Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183 Hearing dates: 18 August 2022 Date of orders: 18 August 2022 Decision date: 26 August 2022 Before: Beech-Jones CJ at CL at [1] Button J at [69] Hamill J at [70] Decision: (1) Appeal allowed in part; (2) Set aside the trial judge's decision to reject the tender of the evidence concerning the Respondent's participation in a "walkthrough" interview with police commencing at about 3.04pm on 19 August 2017; (3) Remit to the trial judge the determination of which parts, if any, of the evidence concerning the Respondent's participation in a "walkthrough" interview with police commencing at about 3.04 pm on 19 August 2017 should be rejected on the basis that the answers given by the accused concern matters of which he has no recollection; (4) Appeal otherwise dismissed; (5) Within one week of the completion of proceedings at first instance, the Appellant notify the chambers of Beech-Jones CJ at CL accordingly. Catchwords: Interlocutory Appeal – appeal by Director of Public Prosecutions against exclusion of parts of ERISP with accused and entirety of a walk through interview – respondent charged with manslaughter – Crown alleges he fought with the deceased and forced him onto a busy road and was hit by a car – respondent intoxicated at time of fight – interviewed the following day – during interview respondent stated he could not recall parts of fight including how deceased came to be on the road – trial judge accepted respondent was genuinely cooperating in interview – trial judge accepted Crown's expert that it was likely that lack of memory was due to cognitive impairment at time of fight from alcohol consumption – trial judge found that when respondent indicated a lack of memory his answers "have no greater status than … hypothesis" – exclusion of parts of ERISP and walkthrough "substantially weakened" Crown case – forced Crown to prove dangerousness and causation by inference rather than direct proof – whether trial judge mistook of facts – part of the trial judge's reasons for finding cognitive impairment relied on evidence of Crown expert relating to different topic – finding still open or reasonably open – whether in finding unfairness trial judge failed to consider extent to which jury could determine reliability of admissions – once trial judge held that answers no more than hypothesis then did not matter that jury could make its own assessment – whether trial judge erred in excluding entirety of walkthrough interview – exclusion of entirety of walkthrough inconsistent with findings in relation to ERISP – respondent's memory only partly affected – appeal allowed in part – consideration of exclusion of walkthrough remitted to trial judge – appeal otherwise dismissed Legislation Cited: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Brendas v Genter [2018] NSWCA 8 Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 House v The King (1936) 55 CLR 499; [1936] HCA 40 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v Tarantino (No 6) [2019] NSWSC 1174 Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 Category: Principal judgment Parties: Regina (Applicant) Brandon Sullivan (Respondent) Representation: Counsel: Ms M Kumar; Mr A Isaacs (Applicant) Mr S Odgers SC; Ms T Evers (Respondent)