the information. Fairness would for me have an emotional overload rather than a purely legal question."
Dr Brown said "My answer of fairness is using I guess, more the layman's term of fair, and no, it was not fair that she was interviewed at that stage, but I don't know legally whether that's fair in your terminology." Dr Brown said "I think that some of the information she was able to give could be construed as being accurate but I don't think any of us are able to say which is accurate and which isn't accurate."
When asked by the prosecutor "Did the events that she had been subjected to destroy her power to answer the questions that she was asked with her ordinary intelligence?" The doctor answered "The events, the sleep deprivation and the drugs all compounded on each other to that end." When asked "To destroy her capacity or to just impair it?" The doctor said "To impair it." When asked by the learned prosecutor "Was she in such a mental condition that in fairness to her no attention could be paid to what she said?" The doctor replied "I don’t think it's fair to say no attention could be paid, but I do think that her memories would change from that interview to say another one two hours later, to another one that night etc." She was then asked "So there are factors which plainly effect the reliability and the fairness of the circumstances in which the interview was done?" The doctor answered "Yes".
The learned prosecutor asked "Is it possible that if we were to use the interview as evidence and take into account all the circumstances in which the interview was conducted, or all of the things effecting Kelly's cognitive functioning at the time of the interview, including the psychological denial of pregnancy, that we would be able, taking those factors into account, fairly to use the material in the interview as evidence in a trial?" The doctor said "I do not think that lay people such as members of the jury would be able to understand these concepts adequately to make comments on that. As experts we have trouble." The doctor said "So I feel that it is unfair because we are assuming that the jury will be able to understand, as we may have today, this information."
In cross examination Dr Brown agreed that it was highly likely that Miss Smith was cognitively impaired. She was asked "Do you agree essentially with the evidence of Dr McCarthy that there is a whole lot of things bearing on her - I think he called it drug burden, lack of sleep, lack of blood, low haemoglobin count, the trauma she had been through, plus the underlying psychiatric issues she had the denial?" The doctor said "Yes, I believe that it was all of those factors."
Ms Susanne Somerville, who holds a position as a senior clinical psychologist at King Edward Hospital and has been in the position for the last 5‑1/2 years, said in evidence that she had viewed the relevant video after having seen Miss Smith as an out patient at the hospital. Her first interview with Miss Smith was some 14 days after the video. She saw Miss Smith on eight occasions as an out patient between 14 July 2000 and February 2001. She also had three telephone follow ups with Miss Smith.
Ms Somerville said she had made a careful study of the video. In her opinion, in comparison to Miss Smith's presentation as an out patient, she displayed greater vagueness on the video. There was mumbled slurred speech at times on the video which was not characteristic of Miss Smith's presentation as an out patient at her sessions. There was also distress, disbelief and evidence of ongoing denial.
When Miss Smith had presented as an out patient on the eight occasions, she had presented on most occasions with some evidence of post‑traumatic stress disorder. Ms Somerville said that during the acute phase of the disorder after the traumatic event, her condition would have been characterised by memory disturbance, cognitive disturbance, intermittent amnesia, distress, anxiety and hyper‑vigilance. Miss Somerville said that some of those things would have been characteristic "earlier on", by which I take it Ms Somerville meant during the police interview.
Ms Somerville said that if she had to interview somebody soon after a traumatic event she would run the risk of the person not having a good memory of events, not having remembered things that they had been told legally or medically, and having to have them repeated, but swearing that they have not been told those things.
Ms Somerville said that in her opinion, in this case, after giving birth at 7.30 pm the night before and being interviewed at 8.00 am the next morning, she would predict that there would be gaps in memory, the memory would be erratic, and the expression or the recall of that memory would be erratic.
Ms Somerville said that the events preceding the police interview including the birth, would have constituted a significant trauma arising from the unassisted birth and the amount of blood loss, so that Miss Smith would have been significantly traumatised for some time after that birth. She said that if the acute stress disorder diagnosis which she had made was correct, that would have affected Miss Smith's cognitive functioning to rationally process, understand and express in a consistent coherent manner, what her experience had been, for at least two days after the birth. She also predicted that Miss Smith's reasoning ability would have been erratic. It would have appeared to be normal at times and abnormal at other times. It would have been inconsistent.
Ms Somerville said that her assessment of Miss Smith on the video was that at the time her cognitive functioning had been significantly impaired, as evidenced by the fact that her words trailed off, she mumbled, she stared down, she fidgeted, there were signs of agitation as she fidgeted with the IV drip. Those observations of her behaviour showed her to be distracted "so at times she appears impaired in contrast to how she presented as an out patient on later occasions."
Ms Somerville said that if Miss Smith's case was, and it did seem to be, a text book case of denial of pregnancy, the birth would have been very traumatic. The birth actually affronts all the reality on which the person has based her actions for quite some time. That reality is initially shattered in an attempt to try and feel ok, and to integrate, the person is more likely to try and put back some of that denial, so that the person will actually go between being challenged by reality, for example, a question in the police interview, to actually trying to reinstate that sense of denial. Ms Somerville said it was highly likely in the case of Miss Smith, that "toing and froing" was occurring during the police interview. It was highly likely she was going in and out of psychological denial during the police interview.
When asked "How reliable is it that her answers have been procured by sensible reasoning, normal reasoning, proper mental function?" Ms Somerville answered "Not very." She said she would not place very much reliability on that interview. If she was planning clinical intervention, she would not put much reliability on that. Ms Somerville said that Miss Smith had presented with some cognitive impairment two weeks later where she was distractible, there was poor memory, there were gaps in her memory, "so she was still presenting with cognitive deficit about the memory of traumatic events two weeks later."
Ms Somerville said that the nature of memory under conditions of trauma is such that some details during a traumatic event can be magnified and very clearly remembered and paid attention to and understood, and other aspects of the whole situation can even be not noticed at all, or go unperceived, so memory recorded during an event of trauma is erratic. There is a distortion in how people record things and the more threatening things for that person tend to be recorded more clearly.
Ms Somerville said that in her experience in interviewing persons who are still undergoing pain relief, there seems to be a great deal of variation in individual response to a drug such as pethidine. Some people will say "look I feel really spacey. I just can't think straight under pethidine" and others may not have that response.
In cross examination Ms Somerville said that the cognitive function that she understood she was referring to, was the ability to understand questions and to consider the import of those questions, and to consider the answer. Also to remember things which the questions were concerned with, to place events in their sequence, or to describe the sequence completely, to weigh up the factors impinging on the situation and to be able to formulate a response based on those.
Counsel for the prosecution said that it did not appear that there had been really any dispute in the evidence "that we have heard so far, that at the time that Kelly participated in the police interview, her cognitive state must have been to some extent impaired." Ms Somerville said she could not comment on the degree of that impairment.
When cross examined about Miss Smith's appearance on the video during the questioning by police officers, Ms Somerville said that Miss Smith was "vague in the elaboration of her answers, mumbled in her speech, speech trailing off, having to have questions repeated, staring off into space sometimes, which is possibly episodes of dissociation. That is how it presents observationally in terms of behaviour." Ms Somerville said she had difficulty in following the video and the chronological order of what Miss Smith was describing. She said that some of the questions were answered after considerable prompting from the police: "that's why I say I think the police structured that interview, as much as Kelly's responses."
Ms Somerville said that when she was viewing the video "I wondered about the amount of distress, and that occasionally there was distress and at other times she appeared to be chatting. That seemed very incongruent to me, that at times she seemed to be quite happy and chatty and at other times something was getting to her, which to me is consistent with that phasing in and out of denial." She said that by the time of the interview "As I think my learned colleagues have said, the denial had begun to crumble, but not entirely."
Ms Somerville said that during the interview "The recourse to the reference to the doctor in Joondalup appeared to me to be a reversion to that denial that she practiced all along and not a particularly premeditated one; not a premeditated lie, but a reversion back."
When asked what it was about the interview that she did not consider reliable Ms Somerville said "I think what it is that I said is, that if I was planning a clinical intervention I wouldn't place much reliability on the information given then. I would want to go back when she had stabilised, her condition had stabilised, and continue my assessment." She continued "I wouldn't base anything, any plan of action, on that particular interview taken at that particular time."
It is obvious that Mr Somerville thought that the answers given in the interview were likely to be unreliable.
A question which arises is whether a lay person on a jury would be able to make a judgment about what was reliable arising from the interview.
When the learned prosecutor asked Ms Somerville "Was her mental condition and the physical matters impinging upon her cognitive state such as to make what she said to the police inherently unreliable, incapable of being relied upon?" Ms Somerville said "There is a high possibility that aspects of a recall at that time would have been unreliable."
The prosecution did not dispute that Miss Smith suffered from a psychological denial of pregnancy leading up to the birth of a child.

The Law

Counsel for the prosecution relied on the words of Toohey, Gordon and Gummow JJ in R v Swaffield (1998) 192 CLR 159 at 189 where their Honours said:
"The term 'unfairness' necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear:
'The question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him … Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which effect reliability of the statement.' - Van der Meer v The Queen (1988) 62 ALJR 656 at 666.'"
In R v Williams (1992) 8 WAR 265 at 273 Rowland and Owen JJ referred to the words of Deane J in Cleland v The Queen (1982) 151 CLR 1 at 18 ‑ 19 where his Honour said:
"The rationale basis of the principle that evidence of a voluntary confession or statement should be excluded if, in the view of the trial Judge, its reception would be unfair to the accused is the requirement of public policy that an accused by protected against either procedural or substantive unfairness in the course of the administration of criminal justice in the Courts… While it is convenient, both as to their content and their rationale, to distinguish between the rules relating to prima facie admissibility of a confession or statement and the discretion to exclude such a statement on the grounds of unfairness, their development has been as a cohesive body of principle on the special subject of confessional evidence."

Rowland and Owen JJ said:
"This dicta was cited with approval in Van Der Meer v The Queen (1988) 62 ALJR 656 where Wilson, Dawson and Toohey JJ said at 666:
'In considering whether a confession or statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him: Lee (at 154); Cleland (at 18). Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.'"
At 273 Rowland and Owen JJ said:
"The test is a broad one: is the reception of the evidence unfair to the accused in the relevant sense? Whether there is such unfairness can only be judged when all the relevant circumstances are examined and this includes circumstances which might not have been apparent to the parties at the time when the confession was obtained: see R v Ostojic [1978] 18 SASR 188 and R v Parker (1999) 19 NSWLR 177 which were quoted by his Honour in his ruling."
When discussing the reliability or otherwise of confessional material, Rowland and Owen JJ said that the dicta of Wilson, Dawson and Toohey JJ in Van Der Meer v The Queen (1988) 62 ALJR 656:
"falls to be considered in the light of statements made in Duke v The Queen (1989) 63 ALJR 139:
'The unfairness against which an exercise of discretion is intended to protect an accused may arise not only because the conduct of the proceeding investigation is reduced to a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.' (per Brennan J at 141)"
Rowland and Owen JJ said:
"The issue of reliability will always be a factor to be considered. However it is not determinative and there may be cases where an otherwise reliable account will be excluded due to other factors. Such other factors must, of course, go to the issue of relevant unfairness, that is, unfairness of such a nature, whether procedural or substantive, as might jeopardise the right of the accused to a fair trial. It would follow that in the face of a confession or statement found to be reliable, the onus on the accused of establishing the relevant unfairness is necessarily high."
The learned prosecutor submitted that the test is not whether the confession can be demonstrated to have been wholly reliable, but it is concerned more with whether there is such a doubt about its reliability that in all of the circumstances it would be unfair or unjust to put it into evidence for a jury's consideration.
Counsel for the prosecution relied on the reasoning of Starke J in Sinclair v The Queen (1946) 73 CLR 316 where his Honour said at 328:
"He [the Judge] is entitled and bound to consider the probability of the mental condition affecting the truth of the confession in all the circumstances of the case and to decide whether there is a prima facie reason for presenting it to the jury."
In the same decision at 338 Dixon J, as he then was, said:
"His was not a case in which it could be said that the higher probability was in favour of his confession of such a crime being the product of imagination. Reasons suggest that in such circumstances it is for the tribunal of fact to ascertain or verify the factual basis of the statements of a man in such a mental condition by comparing their contents with the independent proofs of the circumstances and occurrences to which they relate."
Dixon J said:
"It may be conceded that a confession may in fact be made by a person whose unsoundness of mind is such that no account ought to be taken of his self‑incriminating statements for any evidentiary purposes for proof of the criminal acts alleged against him. In such a case it might probably be rejected. It is enough in the present case to say I do not think Boyd Sinclair's derangement was such as to place his confession or statements in that category."
The learned prosecutor referred to R v Ostojic [1978] 18 SASR 188 where Wells J said amongst other things:
"The suspect might be suffering hidden but naturally occurring pain. He might have sustained severe shock as a result of the recent personal bereavement which showed itself only in some slight vagueness and yet would have destroyed for the time being his power to answer with his ordinary intelligence."

Application of Law to this Case

The fact that the police officers in this case, had they known the situation with respect to Miss Smith's mental condition (which they did not), could have waited for say two days before interviewing Miss Smith, was conceded by the learned prosecutor to be a matter to be weighed in the scale of whether it was unfair to her to put the interview into evidence. It was submitted that what had to be done was to look at the interview and see how Miss Smith acquitted herself. Counsel stressed that the Crown did not in any way dispute that Miss Smith had psychologically denied that she was pregnant - did not know that she was pregnant.
Crown counsel relied on Dr Brown's evidence that when she had seen Miss Smith her behaviour was appropriate and her movements showed no abnormality. Her speech was clear and coherent with normal rate and flow. There was no evidence of abnormality in form of thought or in content. There were no perceptual abnormalities. Dr Brown had said that Miss Smith's cognitive function was normal. Dr Brown said she was tired.
Counsel noted that very early in the interview Miss Smith had acknowledged that she had given birth to a child when she said "and then the kid was out".
Originally when Miss Smith arrived at the hospital a note made was "Denies pregnancy; denies childbirth" - Exhibit 4. It was later noted at 5.00 am on the 1 July "Kelly initially in denial and then admitted to her mum what had happened." She told the police "… and then this other thing came out and didn't move and it was a baby, I suppose." The learned prosecutor submitted that the descriptions of the baby then still had some element of inappropriateness and were very much consistent with the denial of pregnancy syndrome.
It was submitted for the prosecution that what Miss Smith had told the police in her interview had been corroborated by what had been found in the room, including a thick yellow sheet wrapped around the baby and underneath that a grey shawl or blanket which appeared to be wet. It was submitted that Miss Smith had described in some detail what she had done at the time of the birth and afterwards, and that when she was asked why she had put the baby in the cupboard, she had told the police it was because she could not deal with it "I wouldn't be able to look after a kid. I can't even look after myself." It was submitted that she had been giving evidence of her thought process at that time - a thought process that if and when a jury came to judge it, they would have to judge it in the context of her psychological condition, but of which the only evidence must come from this interview - that is the only evidence of what Miss Smith was thinking at that time.
It was submitted that although what Miss Smith was saying was that she could not remember a lot of what happened, the quoted passage demonstrated a memory of her feelings at the time. It would be for a jury to decide whether that really was what she had been thinking at the time. The jury would be assisted by medical evidence similar to that which had been called on the voir dire. It was submitted that without evidence of what Miss Smith had said, she would be in a worse position, because the objective evidence would reveal that the baby had been put in the cupboard. If evidence of what she said was admitted, the jury would be assisted by the medical evidence to judge the real situation.
An alternative to that proposition is that if Miss Smith's statements on the video were not put into evidence and she was not called to give evidence, the jury would be faced with the deceased baby being found in the cupboard with medical evidence that Miss Smith had been in a condition of denial. That is different to the proposition "I couldn't deal with it, so I wrapped it up and put it in a cupboard."
It was further submitted for the prosecution that in the police interview, when asked did she intentionally kill the baby, Miss Smith had said "No, if - I mean, I just kind of picked it up and, I mean, if - I didn't like strangle it, or like twist, or anything. I just picked it up and put it in…" It was submitted that whilst that was a statement capable of founding an intent to kill, it was very much a mixed statement and that Miss Smith had at no time said she had intended to kill. It was submitted that the psychiatric evidence would be most helpful to the jury in judging the question of any intent.
It was submitted that whenever matters of detail were discussed Miss Smith had given coherent and sensible explanations; that the story about going to the doctor at Joondalup demonstrated that Miss Smith had been cognitively functioning well enough to have some logic and creativity in what she said to the police. This was also apparent from what she had told the police about her boyfriend. It was said that in those explanations Miss Smith had been able to provide an internally consistent account and that pointed to the actual degree of her cognitive functioning. It was said that her whole interview demonstrated that she was functioning to a sufficient degree to participate in an interview.
It was submitted for the prosecution that there had been no illegality or impropriety on the part of the police officers in this case. There was perhaps at best for the defence, an error of judgment. It was said to be common ground that the police officers had contacted someone at the hospital and attended on invitation, but not after having spoken to a specific psychiatrist who had said it was ok.
I accept that there was no impropriety on the part of the police officers. That does not arise in this case.
In answer to the proposition that the police officers could have made the interview much safer had they waited longer, it was submitted for the prosecution that the test was whether the capacity to answer with ordinary intelligence had been "destructed"; that reliability was the predominant touch stone; that although Miss Smith was part way between "destruction" at one end and complete "wellness" at the other, given the degree of coherence and completeness which she had demonstrated in the interview, she was more at the lucid end than at the non‑lucid end.
It was conceded that on all the evidence it would have been preferable for the police officers to have interviewed Miss Smith later. The question was whether all the circumstances of the case demonstrated such unfairness that the interview ought to be excluded. It was submitted that the question had to be answered by looking at the video itself.
Counsel for the prosecution relied on Professor Joyce's words at the bottom of page 2 of his report where he says:
"This report examines whether the drugs that Ms Smith had received during her treatment and operation altered her cognitive function and thus influenced her ability to understand questions that were put to her, her ability to understand the situation of the interview, namely, that her responses could be used as evidence in proceedings against her, her ability to provide accurate answers or her ability to appreciate and exercise her rights during the interview."
Both Professor Joyce and Mr Langham conceded that psychiatric and psychological issues had a potential to overlay their assessment of cognitive function arising from the taking of the relevant drugs. Professor Joyce said in his report that he was not qualified to express an opinion on that.
Finally it was submitted for the Crown that the manner of Miss Smith's behaviour in her interview was such that the discretion ought to be exercised in the Crown's favour.
Counsel for Miss Smith stressed that Miss Smith had arisen at 8.00 am on the day of the birth and had travelled to Beverley. Throughout the day she had developed worsening stomach symptoms to the degree where she had been unable to go to work. She had been completely alone when she had given birth. It was submitted that without any kind of painkillers, and with a first birth, Miss Smith must have experienced excruciating pain and yet when she was talking to the psychiatrist, Dr Brown, she had recalled no pain at all. This was said to be a classic indicator of psychiatric denial of pregnancy blotting out pain. It was submitted that the putting of the baby into a cupboard without telling anybody, was again a classic indicator of the psychiatric condition. Counsel for Miss Smith relied on Dr Lee's report which revealed that at 1.00 am Miss Smith had denied on two occasions that she had passed any fetus. It was at 3.00 am that she told her mother that there was a baby in the cupboard. That had set in train the police investigation.
Counsel stressed that surgery on Miss Smith had been completed at 3.13 am. At 5.00 am she had spoken to medical staff at the hospital. The video had commenced at 8.00 am or thereabouts. It is not known what state of wakefulness Miss Smith was in between 5.00 am and when the interview started. The interview ran for 70 minutes and finished at 9.11 am. Notes made by the midwife at 12.25 pm that day recorded "The patient continues post‑vaginal blood loss, although moderate." The exact time of that observation is not given.
Counsel noted that the midwife had said "Kelly appeared in shock i.e. stunned with the situation she had been through; also sleep deprived. Reported following interview felt the female detective was laughing at her whilst she was trying to recount events. Kelly was then seen by Dr Brown." (Exhibit 4)
It was submitted that these observations were important because they had been made by a midwife who had made observations of Miss Smith before and after the interview.
Dr Ludlow had reported that at 10.30 am "On examination she appeared stunned and had only a vague recollection of the events of the previous evening. She looked pale, had normal vital signs…". At 9.20 pm that night after the police interview Miss Smith's haemoglobin count was 78. That was a significant drop from her previous haemoglobin counts of 117 and 104. The count had dropped from 1.15 am that morning. That was explained by the blood Miss Smith had lost being replaced by fluid. The haemoglobin level was thereby diluted. That meant that the oxygenation of her blood had been reducing all day.
It was submitted by counsel for Miss Smith that Dr Joyce had conceded under cross examination that the drugs taken by Miss Smith might have had some effect on her at the time of the police interview.
Counsel relied on the statement of Franklyn J in Williams (supra) to the effect that the fact that an accused person may be suffering some naturally occurring pain, some shock, or some other effect which would have destroyed for the time being his/her power to answer with his/her ordinary intelligence, may be such as to bring that person with the protection of the rules in Lee.
It was submitted that on the whole of the medical evidence it was likely that Miss Smith, when interviewed by the police, was still "going in and out" of her delusional state and that might have accounted for some of the things she had said. It was submitted that all the witnesses had agreed that it would take some time to shatter Miss Smith's delusion that she had not been pregnant.
I judge this matter against the dicta in Swaffield (supra) that unfairness in the relevant sense is concerned with an accused person's right to a fair trial which might be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement. That is consistent with the dicta in Van Der Meer (supra). I also apply the principles which have been discussed in the decisions referred to earlier in these reasons.
In my view some of the significant considerations are that Dr Rampono doubted Miss Smith's ability to understand the questions fully, and to understand the context of a question, to process the question correctly in her mind. Amongst other things Dr Rampono said that it was his opinion that the video interview did not provide evidence of Miss Smith's understanding of the police officers' questions.
When asked whether in his opinion, what Miss Smith had said in the interview was reliable, Dr McCarthy said, "Well, no in my view." Dr McCarthy also agreed generally with Dr Rampono's opinions. Dr McCarthy thought that at the time of the video interview it was highly likely that Miss Smith's functional abilities had been severely impaired. He said "During the interview she had trouble absorbing, or dealing, or interpreting - dealing with, or interpreting, the questions. They had to be repeated… She often gives mumbling answers which just trail off." Dr McCarthy was of the opinion that it seemed unlikely that in her compromised state, she could do justice to herself or anybody else.
Dr Brown who was called by the prosecution said amongst other things, that Miss Smith had been confused about the events. She had the information that she had given birth to a baby and could then work backwards and realise she had been pregnant, but she was confused about the issue. She said that Miss Smith's effect was "stunned". This meant that Miss Smith was amazed by what had happened "Could not understand it all"; could not understand the context, could not make sense of it all. When asked by the learned prosecutor, "Would her condition have effected the reliability of the things that she said", Dr Brown said, "Yes, I believe it would." When asked in what way, Dr Brown said, "That she might not fully understand the questions. She might not fully understand the implications of her answers."
Dr Brown said that she agreed with the assessment of Dr Rampono and Dr McCarthy that Miss Smith had been suffering from a denial of pregnancy. When asked whether in the video interview had she demonstrated any gross cognitive impairment, Dr Brown said, "In the video interview I believe she did…".
Dr Brown said that she thought Miss Smith's concentration had been very poor and she also agreed with Ms Somerville's comments about Miss Smith's vagueness in answering questions; "in that she appeared at times not to really understand fully the nature of the questions."
Dr Brown also said that if asked at the time, would it have been fair for the police officers to question Miss Smith, she would have said no. Most importantly Dr Brown said "I think that some of the information she was able to give could be construed as being accurate but I don't think any of us are able to say which is accurate and which isn't accurate."
If Dr Brown with all her skills and training, could not say which information given by Miss Smith was accurate and which was not accurate, it would not be fair in my opinion to use the video interview against Miss Smith at her trial.
Dr Brown was asked "So there are factors which plainly affect the reliability and fairness of the circumstances in which the interview was done?" Dr Brown answered "Yes". Dr Brown also said that she did not think that lay people such as members of the jury would be able to understand adequately the concepts associated with the psychological denial of pregnancy. She said: "As experts we have trouble." Dr Brown concluded "So I feel that it is unfair, because we are assuming that the jury will be able to understand, as we may have today, this information."
Ms Somerville who is a highly qualified clinical psychologist at the King Edward Hospital said that Miss Smith had displayed greater vagueness in the video than she had with her as a patient; that at the time of the relevant interview Ms Somerville would predict that there would have been gaps in Miss Smith's memory and her memory would have been erratic; the expression or the recall of that memory would have been erratic. She also predicted that Miss Smith's reasoning ability would have been erratic. It would have appeared to be normal at times and abnormal at other times. It would have been inconsistent.

Most importantly, when asked "How reliable is it that her answers have been procured by sensible reasoning, normal reasoning, proper mental function?" Ms Somerville answered "Not very."
Ms Somerville said she would not place very much reliability on the video interview. If she was planning clinical intervention she would not put much reliability on it. She would want to go back when Miss Smith had stabilised and continue her assessment. Importantly she said "I wouldn't base anything, any plan of action, on that particular interview, taken at that particular time."
In the light of all the expert medical evidence, which essentially was to the same effect, and some of which is referred to in these reasons, in my opinion, Miss Smith's right to a fair trial would be jeopardised if the video interview was admitted into evidence. The statement was obtained in circumstances which affected its reliability.
I repeat that this was not the fault of the police officers concerned, who were at all times acting in good faith. But the experts say that overall the answers given by Miss Smith are very likely to be unreliable.
It would be dangerous in my opinion to allow the interview to be admitted into evidence at the trial. I therefore rule that it should not be admitted.