Supreme Court New South Wales Medium Neutral Citation: R v Archer (No 1) [2021] NSWSC 569 Hearing dates: 17, 18 May 2021 Date of orders: 21 May 2021 Decision date: 21 May 2021 Jurisdiction: Common Law Before: Hamill J Decision: (1) The ERISP is inadmissible. (2) The body worn video recordings are admissible. Catchwords: CRIMINAL LAW - evidence - admissions - lies as admissions - consciousness of guilt - application of Evidence Act - clumsy - whether accused intoxicated at time of making admissions - brown liquor - diazepam - droopy - dispute between witnesses - police officers evidence inconsistent with video recordings - body worn video - electronically recorded interview - accused received legal advice - accused stated he did not wish to be interviewed - continuing questioning calculated to have accused bear witness against himself - objection on various bases CRIMINAL LAW - evidence - reliability of admissions - whether truth of admissions unlikely to be affected - lies - whether untruth affected - circumstances in which lies were told - evidence admissible on this basis CRIMINAL LAW - evidence - admissions - lies - where accused seeks to exercise right to silence - continued questioning by police - accused drowsy and affected by drugs - evidence obtained improperly - discretion to admit in spite of impropriety - where impropriety deliberate - systemic - evidence excluded on this basis CRIMINAL LAW - evidence - admissions - lies - unfairness discretion - onus on accused - onus discharged - evidence excluded on this basis Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 142, 143 Evidence Act 1995 (NSW) ss 85, 90, 138 Cases Cited: Kadir v R; Grech v R (2020) 267 CLR 109; [2020] HCA 1 Plevac v R (1995) 84 A Crim R 570 R v Al Batat (No 3) [2020] NSWSC 1061 R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 R v FE [2013] NSWSC 1692 R v GH (2000) 105 FCR 419; [2000] FCA 1618 R v Helmhout [2000] NSWSC 208; (2000) 112 A Crim R 10 R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 R v Ireland (1970) 126 CLR 321; [1970] HCA 21 R v Kerrie Anne Clarke (1997) 97 A Crim R 414 R v Ostojic (1978) 18 SASR 188 R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 R v Pitts (No 1) [2012] NSWSC 1652 R v Smith (1992) 58 SASR 491 R v Taleb [2019] NSWSC 241 R v Tarantino (No 6) [2019] NSWSC 1174 R v Ye Zhang [2000] NSWSC 1099 Category: Procedural rulings Parties: Regina Richard Archer Representation: Counsel: G Harrison (Regina) T Anderson (Archer) Solicitors: Office of the Director of Public Prosecutions (Regina) O'Brien Solicitors (Archer) File Number(s): 2020/51022 Publication restriction: No publication until conclusion of the trial. Judgment 1. The accused, Richard Archer, is about to stand trial for the alleged murder of David Bradshaw. Mr Bradshaw was stabbed in the early hours of 16 February 2020 in an apartment block in Redfern where both men lived. This is an evidentiary ruling made immediately before the commencement of the trial. [1] 2. On 4 September 2020, the trial was listed to commence on 17 May 2021. A notice of prosecution case pursuant to s 142 of the Criminal Procedure Act 1986 (NSW) was filed on 28 April 2021. Mysteriously, the defence response under s 143 was filed the day before that on 27 April 2021. The prosecution case statement included a list of statements and other evidence upon which the prosecution proposes to rely. Included in that list was an electronically recorded interview conducted with the accused, commencing at 8.28am on 16 February 2020 ("ERISP"). By a notice of motion filed 4 May 2021, the accused sought an order that the ERISP be excluded. A voir dire was conducted over two days from 17 May 2021, the day the trial was listed to commence. At the end of the first day of the voir dire, when the complexities of the issues involved had become clear, I was advised that the issue had not been raised earlier because "at the time that the notice of defence was filed it was still up in the air as to whether the [Prosecution] would be pressing this interview." [2] On the evening of the first day of the voir dire, the accused sought to amend the notice of motion to seek the exclusion of various audio-visual recordings captured on police body worn cameras after the accused's arrest and before his participation in the ERISP. The amended notice of motion was filed in Court the following day, 18 May 2021, and no objection was taken to the accused expanding his objection. Similar, but not identical, issues are raised by the two objections. 3. I have concluded that the body worn video recordings are admissible but that the ERISP should be excluded. These are my reasons for those conclusions. The issues on the voir dire 1. The accused contends that the police acted improperly or unlawfully in conducting the ERISP because he was intoxicated at the time and, further, because he told the police that he did not want to participate in the interview. He relies on the provisions of the Evidence Act 1995 (NSW) in s 85 (admissions that may be unreliable), s 90 (that it would be unfair to admit the evidence against him) and s 138 (that the evidence was obtained improperly). 2. The accused gave evidence that he had consumed 8 Valium tablets (5mg), "2 or 3" Xanax tablets (2mg) and "half to two thirds of a bottle of Bourbon". He said he did not remember much about his arrest or about the events leading up to it or immediately after. The accused also said that he "[did] not remember participating in the interview" with police. 3. The Prosecutor submitted that the evidence is neither unfair nor unreliable in the relevant sense. He submitted that the evidence of the accused was not consistent with the information he provided to the custody management officer at the police station and that his evidence should not be accepted. It was submitted that the police did not act improperly or unlawfully and, if they did, the desirability of admitting the ERISP outweighed the undesirability of admitting it given the relevant factors in s 138(3) of the Evidence Act. The Prosecutor submitted that the accused was "eager" to provide the police with a version of events to exculpate himself from a possible murder charge. In doing so, he chose to disregard legal advice and tell a number of discernible and material lies. 4. Three police officers gave evidence on the voir dire and the accused's custody management record dated 16 February 2020 was tendered. All of the officers said they noticed nothing unusual about the demeanour or conduct of the accused and were of the view that he was not affected by alcohol or drugs. The accused submitted that the evidence of the officers should not be accepted and the opinions they provided were contrary to what was plain on the body worn video recordings and footage of the ERISP. 5. Both parties invited me to rely on my own impressions of the accused's demeanour and conduct before and during the interview. Each emphasised different aspects of the various recordings tendered on the voir dire. 6. Some of the issues that arise for determination are: 1. The credibility of the evidence given by the accused on the voir dire, what drugs or alcohol he consumed and the extent, if any, of his intoxication. 2. Whether the police officers' opinions as to the intoxication of the accused are to be accepted. 3. Whether the lies relied on by the prosecution are capable of amounting to admissions. 4. The impact of any intoxication on the fairness and reliability of the admissions made before and during the interview and the application of ss 85 and 90 of the Evidence Act. 5. Whether the police acted improperly in continuing to interview the accused after he indicated he did not want to be interviewed and, if so, how the discretion to admit the interview in any event should be exercised (including by reference to the factors referred to in s 138(3)). The evidence on the voir dire and some factual findings The body worn videos 1. The accused was spoken to by police on arrest in Waterloo and during his processing at Mascot Police Station. These two interactions were recorded on body worn cameras operated by some of the police officers. The recording of the arrest (Exhibit VDC) and recordings of the accused being processed (Exhibit VDD) were tendered and played on the voir dire. During those conversations Mr Archer told a number of now admitted lies. In his written submissions, the Prosecutor summarised the things the accused said in his conversation with police on arrest and afterwards as follows: "• Someone broke into his house and stole a lot of stuff. (T1) • The person who broke into his house (hereafter 'the deceased') ha[d] been trying to sell his stuff. When the deceased burgled his house, he brought a table leg and ever since the deceased has been really wary of him. (T7) • Every time I see the deceased, he makes threats to me. (T3) • Last night he went down to visit someone and the person who broke into his house was there. (T1) • He went to level 3 because someone told him one of the stolen items was there, but it wasn't. (T7 & 8) • 'There was a whole heap of people there ... And I wasn't about to get involved and get the shit kicked out of me ... So I just wanted to leave ... as quickly as possible.' (T8) • The deceased said, 'Do you want a piece of me?' and the accused said, 'Look mate, I'm not interested.' (T1) • The deceased then produced a knife. (T1 & 8) • 'He was kinda brandishing it at me.' (T9) • 'We ended up wrestling for the fucking knife. Bob's your uncle. That's basically what happened.' (T3) • 'He smacked me in the head a few times.' (T5) • When asked where the knife was the accused said, 'I don't know about the knife, mate. I'm pretty sure it got left at the scene. It wasn't my knife. It was ... his knife.' (T6) • 'We were brawling, I got the knife off him. Fucking boom, boom, boom.' (T6) • When asked where the clothes he had been wearing were, the accused said his girlfriend washed them and they were hanging on the washing line. (T13) • The deceased is the building's biggest bully. (T6) • The deceased is 'one of the biggest standover fucking bastards in the place.' (T14)" 1. That summary is not complete (and the Prosecutor did not suggest that it was). The accused also effectively denied stabbing the deceased or knowing that he had been stabbed. He said (at T6 - 7 of Tab 3 of Exhibit VDA): "And I really didn't realise that it was sort of [just a mistake]. [3] I didn't, you know what I mean, he, we were brawling, I got the knife off him. Fucking, boom, boom, boom. … And then that was it. I kind of left, you know. It wasn't, it wasn't a case of fucking stabbing him or anything like that. I just, I honestly thought, fucking, you know, what, you had enough, 'cause I got the knife, and that was it." 1. When asked further questions about the whereabouts of the knife the accused said (T9 of Tab 3 of Exhibit VDA): "I don't know, mate. That's what I'm saying to you. I don't know whether he picked it up or one of his cronies picked it up, I wouldn't have a clue." 1. He went on to claim that he didn't really see the knife and could not describe it. 2. Mr Anderson said the accused will give evidence in the trial and explained the case that Mr Archer will run at trial: [4] "There will be no issue in the trial that Mr Archer brought the knife to the fight, if I could use that expression. He was holding the knife. A fight erupted between himself and Mr Bradshaw. Mr Archer was holding the knife. Mr Archer was swinging the knife around and essentially it was during that fight where Mr Archer was being punched in the face a number of times by Mr Bradshaw, that he swung the knife. He then grabbed Mr Archer and, in that process, swung the knife and inserted it into the back of Mr Bradshaw around the scapular or the collarbone. … Other parts of what [the accused said in his interactions with police] are clearly not true in terms of where the knife wound up at the end of the fight. We know, and it is conceded that in fact after this fight occurred, Mr Archer left the building with the knife in his possession and then deposited it in a bin. That is going to be accepted." 1. The conversations recorded by the body worn videos are capable of establishing the accused's animosity towards Mr Bradshaw and proving a motive in the accused to commit the offence. The conversations are also capable of establishing a consciousness of guilt in the accused by reference to: 1. The washing of clothing worn during the incident. 2. Lying about who produced the knife and who owned the knife. The accused now admits it was his knife and he "brought the knife to the fight". [5] 3. A related lie about getting the knife off Mr Bradshaw when the latter was "brandishing" it. 4. Lying about the disposal of the knife by saying it was left at the scene when, in fact, he was captured on CCTV disposing of the knife in a garbage bin nearby. 5. Prevaricating about whether he knew Mr Bradshaw had been stabbed. An account provided to the custody management officer 1. The custody management record states (at p 4): "While reading the Part 9 to the accused he stated 'While I was up at the unit I left it and he followed me to the lift, we argued and he pulled a knife on me which I wrestled for my life'." 1. This version of events was a lie. The admissions made in the electronically recorded interview 1. The accused told similar lies, and did so repeatedly and more expansively, in his ERISP. In his written submissions, the Prosecutor provided the following summary of what the accused said in the ERISP: "• He was adamant that he did not kill anybody. (A25 & 359) • He did not stab the deceased. (A188, 190, 362) • He did not know how the deceased got wounded. (A331) • '... obviously something bad has happened to the guy ... but it wasn't bloody me.' (A356) • The deceased had broken into his house a few days or weeks earlier. (A21) • The deceased has made a lot of money 'from dispersing my shit.' (A88) '... he's got all the gains from doing it ... he's got all my treasured things that it's taken me years to kind of collect.' (A336) • He was 'f-ing angry' and 'really angry' that the deceased had stolen his stuff. (A205-206) • The deceased was 'the disease of the building ... a rip-off artist ... the putrid nasty person of the building.' (A144) • He had no vendetta against the deceased. (A145) • The deceased was inside the unit when he arrived, with quite a few other 'jack the lad boys' or 'his cronies' or 'his lackeys.' (A29, 54, 115, 126, 172, 184, 204, 339) • He knocked on the door, it was opened, he saw his laptop under the TV, he said it was his laptop, the deceased said, 'No, it's not anymore', the accused said he was leaving. He left followed by 15 to 20 people. (A111-116) • Inside the unit he kept his eyes on the deceased given the deceased had a knife. (A125) • The deceased smacked the accused in the head without the accused having done anything. (A26) • The deceased came at him with a knife, they wrestled for the knife and the deceased dropped it. While the knife was on the ground the deceased said, 'Who the fuck are you?' and threatened to stab the accused. They both lunged for the knife, the deceased got it, the deceased lunged at the accused with the knife, the accused got the knife again, the deceased said, 'Fucking stab me cunt' and the accused said he was not going to stab him, the accused then threw the knife down the hallway so he could leave. (A129-134) • The deceased lunged at him with the knife, but someone was in the way and the deceased dropped the knife at the accused's feet, the accused picked it up, the deceased backed off and the accused threw the knife down the hall. (A303-304 & 318) • He explained that in order to pick up the knife he turned around and risked getting kicked on the bottom instead of the head. He said he 'did it quite wisely.' (A 304 & 321-328) • He threw the knife as far as he could so the deceased could not get to him and this gave him enough time to run down the stairs. (A134, 175-176, 186, 192, 194, 254, 258, 304, 307-309, 330, 413-414) • He didn't wait for the lift and left via the stairs. (A135-140 & 176) • When confronted with the CCTV footage he agreed he left in the lift and not by the stairs, but maintained he threw the knife down the hallway. (A256-258) • The knife would still be on that floor. (A307) • '... what I do distinctly remember was holding that fucking knife by it's handle and chucking it as far down the fucking hallway as I could.' (A413) • He confirmed that the deceased was inside the unit before him, but when confronted with the CCTV footage of the deceased arriving on the floor in the lift a few minutes after him, he said, 'Well, then maybe he wasn't there.' (A341) • When he left the scene, the deceased was not injured and was screaming, 'I'm gunna fucking get you cunt.' (A310) • When he left the scene there were many people around the deceased who wished to do the deceased harm or hated the deceased's guts. (A25 & 142) • At least two thirds of the people in the building 'dislike [the deceased] immensely enough to possibly do something to him.' (A359) • The person that retrieved the knife may have stabbed the deceased. (A360) • The other people in the unit had some prior knowledge that something was going down. (A117) And were trying to set the accused up. (A293) • The lady who sent him the photo of his laptop maybe wanted to start an argument between him and the deceased. (A150) And it was a setup to get him to go to the unit because the deceased was waiting there with a 'bunch of his cronies.' (A203-204) • He realised his going to the unit was a setup and the deceased was going to try and stab him. (A268) • It looked like a setup. (A304) • It looked like an ambush with the people there, on ice, wanting to kill the accused. (A305) 'I walked into a bloody ambush.' (A349) • When he got home, he said he thought he washed his clothes. (A287) Then he said he thought his girlfriend washed them. (A288)" The accused receives legal advice, his understanding of his right to silence and his indication that he did not wish to be interviewed 1. The custody management record indicates that the accused spoke to a lawyer before he was taken to the interview room. It appears an attempt was made to contact (by telephone) a "Sydney Criminal Lawyer" at around 7.15am. At 8.12am or 8.27am, the record indicates contact was made with "[a lawyer from] Sydney Criminal" for the purpose of "legal advice" and that "contact [was] made". It appears, from the absence of any notation on the custody management record, that the lawyer did not convey to the police that she had advised the accused to exercise his right to silence, or make any request that the police not interview the accused or place him in an interview room to record his refusal to answer questions. 2. The accused was conveyed to an interview room at 8.27am. When the first question was asked, the ERISP video records the time as being 8.28am. The following exchange then occurred: "Q5 As discussed earlier Richard, I'm going to ask you further questions in relation to the wounding offence that's caused the death of a gentleman this evening. My questions and any answers you give will be recorded on this machine in front of me. Do you understand that? A I understand that. I also understand that my legal representation has told me not to actually give any comments, so I'll give as best as I can. Q6 Not a problem. As explained earlier, your rights were explained to you by the custody manager and you were given a copy of them. Do you wish to exercise any of those rights now? A Well as I can't read anything given that my hands are fully tied in bags, I wouldn't have a clue what those comments were stated or given. I don't have a good memory - - - Q7 Yeah. A - - - so the fact that I can't peruse those piece of papers goes to show that I wouldn't have a clue what was said on them. Q8 Were you read the content of the paperwork? A Was I read the contents of the - - - Q9 Yeah. A - - - paperwork? I've got a bad memory, as I just stated and therefore I won't remember them, unless I am able to peruse them myself. Q10 [08.31] O.K. What we can do, we can get a copy of that now and do you want to have a look at it quickly? A Ah, irrelevant. Still my hands are in bags, so therefore it's irrelevant. So let's get along with this um, farce, because I didn't do anything to this gentleman. So - - - Q11 O.K. A --- let's keep on going." 1. A short time later the transcript (accurately) sets out the following questions and answers: "Q20 [08.32] No, we can organise that. As explained earlier, or as I said to you earlier, we gave you the opportunity to speak to a legal representative. Is that the case? A Yes, I did. Q21 You did. And you received some advice from that solicitor? A Yes, I did. Q22 O.K. Based upon that, as explained, I wish to ask you more questions in relation to the offence explained earlier. So that's the wounding which has ultimately caused the death of a gentleman this evening, or this morning. As explained you don't have to say anything if you don't [want] to. A Not me, no. Q23 O.K. Anything you do say or do will be recorded. In relation to these allegations, do you wish to participate in an interview, electronically recorded interview? A No, I don't. Q24 O.K. A As prescribed by my legal representation, no I don't. Q25 O.K. Do you wish to add any comment in relation to the reason why you're here, or the allegations that have been put towards you? A Ah, you were adamant that I killed somebody. I am adamant that I did not. Um, when I left the scene he was quite well. Ah, secondly when I left the scene he had many, many people around him, who I also know wish to do him harm. So, for me personally, I'm just feeling like a scapegoat right now. So, you know, great, um, do as you will." 1. The accused then answered more than 400 questions directed to him by the two detectives. In response to Q153, the accused said: "So, you know, that's basically it, yeah, that's all I've got to say at this point." 1. In answer to Q197, Mr Archer said: "I'm gunna be quite frank and honest, I've been told not to give you an interview, but frank and honest, they do not like him in that building. Nobody." 1. In his evidence on the voir dire, the accused agreed that he had been arrested on a number of prior occasions and been advised of his right not to answer questions. It was put to him that he knew "as an accused person, you had the right not to do or say anything" and he replied, "if I was sober, yes". [6] The evidence of the accused's intoxication 1. The accused said in his affidavit (Exhibit VD1) that he had taken about 8 Valium pills (5mg), "2 or 3" Xanax pills (2 mg) and "half to two thirds" (or "three-quarters") [7] of a bottle of bourbon. He claimed he did not remember the interview or being read his rights. 2. Three police officers gave evidence that the accused did not smell of alcohol and that he was not exhibiting any noticeable signs of intoxication. [8] The custody management officer made a record at 7.42am that the accused was "very droopy in his actions" but he denied drug or alcohol consumption and put his tiredness down to being an "alleged insomniac". The custody management record indicates that the accused said he was taking Methadone, Somac, "Zitiniteine" and Salofalk. There is no suggestion he told police he had taken Valium and Xanax or that he had consumed a large quantity of brown liquor. 3. The parties agreed that the accused was "prescribed Valium at a dosage of one 5[mg] tablet per day". [9] Mr Archer could not explain why he did not tell the police about his drug use and said he could not remember the custody management process at all. He said he may not have mentioned the Xanax because he acquired it illegally but had no explanation for failing to mention the Valium and alcohol, other than saying he had no memory of the event. 4. Pursuant to its duty of fairness, the prosecution tendered a report from a forensic pharmacologist/toxicologist as to the likely effect of the drugs and alcohol the accused claimed to have consumed (Exhibit VDE). A number of the established effects of the drugs are consistent with Mr Archer's description of his condition and, to some extent, his behaviour as captured on the videos. These included anxiolysis, sedation and memory loss (alcohol); sedation and profound effects on cognition (Valium); and drowsiness, tiredness and memory problems (Xanax). All of those effects were evident in my observations of the accused during the body worn camera recordings and ERISP footage. When these prescription drugs are combined with alcohol, their negative side-effects are increased and more likely to have an adverse effect on the individual. Dr Nieuwenhuijzen (at p 5 of Exhibit VDE) gave the opinion that an average male person would be "significantly affected" by the consumption of the amount of drugs and alcohol reported by Mr Archer. Observations of the accused on the body worn videos 1. The first of the body worn videos depicts Mr Archer seated on the ground outside a unit block at around daybreak. It is difficult to make any clear judgment as to his demeanour due to the camera angles, video quality and lighting. However, Mr Archer is evidently seated, leaning up against the wall of the building for the duration of the video. The recording shows Mr Archer responding freely to various questions put to him and volunteering information about the events of the previous evening, although he does appear to be rambling and his speech is indistinct at times. During the recording, the police place Mr Archer's hands in bags (for forensic purposes). The accused is seen to co-operate with this process and shows no signs of animosity towards the officers. 2. The second video recording takes place as the accused is taken from the police truck, into the police station and placed in Cell 4 on the instruction of the custody management officer. As soon as he is placed in the cell (at record playback counter 0mins 48secs), the accused is seen attempting to put his feet up and curl into a seated sleeping position, leaning against the cell wall. This is interrupted while a police officer removes his handcuffs. Once the handcuffs are removed, Mr Archer commences to resume his seated, curled-up position in the cell. The video then cuts out and it is not clear whether he actually fell asleep in that position. 3. The video then shows footage of the accused moving to the counter area of the police station and being spoken to by the custody management officer. It is at this point that the accused provides the (false) statement referred to at [16] above. As the custody management officer speaks to him, Mr Archer was able to stand unassisted, but was slouching or leaning on the counter. The accused answered questions asked by the officer, but appeared to be drowsy and struggling to keep his eyes open. Observations of the accused on the ERISP video 1. At the commencement of the ERISP, the accused is slumped down and hunched over with his eyes closed. At around counter 3:48 [10] (Q18 in the transcript at Tab 5 of Exhibit VDA) the accused's head drops and he closes his eyes and appears to fall asleep (albeit momentarily). However, Mr Archer responds in a relatively coherent manner to the question asked and subsequent questions. Over the next few minutes his eyes are slowly opening and closing, and his eyelids appear heavy, but he continues to answer questions despite stating clearly "No I don't" to the question of whether he wished to participate in an interview (Q23). 2. Over the next half hour or so, Mr Archer continues to blink slowly and appears at times to be having difficulty keeping his eyes open. He appears to be drowsy but continues to answer questions, at times interrupting the officer to provide his answers. An example is at around 11:53 (Q55 to Q65). At 17:04 (Q91) the accused slumps forward, his eyes roll backwards, and he appears to be on the verge of sleep. However, he responds immediately to the questions asked of him. 3. At around 22:30 (Q132), the accused's demeanour changes to a degree and he becomes more animated and theatrical in his language. He appears to be rambling in his answers. A few minutes later at 27:05 (Q148 to Q153) his demeanour appears again to change; his eyes are closed, he slumps forward in his chair and appears to be drowsy. 4. Then, from about 28:32 (Q162), he sits up straight and seems to be awake. Again, his answers became more animated and he appears more engaged from this point in the interview. The accused reverts to his earlier apparently drowsy state at around 36:05 (Q293) when he appears to have trouble keeping his eyes focussed. When the interview was suspended at 1:18:00, the accused begins to rock back and forth, and his eyes appear to be closed. 5. The accused was able to interact with the officer independently and made no complaint about the manner of the interview when asked a series of standard questions about how the ERISP was conducted. The accused was affected by drugs, and/or alcohol, and/or somnolence at the time of the interview 1. Based on my observations of the video footage tendered on the voir dire, I find it difficult to accept the evidence of the police officers that they did not notice anything unusual about Mr Archer's behaviour. However, I have had the advantage of observing Mr Archer in the witness box and so can make a comparison between his conduct and demeanour at that time and his behaviour at the time of his arrest and interview. On my observation, he seems like a different person. The police did not have that opportunity and, according to the custody management officer and the records, were not told that he had taken a cocktail of depressant drugs as described in his affidavit. I would not assess him as being particularly drunk. Rather, at times, he appeared quite alert and engaged, if disinhibited. However, his behaviour was consistent with the effects and side-effects of the drugs as described by the forensic pharmacologist/toxicologist. His demeanour and conduct is erratic, he is often drowsy and his answers are rambling, grandiose and at times incoherent. 2. The police officers who gave evidence on the voir dire also said that they did not notice the smell of alcohol on Mr Archer's breath. This evidence has little weight in the circumstances. It does not lead me to doubt Mr Archer's account. It is not clear on the evidence precisely when the bourbon was consumed, and no evidence was adduced to suggest how long alcohol would remain noticeable on a person's breath. On the accused's account in his affidavit and in evidence, there was a five to six-hour period over which he consumed the alcohol and prescription drugs. [11] The time he drank the liquor was not narrowed down during his evidence in chief or cross-examination. If the alcohol was consumed in the first part of that period, it may be unlikely that the smell of liquor was still noticeable on his breath. Further, I have real doubts about the other observations made by the officers. 3. I am satisfied that, at the time of the ERISP, Mr Archer was affected by drugs and probably alcohol. I do not accept all of his evidence, but I do accept that he was drowsy at times, that his memory of the events of the morning of 16 February 2020 is patchy and, based on the evidence of the toxicologist, that his cognition was impaired to some degree. On the other hand, I accept the Prosecutor's submission that (in that affected state) he was eager to provide an exculpatory, and in parts false, account of the events that led to Mr Bradshaw's death. The impact of intoxication on the admissibility of the evidence 1. The fact that Mr Archer was intoxicated to some degree at the time he made the statements relied on by the Prosecution as admissions does not, of itself, render that evidence inadmissible. In R v Helmhout [2000] NSWSC 208; (2000) 112 A Crim R 10, Bell J (as her Honour then was) referred to the following passage from the South Australian case of R v Ostojic (1978) 18 SASR 188, wherein Wells J (with whom Hogarth and King JJ agreed) observed (at [31]): "Liquor may loosen a man's tongue; it may impair his ability to continue fraudulent conduct when under close questioning; it may inhibit his inventiveness and hence weaken his capacity to lie effectively. In such circumstances, if there is no more, I see no ground in principle or authority for excluding his answers ... it is a question of fact and degree.'' 1. Bell J held the admissions in Helmhout were admissible and said (at 17): "[34]… I consider the appearance of the accused during the course of the interview to be consistent with a person still affected, to some degree, by the effects of the substantial quantity of alcohol and drugs consumed by him some hours earlier. However, I am satisfied that the accused was aware that he had been arrested and was being interviewed in connection with an allegation of murder. … [39] The fact that the accused may have made admissions (using the term in the way in which it is defined for the purposes of the Evidence Act) in part because his tongue was loosened by the effects of alcohol and drugs does not, in my view, make it unfair to admit the interview for the reasons given in Ostojic." 1. On the other hand, in R v Smith (1992) 58 SASR 491 at 498, Perry J said, in the context of the question of the voluntariness of an impugned statement made by an accused person against their interests: "It does seem to me, however, that a lesser state of intoxication may induce in the accused a state of mind in which he or she was incapable of making a free choice as to whether to speak or remain silent. The accused may be incapable of understanding a caution which was administered, or even if a caution was understood, of evaluating it so as to make a reasoned decision as to whether to answer questions. In such a case, the evidence may be excluded on the ground that it was not voluntary in the sense that I have mentioned." 1. In the present case, the question of the impact of the accused's intoxication is to be considered in the context of his objections pursuant to ss 85, 90 and 138 of the Evidence Act. There is no doubt the evidence is relevant and has a reasonably high degree of probative value. The accused told a number of discernible and material lies that are capable of being considered by the jury to be explicable on the basis that he had a consciousness of guilt concerning the stabbing of Mr Bradshaw. Section 85 of the Evidence Act 1. The accused submits that the evidence ought not to be admitted because the admissions are unreliable. Section 85 of the Evidence Act provides: (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant-- (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note: Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account-- (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning-- (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned. 1. It is now settled, in New South Wales at least, that a lie told in consciousness of guilt may amount to an "admission" for the purpose of the relevant provisions of the Evidence Act (for example, ss 81, 85, 90): see, for example, R v Esposito (1998) 45 NSWLR 442 at 459; 105 A Crim R 27 and R v Horton (1998) 45 NSWLR 426 at 437-438; 104 A Crim R 306; but contra the approach taken by the Federal Court in R v GH (2000) 105 FCR 419; [2000] FCA 1618 at [14]-[16] (Spender J) and [55] (Miles J, Madgwick JJ agreeing). 2. There is some practical difficulty in applying the provision in s 85(2) to an admission constituted by a lie because the starting point must be that "the truth of the admission" is already "adversely affected" by the fact that it is a lie. However, the question to be addressed must focus on "the circumstances in which the admission was made" rather than on whether the admission is, in fact, true or accurate: see, for example, R v Ye Zhang [2000] NSWSC 1099 at [52] per Simpson J (as her Honour then was). 3. In R v Esposito at 459-460, Wood CJ at CL made a number of observations about the application of s 85 of the Evidence Act to cases where the prosecution relies on lies as implied admissions: "It is only if those circumstances are such as to make it unlikely that the truth of the admission was adversely affected, that it is admissible. It will be for the defence to identify an arguable point in this regard, whereupon in accordance with usual principle, its admissibility will fall to be determined in accordance with the standard of proof specified in s 142 of the Evidence Act. … The same inquiry is, as a matter of logic, in my view, equally available where the Crown relies on a statement that is untrue, as it did here, as giving rise to an implied admission of guilt. For example, if the evidence was such as to show, or to raise a doubt as to whether a defendant had been suffering from brain damage, intoxication, or amnesia, when interviewed, and as a consequence to have been confabulating, then a doubt might well arise as to whether it was that circumstance that led to the defendant supplying an answer that the Crown could prove was untrue. If the untruth of the answer is then relied upon as an implied admission of guilt, I see no reason why s 85(2) should not apply. As a matter of ordinary language, the 'truth' of the admission may in the circumstances postulated, have been adversely affected. … The correct analysis is, in my view, as follows: If upon the evidence led on the voir dire (and/or in the trial to that point) a question legitimately arises as to whether the circumstances were such that the truth (or untruth) of the admission might have been adversely affected, then it falls to the Crown to establish upon a balance of probabilities (Evidence Act, s 142) that it was unlikely that this was the case. The inquiry undertaken by the judge is not concerned with the question whether the admission was in fact made, or whether it was true (or untrue); each is for the jury: s 189(3) of the Evidence Act." (Emphasis in original.) 1. I have also gained considerable assistance from the thorough analysis of the provision in the judgment of Beech-Jones J in R v Tarantino (No 6) [2019] NSWSC 1174 at [174]-[197]. 2. The circumstances in which the admissions were made (or the lies were told) include the fact that the accused was sleepy, drowsy and affected to a degree by drugs and alcohol. The section is plainly engaged in that the question of reliability "legitimately arises": Esposito at 460. However, I am satisfied (on the balance of probabilities) that it is unlikely that the "untruth" of the admission was adversely affected by the circumstances in which the lies were told. Similarly, the circumstance that the accused sought to exercise his right to silence is unlikely to have affected the "untruth" of the statements. If this language appears to be clumsy, it arises from the apparent paradox of applying the language of s 85 (whether the truth of the admission was affected) to an admission constituted by a statement that is, ex hypothesi, not true. 3. I would not exclude either the evidence of the admissions in the body worn video recordings or ERISP based on the exclusionary provision in s 85. Abrogation of the right to silence: Unfairness and impropriety 1. It is a well-established rule of practice that police should not persist in interrogating a suspect after they have indicated that they do not wish to answer further questions: see, for example, R v Ireland (1970) 126 CLR 321 at 333; [1970] HCA 21, Plevac v R (1995) 84 A Crim R 570 at 579-581, R v FE [2013] NSWSC 1692 at [132]-[133], R v Taleb [2019] NSWSC 241. As I explained in R v Taleb at [127], the right to silence has been emphasised in relatively recent legislative enactments but there is no automatic consequence from police disregarding a clear statement from a suspect that they do not wish to be interviewed. There are many cases where a suspect has indicated a desire to exercise the right to silence but their subsequent answers were admitted over objection: see, for example, Plevac v R at 580, R v Kerrie Anne Clarke (1997) 97 A Crim R 414 at 420, R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 at [53]-[57] and R v Al Batat (No 3) [2020] NSWSC 1061 at [61]-[70]. In Phan, Wood CJ at CL explained; "[54] There is no absolute rule that an interview conducted in the face of an objection by a suspect, or continued in the face of an indication that he or she does not wish to participate any further in it, should be rejected if tendered in evidence. This was made clear in Kerrie-Anne Clarke NSWCCA 31 October 1997, when Hunt CJ at CL said: 'It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. [19] It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. [20] No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure. [21]' [55] Smart J similarly observed: 'It is not uncommon for an accused to intimate that he does not wish to answer any questions and then to decide to answer some questions or to make a statement or explanation. There may be something in a police statement or summary of the situation which the accused regards as wrong and needs correction or something which needs explanation. There are many possibilities. It would be unwise to hold that every time an accused states that he does not want to answer questions, some further questions are put and answers are given or explanations or statements made such answers, statements or explanations are inadmissible. Everything depends on the circumstances.' [56] In an appropriate case, it may well be that despite some initial reluctance, the person interviewed may elect to continue with the interview, and even see an advantage in providing further information with a view to dispelling doubts, or answering matters which may give rise to suspicion. Any apparent impropriety in continuing to question a suspect may turn out, in those circumstances, to be of such little weight as not to justify exclusion of the ERISP as evidence. Each case must be determined upon its own facts, and in particular by reference to the extent to which there is any unfair pressure placed upon the person being interviewed, or unfair advantage taken of his position, for example because of his age, vulnerability, lack of familiarity with the English language and so on. Moreover, in any weighing exercise the probative value of the evidence needs to be taken into account. [57] The ERISP was of relevance so far as it was the one that followed immediately upon his arrest, and was also one that the Crown relied upon as continuing the pattern of lies that could be seen in the earlier interviews. Upon the other hand, it did not add any fresh "lie", ie it did not raise any matter that had not emerged in the earlier interviews, which was then relied upon as a further lie displaying a consciousness of guilt. [58] In the light of its limited probative value, and the appellant's acknowledgment that he had told lies to the police, and in the light of the way that the interview was down-played in the summing up, I am of the view that it would have been preferable, with the advantage of hindsight for it to have been excluded. I am not, however, persuaded that its admission led to any risk of a miscarriage of justice having been occasioned." 1. On the other hand, there are a number of cases where admissions have been excluded because of persistent police questioning in the face of clear indications that a suspect does not wish to be interviewed: see, for example, R v Pitts (No 1) [2012] NSWSC 1652; (2012) 229 A Crim R 387, R v FE, R v Taleb. 2. The cases demonstrate that the admissibility of the evidence will turn on the particular factual circumstances of the case and on the proper application of the discretionary factors that arise in decisions made pursuant to ss 90 and 138 of the Evidence Act. Section 138 of the Evidence Act 1. Section 138(1) provides: Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Did the detectives act improperly? 1. In the first instance, the accused bears the onus of establishing on balance that the police acted improperly or in breach of the law. 2. Mr Archer's answers to Q23 to Q24 (set out at [21]) could not have been clearer. The accused was asked if he wanted to participate in the interview and he said he did not. He repeated this by reference to the advice he had received from a lawyer. 3. Rather than suspending the interview or asking further questions to confirm that Mr Archer wished to exercise his right to silence, the officer asked an open-ended question calculated to have the suspect abandon or disavow that right. That question (Q25, also set out at [21]) asked whether the accused wished to make any comment on the allegation that had been put to him in circumstances where the accused had, seconds before, said he did not wish to be interviewed. I do not accept the Prosecutor's submission that the question "couldn't be more benign". [12] On the contrary, the question was designed to keep the suspect talking against legal advice and his expressed desire to exercise his right to silence. This was improper. 4. The accused has established that the evidence elicited in the questioning that followed was improperly obtained. Pursuant to s 138 of the Evidence Act, the onus shifts to the prosecution to establish that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained by means of the impropriety: s 138(1). Section 138(3) sets out a non-exhaustive list of factors the Court is to take into account in exercising the power to admit improperly obtained evidence. I will deal with each of these in turn. Probative value 1. The evidence has significant probative value, but it cannot, of itself, establish guilt: s 138(3)(a). A number of the answers given by the accused are contrary to the evidence of other witnesses and, as I understand it, are admitted and material lies. In view of the defence case as explained in argument, these lies are capable of being used as evidence of a consciousness of guilt and in assessing the credibility of the case the accused intends to run at the trial. 2. The probative value of the evidence is a factor militating in favour of the admission of the evidence. The importance of the evidence 1. The evidence is less important than it might have been if the accused had not already told similar lies in the course of earlier conversations with the police captured in the body worn videos: s 138(3)(b). In Kadir v R; Grech v R (2020) 267 CLR 109; [2020] HCA 1 at [42], the High Court said: "None of the s 138(3) factors can be considered in isolation. Evidence may possess high probative value but not be important in the proceeding in a case in which other equally probative evidence is available to the prosecution." 1. I accept the Prosecutor's submission that the evidence of lies in the interview is stronger and starker than the earlier conversations. It is more powerful evidence of the accused demonstrating a consciousness of guilt. Some of the lies are slightly different and more stridently expressed. Similarly, the animosity shown towards the deceased in the interview is strong evidence of the accused's state of mind. However, the fact that the ERISP is more powerful evidence is, in part, a consequence of the method and length of the recording. Even so, I accept that it is not "equally probative" (to use the language employed in Kadir v R; Grech v R) but that it does reduce the importance of the evidence. 2. I have also considered a number of statements of eyewitnesses tendered after the conclusion of the submission on the voir dire (Exhibit VDF). This evidence is capable of establishing a motive in the accused, his animosity towards the victim, as well as proving the circumstances of the stabbing. There is also expected to be evidence of the accused telling one of the witnesses (Douglas Boney) what version of events to give to the police. This will no doubt be relied on as evidence of a consciousness of guilt. 3. The accused's consciousness of guilt, if that is what it is, can be established by the lies told between the time of his arrest and the commencement of the police interview. His motive can be established by the recordings captured on the body worn cameras and an abundance of other evidence expected to be given by other witnesses to be called at trial. The accused's animosity towards the victim, which comes across starkly in the ERISP, can also be proved by things he said to neighbours. For example, Polly Haley is expected to give evidence that the accused referred to Mr Bradshaw as a "motherfucker" and Darren Watts says that after the stabbing the accused said "he fucking deserves it". 4. Considering the ERISP in the context of the other evidence in the case, it is not particularly important evidence. The nature of the offence and subject matter of the hearing 1. The offence is very grave, and the issue arises in a murder trial: s 138(3)(c). The Court should not lightly deny the Prosecutor evidence that is probative of the accused's guilt. The gravity of the impropriety 1. The impropriety itself is quite grave: s 138(3)(d). Once the accused had expressly and clearly indicated his desire not to be interviewed, the police officer proceeded to ask hundreds of questions without at any stage enquiring further as to the accused's position in terms of his right to silence. The police officers were aware the accused had received legal advice and that the advice was not to engage in an interview. At no stage was the accused reminded of this, nor was any attempt made to confirm that the accused wanted to continue to answer questions. 2. Further, the police officers who interviewed the accused were dealing with somebody whose capacity was affected by drugs and alcohol and they took no steps to further investigate this. As I have said, their evidence is that they were oblivious to his drowsiness and intoxication although it is difficult to accept that assertion at face value. The custody management officer's observation that the accused was "very droopy" was either not known or not considered in deciding whether to continue with the interview or to confirm with the accused that he wished to continue to answer questions. It seems there was no communication between the custody management officer and the detectives. Was the impropriety reckless or deliberate? 1. The impropriety was at least reckless and probably, at least in part, deliberate: s 138(3)(e). It may even be systemic. Cases such as the present are not uncommon. 2. The detective who conducted the recorded interview gave the following evidence: [13] "Q. Yes, he did, he [gave] you that answer there at 25, but after that, knowing he'd said he does not want to participate in an interview, you continued to ask him a further 400 odd questions, correct? A. Yes. Q. You should have stopped the interview at the time he said he didn't want to participate in the interview, shouldn't you? A. Not if he was answering my questions. Q. But he has expressly said to you I don't want to be part of the interview process, isn't that the case, that's the clear answer he's given there at 23, do you agree with that? A. Yes. Q. And yet you kept asking questions, didn't you? A. Yes. Q. And you deliberately asked those questions knowing he didn't want to participate in the interview, do you agree with that? A. He continued answering my questions, yes. HIS HONOUR: Q. Is that the test, is it? A. Beg your pardon? Q. Is that the test, if he keeps answering your questions then it's okay to keep asking questions, is that your approach? A. I'll keep, yeah, I'll keep interviewing, I'll keep talking to him." 1. This evidence shows that the police officer, conscious of his suspect's right to silence and his expressed desire to exercise it, made a deliberate choice to ask further questions to see whether the suspect would provide evidence against himself, rather than exploring further (or at all) the suspect's wish not to be interviewed on the basis of the legal advice he had received. The impropriety in continuing to ask questions after the answers to Q23 and Q24 was deliberate. Further, the detective's evidence suggests it is his usual practice. The international covenant 1. The Prosecutor "accepts that the International Covenant on Civil and Political Rights recognises the right of a person not to be compelled to testify against themselves": s 138(3)(f). Other proceedings 1. There are no other proceedings of which I am aware that deals with the alleged impropriety: s 138(3)(g). The difficulty of obtaining the evidence without the impropriety 1. The Prosecutor submitted that "it would be difficult to obtain the evidence without the interview having continued, particularly the evidence of motive and consciousness of guilt": cf s 138(3)(h). While this is true, it is a consequence of the common law right to silence and the "rule of practice" which has stood since at least the decision of the High Court in R v Ireland in 1970. Further, the Prosecution has ample evidence of motive in the statements of a number of the witnesses. There is evidence of the theft of the computer, the bad blood between the two men and Mr Archer threatening to "visit" the deceased before the stabbing. There is also evidence of consciousness of guilt in the body worn recordings and in the accused's attempt to have Mr Boney provide a particular version of events to police. Conclusion as to the application of s 138 1. The prosecution has not established that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained by the impropriety established in this case. This conclusion is influenced, in particular, by the deliberate, if not systemic, nature of the impropriety and my assessment of the importance of the evidence in the context of the trial and other evidence available to the Prosecutor. 2. It follows the evidence must be excluded pursuant to s 138 of the Evidence Act. Section 90 1. Section 90 of the Evidence Act provides: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if-- (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. 1. The accused bears the onus to establish that the discretion to exclude should be exercised. He has discharged that onus in respect of the admissions made in the ERISP but has failed to do so in respect of the recordings captured on the body worn video between the time of his arrest and the commencement of the interview. 2. Because I have concluded that the ERISP should be excluded on the proper application of s 138 of the Evidence Act, it is unnecessary to explain in any detail my conclusion in relation to s 90. However, I am satisfied that the discretion pursuant to s 90 should be applied in favour of the exclusion of the ERISP. I am satisfied that, having regard to the circumstances in which the admissions were made, it would be unfair to use the answers contained in the ERISP. 3. However, the lies told freely and voluntarily, after due administration of a caution, after the accused was arrested and at the counter of the police station, are admissible. There is no unfairness in the admission of those statements and the jury will be in a position, after the evidence and directions, to determine the extent to which the lies told by the accused are solely attributable to his criminal responsibility for the murder of Mr Bradshaw. It is the combination of the accused's intoxication and drowsiness, coupled with his clear statement that he did not wish to be interviewed, that has led me to a different conclusion in relation to the material contained in the ERISP. 4. Accordingly, I would also exercise the discretion to exclude the ERISP under s 90. I would not exclude the admissions made during the conversations with the police recorded by officers present on their body worn cameras before the accused was taken to the interview room. Rulings 1. For the foregoing reasons, I make the following evidentiary rulings: 1. The ERISP is inadmissible. 2. The body worn video recordings are admissible. ********** Endnotes 1. These reasons were published in draft form on Friday, 21 May 2021, a second draft was provided on Monday, 24 May 2021 and the final version was published on Thursday, 27 May 2021. 2. Tcpt, 17/05/2021, pp 53-54. In fact, the defence response to the notice of prosecution case said at (k)(ii) that, "The accused is waiting to be informed by the Crown as to whether it proposes to tender the record of interview involving the accused. If it does, it will be objected to". 3. The transcript tendered in evidence records the part of the conversation in square brackets as "… stabbed" but I am unable to hear that in the recording. 4. Tcpt, 18/05/2021, pp 57-58. 5. Tcpt, 18/05/2021, p 57. 6. Tcpt, 17/05/2021, p 16. 7. Tcpt, 17/05/2021, p 17. 8. Tcpt, 17/05/2021, pp 17 (Detective Senior Constable Mabberley), 38 (Sergeant Giblett), 51 (Constable Sonter). 9. Tcpt, 18/05/2021, p 79. 10. The playback counter numbers are references to the counter on the media player, not the time stamp on the video itself. 11. See Exhibit VD1 (for accused's account of consumption of alcohol) and Tab 2 of Exhibit VDA (for timing of incident, arrest and interview). 12. Tcpt, 18/05/2021, p 74. 13. Tcpt, 17/05/2021, p 30. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2021