The State of Western Australia v Muller
[2015] WASC 199
•2 JUNE 2015
THE STATE OF WESTERN AUSTRALIA -v- MULLER [2015] WASC 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 199 | |
| 02/06/2015 | |||
| Case No: | INS:254/2014 | 19 & 20 MARCH 2015 | |
| Coram: | SIMMONDS J | 23/03/15 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application to exclude DNA evidence dismissed Application to lead mentally impaired witness's pretrial evidence granted | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA KODY GREGORY MULLER |
Catchwords: | Criminal law Admissibility of DNA evidence Whether DNA evidence relevant Whether prejudicial effect of DNA evidence outweighed probative value Criminal law Admissibility of mentally impaired witness's pretrial evidence Whether witness was competent to give evidence Whether prejudicial effect of evidence outweighed its probative value Whether admission of evidence would be unfair |
Legislation: | Criminal Procedure Act 2004 (WA), s 158, sch 3 cl 7 |
Case References: | Mukevski v The State of Western Australia [2010] WASCA 138 R v Lindsay [2013] SASCFC 95 Thomason v The State of Western Australia [2007] WASCA 153 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
KODY GREGORY MULLER
Defence
Catchwords:
Criminal law - Admissibility of DNA evidence - Whether DNA evidence relevant - Whether prejudicial effect of DNA evidence outweighed probative value
Criminal law - Admissibility of mentally impaired witness's pretrial evidence - Whether witness was competent to give evidence - Whether prejudicial effect of evidence outweighed its probative value - Whether admission of evidence would be unfair
Legislation:
Criminal Procedure Act 2004 (WA), s 158, sch 3 cl 7
Result:
Application to exclude DNA evidence dismissed
Application to lead mentally impaired witness's pretrial evidence granted
Category: A
Representation:
Counsel:
Prosecution : Mr B H Costello
Defence : Ms H E Prince
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Helen Prince
Case(s) referred to in judgment(s):
Mukevski v The State of Western Australia [2010] WASCA 138
R v Lindsay [2013] SASCFC 95
Thomason v The State of Western Australia [2007] WASCA 153
- SIMMONDS J:
(This judgment was delivered orally and has been edited from the transcript.)
Introduction
1 These are two applications, one by the state and the other by the defence, in a prosecution of the accused for armed robbery. The trial on the indictment is listed for eight days, to commence on the week beginning 23 March 2015. This is the week following the week of the hearing of the two applications, the second day of which was the last sitting day of that week.
2 The indictment is to the following effect:
[Contrary to Criminal Code s 392] [o]n 10 December 2013 at Tuart Hill [the accused] stole from Simone Dominica D'Silva and Bilwa Awin, with threats of violence, a sum of money, the property of the Tuart Hill Licensed Post Office and that [the accused] was armed with a dangerous weapon, namely a knife.
3 The material facts for this offence are to the following effect (here I draw largely from the statement of material facts in the prosecution brief).
4 At 10.14 am on Tuesday 10 December 2013, the accused went to the Australia Post Shop (the Shop) situated on Wanneroo Road in Tuart Hill. He went there with the intention of committing an armed robbery.
5 The accused concealed his identity by wearing a Santa jacket, Santa cap, red pants, white beard, black wraparound sunglasses and gloves. The accused approached the female teller, removed a 30 cm knife from a red Santa bag and said 'Take the money out and empty the till'. The female teller, observing the knife and fearing that she would be hurt if she did not comply, handed $5,280 to the accused.
6 The actions of the accused were captured by the CCTV system in the Shop.
7 At 10.19 am on the same day, the accused and a second male were on Riley Street in Tuart Hill, in a silver two-door Ford Festiva. The accused threw a red Santa suit and a glove or gloves down a pair of adjoining stormwater drain grills outside an address on Riley Street.
8 At about 10.55 am that same day, the accused and his father, Brian Muller, were located outside a Lebanese restaurant situated on Royal Street in Osborne Park. Both men were in the silver two-door Ford Festiva. They were arrested on suspicion. The vehicle was registered to Brian Muller.
9 A search of the accused was conducted and $2,623 was found in his wallet. A search of the Ford Festiva located a further $360 and around $2,600 concealed in the door trim.
10 Forensic officers later went to the stormwater drain or drains. They recovered a Santa suit, a 30 cm knife and a glove.
11 At 6.00 pm, detectives executed a Criminal Investigations Act 2006 (WA) search warrant at the address of both the accused and Brian Muller on Riley Street in Tuart Hill. Detectives recovered red fibres there.
12 At 6.52 pm, detectives from the Regional Investigation Unit conducted a formal interview with the accused. In that interview he declined to comment on the offence.
13 In the prosecution brief (page 360 ff) there is a Forensic Biology Replacement Report by Penny Lorraine Cooper, forensic scientist for PathWest, dated 22 October 2014. The report relates to six samples found to contain DNA extracted from a number of items. The items are a glove, a Santa jacket and a Santa cap, being some of the items found by forensic officers in the adjoining stormwater drains; and a driver's seat cover and a passenger's seat cover from the silver Ford Festiva.
14 Two samples were taken from the driver's seat cover. The first is shown as 'stain - outside front surface'. The second is shown as 'outside front surface - visibly unstained areas'.
15 The accused could be excluded as a contributor from only one of the samples, the passenger's seat cover. Brian Muller could be excluded as a contributor from only two of the samples, from the glove and the driver's seat cover (stain - outside front surface). Probabilities that the accused was a contributor to the remaining samples are provided. These probabilities are expressed in each case as a 'likelihood ratio' (LR).
16 It was common ground before me that this ratio can be expressed as the number of times the hypothesis in question is more likely than not. Here the hypothesis in question is that the accused, as a person from whom the reference sample was taken, rather than a person unrelated to the accused randomly chosen from the Australian population, was a contributor to the DNA material extracted. That ratio for the accused is expressed as greater than 100 billion in each case except for the Santa cap, where the probability is expressed as 32,700; and except for one of the samples from the driver's seat cover, that from the outside front surface (visibly unstained areas), where the ratio is expressed as 16,400.
17 Also in the prosecution brief there is a witness statement from Mrs Vera Lillian Muller, in signed and dated handwritten form and in unsigned and undated printed form (page 148 ff) (the Witness Statement). It was not suggested to me that there was any material difference between these two forms.
18 At the date of the Witness Statement, 10 December 2013, Mrs Muller was 83 years old. She lived at a house on Riley Street in Tuart Hill with her son, Brian. Brian's son, the accused, had been staying with Mrs Muller and Brian for about three weeks. The Witness Statement also includes that the accused, while he had been staying at the house on Riley Street, had been staying in the bedroom of his father at the back of the house. His father had stayed in the spare bedroom while the accused had been there.
19 The Witness Statement further includes that when police came to the house on Riley Street on the afternoon of 10 December 2013 to talk to Mrs Muller they asked her if any of her knives were missing from the kitchen. She had a look, and found that she was missing two knives from a block above the kitchen sink. She also showed police where the accused had been staying in the bedroom of his father. Police asked Mrs Muller if she had ever seen a Father Christmas costume in the house. In the Witness Statement, Mrs Muller says that she had not seen one in the house, and that she had never seen the accused or his father with a costume like that.
20 The applications before me, in the order in which they were addressed at the hearing before me, are the following.
21 There is an application by the defence dated 12 March 2015 (the defence application). By this application, there is an objection to the admissibility of part of the DNA evidence that I have referred to (the defence application in relation to the objected to DNA evidence). The part of the evidence objected to is the part with respect to the accused's contribution to the samples from the Santa cap and the driver's seat cover outside front surface (visibly unstained areas) (the objected to DNA evidence).
22 There is also an application by the prosecution dated 6 March 2015 (the prosecution application) for the admission of the parts of the Witness Statement that I have referred to. The defence application also contains an objection to the admissibility of the Witness Statement.
23 These are distinct applications, although there is one point of overlap between them. I will deal with them separately after briefly describing the hearing.
The hearing
24 The hearing commenced on 19 March 2015 at 12.15 pm after a delay resulting from an application by the defence that was agreed to by the prosecution.
25 I had written submissions for the prosecution and the defence.
26 At the hearing on 19 March 2015, evidence relevant to the matters in the defence application was given by Ms Cooper.
27 At the hearing on 20 March 2015 evidence relevant to the prosecution application was given by Dr Peter Cummins, Mrs Muller's general practitioner now and at the time of the Witness Statement. He testified as to the Alzheimer's dementia from which she was suffering then and is suffering from now. There was also evidence given by Detective Senior Constable Bruce Wishart. Detective Wishart was one of the police involved in the investigation of the offending and he obtained the Witness Statement. A DVD of the search conducted at the home of Mrs Muller on 10 December 2013, during which she can be heard, but not seen, in exchanges with the police, was played as part of the evidence at the hearing.
28 During the second day of the hearing, counsel for the defence sought leave to reopen the case to permit evidence relevant to the prosecution application from another witness to be adduced. That witness had been on the initial witness list as a person to be called by the prosecution; however, the replacement witness list that the prosecution had sent by email to the court and to the defence indicated that the person would not be called. I concluded that in the circumstances it was not appropriate to give the leave sought.
The defence application in relation to the objected to DNA evidence
29 Counsel for the defence initially put the defence application in relation to the objected to DNA evidence on two alternative bases.
30 One basis was that of relevance. The contention was that the objected to DNA evidence had no probative value. However, at the hearing counsel did not press that basis. Indeed, as I understood her, counsel conceded that the objected to DNA evidence had probative value, and thus was relevant. I consider that concession rightly made. See, on the relevance of DNA evidence, Mukevski v The State of Western Australia [2010] WASCA 138 [34] (Owen JA, McLure P & Buss JA agreeing), where the admissibility of DNA evidence was in issue.
31 The other basis for the defence application in relation to the objected to DNA evidence was that its prejudicial effect outweighed its probative value.
32 It was not in contest that the proper approach to that basis in this case was to consider, by reference to the nature of the evidence and its significance to the prosecution case, whether there was a significant risk that could not be properly guarded against by directions from the trial judge that a jury might misuse the evidence by giving it excessive weight. See Mukevski [35] - [36].
33 Ms Cooper gave detailed evidence as to the nature of DNA; the taking of samples identified as containing DNA from items produced by the police; the identification and extraction of reportable DNA at certain locations or loci to produce a DNA profile from such samples; and the analysis of such a profile, including the consideration of whether to exclude the source of reference DNA as a contributor to that profile, and, if not to exclude that person, whether to report an LR of them being a contributor and, if so, the determination of that ratio.
34 It was common ground that the procedures used in this case for the taking, identification, extraction and analysis of samples and DNA, including the determination of LRs, had been performed in accordance with proper standards employed by qualified experts in this area; and that Ms Cooper was such an expert.
35 However, counsel for the defence put to me that the LRs for the objected to DNA evidence were so low that its probative value was outweighed by its prejudicial effect, even taking account of directions that might be given by the trial judge in relation to it.
36 Counsel for the defence laid considerable emphasis upon the fact that the LRs in the objected to DNA evidence were dramatically lower than 1 million. That latter level, it emerged, was the level most recently adopted by PathWest to determine whether or not it was advisable to report, at least for the purposes of a trial, the LR for a result from the comparison of a set of mixed sample DNA results (that is, results with more than one contributor) with the population database used to produce LRs. For LRs less than 1,000,000, the number of adventitious matches (matches from a statistical result favouring the person's inclusion simply because, by coincidence, they had a genotype within the sample DNA profile) was considered to be too large. That number was so considered by PathWest using a conservative approach.
37 However, Ms Cooper's evidence was that this reporting threshold was not applied where there was a comparison of mixed DNA results with two to four contributors with a reference sample, such as one from an identified suspect. Consequently, LRs as low as those in this case, or indeed significantly lower, would be reported.
38 It should be noted that ratios expressing probabilities of finding a random person with the analysed DNA profile have, in suitable circumstances, been seen to have been properly admitted into evidence in criminal trials despite being significantly lower than those more commonly reported. See Thomason v The State of Western Australia [2007] WASCA 153, where the ratio was less than 1:590. See also Mukevski, where the ratio for one sample was less than 1:34 and for another less than 1:217. In both cases, one of the grounds of appeal against conviction was that the DNA evidence in question should not have been admitted as its prejudicial effect outweighed its probative value. In Mukevski,one of the grounds of appeal was also that the evidence had no probative value.
39 As I read their reasons, the court in each case was of the view that the evidence was properly admitted having regard to the circumstances of the case in at least two respects. One respect was that of the other evidence against the appellant and an evaluation of its strength, particularly to see whether or not the DNA evidence in question was at least the main evidence relied upon. In both cases, the prosecution case did not rely even substantially upon the DNA evidence in question. See Thomason [20] (McLure JA, Wheeler & Buss JJA agreeing); and Mukevski [31] (Owen JA, McLure P & Buss JA agreeing).
40 The other respect was that of the directions of the trial judge concerning the DNA evidence in question. In both cases, these directions were seen to be appropriate in their description of considerations applicable to evidence of such a probabilistic kind. They included an explanation of DNA evidence generally and of the relative strength of the DNA evidence in question. See Thomason [8], [15], [22] - [23]; and Mukevski [30], [36]. As I read those decisions, directions which would overcome 'the CSI effect' could be, and were, given. That effect, as I understand the reference, is the aura of scientific certainty produced in the popular imagination by descriptions of DNA results. The reference to 'CSI' is of course to the very popular television franchise of that name.
41 In this case I consider that the objected to DNA evidence is but one part, and not a substantial part, of the body of circumstantial evidence that the prosecution case relies upon. That evidence also includes DNA evidence, at substantially higher LRs, that the accused was a contributor to the DNA in other samples referred to in Dr Cooper's report. That other DNA evidence is not objected to.
42 The circumstantial evidence also includes an analysis of the similarity of red fibres from items found in the stormwater drain to red fibres found at the Shop; in the bedroom which, on the Witness Statement of Mrs Muller (and, as I will indicate, other evidence from the prosecution brief), the accused was occupying at the time of the offending; on a shirt worn by the accused when he was arrested in the silver two-door Ford Festiva; and from parts of that vehicle.
43 There was also evidence of observations and photographs of a silver two-door Ford Festiva with a dent matching that in the silver two-door Ford Festiva in which the accused was arrested. Those observations and photographs were of a silver two-door Ford Fiesta near the stormwater drains in which the items were found at a time shortly after the offending. The observations were of, and the photographs included, a red and white object or objects visible under the vehicle.
44 The body of other circumstantial evidence also includes photographs taken from the CCTV feed in the Shop; the items in the storm water drains being found on the street on which the accused was staying at that time and not far from the offence location; the amounts of cash located on the accused and in the silver two-door Ford Festiva in which he was arrested, including cash in rubber bands like those on the cash from the Shop; and the discovery of further cash in the door trim of the silver two-door Ford Festiva after the accused made a telephone call to Mr Brian Muller, a call on which a custody officer is in a position to give evidence.
45 Counsel for the defence put to me that the ratios in Thomason and Mukevski could not be compared with the ratios here. Accordingly, the guidance that the results in those decisions could provide was limited. Comparisons were not possible, as I understood the submissions of counsel, for three reasons.
46 First, ratios at the time of Thomason and Mukevski were expressed as random match ratios, not as LRs, which is the current practice reflected in Ms Cooper's evidence.
47 Secondly, the extraction of DNA profiles and the calculation of probabilities currently use more loci (21, rather than 11, including the locus for gender in each case) than was the case at the time of those two decisions, meaning that the numbers are simply not comparable. I note in this regard the admirable explanation of the extraction of DNA profiles from loci in R v Lindsay [2013] SASCFC 95 [21] - [22] (Kourakis CJ, Blue & White JJ agreeing). I gratefully adopt that explanation.
48 Thirdly and finally, the system used to analyse results, and in particular to analyse results for samples of mixed contributions, as used here, is now done by a computerised process that was not in use at the time of Thomason and Mukevski .
49 Counsel for the defence submitted that with respect to the Santa cap (although, not as I understood counsel, the glove) all three of those matters should be viewed in light of the Santa cap's level of significance to the state case.
50 As to the first of the submissions for the defence, it was not in contest that there had been a change in the way of expressing results of DNA analyses. However, I am not satisfied that the change is one of significance to me. It was not made evident to me that LRs were other than the inverse of random match ratios.
51 I note in this regard the description by Kourakis CJ in Lindsay [32] of alternative ways of explaining the probability of finding an extracted DNA profile that matches the profile of a person other than, and unrelated to, the accused. One way, which appears to be the LR, is that 'the material is "x" times more likely to yield a profile matching the suspect than a person selected at random in the community, where x is the probability ratio'. The alternative, described by his Honour as being, in his view, the 'preferable' way of 'explaining the ratio', is to 'express [the matter] as the probability of finding another person in the community with the same profile as the suspect and the biological crime scene material'. The latter ratio appears clearly to me to be the random match ratio.
52 As to the second submission, it was not in contest that, as Ms Cooper testified, the method employed for reporting probabilities involves determining the probability of a match with the accused at each locus employed. Eleven loci were employed at the time of Thomason and Mukevski and 21 are employed at present. Each probability is multiplied with each of the others. This, of course, would (depending on the number of loci at which matches with the accused were found) usually result in dramatically higher probability numbers under the present arrangements.
53 However, there was no evidence from Ms Cooper that the LRs for the objected to DNA evidence were so low as to be unsuitable to report or unintelligible. Indeed, her evidence overall was to the contrary effect, although she accepted that an LR of 32,700 or 16,400 was low in comparison to the other LRs reported as greater than 100 billion. I do not doubt that in order to understand those numbers a jury would require some explanation of how they were produced and the assessment of their relative significance. In this case, in my view, the former requirement is no different from the position at the time of Thomason and Mukevski. Compliance with the latter would be facilitated by the contrast between the LRs for the objected to DNA evidence and the LRs for the other DNA evidence.
54 As to the third submission for the defence, it was not in contest that the present computerised process has dramatically changed the ease with which matches of DNA profiles from results with more than one identified contributor may be made. In particular, it is now possible to match DNA profiles from results for which more than two contributors were identified. That was not done previously, or at least not to the same extent. The use of the computerised process, which I understand uses a set of arrangements called STRmix, is, as I understand it, described in the article by Bright, Taylor, Curran and Buckleton that was referred to in Ms Cooper's report and in her evidence before me.
55 The sample from the Santa cap was one with results indicating two contributors. However, the sample from the driver's seat cover outside front surface (visibly unstained areas) was one with results indicating four contributors. STRmix was not in use at the times of Thomason or Mukevski.
56 However, I note that, while it was not apparent from Thomason whether or not a mixed sample was involved, from Mukevski it was apparent that the relevant samples had at least three contributors (see [7]).
57 Further, it was not made apparent to me how STRmix affected the intelligibility of the ratios arrived at. In particular, it was not made apparent to me that the present computerised process meant that LRs at the levels of the objected to DNA evidence could not be the subject of suitable directions from the trial judge.
58 In making these determinations, I have taken account of the fact that, of all the items found in the stormwater drains, the circumstantial case for the prosecution as described to me refers to the Santa cap more often than to any other item. However, in my view, the relative significance of the Santa cap is not sufficiently accounted for in that way. Account must also be taken of other matters, such as the LRs for other items.
Conclusion on the defence application in relation to the objected to DNA evidence
59 For these reasons, I have concluded that I would not uphold the defence application with respect to the objected to DNA evidence.
The prosecution application
60 Counsel for the prosecution put the prosecution application on the basis of Criminal Procedure Act 2004 (WA) s 158, giving effect to sch 3, including cl 7(1). That sub-clause provides in material part:
7. Witness's pre trial evidence, use of at trial
(1) A court dealing with a charge may admit into evidence a statement of a witness or a recording of a witness's evidence if the court is satisfied that the statement complies with clause 4 or the recording was made in accordance with clause 6 and -
(a) …; or
(b) that the witness's medical or mental condition is such that the witness is unable to give evidence, or to give evidence satisfactorily, notwithstanding that the witness might recover at some future time; ...
62 Nor was it in contest that Mrs Muller's mental condition, Alzheimer's dementia, as it is at present, is such that she is within Criminal Procedure Act sch 3 cl 7(1)(b).
63 In view of its importance to what is in contest between the parties, I should at this point note the evidence of Dr Cummins in respect of Mrs Muller's Alzheimer's dementia. This evidence is to much the same effect, with greater elaboration (including the addition of further test results), as that in his report dated 10 March 2015 in the prosecution brief at page 390.
64 Mrs Muller was diagnosed as having developed the early stages of Alzheimer's's disease in May 2011, after an admission to Sir Charles Gardiner Hospital with acute confusion. That confusion lasted approximately two days. Following her discharge home, she was referred to the Memory Clinic at Osborne Park Hospital. There she was diagnosed as having the early stages of Alzheimer's's disease. Her mini mental state examination score (MMSE score) was 21/30. She lost points mainly for short-term memory recall and orientation. This is classified in the relevant three-stage classification scale as mild impairment. MMSE scores between 20 and 27 are in the mild impairment range. MMSE scores of 10 to 20 are in the moderate impairment range. MMSE scores of 0 to 9 are in the severe impairment range. A normal mental state is associated with a score between 27 and 30.
65 Mrs Muller was monitored by Memory Clinic specialists at Osborne Park Hospital. Her condition remained stable, as indicated by her MMSE scores for the next three years. Those scores ranged between 21/30 and 22/30, the latter score being on one occasion in 2013 and the last score of 21/30 in July 2014. Such relative stability over a period of three to four years is not uncommon. In the opinion of Dr Cummins, Mrs Muller's Alzheimer's disease was on a plateau over that period. The progression from mild to moderate is generally for two to three years; and the progression from moderate to 'profound', which I understood as severe impairment, is also usually two to three years.
66 In late 2014, Mrs Muller's mental condition had deteriorated to the point where she was no longer able to recognise people. It was not clear whether her diagnosis at that point was the most severe or the second most severe stage of Alzheimer's disease.
67 As at the time of the hearing, the progression of Mrs Muller's Alzheimer's disease was such that in the opinion of Dr Cummins she was unable to give evidence in court and be cross-examined on that evidence.
68 The contest before me was whether the court should refuse to admit the Witness Statement, either on an objection to its admissibility under Criminal Procedure Act sch 3 cl 7(1), notwithstanding that the formal requirements of that sub-clause were met, or under cl 7(5). The latter subclause provides:
(5) A court may refuse to admit a statement or recording under this clause if the court is satisfied that the admission of the statement or recording would be unfair to the party.
69 The principles applicable under those two subclauses, including how they are to be related to one another, have not, so far as counsel's or my research indicates, been comprehensively stated in any decision.
70 However, I consider that I should proceed on the following statement of principles that I have extracted from Criminal Law in Western Australia, accessed 20 March 2015, [8805.25]:
1. The word 'may' in Criminal Procedure Act sch 3 cl 7(1) imports a discretion. However, in view of cl 7(5), the scope of that discretion is unclear.
2. However, at the least the discretion would extend to cover the matters in 3 to 7 below.
3. Generally, objection may be taken to the admissibility of a witness statement or any part of its contents on the same grounds as objection might have been taken to that evidence if it had been proposed to be given as testimony. That objection might be on any such ground other than that the evidence is to be given from a document made by someone who would not be available to read it out or be cross-examined on its contents. That is, objection could not be taken on the basis that the evidence in the document could not be assessed or tested as testimonial evidence.
4. In particular, objection might be taken to a witness statement on the basis that the person making it was not competent to give it at the time it was made.
5. Objection might also be taken to any part of a witness statement on the basis that its prejudicial effect outweighed its probative value.
6. In taking account of the prejudicial effect of the evidence in a witness statement, and in determining whether to refuse to admit the evidence on the basis of unfairness (cl 7(5)), the court should take account of any directions that might be given to reduce or eliminate that prejudicial effect or unfairness.
7. In any event, evidence admitted under cl 7(1) should always be the subject of a direction about the caution required in its assessment due to the absence of the witness.
71 In my view, the burden in relation to the matters in 3 and 4 follows from the nature of the matter.
72 In a case where the maker of a witness statement is a person suffering from a 'mental impairment' within Evidence Act 1906 (WA) s 106A, it seems to me that the burden of the matter in 3 is on the person seeking the admission of that witness statement. In other words, the burden falls on the party who would have to satisfy the court of the matters in s 106B(3) if they were seeking to have oral testimony admitted. I will return to those statutory provisions.
73 I accept that there appears to be no authority on this point. However, it seems to me that the burden follows from the nature of the matter in 3, by reference to the statutory provisions that I have referred to.
74 It seems to me that the burden of the matter in 4 is on the person objecting to the admission of the witness statement, in the same way that the burden would lie on a person making the same objection to the evidence as testimonial evidence. See Heydon JD, Cross on Evidence (10th Aust ed, 2015) [11125].
75 In my view, the burden in relation to unfairness under Criminal Procedure Act cl 7(5) is also on the objecting party. This is on my construction of the provision.
76 As I understood the submissions for the defence, it was put to me that I should refuse the prosecution's application on the basis of Mrs Muller's lack of competence to make the Witness Statement on 10 December 2013, at least in the respects the subject of the prosecution's application. I call this the first basis.
77 Alternatively, the defence submitted that there was at least a sufficient doubt as to the competence of Mrs Muller or the reliability of the relevant parts of her evidence in the Witness Statement so that, given the significance of this evidence to the prosecution case, its prejudicial effect outweighed its probative value or it would be unfair to admit it. In both cases, the defence submitted that this was so notwithstanding any directions that the trial judge might be able to give. I call this the second basis.
78 As to the first basis, it is in my view important to distinguish between the matter of competence or capacity to make a witness statement, and the competence or capacity of the witness to make reliable statements in it. I understand this to be a well-recognised distinction in relation to testimonial evidence. I see that distinction reflected in the statutory test of competence to give testimonial evidence for a 'child' and for persons with a 'mental impairment': see Evidence Act s 106B, s 106C and, for a child, s 106D. As I have indicated, I consider that Mrs Muller was on 10 December 2013 and is at present suffering from a 'mental impairment' by reason of her Alzheimer's dementia.
79 I accept that the reason why a person is found to be incompetent or incapable to make a witness statement or give testimonial evidence, being the nature of their mental impairment at the relevant time, may also be a reason why the finder of fact should consider their evidence to be unreliable. Such a reason is of course proffered in this case. However, the reason would in my view operate differently in the two settings.
80 In the first, competence to give the evidence, the reason would operate to prevent admission unless the court is satisfied of the matters in Evidence Act s 106B(3). In the second, the reliability of the evidence, the reason would go to affect the weight to be given to the evidence but not its admission, unless the court is satisfied either that the evidence's prejudicial effect outweighs its probative value, or in the case of a witness statement, that it would be unfair to the party resisting its admission to admit it (Criminal Procedure Act sch 3 cl 7(5)).
81 In my view, the test for the competence or capacity of the maker of a witness statement to make it is the same test as for competence to take an oath or make an affirmation, being that set out in Evidence Act s 106B(3). That test is whether, in the opinion of the court or person acting judicially, the maker understood at the relevant time that the giving of evidence in a witness statement was a serious matter and that in giving such evidence the maker had an obligation to tell the truth.
82 It is less clear to me whether the test for giving evidence otherwise than by oath or affirmation, that in Evidence Act s 106C, has application to giving evidence by witness statement. It seems to me that a witness statement is evidence given on the basis of a counterpart to the oath or affirmation. That counterpart is the declaration under Criminal Procedure Act sch 3 cl 4 (5) (see also cl 4 (3) and (8)). On that view, the test from s 106C would have no role.
83 However, it is not necessary for me to resolve that last question. That is because in my view the evidence relevant to the matter leads me to conclude that Mrs Muller understood at the time of making the Witness Statement that the giving of evidence in that way was a serious matter and that in giving that evidence she had an obligation to tell the truth.
84 The evidence relevant to the matter was the evidence of Dr Cummins; the evidence of Detective Wishart; and the evidence of exchanges between Mrs Muller and police officers during the course of the execution of a search warrant at her home on 10 December 2013, as that execution is recorded in the search video. Mrs Muller is not shown at any point in the video. However, she is heard to engage in exchanges with, including to respond to questions from, police officers.
85 Dr Cummins testified that mild impairment 'usually' meant that a person had 'minor difficulties' with 'short-term memory'. His evidence goes into those matters in more detail as follows (20 March 2015, examination-in-chief, ts 119):
They may have difficulty with driving, turning left or turning right. They may have difficulty with finances. They might miss the occasional bill, or get confused whether they've paid it and pay it twice. The other thing they have difficulty with is shopping. They sometimes can't remember what they are in the shops for and come home with totally different shopping than they would normally prior to their impairment.
86 Later in his evidence Dr Cummins accepted that misplacing things was not uncommon with Alzheimer's dementia, apparently at the mild impairment stage. See cross-examination, ts 124.
87 Further progression of Mrs Muller's Alzheimer's dementia did not occur until late 2014. In Dr Cummins's opinion, prior to that time Mrs Muller was generally capable of recognising people.
88 I consider that, on Dr Cummins' evidence, at the stage of mild impairment Mrs Muller was capable of making the Witness Statement on the test from Evidence Act s 106B(3). The effects of that impairment as he described them did not in my view diminish that capacity.
89 I note that Dr Cummins accepted that persons with Alzheimer's dementia could have both 'good' and 'bad' days. On 'bad days' such persons might 'be quite confused on a particular day, and then the next day you can be functioning fine'; and as I understood his evidence bad days might be associated with such conditions as an infection (20 March 2015, cross-examination, ts 127). Further, the evidence of Dr Cummins was that he had not seen Mrs Muller on 10 December 2013, and therefore could not say whether she was having a bad day then.
90 However, I consider on the evidence from Detective Wishart, who spent two to two and 1/2 hours with Mrs Muller on 10 December 2013 and who found that she had no difficulty answering any of his questions, save in respect of what time she woke up that morning or when police came to her house in relation to her waking up, and from the search video in which Mrs Muller is heard speaking coherently with police officers, that there is no evidence of such confusion or physical condition to indicate that she was having a bad day then. I have noted in this regard the matter in the Witness Statement indicating that Mrs Muller had taken sleeping pills that made it hard for her to wake her up, which is referred to in connection with her difficulty answering Detective Wishart's questions. However, his evidence does not indicate any other effects of the pills.
91 Further, by reference more generally to Detective Wishart's evidence and the evidence from the search video in other respects (both of which I will return to in connection with competence or capacity to give reliable evidence), there are no indications of lack of competence to make the Witness Statement. To the contrary, I take from Detective Wishart's evidence that Mrs Muller demonstrated on 10 December 2013 an understanding that her making of the Witness Statement was a serious matter, and that she had an obligation to tell the truth in it. I will indicate, in connection with competence or capacity to give reliable evidence, why I take from that evidence that she demonstrated those understandings.
92 The matter of Mrs Muller's competence or capacity to give reliable evidence in the Witness Statement, in terms of her capacity to recall accurately the matters stated to have been observed that are the subject of the prosecution application, raises a closer question. I consider that there is some reason to doubt that capacity, principally in the diagnosis of Mrs Muller's Alzheimer's dementia even as mild, when taken with the evidence by Dr Cummins of Mrs Muller's powers of recall on 'bad days' and what I took to be his inability to say whether 10 December 2013 was such a day.
93 I also note from the Witness Statement itself Mrs Muller's acknowledgement (see [7]) that when she woke up on the morning of 10 December 2013 she did not know what time it was and that she did not know if the police came to her house long after she woke up or just afterwards, to which she added 'my memory is not very good'.
94 Further, I note the witness statement of Jeanette Lillian Musca in the prosecution brief (pages 376 - 380), to which I return below. Ms Musca states that she is a daughter of Mrs Muller and had noticed in 2010 that her mother was starting to forget things such as the day it was or who came to visit. See [9] and [10]. This of course was the year before Mrs Muller's diagnosis of Alzheimer's dementia.
95 However, I do not consider that the matter can be put higher than some reason to doubt capacity to recall accurately matters stated. That is on the basis of Dr Cummins's evidence as to Mrs Muller's capacity while in the mild stage of Alzheimer's disease and not having a bad day, the context of Mrs Muller's reference to her memory, other matter in Ms Musca's witness statement, Detective Wishart's evidence and the evidence from the search video.
96 Dr Cummins' evidence, as I understand it, is that Mrs Muller had a power of recall so as to be capable of providing reliable evidence in the Witness Statement.
97 The context of Mrs Muller's reference to her memory as 'not very good' appears to be an illustration of a matter of detail much finer than the matter in the Witness Statement the subject of the prosecution application.
98 Ms Musca's witness statement also includes that, notwithstanding the memory difficulties referred to, when her mother gave her an enduring power-of-attorney in 2010 Ms Musca was of the view that her mother was 'still capable'. See [12] read with [8].
99 Detective Wishart gave evidence that he was an experienced police officer and that in his exchanges with Mrs Muller on 10 December 2013, including taking her Witness Statement, she appeared to be 'fine'. He accepted that had he known of her diagnosis of Alzheimer's disease he would likely have made further enquiries. However, neither from his evidence nor that of Dr Cummins is it apparent what the results of any inquiries would necessarily have been.
100 Further, there is Detective Wishart's evidence as to the exchange that he had with Mrs Muller that produced the Witness Statement, particularly as to its duration of 45 minutes, during which he checked that all of the responses that she gave were 'correct' before he wrote them down as the Witness Statement (20 March 2015, cross-examination, ts 165). This evidence was not challenged. It indicates that Mrs Muller understood that her giving of evidence in that way was a serious matter and that she had an obligation to tell the truth.
101 I also note what I am able to make out from the search video of exchanges between Mrs Muller and the police officers. The audio of those exchanges indicates that Mrs Muller was able to describe a number of matters consistently with the Witness Statement without prompting with the 'correct' description.
102 True it is that on one occasion she refers to her grandson, the accused, as 'Carl' then 'Kyle'. However, when 'Kody' is suggested to her, and she accepts it, she does so quickly and with no evident hesitation; and from the outset she refers to him as her son's son. It is also true that Mrs Muller's description of the length of the accused's stay at her home is at some odds with her account in the Witness Statement. That account is of a stay of 'about 3 weeks' [3]. The description is of a stay of five to six weeks. However, Mrs Muller arrives at this description after rejecting the suggestion that the stay was of about one week, and indicates that the period that she gives is an approximation.
103 Finally, I note that certain parts of the Witness Statement are confirmed by other material in the prosecution brief. However, I put aside for this purpose the video record of interview with the accused. That is because the state has agreed that the record should not be sought to be tendered into evidence as a result of objections to it by the defence. Accordingly, I do not consider that I can give it significant weight in my deliberations.
104 The other material in the prosecution brief is twofold.
105 First, there is the witness statement of Ms Musca. It indicates that in December 2013 the accused was staying at Mrs Muller's home, in the back room, being the room from which fibres were taken, as I described earlier. Both statements are consistent with the corresponding matter in the Witness Statement.
106 The other material in the prosecution brief is evidence from a police search of a knife block in the kitchen of Mrs Muller's home. This evidence shows that the knives in that block are of a kind corresponding to that of the knife from the stormwater drains. Further, there are indications of a knife or knives missing from the block.
107 The matters founding a reason to doubt the competence or capacity of Mrs Muller to give accurate evidence in the Witness Statement, and the other matters that I have just referred to, are, it seems to me, ones going to weight, to be taken into account by the finder of fact to the extent it considers appropriate. Those matters, and in particular those founding the reason to doubt, could and, I expect, would be dealt with in directions from the trial judge, in addition to the trial judge's directions as to the matter of the absence of Mrs Muller. In my view, that body of directions would tend sufficiently to avoid the risk of prejudicial effects from the admission of the evidence the subject of the prosecution application that would outweigh the probative value of that evidence; and to avoid unfairness from the admission of that evidence.
108 It might be suggested that the question of whether the directions would be sufficient for those purposes would be a particularly close one if the evidence of Mrs Muller were a crucial or at least substantial part of the prosecution case; or if the matters the reason to doubt rests upon were not part of the evidence in the case, and thus could not be the subject of directions.
109 However, it seems to me that the evidence of Mrs Muller that is the subject of the prosecution application cannot be seen as a crucial or substantial part of the prosecution case. I refer again to the circumstantial evidence upon which the prosecution case (as I have described it) relies, but after removing from it for the purposes of the present matter the evidence of Mrs Muller itself. In that regard, I note the evidence of Ms Musca to the same effects as the evidence of Mrs Muller, and the evidence as to the knife block.
110 As to the matters the reason to doubt rests upon, I note that all of them will either be part of the evidence to be adduced by the prosecution, or no objection will be taken to them being adduced by the defence if the prosecution application is granted. As I understood it, the evidence to be adduced includes medical records for Mrs Muller that the prosecution will endeavour to obtain from an appropriate source. Dr Cummins will also be called as a witness by the prosecution.
Conclusion on the prosecution application
111 For these reasons, I have concluded that I would grant the prosecution application.
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