The State of Western Australia v O'Meara - [2018] WASC 382

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- O'MEARA [2018] WASC 382
CORAM:   JENKINS J
HEARD:   20 APRIL 2018
DELIVERED          :   6 DECEMBER 2018
FILE NO/S:   INS 167 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DYLAN CLINTON O'MEARA
Accused

Catchwords:

Criminal law - Evidence - Confessions and admissions - Admissibility of recording of admissions - Common law principles - Basal voluntariness - Discretion to exclude - Accused with psychological vulnerabilities

Legislation:

Criminal Investigation Act 2006 (WA)
Evidence Act 1906 (WA)

Result:

The application to exclude EROI 1 is dismissed
The application to exclude EROI 2 is granted

Category: B

Representation:

Counsel:

Prosecution	:	Mr C G Astill
Accused	:	Ms J G Fordham

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Scerri Legal

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

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235
McDermott v The King (1948) 76 CLR 501
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
R v Ireland [1970] HCA 21; (1970) 126 CLR 321
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Sinclair v The King (1946) 73 CLR 316
The State of Western Australia v O'Meara [2018] WASC 121
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559

JENKINS J:

Introduction

The accused is charged on indictment that on or about 8 April 2016 at Rockingham he unlawfully killed Shisui‑Grady George O'Meara (the deceased). I have previously determined that the accused is mentally fit to stand trial.[1]
[1] The State of Western Australia v O'Meara [2018] WASC 121.
The accused has applied for orders that the two electronically recorded interviews with the police which were conducted on 21 and 22 April 2016 (EROI 1 and EROI 2 individually and the EROIs collectively) be excluded from evidence at trial.[2]
[2] The application states that it is made pursuant to the Evidence Act 1906 (WA) s 112. However, s 112 does not create the jurisdiction or power to exclude evidence in a criminal trial.
EROI 1 was conducted by Detective Sergeant (DS) Lampard and Detective Senior Constable (DSC) Main from 9.40 pm on 21 April 2016 until 12.18 am on 22 April 2016. EROI 2 was conducted by DS Shanahan and DSC Carbone from 3.27 pm until 6.32 pm on 22 April 2016.
These are my reasons for determining that EROI 2 is inadmissible and that the application to exclude EROI 1 is dismissed.
At the hearing of the application the State called evidence from:
•Dr Adam Brett, psychiatrist;
•DSC Daniel Main;
•DS Dean Lampard;
•DSC Nathan Carbone; and
•DS Brendan Shanahan.
The accused called evidence from:
•Dr Mandy Vidovich, clinical neuropsychologist; and
•Dr James McCue, clinical psychologist/forensic psychologist (Registrar).
The accused submitted that the EROIs should be excluded on at least one of the following grounds:
(1)The statements made by the accused in the EROIs were not voluntary.
(2)It would be unfair to admit the statements made by the accused in the EROIs because either:
(a)the manner of questioning raises doubts about the reliability of the admissions made in the EROIs; or
(b)the manner in which the accused was interviewed deserves censure by way of exclusion of the EROI from evidence on public policy grounds.
The State opposed the application to exclude either EROI on any of the above grounds.

The prosecution case

The State's statement of material facts contains the following allegations:
The accused is the natural father of [the deceased]. The deceased was born 2 September 2015 (and) at the time of [his death] was 7 months of age.
The accused was living with his partner in a de facto relationship and the victim in a shared accommodation situated at 19 Keppell Mews, Rockingham. The accused, his de facto wife and the victim live[d] … in a converted semi self-sufficient games room at the rear of the premises. The deceased slept in a port‑a‑cot within close proximity to the accused's bed.
On Thursday 7 April 2016, the accused and his family were present in their living space … During the evening the accused tended to the [deceased] feeding, clothing and placing him to bed. The accused and his de facto wife remained awake until around midnight that evening when they decided to go to sleep themselves. The [deceased] was checked and was sleeping soundly.
Between the hours of 12.01 am and 10.00 am the following morning, 8 April 2016, the [deceased] woke in his port‑a‑cot for a normal night time feed.
The accused woke with the room in complete darkness, he felt his way through the darkness to the [deceased's] port‑a‑cot and began making a semi‑prepared bottle of formula.
The accused reached into the port‑a‑cot and took hold of the [deceased's] left forearm and proceeded to lift him out over the side rails of the port‑a‑cot.
The force in which the accused lifted the [deceased] from the port‑a‑cot resulted in the [deceased's] left forearm bone breaking and separating, plus (he) received a further two fractures to the wrist joint and elbow joint of that same arm. The accused attempted to feed the [deceased] however the [deceased] was crying, in pain and refused.
The accused attempted to settle and soothe the [deceased] in his arms for 10 ‑ 15 minutes with no success.
The accused laid the deceased in his port‑a‑cot and placed a bunched portion of blanket into the [deceased's] mouth in an attempt to settle his crying and provide something for the [deceased] to bite down on.
The accused became emotional as he had a bad feeling and sat at the end of his bed for a period of about 20 minutes whilst he waited for the [deceased] to settle. The [deceased] suffering his massive arm injuries did not settle. After approximately 20 minutes the [deceased] stopped crying. The accused approached the [deceased] and lent over the port‑a‑cot where he saw the blanket placed into the [deceased's] mouth was now covering the [deceased's] head. The accused removed the blanket from the [deceased's] head and mouth, re‑positioning it and leaving the deceased where he lay. The accused climbed into his bed, sought his iPod and listening to loud music prior to falling asleep.
At about 10.00 am on Friday 8 April 2016, the accused and de facto wife woke as normal. The accused approached the [deceased's] port‑a‑cot and picked him up. The [deceased] was cold to touch and appeared lifeless.
The accused and other people living in the accommodation have eventually flagged down a passing by motorist and conveyed the [deceased] to the Rockingham Hospital where he was certified life extinct.

The legal principles - involuntary admissions

An admission made by an accused out of court is not admissible at his/her trial unless it is voluntary.[3] If the issue of the voluntariness of an admission arises the onus is on the State to prove on the balance on probabilities that a confessional statement on which it seeks to rely has been made voluntarily.[4]
[3] McDermott v The King (1948) 76 CLR 501, 511; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron & Gummow JJ).
[4] R v Lee [1950] HCA 25 [14]; (1950) 82 CLR 133, 144; Wendo v The Queen [1963] HCA 19 [144]; (1963) 109 CLR 559, 572 ‑ 573 (Taylor & Owen JJ).
At common law an admission is inadmissible in evidence unless it is a free and voluntary statement.[5] The voluntariness basis for exclusion of admissions is divided into two sub categories.[6] One provides that an admission by an accused person 'is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed'[7] (the inducement rule).
[5] Cornelius v The King [1936] HCA 25; (1936) 55 CLR.
[6] In Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 Gleeson CJ identified the inducement rule as being a particular application of the basal involuntariness rule [14]. The other members of the majority appeared to regard the two rules as being separate sub categories of involuntariness.
[7] R v Lee (144) (Latham CJ, McTiernan, Webb, Fullagar & Kitto JJ). See also Tofilau v The Queen [2] (Gleeson CJ), [41] (Gummow & Hayne JJ), [245] (Callinan, Heydon & Crennan JJ).
The other sub category is that an admission is not voluntary if it is made as a result of 'violence, intimidation, or of fear' or some other form of actual coercion (the basal involuntariness rule).[8]
[8] Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235, 245 ‑ 246 (Dixon, Evatt & McTiernan JJ). See also Tofilau v The Queen [6] (Gleeson CJ), [28] (Gummow & Hayne JJ), [325] ‑ [327] (Callinan, Heydon & Crennan JJ).
For the basal involuntariness rule to operate in favour of exclusion of an admission the compulsion or coercion exerted on the accused need not be physical violence or force. In Cornelius v The King[9] the plurality approved a statement to the effect that a confession is not voluntary if obtained by compulsion whatever its character. Their Honours agreed that a confession is inadmissible:
[W]here the compulsion alleged takes the form of prolonged and sustained pressure by police officers upon a prisoner in their hands, until, through mental and physical exhaustion, to which want of sleep and food sometimes contributes, he consents, in order to obtain relief, to make a confession of the crime. If it is alleged that the confession is the outcome of pressure, the question whether by persistent interrogation, or by other means, a prisoner has been constrained to confess so that his statement cannot be regarded as voluntary must sometimes be decided as a matter of degree.
[9] Cornelius v The King (246 ‑ 247) (Dixon, Evatt & McTiernan JJ).
In the same sense an admission by an accused is not admissible:
[U]nless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure. [10]
[10] R v Lee (144), abreviating the words of Dixon J in McDermott v The King.
The majority of the High Court in Tofilau v The Queen favoured a narrow scope for the basal involuntariness rule.[11] For example in their joint judgment Callinan, Heydon and Crennan JJ said that it was wrong to construe Dixon J's dicta in a number of cases as 'indicating any breadth to the doctrine'.[12]
[11] Tofilau v The Queen [17] (Gleeson CJ), [54] (Gummow & Hayne JJ), [330] ‑ [331] (Callinan, Heydon & Crennan JJ).
[12] Tofilau v The Queen [331] (Callinan, Heydon & Crennan JJ).
Relevantly to this case, their Honours analysed with care the approach of Dixon J (as he then was) in Sinclair v The King[13] where the issue was the admissibility of admissions made by a mentally ill man when there was no suggestion that the inducement rule had been breached. Their Honours said that an admission is 'inadmissible as involuntary where the mind of the accused is so unbalanced as to render it wholly unsafe to act on the confession'.[14] However they concluded:
The aspect of the basal involuntariness doctrine under discussion has only occasionally led to exclusion. A confession late at night by an accused person who had fainted twice, had difficulty in moving and was 'in a dopey condition' was excluded on the ground that the prosecution had not established that it was voluntary. The same result applied to a confession by a person who, after stabbing another person, had 'blacked out' and attempted suicide by taking poison and by jumping into Auckland Harbour; he was found in wet clothing, cold, shivering, frothing at the mouth and in a distressed state; he had repeatedly vomited; and he had been rushed to hospital where his stomach had been forcibly pumped out before the confession was elicited. But instances of this kind, where there has been automatic exclusion on grounds of involuntariness, as distinct from discretionary exclusion, are rare.
The point of these citations is to demonstrate that Dixon J, and other judges, have considered the 'basal involuntariness' rule in its application to mentally disordered persons to be quite circumscribed. …
To the very narrow extent to which a category of basal involuntariness has been found or contemplated as a possibility in relation to persons suffering from mental disorder, or a head wound, or extreme fatigue, that category operates as an exception to a general proposition - it cannot be called a rule of law - that 'what will render a confessional statement involuntary must be some factor external to the accused'. The factors listed by Dixon J in McDermott v The King were all factors external to the accused - factors causing the will of the accused to be 'overborne'.[15]
[13] Sinclair v The King (1946) 73 CLR 316.
[14] Tofilau v The Queen [334] (Callinan, Heydon & Crennan JJ).
[15] Tofilau v The Queen [338] ‑ [340] (Callinan, Heydon & Crennan JJ).
In Sinclair the majority of the High Court dismissed the offender's appeal from his conviction for murder. Sinclair was convicted on the basis of his confessions. He was a schizophrenic and it was not in dispute that there was a real risk that he might fail to distinguish fact from fantasy and that he might construct and relate an imaginative account of something that had never really happened. On the other hand the evidence did not show that he had a mind so disordered and irresponsible that it would be dangerous to pay any attention whatsoever to what he said. The majority, in separate judgments, upheld the admissibility of confessions made by Sinclair. They each explained that an admission is not necessarily inadmissible because it was made by a person of 'unsound mind' even though it was possible that the offender by reason of his mental condition had confused the products of his disordered imagination with fact.[16] This principle would apply with even more force to an admission made a person with mental impairments falling short of unsoundness of mind.
[16] Sinclair v The King (323) (Latham CJ), (327) (Rich J), (328) (Starke J) and (337 ‑ 338) (Dixon J) at (340) (McTiernan J) held that the onus was on the accused to show that the admissions were made when he was not rational enough to make a true confession. This is not the law.
Each member of the majority in Sinclair explained differently the relevance of an accused's mental impairment to the admissibility of an admission not obtained in breach of the voluntariness rule. Latham CJ said that the question was whether the accused had 'a mind so disordered and irresponsible that it would be dangerous to pay any attention whatever to what he said'.[17] Starke J said that the trial judge was bound to consider the probability, not possibility, that an admission was the product of a disordered mind which affected the truth of the admission in all the circumstances of the case and to decide whether there was reason for presenting it to the jury. Dixon J (as he then was) held that it is only if the accused's impairment is so significant that no account should be taken of an admission made by the accused because it is highly probable that it is unreliable that the admission should be rejected as being involuntary.[18] His Honour said:
Boyd Sinclair 's mental state did not disable him from observing, appreciating, recollecting and recounting real occurrences, events or experiences. The fact that his mind, in its schizophrenic state, may have been stored with imaginary episodes and with the memory or unreal dramatic situations would, of course, make it impossible to place reliance upon his confessional statements as intrinsically likely to be true. The tendency of his mental disorder to dramatic and histrionic assertion formed another difficulty in attaching an inherent value to what he said. But it is to be noticed that his condition did no more than make it possible that the source of any confessional statement made, lay in these tendencies. 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. Reason suggests 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.[19]
[17] Sinclair v The King (324) (Latham CJ).
[18] Sinclair v The King (338) (Dixon J).
[19] Sinclair v The King (337 ‑ 338) (Dixon J).
In the later case of Wendo v The Queen[20] Dixon CJ observed that he did not 'quite understand' what Starke J meant by his statement in Sinclair when he said that a trial judge was entitled and bound to consider the probability of the mental condition of the accused affecting the truth of a confession. Dixon CJ said that 'once it was established that [an accused] understood what he was doing in making a statement which, if true, would amount to a confession, it is admissible in evidence quite independently of its probative value.' He said that he did not think that probative value is ever a question for the judge to decide conclusively. Consequently the statements of Dixon J in Sinclair should not be interpreted as requiring a judge to consider the probative value of a mentally unwell accused' admissions when determining whether they were made voluntarily.
[20] Wendo v The Queen [1963] HCA 19 [2]; (1963) 109 CLR 559, 562.
In Morris v The Queen[21] the High Court considered the weight to be given to a confession made by a chronic alcoholic who was intoxicated by methylated spirits to some extent when he made the confession. His intelligence was described as 'borderline', that is, 'between low average range and the mentally defective range'. The result of his memory test was in the low average range. Test results were consistent with frontal lobe deterioration of the brain. It was accepted that alcohol was a cause of such deterioration. [22]
[21]Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454.
[22] Morris v The Queen (458).
Mason CJ said that an oral admission made by Morris to a reliable witness was 'rightly admitted' in evidence and that issues relating to its reliability were a matter of weight for the jury. Unlike the jury in Sinclairthe jury did not have the advantage of measuring the reliability of the admission by reference to independently established facts indicative of the truth of the matter admitted. In these circumstances Mason CJ reached the conclusion that a reasonable jury could not have been satisfied beyond reasonable doubt that the admission was reliable and, accordingly, of the applicant's guilt.
The plurality[23] noted that no objection had been made at the trial to the admission of the confession. Rather it was the reliability of the confession which was in issue. For reasons similar to those expressed by Mason CJ the plurality allowed the appeal.[24]
[23] Deane, Toohey and Gaudron JJ.
[24] Morris v The Queen [22].
Dawson J appeared to have been of the same view as Mason CJ on the question of admissibility of the confession but would have dismissed the appeal on the basis that the jury were entitled to be satisfied beyond reasonable doubt that the admission was reliable and, accordingly, of Morris' guilt.

As was noted in Tofilau the criteria for exclusion of an admission on the grounds of basal involuntariness rely on the effect of an external factor, such as duress, intimidation, persistent importunity or sustained or undue insistence or pressure on the mind of the accused by an interviewer. However, the law accepts that in the case of a mentally unwell accused there may be circumstances where an admission will be held to be involuntary because of the mental state of the accused at the time he made the admission, even though the behaviour of the interviewer did not amount to duress, intimidation, persistent importunity or sustained or undue insistence or pressure.
Cases such as Tofilau, Sinclair and Morris indicate that only in a very narrow group of cases will the correct decision be to exclude the admission of a mentally unwell person on this latter basis. In most cases the correct decision will be to admit it and to allow the decider of fact to determine the weight it is to be given.

The legal principles ‑ admissions excluded in the exercise of discretion

An admission made by an accused may also be excluded from evidence in the exercise of the court's discretion.[25] The onus is on the accused to satisfy the court on the balance of probabilities that the admission ought to be excluded in the exercise of its discretion. Relevantly there are three bases for excluding statements made by an accused in the exercise of the court's discretion to do so.
[25] R v Lee (152) ‑ (153).
These bases include where:
(1)it would be unfair to the accused to admit the statements (the unfairness discretion);
(2)considerations of public policy make it unacceptable to admit the statements into evidence; notwithstanding that were made voluntarily and their admission would not result in particular unfairness to the accused (the policy discretion); and
(3)the prejudicial effect of the statements are greater than their probative value and so the statements ought to be excluded in order to guard against a miscarriage of justice (the prejudice discretion).[26]
[26] R v Swaffield [52] (Toohey, Gaudron & Gummow JJ); Tofilau v The Queen [245] ‑ [248].
In relation to the unfairness discretion in McDermott v The King[27] Latham CJ said that the trial judge had 'a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.' In the same case Dixon J said:[28]
In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.
[27] McDermott v The King (506) ‑ (507).
[28] McDermott v The King (513)
In R v Lee[29] the High Court said:
What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions.
[29] R v Lee (151).
The court went on to make three points about the exercise of the discretion:
1.The 'unfairness' of using a 'statement' must arise from the circumstances under which it was made. It does not relate to whether the accused did justice to himself or his case (152).
2.The discretion rule represents an exception to a rule of law, and it is for the accused to bring himself within the exception; not for the prosecution to justify why the admission ought to be admitted into evidence (152 ‑ 153).
3.If the judge thought that the 'impropriety' [on the part of police officers] was calculated to cause an untrue admission to be made, that would be a very strong reason for exercising his discretion against admitting the statement in question. If, on the other hand, he thought that it was not likely to result in an untrue admission being made, that would be a good reason, though not a conclusive reason, for allowing the evidence to be given (153).
The policy discretion applies to unlawful conduct by 'those whose task it is to enforce the law'.[30]
[30] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 74 (Stephen & Aickin JJ) and R v Ireland [1970] HCA 21; (1970) 126 CLR 321.

The issues

The accused submitted that the State had not proved that the EROIs were voluntary because:
(1)the evidence did not establish that he understood, as opposed to had the capacity to understand, his right not to answer questions and that his answers may be used against him in court;
(2)the evidence did not establish that he retained whatever understanding he may have had of the caution when it was explained to him;
(3)the accused's mental condition and the circumstances in which the EROIs were conducted 'militate[d] against his ability to participate voluntarily'[31] in the EROIs;
(4)the accused had not been assessed medically as being physically fit to be interviewed;
(5)the accused was vulnerable because he would have been tired and disoriented;
(6)the accused told the police that he had to continue with EROI 1 and the police did not then tell him that he could cease the interview;
(7)the accused was subjected to sustained and undue pressure from the police;
(8)at the conclusion of EROI 1 DS Shanahan by demanding that the accused find out from 'Alex' the accused's imaginary friend, what had happened to the victim, offered the accused an inducement; and
(9)during EROI 2 the accused was subjected to persistent importunity from the police.
Alternatively, the accused submitted that the EROIs ought to be excluded for the same reasons in the exercise of my discretion.
[31] Accused's written submissions 19 June 2018.
The State submitted that I should be satisfied on the balance of probabilities that the accused:
(1)understood the caution and the questions put to him during the EROIs;
(2)was capable of choosing whether or not to participate in the EROIs;
(3)chose to participate in the EROIs and to provide responsive answers to the questions asked of him which were not so obviously the product of a disordered mind that they should be excluded from evidence; and
(4)it would not be unfair to use the EROIs against the accused.

Facts

I set out my findings in respect of the accused's background and psychological and psychiatric impairments in my decision on his fitness to stand trial. I incorporate those findings into these reasons.
An autopsy was carried out on the body of the deceased. As at 21 April 2016 the police involved in the inquiry into the death of the deceased had been told that at the autopsy the deceased was found to have fresh fractures to his left forearm, a corner fracture of the left humerus and an old healed rib fracture. These injuries were suspicious of being non‑accidental. They had been advised that the deceased's left arm had suffered significant trauma and a greenstick fracture which could have been caused by lifting and twisting. However the police had been told that no cause of death had been ascertained at the autopsy and that there were no obvious signs of suffocation. The deceased had no signs of malnutrition and he otherwise appeared to have been a healthy baby. Forensic officers had seen what appeared to be droplets of blood in the deceased's portacot.[32]
[32] Exhibit 3.
On 21 April 2016, nearly two weeks after the deceased's death, a number of police officers went to the accused's grandparents' home in Rockingham. At about 3.45 pm the accused was arrested on suspicion of causing grievous bodily harm to the deceased.
DSC Carbone (who was a member of the investigation team investigating the deceased's death) gave the accused his arrested suspect rights under the Criminal Investigation Act 2006 (WA) (the CI Act). DS Lampard and DSC Main (who were members of the Major Crime Squad) placed the accused in the back of their police car and commenced to drive the accused to the Major Crime Squad's office in Perth. None of those police officers had any previous dealings with the accused although they had been given limited information regarding his tendency to have fits and they had been told that the accused believed that he had a friend called Alex, who did not in fact exist.
DS Lampard and DSC Main had received a short briefing about the case before travelling to the accused's home but they were not otherwise involved in the investigation into the deceased's death.
DSC Main drove the police car and DS Lampard sat in the back seat with the accused. The police officers spoke to the accused about his welfare. He told them that he had seizures when he was stressed and he suffered from depression for which he took medication.
DS Lampard asked the accused whether he had understood the rights that had been given to him when he had been arrested. The accused said that he did not and so DS Lampard repeated them. DS Lampard told the accused that he was not obliged to say anything to the police. He also repeated his rights under the CI Act as an arrested suspect.
During the trip, DSC Main looked in the rear vision mirror and saw that the accused's eyes were closed and that he was shaking. He pulled the car over onto the side of the road. Both officers got out of the car and went to the rear passenger side door. The accused was 'gently convulsing'.[33] DS Lampard called the accused's name and shook his leg. After a few moments he appeared to regain consciousness. The officers got him out of the car in order to get fresh air and to stretch his legs. The accused took a few steps, stumbled and fell forward. He put his hands out and received some prickles in his hand or hands. He removed the prickles himself. The officers decided that the accused needed medical assistance prior to being taken to the Major Crime Squad's office.
[33] ts 259, 24 April 2018.
The accused was driven without further incident to Royal Perth Hospital. The accused was examined by a doctor and the doctor provided a letter to the police officers stating that the accused was fit to be in police custody.
At 7.55 pm the accused was driven by DS Lampard and DSC Main from the hospital to the Major Crime Squad's office. The accused was placed in an interview room until EROI 1 commenced. Twenty minutes after his arrival he was given a packet of chips and a chocolate bar.[34] There is no evidence that he was given any other food whilst in police custody that evening.
[34] ts 274, 24 April 2018.
DS Lampard said he had been a police officer for 20 years and the accused 'seemed fine' to him to be interviewed.[35] The accused was coherent, lucid, he understood what was said to him and he answered the police officers' questions.[36]
[35] ts 275, 24 April 2018.
[36] ts 280, 24 April 2018.
At 9.07 pm DS Robert Clements gave verbal approval to extend the accused's detention beyond six hours.[37]
[37] ts 339, 26 April 2018; exhibit 5.

EROI 1

EROI 1 commenced at 9.40 pm in an interview room at the Major Crime Squad's office. DS Lampard, DSC Main and the accused were present in the interview room. The accused gave responsive answers to questions about his level of education and employment history. He was asked whether he was suffering from any illness or injury and he mentioned his hand which had been pricked.
The accused was told that if at any time he did not understand what was being said then he was to let the interviewing officers know and the questioner would rephrase the question. He was asked if he understood everything that they had said so far and he replied 'yep'.[38]
[38] EROI 1, ts 3.
The accused said he did not recall the arresting detective giving him his rights. He remembered DS Lampard repeating them in the car but said that he had forgotten what he had been told. DS Lampard then repeated an arrested suspect's statutory rights. In relation to whether he would exercise his right to speak with a friend or relative to advise them of his whereabouts, the accused indicated some uncertainty as to whether he should tell his mother. When DS Lampard asked him whether there was anyone else such as a lawyer who he would like to speak to, the accused said that he did not see the need for it.
DS Lampard then cautioned the accused. He asked the accused to repeat the caution back to him in the accused's own words. The following exchange took place between DS Lampard and the accused:
DS Lampard: How do you understand what I've just told you?
Accused: Like, like, the entire thing or the last bit?
DS Lampard: Mainly about that you don't have to talk to us unless you want to.
Accused: Mmm.
DS Lampard: What do you understand that to mean?
Accused: Like, that if, if, like, I can't handle something I have to say it.
DS Lampard: Yep, or if you don't want to answer it, y -, you don't have to. So if I ask you a question do you have to answer it?
Accused: No.[39]
[39] EROI 1, ts 6.
The accused's counsel submits that the accused's response was as I have quoted it to be. Her submission appears to me to be that the accused was in effect saying that if he did not like the questions being put to him then he had to say so.
The State submits that the accused said 'if … I can't handle something I won't have to say it'. I have listened to the recording and I cannot hear the word 'won't' but it is possible that the accused said something at that point.
DS Lampard's subsequent questions do not indicate that he heard the accused say something to the effect that he had to answer questions even if he could not 'handle' them, which is another interpretation of the accused's response. If an interviewing police officer heard or interpreted a suspect to say in effect that he had to answer questions I would expect that the interviewer would attempt to correct that misunderstanding. DS Lampard did not attempt to do so. The other factor which tends against a conclusion that accused said in effect that he had to answer questions are his responses to the next series of questions which indicates clearly that the accused knew that he did not have to answer a question if he did not wish to do so.
DS Lampard then repeated that part of the caution which deals with the recording of the interview and the use to which it may be put. The following exchange then took place:
DS Lampard: So what do you understand that to mean?
Accused: Um, like yeah, if I ‑ like, it's my choice to, like, say anything, and if I do it will be used as evidence.
DS Lampard: It will be recorded? Do you understand how the camera works?
Accused: Yeah.
DS Lampard: Yep. And where do you think that evidence could get played?
Accused: Um, I don't know.
DS Lampard: Where is the evidence usually heard?
Accused: Um, court.
DS Lampard: Yeah, that's right. Do you understand how a court works?
Accused: Nope.
DS Lampard: Okay. There's like the, the judge and the magistrate and the prosecutor and the defence and the, the accused person, and sometimes juries and things like that.
Accused: Mmm.
DS Lampard: And that's where, where matters go and get heard. Do you understand that?
Accused: Yeah.
DS Lampard: Because, mate, if, if there's parts that you don't understand, tell me and I'll ‑ Dan or I can explain it to you. So, please, if you don't understand, tell us.
Accused: Yeah. I understand. It's just I'm not good at explaining stuff.[40]
[40] EROI 1, ts 6 ‑ 7.
The interview then continued with the accused giving responsive answers to the detectives' questions. In doing so he provided an account of what had happened on the day and evening of the deceased's death. The accused gave quite a detailed account of his interactions with the deceased on the evening of 7 April and the early hours of 8 April until he checked on him in his portacot and found that he was dead. The accused appeared to be recalling events that he had experienced and there was nothing inherently irrational or unreasonable in his account. The accused did not make any specific admissions about being involved in causing the deceased's death.
In summary the accused's account was that around 10.00 pm ‑ 11.00 pm on Thursday 7 April 2016 the deceased either woke up or he was awake and did not want to go to sleep. The accused and his partner allowed him to stay up for a while and they then put him to bed in his portacot. The accused and his partner finished watching a television programme and they then went outside for a smoke before coming back inside and going to bed in the same room at about midnight.[41]
[41] The accused made it clear that he did not have any means of telling the time and that he was only providing rough estimates of times.
At about 4.00 am the deceased woke and was crying. This woke the accused and he got up and tried to give the deceased a bottle. He did not want it and the accused 'tried picking him up'.[42] He said that he picked him up with his right hand. The deceased continued to cry so the accused thought that he would put him down and leave him until he went to sleep. The accused thought that the deceased was having teething pains and that he could not do anything for him.
[42] EROI 1, ts 12.
The accused put the deceased back in the portacot, put a blanket over him and then went and sat on the end of his bed to wait for the deceased to go to sleep. The deceased stopped crying and the accused went over to the cot and saw that he was asleep. The deceased was lying on his stomach which was how he usually slept.[43] The accused removed a toy from underneath the deceased's neck and the blanket that the deceased had wrapped around himself. The deceased was alive at that time. The accused then went to bed.
[43] EROI 1, ts 20.
The accused told DS Lampard that he felt 'very nervous' when he got up to tend to the deceased. He said that he had a 'weird gut feeling that something bad was going to happen' but he did not know what that was going to be. He said that he thought that maybe his partner was going to leave him. He said that his birthday was approaching and that was a time when people decided that they wanted to leave him.
After going back to bed he listened to music and then fell asleep. He woke at around 10.00 am on Friday 8 April 2016 and thought that it was strange that he did not wake to the deceased crying. He went over to the portacot, saw that the deceased was a 'little blue'.[44] He picked the deceased up and found that he was dead.
[44] EROI 1, ts 24.
At 10.28 pm when the accused was speaking about finding the deceased dead he put his head down on the desk and his hand over his face. DS Lampard asked him whether he wanted a break and that occurred. At 10.38 pm the interview recommenced. DS Lampard stated that the accused had been given water but no one had spoken to him about the subject matter of the interview during the break.
When the interview recommenced DS Lampard told the accused that he was still under caution but he did not repeat the caution to him. Rather, he immediately asked him to resume his account where the interview had ceased. The accused continued to give responsive and quite detailed answers to the detectives' questions.
At one point in the interview DS Lampard asked the accused about comments he had made about a split personality. In his evidence DS Lampard said that he could not recall when the accused had said that he had a split personality but he conceded that his comment at that point in the interview presupposes that he had. The accused then told the interviewing officers about a person called Alex O'Neill (Alex).

The accused told the police the following information about Alex:
(1)He was a spy for British intelligence services.
(2)He had two sons, one of whom was the deceased's age.
(3)That his son had been murdered.
(4)He is a lot more 'experienced', 'caring and tender' than the accused.[45]
(5)He is a very serious person and he is violent to people who threaten 'the family', even the accused's family.
(6)He was very protective of the deceased.
(7)He appeared every two and a half months or so and mostly when the accused thought of his brother who had died of SIDS and when the accused could not cope with his thoughts.
(8)Alex would come out and tell the accused's partner that he would not let the accused back until he thought that the accused was ready to cope.[46]
[45] EROI 1, ts 46.
[46] EROI 1, ts 46.
The accused told the police:
[a]t the time of the attack I had to try and keep my consciousness so he wouldn't come out, and yeah, because he's very protective of [the deceased] because it reminds him of his two little boys that he had.[47]
[47] EROI 1, ts 47.
The interviewer did not ask a follow up question to clarify what the accused meant by 'the attack'.
The interviewer asked the accused what happened last time Alex came out and the accused gave an account which was not consistent with it being at the time of the deceased's death. He also said that it was one to two months earlier.[48]
[48] EROI 1, ts 49.
There is no dispute that Alex does not exist. It is also not in dispute for the purpose of this decision that at the time of the deceased's death and the EROIs the accused believed that Alex did exist. The answers which the accused gave to the police were based on his belief that Alex was a person who appeared to him on occasions. He told the police that Alex had not come out during EROI 1 and that if he had they would have noticed because he had an Irish accent. The accused also told the police that most of the time he did not remember what happened when Alex came out.[49]
[49] EROI 1, ts 48.
At 11.40 pm the interview was suspended at the detectives' instigation. When the interview recommenced at 11.52 pm DS Lampard confirmed that no one had spoken to the accused about the subject of the interview during the break. DS Lampard asked the accused whether he was still feeling okay to proceed with the interview. The accused replied:
I guess I have to be. I just want to get this over and done with.[50]
[50] EROI 1, ts 50.
DS Lampard responded by telling the accused that he still had his rights. He did not repeat the rights and neither did he ask the accused to explain the rights to him.
DS Lampard then told the accused that information in the police's possession called into question the reliability of the account the accused had given. DS Lampard said that he wanted to question the accused about some points.
The first point he asked him about was blood which had been allegedly found on the deceased's cot sheets. The accused said that he thought this was caused by the deceased teething.[51]
[51] EROI 1, ts 51.
DS Lampard said to the accused that the deceased had been examined by a pathologist and it had been ascertained that his forearm had been broken in three places. He said that one of the breaks was 'massive and went straight through the bone and there were some other smaller fractures on either side of the massive break'. He said that they did not get there by themselves and that the pain would 'cause a baby to scream the roof off'. [52]
[52] EROI 1, ts 51.
DS Lampard then asked the accused how the deceased got those injuries. The accused said that he was not sure. He posited that if he had held him too tightly it may have occurred but he repeated that he did not know. DS Lampard asked the accused to tell him more and the accused said that he just did not have any idea how the deceased could have got the injuries.
DS Lampard then asked him whether he thought it was maybe by holding the deceased too tightly and the accused said 'yeah'. DS Lampard then asked him when he thought that could have happened and the accused said that sometimes if the deceased was trying to grab at a nappy he had to rip the nappy out of his hands. DS Lampard expressed disbelief at that suggestion. He said:
I can tell you right now, mate, that doesn't make sense. The bone was broken the whole way through the arm.
That - your son's forearm has been subject to a, a significant amount of trauma.[53]
[53] EROI 1, ts 52.
DS Lampard then put a scenario to the accused whereby something happened to the deceased between putting him to bed and the accused picking him up when he was crying.[54] On at least four occasions the accused said that he did not know what had happened. DS Lampard challenged and pressed him to recall. At one point he said 'you do know' and the accused replied 'no'.[55]
[54] DS Lampard said that this second time marker was a 10.00 pm (EROI 1 ts 52) but he should have said 4.00 am.
[55] EROI 1, ts 53.
DS Lampard asked and the accused denied that the accused's partner had injured the deceased. He then asked whether Alex could have 'come out' and the accused did not remember it.[56] The accused replied:
Possibly, but I just don't understand why he'd hurt him.[57]
[56] EROI 1, ts 54.
[57] EROI 1, ts 54.
DS Lampard asked him how he knew that he (the accused) had not hurt the deceased and the accused said that it was because he loved him 'more than anything' and that the deceased was 'the only reason why I felt so happy'.[58]
[58] EROI 1, ts 54.
DS Lampard then put to the accused that the deceased had been found to have an old rib fracture. The accused admitted that he may have caused that fracture when he had cuddled him too hard in the past.
DS Lampard asked the accused whether it was possible that he had cuddled the deceased too tight on the night that he died and the accused said:
I guess that could be a possibility.[59]
[59] EROI 1, ts 55.
The accused was then asked about an occasion on which he had hit his partner and whether he had used drugs and drunk alcohol in the presence of the deceased. Without further justification for the admission of this material it is inadmissible as being irrelevant.
DS Lampard then returned to the subject of the deceased's arm injuries and challenged the accused on his claim not to know how they could have occurred. The accused did not make any admissions. DS Lampard's initial questions at this point were about the deceased's arm injuries but he then asked a more general question in the following terms:
Did anything else happen? Because obviously he stopped - he, he stopped crying/screaming/whatever you want to call it.[60]
[60] EROI 1, ts 57.
The accused said that the deceased just went to sleep and he did know what could have 'gone on'.[61]
[61] EROI 1, ts 57.
DS Lampard continued to challenge the accused about his assertion that he did not know what had happened but it is not clear whether he was referring to the arm injuries or the death of the deceased or both. The following exchange then took place:
DS Lampard: Did you do this to your boy?
Accused: I highly doubt it. I don't see myself ever doing anything like that to him.[62]
[62] EROI 1, ts 57.
It is not clear what DS Lampard meant or what the accused thought DS Lampard meant when he referred to 'this'. DS Lampard and DSC Main continued to challenge the accused's claim not to remember or not to know what happened. The accused repeated some of his earlier answers.
DSC Main repeatedly asked the accused whether he had been expecting the deceased to wake up. The accused said that he was 'getting really dizzy.'[63] The officers continued to ask questions and to challenge some of the accused's answers. DS Lampard then said that they were happy to finish the interview. The accused by then had his head in his hands.
[63] EROI 1, ts 58.
DS Lampard asked the accused the standard questions at the completion of an interview and the accused said that he had no complaints about the way he had been treated etc. When he was asked whether he had anything else to say about the matter, the accused said that felt like he had 'failed as a father for not being there for him at that time'.[64] The interview concluded at 12.18 am.
[64] EROI 1, ts 60.

Events between EROI 1 and EROI 2

DS Lampard testified that at the conclusion of EROI 1 he had no further involvement with the accused.[65] However it seems that there was a discussion between DSC Carbone, DS Shanahan (who was the investigator in charge of the investigation into the deceased's death) and the EROI 1 interviewing officers about whether there was sufficient evidence to charge the accused. A decision was made not to charge the accused and to 'unarrest' him.[66]
[65] ts 263, 24 April 2018.
[66] ts 301, 24 April 2018.
DSC Main testified that after EROI 1 he and DS Lampard left the interview room. At one point he walked back into the interview room and the accused was on the floor. He believed that the accused had had 'another small episode'. He said that he recovered 'very quickly' and 'when he was done he just sat up'. The accused was 'very upset [and] crying'.[67] He said that he left the office soon after that and had no further involvement in the investigation. DSC Main could not recall to whom he handed over custody of the accused but he assumed it was either DSC Carbone or DS Shanahan.
[67] ts 283, 24 April 2018.
DSC Main could not recall if the accused was offered a meal between the start of EROI 1 and when he went off duty but he said that it was likely that he was.[68]
[68] ts 294, 24 April 2018.
At around 12.35 am[69] and when it is likely that DSC Main was still in the interview room, DSC Carbone walked in and saw the accused sitting on the floor with his back up against the wall. The accused took a sip of water, looked around and spat the water out. DSC Carbone said that he formed the opinion that the action was not 'genuine at all'. He testified that something like the following conversation occurred:
DSC Carbone: What's going on, mate? What are you doing?
Accused: Well, what's going on? Where am I?
DSC Carbone: Look, come on, mate … I saw you look around and spit the water back up … What’s happening?[70]
[69] In examination‑in‑chief DSC Carbone said that this was at about 1.00 am but in cross‑examination he acknowledged that his notes said that it was at 12.35 am.
[70] ts 302, 24 April 2018.
In cross‑examination DSC Carbone acknowledged that he said words to the effect of 'I'm not buying it' and 'stop faking it' and that the accused's 'expression then changed to one of disappointment and he then closed his eyes and refused to engage with' him.[71] DSC Carbone recorded in his notes that the accused was feigning memory loss and disorientation.[72] He also acknowledged that he had formed this opinion and made the comments despite knowing that the accused had self‑harm tendencies. He would also have been aware of the previous day's incident when the accused was being transported to the Major Crime Squad's office.
[71] ts 324, 26 April 2018; exhibit 3.
[72] ts 325, 26 April 2018.
DSC Carbone 'invited' the accused to get up off the floor which he did and he sat on a chair. The accused was then taken to an area outside of the interview room (the holding area). The accused did not have anything to eat whilst he was in the holding area or before he was returned to his grandparents' home at 4.00 am that morning. DSC Carbone testified that he did not know what the accused had eaten during the 12 hour period the accused was in police custody.
At about 1.00 am the accused was unarrested but told that he would be detained for a mental health assessment. DS Shanahan and DSC Carbone requested a police car to take the accused to hospital for a mental health assessment about 'self‑harm issues'.[73] The request was cancelled after DS Shanahan was advised by a police officer from the District Command Centre that as the accused had already been taken to hospital (and released) the police did not have the power to detain him for a further medical assessment.[74] DS Shanahan's running sheet states that this advice was received at 3.00 am but other evidence suggests that it was earlier.[75]
[73] ts 304, 24 April 2018.
[74] ts 353, 26 April 2018.
[75] Exhibit 4.
In cross‑examination DSC Carbone's explanation for why the police decided only at that late hour to try and arrange a mental health assessment was that the discussion in EROI 1 would have increased the accused's propensity to self‑harm.[76] He acknowledged that the accused had not threatened self‑harm during (or after) EROI 1. Neither could he or DS Shanahan explain why the police did not call the accused's grandparents to discuss his welfare or to request them to take him home. It also seems to have been an unusual decision for DSC Carbone to make given that he thought that the accused was feigning health issues. I suspect that the real reason for keeping the accused at the police station at this very late hour was to speak to him informally. However it is unnecessary for me to make any such finding.
[76] ts 322, 26 April 2018.
The accused told DSC Carbone that he did not have any intention to self‑harm and they talked more generally. After the accused was 'unarrested' DSC Carbone recorded that they had an 'in depth' conversation over approximately one and a half hours.[77] The conversation was not recorded. During the conversation the accused 'expressed a desire to get rid of Alex', that he did not know whether he could trust Alex being around his next child and he was worried about what Alex had done.[78] DSC Carbone testified that the accused spoke first about Alex about 35 ‑ 40 minutes into their conversation and that he (DSC Carbone) steered the conversation away from that. However he sent a message to DS Shanahan to come to the holding area. In cross‑examination DSC Carbone denied that he told DS Shanahan that the accused had spoken to him about Alex before DS Shanahan came into the holding area.[79]
[77] ts 328, 26 April 2018.
[78] ts 309 ‑ 310, 26 April 2018.
[79] ts 334, 26 April 2018.
DSC Carbone gave evidence that approximately five ‑ 10 minutes later DS Shanahan came into the room. DS Shanahan had a similar conversation with the accused about general matters and then the conversation turned towards Alex. DSC Carbone could not recall who brought it up. The accused reportedly repeated what he had said to DSC Carbone about Alex. The conversation was not recorded although it would have been possible to do so. The police officers told the accused that they were 'happy' to speak to him about Alex but it would be on video.[80] DSC Carbone said that the accused said that he wanted to speak to them further.
[80] ts 311, 26 April 2018.
DS Shanahan gave evidence of a different sequence of events in that he said that he was called to the interview room by DSC Carbone about 30 minutes after EROI 1 concluded. He did not say that he left at any point after that.
In any event DS Shanahan said that initially the accused was emotionally distressed but he calmed down as they talked. The accused told him that he may be able to speak to Alex and tell the police what had happened to the deceased.[81] The accused spoke to him about wanting to be a sergeant in the cadets and in that context DS Shanahan said words to the following effect:
You're going to have to be decisive. So tonight when you get home you have to decide what happened.[82]
[81] ts 356, 26 April 2018.
[82] ts 376, 26 April 2018.
He also told the accused that 'Alex could be linked to this (the death)' and requested the accused to overnight try and find out from Alex what had actually gone on so that if the accused chose to speak to the police again he would 'speak from a better place'.[83] DS Shanahan did not think that he asked the accused to communicate with Alex and get some information from him but he said that 'would be close' to what he said.[84] In re‑examination he said that the accused said that Alex may know something about the death and that he would try and communicate with Alex to 'figure it out'.[85] I find that DS Shanahan expressly encouraged the Accused to speak to Alex in order to find out what had happened to the deceased.
[83] ts 376, 26 April 2018.
[84] ts 377, 26 April 2018.
[85] ts 389, 26 April 2018.
DSC Carbone and DS Shanahan decided that it would not be 'fair' to have another EROI at what was then about 2.30 am. Given that DS Shanahan had encouraged the accused to go home and speak to Alex and the accused said he would do that, it seems unlikely that the police would have thought that it was worthwhile formally interviewing the accused again until he had done that. That does not answer the question as to why there was any conversation with the accused about Alex and the deceased's death which was not recorded.
The officers told the accused that they would come and see him later that day and if he still wanted to speak to them they would speak to him then. DS Shanahan said that the accused said that he would like to see the police the next day.[86] DS Shanahan then confirmed with the accused that he did not intend to self‑harm that evening. DSC Carbone and another detective then drove the accused home to his grandparents' home in Rockingham and left him there at about 4.00 am.[87] The accused was falling asleep in the car on the way.[88]
[86] ts 357, 26 April 2018.
[87] There is conflicting evidence about the time the accused arrived at his grandparents' home but DSC Carbone acknowledged in cross‑examination that 4.00 am 'seems to be about right' (ts 333, 26 April 2018).
[88] ts 342, 26 April 2018.
At about 2.35 pm the same day, DSC Carbone and DS Shanahan arrived at the accused's grandparents' home. They did not call beforehand to say that they were coming. When they arrived the accused was asleep and he was woken up. The police officers did not ask how much sleep he had or what he had eaten in the intervening 10 and a half hours.[89]
[89] ts 343, 26 April 2018.
The accused was advised that the police wished to speak to him again but that he was not under arrest and that he was free to leave at any time. Nevertheless he was given an arrested suspect's rights and told that he could exercise them at any time. The accused agreed to accompany the detectives to the Rockingham Detectives Office. He did not complain about being too tired to accompany the officers. On the way asked the detectives asked him if he wanted something to eat. He said he had not eaten. The police bought the accused a McDonald's 'Happy Meal'.

EROI 2

EROI 2 commenced at 3.27 pm in an interview room at the Rockingham Police Station. DSC Carbone, DS Shanahan and the accused were present in the interview room. DS Shanahan[90] said to the accused that after EROI 1 he (the accused) had said that he 'might have some more to tell' the police and that a decision was made the that the as the accused looked tired, emotional and hungry any further interview would take place later that day after he had 'rested' and 'eaten'. The accused nodded his head silently.[91]
[90] It is not always clear which officer is speaking during EROI 2. I have primarily used the name of the speaker identified in the transcript of EROI 2.
[91] EROI 2, ts 2.
DS Shanahan then cautioned the accused. The accused said that he understood and DS Shanahan asked the accused to explain it in the accused's own words. The accused then said:
Um, ah, basically, um, I choose to, I can give any like evidence and …[92]
[92] EROI 2, ts 3.
One of the officers said that he understood that what the accused was saying was that it was his decision to talk and the accused said 'yeah'. The caution was then repeated in simpler terms. At the conclusion of it DS Shanahan asked the accused whether he had to answer a question asked by DSC Carbone. The accused said 'nah'. DS Shanahan then asked the accused whether he knew what courts, judges, juries and magistrates were and the accused replied 'yeah'. The officers did not attempt to elicit any further information about the accused's understanding of the caution.

DSC Carbone noted that the accused's grandmother had said that the accused was not eating much and he encouraged him to eat the 'Happy Meal'.
The interviewing police officers referred to Alex as a 'split personality' and this terminology was also used by counsel. It is clear from the accused's account of Alex to the police and later to expert witnesses that in the accused's view Alex is a separate person who he hears and may also see. The accused did not volunteer to the police that Alex was part of his personality. He said that Alex appeared when he (the accused) was suffering stress and wanted to withdraw from everyday interactions. In that sense Alex became a substitute for the accused. It may or may not be correct to interpret the accused's accounts of what Alex told him that he (Alex) did or saw as being an account of what the accused did or saw. However it is apparent as EROI 2 commenced this was often the interpretation which the detectives put on the accused's answers. He did not correct them. Sometimes the accused adopted the same understanding and at other times he referred to Alex as being a separate person.
DS Shanahan posited to the accused that he and Alex were the same person but that 'for some reason' there was a change of personality that occurred. He asked the accused whether that was what he was saying and the accused replied 'yeah'. However I reiterate that the accused did not always speak in this way.
DS Shanahan then asked the accused what happened to him when he transitioned to Alex. The accused said that he usually fainted and became unconscious beforehand. He said that it was like what happened when he fainted the previous day. He said that he got a crushing feeling on his head and he started to feel dizzy before fainting.
DS Shanahan repeated that the accused and Alex were the same person without giving the accused the opportunity to comment on that assumption. DS Shanahan then asked the accused to tell him about Alex and the accused did so in similar terms to those which he had used in EROI 1.
The accused was told that he had told the police that he might be able to add something in relation to what he had said in EROI 1. DS Shanahan then invited him to say what he wanted to say. The accused said that he was 'able to speak with Alex' and that 'he shed some light on, on what happened'. The accused continued:
Accused: He accidently picked [the deceased] up by the forearm and picked him up the wrong way and I, he heard a popping noise but he thought it was something like a, like a cracked knuckle.
DS Shanahan: Okay.
Accused: Sorta thing. So he didn't think much of it and he started crying and he, he just like tried to calm him down and he couldn't and so he like up him back to bed and, um, yeah, he, he tried to, um, use [his partner's] phone, um, to call the hospital for advice 'cause he was worried that like he might've accidently hurt him.
DS Shanahan: Mmhmm.
Accused: But it wouldn't work. So he thought he wouldn't say anything like because he was afraid of what I'd do as a father to him and, yeah, um, he went back to bed and thought [indistinct] I'd be able to sort it out in the morning. Ah, he, if he was hurt I'd be able to take him to the hospital or something and, yeah, and he didn't, like, ah, he, didn't know either. Like, yeah, if, if, he had've known he would've told me and, yeah.[93]
[93] EROI 2, ts 5.
The accused was asked to explain who Alex was. He said that he was 'thinking he could be a split personality or just something that takes over when I can't handle things … [s]o as a coping method. … [a]nd, um, yeah, basically just got a separate personality and like he has different dreams and stuff towards me'.[94]
[94] EROI 2, ts 6.
The accused said that Alex was 'usually very like warm' to the deceased and so he knew that he would not ever hurt him purposefully. He said as being a father, Alex would not want to hurt someone else's son.[95]
[95] EROI 2, ts 8.
DS Shanahan then asked the accused to relate what happened the day that the deceased died. The accused said it was 'very blurry', but he gave an account which was similar to what he had said in the EROI 1 up to the point where the deceased woke in the middle of the night. The accused said that:
Accused: Well, from, from what Alex has told me and from memory of what happened, I'm guessing he got up before me.
…
Accused: To tend to [the deceased] and accidently picked up by the, the arm wrong.
…
Accused: And like, yeah, had, um, broken his bone but didn't realise it. He's thought it was like a sort of pop that you hear when you crack your knuckles sorta thing.
…
Accused: And, um, yeah, he, he just started crying so he tried to calm him down and like, um, yeah, he calmed down to like just a normal cry.
…
Accused: And, um, yeah, he, he just put him, he put him down to like lay there and hopefully go back to sleep.
…
Accused: Because, um, yeah, he, ah, he wouldn't take his bottle so he also assumed that he also was teething.
…
Accused: And didn't realise that he had broken his bones.[96]
[96] EROI 2, ts 14.
The accused continued to explain what had happened and when he did so he sometimes referred to himself as doing things as opposed to Alex.[97]
[97] For example, EROI 2 ts 16.
The accused said that he left the deceased in the cot, on his tummy and with a blanket over him. He said that he went and lay on the bed and listened to music. He said that when he woke up at around 10.00 am, he noticed that the deceased was not crying like he would be normally, he looked into the cot and he saw that the deceased was blue and cold. He and his partner then attempted to get assistance for the deceased.
DS Shanahan then purported to summarise what the accused had said to him. In doing so he at times said that Alex had done things and at other times said that the accused had done them. In doing so he said:
… [S]o [the accused], with Alex's personality has gone to the portacot.[98]
[98] EROI 2, ts 22.
The accused replied '[y]eah' but he said that at various times during DS Shanahan's summary.
DS Shanahan then pursued a line of questioning which challenged the accused's account of how the deceased had been held when he was picked up out of the cot. When he did so he asked how the accused had held him and the accused said that Alex was the one who liked to hold the deceased when he was feeding and he said that he would have to ask him in order to answer DS Shanahan's questions.[99]
[99] EROI 2, ts 24.
The accused then started to refer to he (the accused) rather than Alex attending to the deceased in the portacot. He spoke about moving a rattle out from underneath the deceased's neck. DS Shanahan asked whether he thought that the rattle may have done something to the deceased. The accused replied:
I'm not sure but I think, yeah, it's possible.[100]
[100] EROI 2, ts 29.
They then discussed where the rattle was when the accused removed it. DS Shanahan asked the accused whether he thought that it may have 'impinged his breathing' and the accused said that was what he was thinking because the deceased already had a weak respiratory system.[101]
[101] EROI 2, ts 30.
After that discussion, DS Shanahan asked the accused about the position of the blanket on the deceased. The accused said that when he got up to tend to the deceased his blanket was wrapped 'over the top of him'.[102] He described this as being over his upper body. He agreed that it covered the deceased's entire face.[103] He took it off and laid it over the deceased. He said that he checked to see whether the deceased was breathing and that he 'wasn't entirely sure but, at a quick glance, it did look like he was breathing'.[104]
[102] EROI 2, ts 31.
[103] EROI 2, ts 33.
[104] EROI 2, ts 33.
The questioning of the accused continued for quite some time with the accused giving responsive answers to the questions asked of him. DS Shanahan then moved more particularly to the issue of the positioning of the blanket. The accused said that he had to 'take it over and pull it out from under his head, like twist it a little bit'.[105] One of the detectives then asked the accused whether it was bunched under his mouth. The accused replied:
Um, yeah, a bit. I think he was trying to teeth on it.[106]
The accused was then asked to explain that to the detectives. The accused said that the deceased 'usually' pushes the blanket into his mouth and bites on it. He said that if he lost one of his toys he would start to bite on his blankets. [107] One of the detectives then asked the accused whether the blanket was wet. The accused replied:
There was, like, a bit of saliva and, ah, like, there was, I think there was a dark there was dark patches would have, which would have, which would have been teething blood.[108]
[105] EROI 2, ts 42.
[106] EROI 2, ts 42.
[107] EROI 2, ts 42.
[108] EROI 2, ts 43.
The accused said that he thought he had seen bits of blood in the deceased's mouth a few times when he had been teething.
The questioning continued again for quite some time about more general matters including the accused's history of self‑harming,[109] his relationship with his partner and the deceased[110] and the accused's interest in anime.[111] The accused answered all the questions put to him. He appeared to understand them and to respond appropriately.
[109] EROI 2, ts 52.
[110] EROI 2, ts 64.
[111] EROI 2, ts 70.
DS Shanahan asked whether the accused or Alex had ever done anything that they were not proud of. The accused related a story where Alex had taken over whilst he was cuddling his partner and pressed against her skull and gave her 'a really bad headache'.[112] DS Shanahan asked further questions about that incident. There were then questioning about the accused's cannabis use.[113]
[112] EROI 2, ts 75.
[113] EROI 2, ts 78.
The interview then changed direction with the police officers putting to the accused that some of the information he had told them may have contributed to what had happened to the deceased. DS Shanahan said that was definitely the case in relation to what the accused had said about the deceased's arm and it 'popping'. The officer repeated what the officers had said in the EROIs about the deceased having suffered 'a massive trauma to his left arm' and that he had three fractures to that arm. DS Shanahan said that may be what the accused was referring to when he said that he had pulled him out of the cot by his forearm.[114] I note that DS Shanahan said that the accused had pulled him out of the cot whereas at the start of EROI 2 the accused said that Alex had done that.
[114] EROI 2, ts 84.
DS Shanahan requested the accused draw a picture of the bedroom and its contents with his writing hand. The accused said that he was naturally left handed but had been taught to write right handed.[115] DS Shanahan put to the accused that if he had picked the deceased up out of the portacot with his dominant right arm then it was probable that he was going to cause some sort of injury to the deceased. The accused replied 'yeah'.
[115] EROI 2, ts 84 ‑ 85.
DS Shanahan then said that he did not believe that a broken arm would cause the deceased's death and the accused agreed with him. DS Shanahan then asked the accused what he thought had caused the death. The accused said that he honestly did not know. DS Shanahan challenged that and said to the accused that he thought that he did know. DS Shanahan put to the accused that he was starting to form the opinion that the cause of the death may have been the blanket. He asked the accused whether he agreed with that. The accused said that he felt like that rattle closed up his throat a bit and made it harder for him to breath and with the blanket in his mouth it may have made things a lot worse.[116]
[116] EROI 2, ts 88.
DS Shanahan reiterated what had already been said to the accused about the injuries to the deceased's arm causing him a lot of pain and suggesting that the deceased's crying may have been caused by that rather than teething. DS Shanahan put to the accused again that the blanket had been put too tightly around the deceased and into his mouth to stop him crying. The accused said that he did not think so.[117]
[117] EROI 2, ts 89.
Next DS Shanahan asked questions about the positioning of the blanket in the deceased's mouth and the accused gave responsive answers to those questions. DS Shanahan challenged some of those responses and basically said that he did not believe the accused. For example, he challenged the accused's assertion that he could see that the blanket had some blood on it.[118]
[118] EROI 2, ts 90.
At the conclusion of that discussion DS Shanahan put a scenario to the accused that he (the accused) had been left with the responsibility of looking after the deceased, that he had got up in the middle of the night and that he was tired. He took the deceased out of the portacot in a rough manner and he would not go back to sleep. So he wrapped him up tightly in his blanket and wrapped the blanket around the deceased's face and put him back in the portacot thereby causing his death. The accused denied that was true.[119]
[119] EROI 2, ts 92.
This scenario was put to the accused on a number of occasions. For example it was put to him that he was going to put a 'series of blankets' over the deceased's head and go to sleep[120] and that the deceased had a tightly wrapped or somewhat tightly wrapped blanket in his mouth.[121] It was put to him that the deceased would not stop crying and so he (the accused) was 'going to make him go to sleep'. The accused responded:
No, I, I definitely did stay up with him but, yeah, I just let him, like, put the blanket in his mouth 'cause, you know …[122]
[120] EROI 2, ts 94.
[121] EROI 2, ts 94.
[122] EROI 2, ts 95.
DS Shanahan then asked the accused whether he had put the blanket in the deceased's mouth to help him deal with the pain and the accused said:
Well, I let him, I put a little corner of it in, like, for him to bite on …[123]
[123] EROI 2, ts 95.
DS Shanahan also put to the accused that he believed that the deceased had died because of the accused's mistreatment of him. The accused admitted to picking him up out of the portacot and the deceased crying harder at that point but he denied causing his death. DS Shanahan said 'I'm not buying it' and strongly put to the accused various variations on his previous scenario, all to the effect that the accused had caused the deceased's death and that he (DS Shanahan) did not believe the accused's account. A lot of what DS Shanahan put to the accused was hypothetical and without any apparent factual basis.[124]
[124] EROI 2, ts 95 ‑ 96.
At one point DS Shanahan put to the accused that he had put too much of the blanket in the deceased's mouth. He then said:
DS Shanahan: 'Cause sadly it seems that baby [deceased] has passed away from something similar to that. I'm trying to find the answers and you're trying to help me which is fantastic. It seems to me, without trying to, ah, put words in your mouth 'cause this is what you've told me, for pain relief and a little bit of to help to him settle, you've put the blanket in his mouth. Okay. That may have contributed to his death. I don't know. Okay. But that is probably the only thing that we've been able to establish so far. Okay.
But one thing that's not si -, sitting with me is that fact that you say you took that blanket out, it was wrapped it around his head, you looked at it, it was wet with saliva and dark patches like teeth. That doesn't sit with me. That, to me, seems a bit of self‑preservation. Is that the case?
Accused: What does that mean?
DS Shanahan: Trying to save yourself. You're trying to make - - -
Accused: No. [indistinct].
DS Shanahan: You're trying to tell me something to help minimise what you've done.[125]
[125] EROI 2, ts 98.
I note that the State has not adduced any evidence to justify DS Shanahan's allegation that the deceased passed away from suffocating on a blanket.
There was then considerable questioning about the amount of the blanket that had been put in the deceased's mouth. At the conclusion of that discussion, DS Shanahan put to the accused that:
DS Shanahan: 'Cause, 'cause what it seems to me, Dylan, is that somehow the blanket has gotten over [the deceased's] face. And, I mean, he was, we understand at this stage that the, the arm has already happened. And that, like, he's not settling. There's no, there's no way a blanket in his mouth would have settled, settled him. Like, that's, I, I personally think, mate, and like we said, we've been sitting here and I've, I've, kind of, I've been wr -, I've written pages and pages of, of what's, what's happened, mate. And, like we said, we appreciate you coming in and telling the story but I think we're getting a little bit right down to the nitty gritty side of things, mate.
And, and as Brendan said, I think it seems to be a little bit of, of self‑preservation now and you're going, I don't want to say that because it makes me sound bad. And that's fine. But what we're trying to figure out, mate, is exactly what's happened. And I personally think that what's happened is that [the deceased] wouldn't, [the deceased] wouldn't stop crying and that you put the blanket over his face.
Accused: Well, I know I didn't put it over his face, but like, whilst he was settling down he moved it over the top of his face, 'cause - - -
DS Shanahan: How do you know that though?
Accused: Well, cause I left it, like, on him and that he rolled over and somehow, like, the blanket was, like, more on top of him and - - -
DS Shanahan: Go on. [The deceased's] in immense pain, huge pain. Have you broken a bone? Have you ever broken one of your bones in your body?
Accused: I've kicked my elbow and cracked my skull and - - -
DS Shanahan: How bad? How bad did you feel?
Accused: Fairly bad.
DS Shanahan: Right. We're talking of a seven and a‑half month old baby who has just had his arm snapped in half. One of the bones has snapped in half. He's got a fracture in his, down here and a fracture up here. He is going to be in a huge amount of pain, okay, from something as innocuous as picking him from his bed at four o'clock in the morning when dad's dead tired and sick of doing everything. Okay. I find the, the next bit too hard to believe that he will settle with a little corner of the blanket, a little bit of blanket in his teeth. He won't settle. In my, my view as a bit of experience with children, they will not settle. Okay. Is it the case Dylan that you thought, right, I need to quieten him down, we'll deal with this tomorrow morning. Blanket in his mouth to help soothe him, put the blanket over his head. My earphones are in. I'm going to sleep. We're dealing with this tomorrow. Is that the case?[126]
[126] EROI 2, ts 101.
The accused denied putting the blanket over the deceased's face. He said that he sat at the end of the bed and waited for the deceased to stop crying before he took 'the stuff out'. DS Shanahan asked him what was going through his mind at that time he was sitting at the end of the bed. The accused said that he was thinking that everybody he loves wants to leave him and that maybe the deceased hated him and that was why he would not settle. He said that he cried until he calmed down and then went to look at the deceased.[127]
[127] EROI 2, ts 102.
DSC Carbone then told the accused that he did not believe him. The accused replied:
So it's, so it's my fault that he died.[128]
[128] EROI 2, ts 103.
The accused started crying and told the police that he had:
A really painful pressure in my head again.[129]
[129] EROI 2, ts 103.
The accused then asked for a break. At 6.03 pm the interview was suspended. The recording was turned back on at 6.14 pm. The accused confirmed that nobody had spoken to him during the break about the subject of the interview. The accused told the police that he was feeling 'a bit' better and 'more in control' of his shaking. DS Shanahan told the accused that he was not happy with 'not knowing a definitive answer' from the accused about how the deceased had died. The implication being that the accused was at fault for not giving him an answer. The accused replied:
Accused: Well, I know it's probably a very high possibility that the blanket I've let him chew on is probably what caused him to pass away.[130]
[130] EROI 2, ts 105.

Dr McCue said that is was not unexpected that the accused had difficulty explaining his understanding of the caution and his right to decline to answer questions. This is because of the accused's below average processing speed and poor verbal fluency.
Dr McCue concluded that the accused's ability to exercise his free choice to answer questions was likely diminished as a result of his limited understanding of his interview rights and the implications of him participating in the EROIs. Dr McCue also noted that the accused had deficits in his working memory and that this would impact on his ability to recall his rights throughout the interviews. Dr McCue concluded that the nature of the accused's psychological vulnerability likely diminished his ability to withstand the pressures associated with the EROIs.
The second issue addressed by Dr McCue was the accused's suggestibility and in particular whether his answers could be relied upon as reflective of the true state of affairs.
Dr McCue defined suggestibility as the extent to which a person comes to accept ideas communicated to them during a formal interaction (such as an interview) which then affects the person's beliefs and/or behaviours. Dr McCue said that the accused presented with a number of psychological vulnerabilities such as dissociative identity disorder, a history of depression and self‑harming behaviours that likely increased his suggestibility and threatened the reliability of the information he provided during the EROIs.
Dr McCue said that the detectives encouraged the accused to explain what he knew regarding the deceased's death, whether or not that information came from Alex or himself. Dr McCue said that upon identifying the accused as a vulnerable interviewee, the detectives needed to ensure that they exercised 'great care in the questions they asked, and the way they phrased their questions to avoid suggestion, and improve the reliability of the information obtained'.[155]
[155] Psychological Opinion Report dated 13 September 2017 (lines 682 ‑ 684).
Dr McCue said that the detectives' questions included leading questions, confirmation bias, the encouragement of guess work rather than the retelling of actual memory and the encouragement of speculation about possible scenarios to explain the injuries caused to and the subsequent death of the deceased. He said that the form of questions decreased the reliability of the accused's responses. Dr McCue provided examples of these tactics.
In examination‑in‑chief Dr McCue said that the EROIs would be taxing for any person. However they would be particularly so for the accused given his particular psychological vulnerabilities including anxiety and depression. He said that a person recovering from a psychogenic seizure, such as the one the accused likely suffered on his way to the Major Crime Squad's office on 21 April 2016, would likely be tired and quite disoriented. He said that he would 'imagine' that would make a police interview more challenging.[156]
[156] ts 457, 9 May 2018.
Dr McCue agreed with Dr Vidovich's evidence that the accused had the cognitive ability to understand his interview rights.[157] He said what was less clear to him from the EROIs was whether he demonstrated that ability or demonstrated an understanding of his rights. Dr McCue noted that on occasions when the accused was asked to describe his rights he could not do so or had difficulty in doing so.[158]
[157] See also ts 470, 9 May 2018.
[158] ts 459, 9 May 2018.
Dr McCue testified that the accused's ability to withstand pressure was 'less than the average person'. Dr McCue also noted that the accused's personality traits of worthlessness, confusion and self‑criticism meant that in unfamiliar situations, such as a police interview, he would be more likely to be compliant and more likely to answer questions without necessarily considering whether answering those questions was in his best interests.[159]
[159] ts 461, 9 May 2018.
Consequently he said that the police should have adjusted the way they interviewed the accused to ensure the integrity of the information that he provided. Dr McCue gave the example that because of the accused's psychological vulnerabilities he was more likely to take the line of least resistance by agreeing with propositions or questions that were put to him rather than challenge them in each and every instance.[160]
[160] ts 462, 9 May 2018.
Dr McCue noted that in response to the way questions were asked of him in EROI 2, the accused appeared to describe what occurred as a matter of logic rather than him actually recalling events. Dr McCue also noted memory contamination. For example, where the police asked the accused whether it was possible that Alex had something to do with the death of the deceased, Dr McCue said that the off‑camera discussion between the two EROIs included a suggestion that Alex was involved in the deceased's death.[161] In Dr McCue's opinion that decreased the reliability of the information he provided subsequently about the involvement of Alex.[162]
[161] It was during EROI 1 that the accused was asked whether he thought it was possible that Alex had something to do with the death of the deceased.
[162] ts 465, 9 May 2018.
Dr McCue said that there were two particular examples which illustrated his concerns about the police's method of asking questions. The first was towards the end of EROI 1 where the police introduced the possibility that Alex had something to do with the deceased's death. The second was in EROI 2 where the police suggested that the placement of a rattle, the positioning of the blanket or how tightly the blanket was wrapped could be significant in causing the deceased's death.
As in respect of all the experts' opinions it is important to test them by reference to what was said during the EROIs. In respect of Alex, the police were the first to ask the accused whether it was possible that Alex had something to do with the deceased's injuries. However in EROI 1 the accused only admitted that as a possibility. He did not agree that Alex had 'come out' or that he had hurt the deceased.
In relation to the rattle it was the accused who said that the rattle was underneath the deceased's neck. It was the accused who first mentioned that the blanket was on top of the upper part of the deceased's body and he had removed it. The police elaborated on these responses and pressed certain scenarios which included these circumstances as possible or likely causes of the death.
In cross‑examination Dr McCue agreed that the issues he had identified which caused him concern in the EROIs were:
(1)the use of leading questions;
(2)the accused's risk of acquiescence;
(3)the use of confirmation bias;
(4)the accused's memory and language deficits which make it more likely that he would acquiesce with a line of questioning;
(5)the accused's language difficulties that make him less likely to seek clarification if he did not understand a question; and
(6)complex questions coupled with the accused's reduced processing speed.[163]
[163] ts 468 ‑ 469, 9 May 2018.
Dr McCue agreed that the accused's poor memory, his passivity, and his acquiescence were likely to increase as he became more stressed.
Dr McCue agreed that when he had been assessing the accused's fitness to plead and interviewing the accused for that purpose the accused sometimes said that he did not know information when in fact with further probing it was shown that he did know the information requested of him. This was a process whereby the accused deflected the question either because he did not understand it or because he did not want to answer it. Where it was later shown that the accused did know the answer to the question Dr McCue agreed that the accused had been deflecting the question because he did not want to answer it or he could not articulate his answer.[164] Thus it could not be said that just because the accused said he did not know something he, in truth, did not know it. Further when he deflected a question but later revealed that he knew the answer to it, it was an indication that initially the accused was not simply acquiescing with a proposition for the sake of it.
[164] ts 478 ‑ 479, 9 May 2018.
Dr McCue agreed that it was possible that the contamination of the accused's short‑term memory through discussing an incident with others was not something unique to the accused. He agreed that without knowing whether the accused had discussed the events of the evening the deceased died with others he would not know whether there had been contamination of the accused's short‑term memory.
Dr McCue accepted that one way of testing the reliability of a memory was to see whether it was consistent over time. Dr McCue agreed that the accused's account of the evening the deceased died was largely consistent between EROI 1 and EROI 2. Dr McCue agreed that the accused's first recounting of the events the evening the deceased died in EROI 1 was likely to come from the accused's recollection of what had occurred.[165] Dr McCue agreed that if the accused told the police the same thing in EROI 2 that it was a strong memory. Dr McCue agreed that the account in EROI 2 was consistent although more detailed and 'embellished'.[166]
[165] ts 480, 9 May 2018.
[166] ts 481, 9 May 2018.
Dr McCue said that complex questions increased the risk of the accused providing inaccurate information in the sense that he would not answer all of the components of the questions. He said that the information provided would not be false.[167]
[167] ts 490 ‑ 491, 9 May 2018.
Dr McCue testified that the accused's risk of acquiescence was illustrated by considering the EROIs together. He gave the example of how in EROI 1 the accused said that it was possible that Alex could have done it (killed the deceased) but he did not think he would do it (killed the deceased). Then in EROI 2 he provided a description of how Alex had been involved with the deceased on the evening of his death.[168] However, Dr McCue acknowledged that when it had been put to the accused he had denied the possibility of his partner hurting the deceased and at least on one occasion had denied that he had done so.[169]
[168] ts 492, 9 May 2018.
[169] I note on the other hand that consistent with Dr McCue's opinion after much pressured questioning at the end of the EROI 2 the accused made statements to the effect that he was responsible.
Dr McCue acknowledged that the accused was not so passive that he would blindly agree with propositions put to him if he knew that they were untrue.[170] He agreed that throughout the EROIs the accused disagreed with propositions that were put to him. There were also occasions when he corrected the interviewing officers and used his own language to describe events as opposed to the language of the interviewing officers. He was also able to maintain a consistent account in relation to what he described as occurring on the evening the deceased died.
[170] ts 496, 9 May 2018.
In re‑examination Dr McCue agreed that what may or may not have happened with the blanket shifted during the course of questioning.[171] It was only after persistent questioning and propositioning that he said that he had put the blanket into the deceased's mouth. In respect of that portion of EROI 2 Dr McCue said that the questions were leading and directive. He said it was difficult to say with certainty whether the information the accused was relaying in respect of the actions with the blanket were a true memory or a false memory.
[171] ts 499, 9 May 2018.
Dr McCue's concern was that given the detectives were aware that they were interviewing someone who was psychologically vulnerable that to encourage the accused to speak either as himself or as Alex was 'not necessarily asking for an accurate recall' of what the accused remembered happening.[172] Dr McCue formed the opinion that there was a high likelihood that the accused accepted what was put to him rather than provide a genuine recall of events.[173]
[172] ts 501, 9 May 2018.
[173] ts 502, 9 May 2018.
Dr McCue clarified that he believed that it is a realistic prospect that the accused did not understand parts of the caution. His view also was that the accused would have been unlikely to exercise his right not to answer questions. He accepted that the accused was able to disagree with propositions put to him or to say that he did not know the answer to a question. However he thought that it was unlikely that he would take the next step of stating that he did not want the interview to continue.[174]
[174] ts 506, 9 May 2018.
Dr McCue was of the opinion that the fact that DSC Carbone was both an interviewing officer and the person who had effectively told the accused that he was faking a seizure the previous evening increased the likelihood of the accused acquiescing during EROI 2.[175]
[175] ts 507, 9 May 2018.

Disposition - has the State proved that EROI 1 was voluntary?

I am satisfied on the balance of probabilities that EROI 1 was made voluntarily.
It is alleged that there was a breach of the basal voluntariness rule because the accused was coerced into participating in EROI 1 due to persistent importunity in the circumstances of his psychological vulnerabilities. For the reasons which I express below, I am satisfied that the accused spoke out of a free choice to speak or remain silent and not because his will was overborne by persistent importunity or sustained or undue insistence or pressure.
Further, I am satisfied that the accused's mind was not so unbalanced as to render it wholly unsafe to act on his admissions in EROI 1. The accused's mental state does not prevent him from 'observing, appreciating, recollecting and recounting real occurrences’.[176] He appeared to do that throughout EROI 1. I accept that he is also capable of imagining events (such as the appearance of Alex) but the evidence does not satisfy me that it is probable that what he told the police in EROI 1 about the events the subject of the charge are the product of his imagination or unstable mind.
[176] Sinclair (337).
It is quite clear from the rational answers which he gave during the interview that his mind, albeit with some defects, was able to attend to the questioning, decide whether to answer the question, decide whether he knew the answer to the question and to decide what to say in answer to it.
Prior to EROI 1 the accused was told at his granparents home and in the car on the way to the Major Crime Squad's office that he was not obliged to answer the police officer's questions. At the commencement of the interview that caution was repeated. The accused had the cognitive ability to understand the caution. Throughout the EROIs he gave responsive answers to a large number of questions indicating that he was able to hear and understand what was said to him.
Admittedly when he was asked to repeat the caution he was not able to do so in any detail. He told the police that he was not good at doing that. This is consistent with the expert evidence that he has language deficits and processing deficits that make it difficult for him to organise his thoughts and to verbally express them. Given those difficulties he still understood, as he told the detectives, that he knew it was his choice to say anything and that if he did it would be used in evidence.
The accused gave a coherent account of what happened on the day and evening the deceased died. When he wished to do so the accused was able to disagree with the propositions put to him by the police and to assert a different version of events. His ability to recall and relate prior events leads me to conclude that he was capable of retaining information about his interview rights, especially as he was able to repeat those rights in EROI 2.
After the short break in EROI 1 at 11.40 pm the accused made the comment I have referred to at [68]. This is not evidence that he did not know or had forgotten his interview rights. It is evidence that he wanted to continue to finish the interview.
The accused was also able to articulate to the police officers that he was getting dizzy. This comment brought the interview to a close within a short period of time.
The accused has psychological vulnerabilities. However, applying the principles in Sinclair he was far from so affected by those psychological vulnerabilities in EROI 2 that he was unable to give a coherent account of relevant events.
Up until the point that the accused said that he was feeling dizzy, there was nothing in his demeanour during the course of EROI 1 that causes me to conclude that he was not in a fit state to be interviewed. He had probably suffered some sort of seizure on the way to the Major Crime Squad's office, he had been taken to hospital and medically cleared. EROI 1 commenced over four hours after the seizure and there had been no reoccurrence.
A point was made by the accused's counsel that the doctor did not clear him to be interviewed. The doctor's letter said in effect that the accused did not need further medical attention and was well enough to be in police custody. There is no evidence that the form of seizures which the accused suffered from affected his mental capacities some hours later when EROI 1 occurred. Dr McCue said that the accused would be tired as a consequence of the seizure but there is no evidence that he was so tired that he could not be interviewed or make a decision whether to speak or to remain silent when questioned by the police.
The evidence about the food or lack thereof given to the accused was not satisfactory. However, he was given some food prior to EROI 1 and there is no evidence before me that lack of food during EROI 1 affected his capacity to choose to speak or remain silent.
Dr McCue also said that the accused would have been disoriented after his seizure and that this would have increased his vulnerability. There is no evidence in EROI 1 that the accused was in any way disoriented through the interview process. He at all times appeared to know where he was and to understand the questions that were being put to him. He gave rational answers.

Disposition - has the accused proved on the balance of probabilities that EROI 1 should be excluded in the exercise of my discretion?

The accused submitted that EROI 1 should be excluded on the basis that it would be unfair in all the circumstances to use his admissions in it against him. That is because of the improper conduct of the interviewing police officers given his psychological vulnerabilities. Thus, the accused says that the EROI 1 ought to be excluded on the basis of the unfairness discretion I have articulated earlier in these reasons.
I am not satisfied on the balance of probabilities that EROI 1 ought to be excluded on the grounds of unfairness.
It is not in dispute that the accused has psychological vulnerabilities. These make him somewhat more suggestible and vulnerable to acquiesce than peers without his psychological vulnerabilities. This does not mean that he cannot be interviewed by police or make admissions which are inadmissible at law.
Ultimately, the evidence about the extent of the accused's suggestibility and vulnerability to acquiesce has to be considered in light of what occurred during EROI 1. The accused was well able to disagree with assertions put to him by the police and to assert his own version of events. He gave a free account of what he recalled occurring on the day and evening the deceased died. He was then questioned about that account. At some points he agreed with assertions that were put to him and at other times he disagreed with those assertions and put a contrary position.
The accused also asked me to exclude EROI 1 on the basis of the prejudice discretion. I see no reason to find that the prejudicial effect of the accused's admissions in EROI 1 are greater than their probative value.

The accused submitted that there is a real question of the probative value of what he said about Alex and any fact in issue as there is no evidence that he believed he and Alex were the same person. In my view, the reference to Alex in EROI 1 is not such as to render the prejudicial value of the accused's statements about Alex greater than their probative value. It is relevant for the jury to know what the accused said about the likelihood of Alex having 'come out' at the time the deceased received his fatal or any injuries.

Disposition ‑ has the State proved that EROI 2 was made involuntarily?

I am satisfied beyond reasonable doubt that EROI 2 was made voluntarily. I agree with the accused that the circumstances in which EROI 2 came about were less than ideal and that as the interview progressed the questioning by the interviewing officers became more and more persistent, speculative and unfair. However, I have decided that it is appropriate to exclude EROI 2 in the exercise of my discretion rather than to find that at any particular point during EROI 2 the accused's admissions were made involuntarily.
That is because despite the shortcomings in the police's behaviour, the accused was in an apparently stable state of mind at the time EROI 2 was conducted, he was cautioned, he indicated that he understood the caution, he was able to give an account of his and/or Alex’s actions (although as I indicate below at times there was confusion about whose actions they were) and he was able to disagree with the police on occasions.
As discussed below the comments made to the accused that he ought, in effect, go home after EROI 1 and speak to Alex to find out how the deceased died were very unwise. They were prone to result in an unfairness to the accused. That is because they were part of the pressure which the police put on the accused ‑ a psychologically vulnerable person ‑ to explain what had happened to cause the deceased's death. However I do not accept that they amounted to an inducement to the accused to confess so as to make EROI 2 involuntary and inadmissible.
The accused was not threatened with harm if he did not comply with the request or confess. Neither was he offered a benefit to comply with the request or to confess to causing the deceased's death.

Has the accused proven on the balance of probabilities that EROI 2 ought to be excluded in the exercise of the court's discretion?

I have decided that it would be unfair to admit EROI 2 into evidence. To understand my reasons for this conclusion it is necessary to summarise the circumstances in which EROI 2 occurred. These include the accused's youth and psychological vulnerabilities which make him more suggestible and liable to acquiesce. EROI 2 also took place in circumstances where:
(1)In the previous 24 hours the accused had two seizures.
(2)In the previous 24 hours he had undergone what would have been a very stressful 2 ½ hour interview late at night about the death of the deceased.
(3)The accused had not slept the previous evening because he had been kept in police custody.
(4)The accused had not had a meal whilst in police custody for 12 hours the previous day and evening and was only given a McDonald's 'Happy Meal' by the police on the day EROI 2 was conducted when he said he had not eaten.
(5)After EROI 1 he had a seizure and had been told by DSC Carbone, one of the interviewing police officers, in EROI 2, that he thought that he had faked it.
(6)After EROI 1 the accused was effectively invited to have a conversation with Alex an imaginary person, to find out what had occurred to the deceased.
(7)The accused was spoken to by detectives for about 1 ½ hours after EROI 2 about various matters including what Alex may know about the deceased's death and none of the conversation was recorded even though it was possible to do so.
(8)The accused was woken up at 2.35 pm to be taken to the police station for EROI 2 and the police made no enquiry as to how much sleep he had since he had been dropped home at about 4.00 am.
(9)During the course of EROI 2 the accused was effectively cross‑examined about his version of events and scenarios were put to him which the police had no factual basis for believing.
(10)The accused was encouraged to guess or speculate about whether various things caused the deceased's death and told that the police did not believe his exculpatory accounts.
(10)During EROI 2 the accused was interviewed for two and a half hours before he had any break and was then only given a 10 minute break.
(11)Dr Vidovich's and Dr McCue's opinions are to the effect that during EROI 2 and certainly towards the end of EROI 2 the accused would have been very vulnerable to suggestion and to acquiesce to propositions put to him. Dr Brett was of the opinion that the accused was more vulnerable to suggestion and to acquiesce but not as certain of the extent that those characteristics would impact the reliability of the accused's answers.
It would be unfair to admit into evidence what the accused said about the death of the deceased when he was a very psychologically vulnerable and he was encouraged by the police to discuss the death of the deceased with an imaginary person to find out what happened to the deceased. This has similarities to asking a paranoid schizophrenic to induce a psychosis to discover what had happened on a particular occasion.
It would be particularly unfair to admit EROI 2 into evidence when it was the police who effectively planted the seed in the accused's mind that Alex may have had something to do with causing the deceased's death. It may be said that the seed was planted in fertile ground but that is the very reason why the police should have been very careful not to encourage the accused, who was prone to dissociate, to do just that.
The detectives who are not trained psychologists or psychiatrists and who did not have the advice of such an appropriate expert should have been vigilant to ensure that they did their best to keep the accused in the present and in his true persona so as to ensure the reliability of any admission made by the Accused.
EROI 2, which was the result of the police's misguided attempts to illicit a confession from an imaginary person, is a confusing mishmash. Throughout EROI 2 it is often difficult to determine whether the accused is asked and whether he is talking about what he recalls he did, or what he recalls he did as Alex, what he is retelling that Alex told him he (Alex) did, what he is retelling Alex told him he (the accused) did and what he is telling what he thinks or hypothesises that Alex did. This confusion is primarily due to the way in which the accused is questioned, rather than the accused's answers.
The State submits that the jury are entitled to regard all of the accused's answers as being a reliable account by the accused of his own actions which he recalls. Given the circumstances which I have described it would be unfair to admit EROI 2 into evidence against the accused on this basis.
The detectives encouraged the accused to talk to Alex very late at night when the accused would have been very tired from EROI 1. He would have also been very hungry. He was then given less than 12 hours before he was invited to participate in EROI 2. He was encouraged during EROI 2 to relate to the police officers what an imaginary person had said to him as if it was the truth and could be relied upon as the truth.
I acknowledge that it is difficult for police officers to interview a person who may have a dissociative personality disorder. However, I am satisfied that the manner in which EROI 2 was conducted was not the fair or proper way to conduct the interview of the accused.
This is especially so as the police did not know what had caused the deceased's death or even that it had been caused by a deliberate act by any person. Despite this the interviewing police officers repeatedly put numerous assertions to the accused during EROI 2 which alleged that the accused had by his acts caused or contributed to the deceased's death. These assertions were little more than speculation but they were put to the accused forcefully as being realistic, if not probable, causes of deceased's death.
Not only were the police speculating but they were inviting the accused, a psychologically vulnerable young man who was more prone to suggestion and acquiescence than the average person, to speculate. It was not a proper way to conduct an interview of a suspect in the accused's circumstances and it was likely to result in the accused giving unreliable answers.
The manner in which a lot of EROI 2 was conducted would have led the accused to believe that he was under an obligation to provide the police with a logical and inculpatory account of how the deceased died, even if the accused was not sure that his account was true.
For these reasons I am satisfied on the balance of probabilities that the accused has satisfied me that EROI 2 ought to be excluded in the exercise of my discretion.

Conclusion

For the above reasons I exclude EROI 2 from being adduced in evidence at the trial of the accused. I dismiss the accused's application for EROI 1 to be excluded from evidence.
This ruling does not mean that the accused cannot apply for distinct passages of EROI 1 to be excluded from evidence on the grounds of relevance or for other reasons not determined by this decision.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CC
Secretary
31 JANUARY 2019