Supreme Court New South Wales Medium Neutral Citation: R v Godfrey (No 2) [2023] NSWSC 1313 Hearing dates: 20 March 2023 Date of orders: 20 March 2023 Decision date: 20 March 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Admission of the reference by the accused to Asperger's Syndrome or Autism during his ERISP is rejected. (2) Admission of a statement made by the witness Mr Rae to the effect that he did not trust the accused is accepted. (3) Admission of two references by the accused to cross-examination during his ERISP is rejected. Catchwords: CRIMINAL PROCEDURE — Trial — Voir dire – admissibility of evidence EVIDENCE — Credibility evidence — Accused – where Crown submits accused lied about Asperger's Syndrome or Autism diagnosis – whether admission of evidence would be unfairly prejudicial – s 137 Evidence Act 1995 (NSW) – whether admission of evidence would reverse onus of proof – evidence not admitted EVIDENCE — Opinion – whether witness' statement that accused could not be trusted should be admitted – whether evidence relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed – evidence admitted EVIDENCE — Credibility evidence — Character – whether reference by accused to cross-examination during ERISP should be admitted – whether danger of prejudice to the accused – evidence not admitted Legislation Cited: Crimes Act 1900 (NSW), s 18(1)(a) Evidence Act 1995 (NSW), ss 76, 77, 135, 137 Category: Procedural rulings Parties: Rex Connor Norman Godfrey Representation: Counsel: M Hay (Rex) M W Smith (Offender) Solicitors: Office of the Director of Public Prosecutions (Rex) Grover Law (Offender) File Number(s): 2021/93122 Publication restriction: None REVISED EX TEMPORE Judgment 1. The accused is charged on indictment that on 4 April 2021 he did murder Giuseppe Pagano, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The trial commenced on 20 March 2023. At the commencement of the trial, the accused raised a number of objections to evidence upon which the Crown proposed to rely during the course of the trial. I thus heard and am determining the accused's objections to the evidence in the absence of the jury, indeed, before the jury has been empanelled. 2. In support of the accused's application, I received written submissions and heard oral submissions from both the accused and the Crown. In addition, I received the accused's material on the voir dire which included the Crown Case Statement, a statement of Edson Ortiz, a statement of James Urio, a statement of Wayne Rae and the ERISP interview of the accused dated 4 April 2021. 3. The Crown relied on its own bundle of material (which I marked "VD-3") which included the same statements, a transcript of body-worn video footage, a chronology a number of medical documents (indeed, 16 separate documents) relating to treatment that the accused had sought or visits he had made to various health experts in the period 2014 to 2021, as well as a report of a Dr Sally McSwiggan dated 8 April 2022. Dr McSwiggan was asked to prepare a report on the fitness of the accused to stand trial. 4. Although the accused identifies a number of objections to the evidence in his written submissions, by the time of commencement of the trial the parties had reached agreement on a number of the objections. In particular, it was agreed that the objection to the evidence of Mr James Urio, an ambulance officer that the Crown proposed to call to give evidence, would await Mr Urio attending to give evidence. 5. There remain three matters of substance to which the accused objects: (1) the reference by the accused in his ERISP interview to Asperger's or Autism; (2) a statement made by Mr Rae, a person who was with both the accused and the deceased during the night prior to the death of the deceased, to the effect that he did not trust the accused; and (3)two references by the accused in the ERISP interview to cross-examination; that is, the accused's reference to the possibility that he might be cross-examined at some stage in the future. 6. Again, through agreement of the parties, the extent of the objections has been somewhat reduced, and I will deal only with the matters that remain in dispute. The Asperger's Syndrome/Autism objection 1. Whilst being interviewed by the police on 4 April 2021, the accused made a number of references to either suffering from Asperger's Syndrome, having Autism, or being on the spectrum. For example, at Question 76, the accused says, "Um, I'm socially introverted due to being on the spectrum." When the police officer followed up about what the accused meant by that, he said, "I mean high functioning autistic." He then said, "As well as attention deficit disorder, but they call it ASD autism spectrum disorder." 2. The accused was asked: "When were you diagnosed with this?" He answered: "Um, I think childhood. I don't know". At the same time, the accused volunteered that when he was diagnosed with Attention Deficit Disorder when he was 17 years old. There was no objection to that answer. However, he did return to the subject in the next question, referring to all of ADHD, Asperger's Syndrome and high functioning autism. 3. Later in the interview, the accused was asked about a particular sequence of events and he said, "Yeah, so, um, by the time that I kind of looked over, like, my Asperger's kind of tells me, like, oh, they are already having a conversation...". 4. Further, at one stage in the interview (that is, Question 135 and following), the accused was asked a series of questions about his friendship or companions. He answered these questions saying he did not have any. The accused initially objected to those series of questions (that is, Questions 135 to 138) on the basis they also might be taken as a reference to Autism, but the accused submits that those series of questions would not be objectionable if the other parts relating to Autism were ruled out. 5. The Crown submits that it intends to establish that the accused told a number of lies to the police, one of which was that the deceased had held a knife to his throat and threatened him. However, the Crown also submits that the accused was lying when he made the comments about Asperger's Syndrome or Autism. The Crown says that the accused did not have Asperger's or Autism Spectrum Disorder, had not been diagnosed with either of those conditions, and did not believe that he had been diagnosed with either of those conditions when he made assertions to the contrary during his ERISP. 6. As I understand it, the Crown case is that, when viewed as a whole, during the ERISP, the accused set about telling a number of lies for the purposes of, in some way, explaining his conduct; that is, explaining his conduct in a way beneficial to him, or to in some way gain the sympathy of the police. The Crown submits that it will only be relying on one of those lies as a consciousness of guilt; that is, that the deceased had held a knife to his throat and threatened him. The Crown submits that the other lies, including what is said to be lies about Asperger's or Autism, go to the credibility of the accused. 7. The accused raises self-defence. The Crown submits that it has been properly raised and the Crown submits that the credibility of the accused is very much in issue. 8. The central basis upon which the accused objects to the statements regarding the accused's alleged Autism diagnosis being admitted into evidence is that, if admitted, it will effectively reverse the onus of proof and require the accused to establish that his statements about Autism or Asperger's were not, in fact, lies. 9. In this regard, the accused called evidence from his mother, Katerina Pretty, during the voir dire hearing. Ms Pretty explained that when the accused was about nine years old he was experiencing difficulties at home. Ms Pretty took the accused for an expert assessment as to the problems he might be suffering from. Indeed, she took him to see Dr Antony Underwood, Consultant Paediatrician, who explained to her that, although certain of the matters that seemed to be troubling the accused might fall within the definition of Asperger's Syndrome, it was not a classic case of Asperger's. As such, Dr Underwood made no such diagnosis. 10. At a later stage, the accused was taken to see Professor Mark Dadds, Clinical Psychologist, so that his mother might understand why the accused was seemingly having the problems he was experiencing with conflict. Professor Dadds diagnosed the accused with Oppositional Defiant Disorder ('ODD') but did not diagnose either Asperger's Syndrome or Autism Spectrum Disorder. 11. Similarly, she sought assistance from Dr Lorna Scott, General Practitioner, who did not diagnose Asperger's Syndrome. 12. Reference was made in Ms Pretty's evidence to discussions that she might have had with her son when he was a young boy or in his early teenage years, and she explained that she tried to discuss these matters with him in a way that one might talk to a child at that age. 13. It is clear from Ms Pretty's evidence that, on her recollection, the accused had not been formally diagnosed with Asperger's Syndrome or Autism by any of the experts that she consulted perhaps a decade ago. 14. However, the Crown material contains extensive medical reports relating to the problems that the accused experienced as a young boy and then as a teenager. There is reference to treatment from a child and adolescent psychiatrist, Dr Chan, and the diagnosis of Oppositional Defiant Disorder. There are the records of the Northern Sydney Local Health District dealing with assessments made of the accused when he was 15 years of age and the problems he was having, including mental and behavioural disorder due to drug use and other psychoactive substances. There is reference to him having suicidal ideation. 15. Further, there is at least some reference to the possibility of the accused having Autism. In the clinical records of the Sydney Drug Education and Counselling Centre dated 27 October 2015 to 5 April 2021, there is a reference to the accused's father believing that the accused may have Autism after reading literature. There is also reference to a Dr Ricky Tsang, a psychiatrist, referring to the accused's chronic frustration, motivation and impaired sense of underachievement. Dr Tsang records that teachers repeatedly told his mother, at the time, that he might have either ADHD or Asperger's Syndrome, although he never made a formal assessment. 16. The point of this evidence being admitted on the voir dire is that, although the Crown says that it will be relying on the statements of the accused about his alleged Asperger's Syndrome or Autism as a lie (that is, going to his credibility or lack of credibility), the accused submits that, in fact, it is evidence which would support the proposition that the accused may have believed that he suffered from that condition, albeit it seems clear that he had never been formally diagnosed with the condition. The accused submits that, in those circumstances, if the representations made by the accused in the ERISP interview are admitted, it will require the accused to prove that his statements were not a lie; that is, although they may not have been correct, he might have believed them to be correct. 17. Although the statements were plainly made by the accused, the accused relies on s 137 of the Evidence Act 1995 (NSW) ('the Act') and asks that the Court reject the evidence on the basis that, if admitted, it would be unfairly prejudicial to the accused. As set out in s 137 of the Act, the Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: 1. be unfairly prejudicial to a party; or 2. be misleading or confusing. 1. The accused specifically objects to the evidence on the grounds that: 1. the evidence is not relevant; 2. the probative value of the evidence is outweighed by the danger of unfair prejudice; and 3. adducing evidence of the representation has the capacity to reverse the onus of proof. 1. Bearing in mind the Crown's submission that it intends to use the statements by the accused that he had or had been diagnosed with Autism or Asperger's Syndrome as a lie (as I understand it), and also the accused's deliberate answering of questions in such a way as to provide some explanation for the events which occurred (which the Crown says the accused must have known was false), I accept that the evidence may have some relevance. However, I also accept the accused's submission that, if the representations made by the accused in the ERISP interview are admitted, there is a danger that the evidence might be unfairly prejudicial to him. I accept that it would force the accused to adduce evidence from all those experts and persons (such as Ms Pretty) to the effect that the statements made by the accused may not be a lie because he might, in fact, have believed them. As the accused submits, the adducing of such evidence would open up a whole new category of evidence relating to the difficulties and conflicts that the accused had been involved in during his younger years and could be unfairly prejudicial to him in terms of the jury's consideration of the evidence as a whole. 2. In my view, there is a danger in that evidence being admitted and its probative value is outweighed by the possible prejudice to the accused in the admission of that evidence. I thus reject the statements made in the ERISP interview, specifically with reference to Autism or Asperger's Syndrome. However, it does seem to me that the questions at 135 and following can remain in. Evidence of Mr Rae 1. The second issue with which it is necessary to deal is the evidence of Mr Rae. Mr Rae was the person who accompanied the accused and the deceased during the hours prior to the death of the deceased, although Mr Rae did not go back to the accused's unit wherein certain events occurred and outside of which the deceased is said to have died. The accused objects to two statements made by Mr Rae to the effect that he did not trust the accused. 2. Having heard the accused's submissions, the Crown accepted that where those words are used at one point in Mr Rae's statement they should not be admitted, so they are struck out by agreement. However, the Crown presses the sentence: "All the way that we're walking I kept saying to Joseph that I didn't trust this kid and we should ditch him". 3. The accused submits that the statement of Mr Rae that he did not trust the accused is a statement of opinion and is not admissible as opinion evidence and is otherwise not relevant. 4. The Crown submits that the words must be viewed in the context of the statement as a whole and that the statement by Mr Rae gives context to precisely what Mr Rae did and, in some way, why it was only the accused and the deceased who went back to the accused's unit. 5. Whilst evidence of opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76 of the Act), and presumably the Crown might seek to establish that the accused was not a person who could be trusted, s 77 of the Act provides an exception; that is, the opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed. 6. Of course, on one view, the fact that Mr Rae did not trust the accused may have little probative value and his opinion as to whether the accused could be trusted may count for little. However, I accept the Crown's submissions that the statement made in the sentence noted at [28] above should be admitted, as it provides an explanation as to precisely what happened thereafter involving Mr Rae and why Mr Rae did what he did. In those circumstances, I am satisfied that the words in that sentence should be admitted. Reference by accused to cross-examination 1. The third issue relates to the statements of the accused during the ERISP interview; that is, references by the accused to cross-examination, particularly at Answers 490 to 491. When answering questions by the police, the accused said, "I know that, ah, if I ever get cross-examined, these are all the things they will pull up...". 2. The accused submits that the admission of such evidence may suggest to the jury that the accused had an understanding of our criminal justice system, in the sense that the jury might conclude that the accused had been subject to criminal proceedings in the past. This is in circumstances where the accused does not rely on good character. It is only necessary to say that I have difficulty understanding that submission by the accused. On one view, in the age in which we live, most people in society would understand that when they are being interviewed by the police that something may happen and they may ultimately be cross-examined. Most people who watch TV would understand that the process of being involved in a court case involves being cross-examined. However, I accept the accused's submission that there remains a danger that the members of the jury might take a different view and, in those circumstances, it seems to me that whatever probative value there might have been in the comment is outweighed by the danger that it could be prejudicial to the accused. In the circumstances, it is also rejected. ********** 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: 03 November 2023