New South Wales District Court CITATION: R v Allen [2006] NSWDC 11 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 11/09/06 JUDGMENT DATE: 11 September 2006 JUDGMENT OF: Blackmore SC DCJ DECISION: Evidence admitted CATCHWORDS: Sections 90, 135, 137 Evidence Act 1995 - Accused intoxicated - Whether unfair to use the admission - Admissibility of evidence LEGISLATION CITED: Evidence Act 1995 R v BD (1997) CASES CITED: R v Helmhout (2000) 112 A Crim R 10 Papakosmas v The Queen (1999) 196 CLR 297 R v Shamouil [2006] NSWCCA 112 PARTIES: Sam David Allen FILE NUMBER(S): 05/11/0776 COUNSEL: Ms E Walker, solicitor for Crown Mr P Stitz for Accused SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (NSW) H Kiely, Robertson Saxton Primrose Dunn JUDGMENT Background 1 HIS HONOUR: The accused Sam Allen faces trial on a number of charges but in particular on two charges that he had sexual intercourse with the complainant without her consent knowing she was not consenting. In a recorded interview with the police the accused accepted that he had had sexual intercourse with the complainant on the occasions nominated in the charges but denied that it was without the consent of the complainant. 2 Part of the evidence sought to be led in the Crown case includes a note in the accused' handwriting that reads, "The thing with C There is a non publication order with respect to the name of the complainant. was half true. She did not want to have sex that night but I didn't care." The note was written by the accused shortly before he attempted suicide and after he had been drinking alcohol. 3 The Crown tenders the evidence as amounting to an admission made by the accused as to his non-consensual sex with the complainant. Objection is taken to the evidence relying on three provisions of the Evidence Act: sectionss 137, 135 and 90. Issues 4 The following issues arise (in the order in which they were argued). Should I exclude the evidence because: (i) the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused: section 137 of the Act; and or (ii) the evidence might be misleading or confusing for the jury and amount to a waste of time if presented: section 135 of the Act; and or (iii) having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence: section 90 of the Act. Consideration Section 137 – is the probative value of the statement outweighed by the danger of unfair prejudice to the accused? 5 As already noted the principal issue for the jury in the trial with respect to the two charges of sexual intercourse without consent is the issue of consent and the accused' knowledge of the complainant's lack of consent. The events took place in the complainant's apartment when the two persons were alone. Any evidence that supports the complainant's account will be significant evidence in the Crown case. Whilst questions as to the reliability of the truth of the alleged admission are raised in the evidence which was heard in the absence of the jury that issue does not figure greatly in the determination of the question under section 137 of the Act: see R v Shamouil [2006] NSWCCA 112 at [61] and following. Assuming, as I must, that the jury will accept the evidence contained in the note as an admission to the effect that the accused had sex with the complainant knowing that she did not want to have sex, in my view it follows that the evidence contained in this note has very significant probative value on the principal issue. 6 Probative value means "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue": as defined in the Dictionary to the Evidence Act. 7 The question then is whether that probative value is outweighed by the danger of unfair prejudice to the accused? In this context "unfair prejudice" does not mean the likelihood that the jury will use the evidence to convict the accused. The evidence will be unfairly prejudicial to the accused in circumstances where there is a real risk that the evidence will be misused by the jury in some unfair way: see R v BD (1997) 94 A Crim R 131 per Hunt CJ at CL at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [91]. 8 I am unable to see how it is likely that the jury would misuse the evidence in the note. It was submitted by Mr Stitz on behalf of the accused that the jury might give the statement greater weight than it deserved because it preceded an attempt made by the accused to kill himself. It is submitted that the jury might feel that it represented a "dying declaration". However the weight to be given to the statement in the circumstances in which it was written are classically matters for the jury. I do not see that even if the jury gave the statement significant weight, by reasoning that it was written shortly before the accused attempted to commit suicide, that such reasoning would amount to "unfair prejudice" to the accused. 9 The note is on a single page, which appears to be a stand alone page. Except for this page and one other page the notes have been misplaced. I heard evidence from the accused' father, which I accept, that this page was included with a number of other pages which all had individual headings. The other pages were headed, "Dad", "Mum", "Kate" (the accused' sister) and there was also a list of items to dispose of. The notes may have been an attempt by the accused to put on paper his reasons for committing suicide. It was suggested that without all these other notes, this page should not be admitted. But in my view, accepting Mr Allen's evidence, the note addressed "A few Facts" is complete in itself. 10 In the circumstances I find no sufficient basis for the exclusion of this evidence under section 137 of the Act. Section 135 - the evidence might be misleading or confusing for the jury and amount to a waste of time if presented 11 This ground of objection was only faintly argued. There is no doubt that the leading of this evidence will, at least to some limited extent, extend the length of the trial. Leading the evidence might well lead to further evidence being given by the accused to the circumstances of the making of the alleged admission. In the absence of the jury the accused also called evidence from a psychiatrist with respect to a suggestion that he had consumed a vast amount of alcohol prior to writing the note. This evidence was led to call into question the reliability of the admission. This is further discussed below when I come to consider whether admitting the evidence would be unfair to the accused. However the evidence with respect to the note was always flagged as evidence that the Crown would rely on in its case. In the course of arguing the admissibility of this evidence the Crown withdrew reliance on another note that it had also intended to tender. If anything that might be said to have reduced the length of the trial. 12 I see no basis for suggesting that the evidence would be confusing for the jury. The statement contained in the note relied on by the Crown is quite clear. Whether the jury accepts that evidence as an admission is ultimately a matter for them. In short I see no basis for the rejection of the evidence under section 135 of the Act. Section 90 - having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence 13 The accused gave evidence that on the date that the note was found by his father he had drunk two bottles of wine and one glass out of a third bottle. Further he had drunk perhaps as much as 15 shots of bourbon. Relying on that evidence a psychiatrist, Dr Carne, opined that any statement made by the accused would not be reliable. Perhaps in reaching that opinion the doctor was really expressing an opinion outside his own area of specialty. But in any case the doctor's evidence makes some sense. Even lay people are aware that when someone is drunk they are likely to say things that they might otherwise say and might not be true. Of course, acceptance of this opinion relies, as the doctor made clear, on the evidence of the accused. If the evidence as to his consumption of alcohol is not accepted the opinion substantially falls away. The accused' evidence is unacceptable 14 Having heard the evidence of the accused with respect to the alleged consumption of alcohol I am unable to accept it. He has given a number of different accounts as to how much he had to drink. For example the account he gave to the psychiatrist was different to the account given in Court. Crucially though, in my view, the evidence provided in the contemporaneous ambulance records and hospital records makes clear that the accused only had between a quarter to half of a bottle of bourbon to drink in the hours leading up to the suicide attempt. Those records do not show that the hospital emergency department was in any way concerned about the accused' alleged level of intoxication. A number of tests were carried out but none for blood alcohol. That might have been an oversight however later records from the same day of admission strongly suggest that the accused could not have consumed upwards of 40 standard drinks prior to his admission to hospital. He is able to clearly speak to hospital staff that same day including requesting some counselling. 15 The evidence of the accused' father was impressive by contrast to that of his son's. He said that when he got home on this day he saw his son running from the garage area into the house. He said he appeared to be drunk. The father said he saw some tyre marks on the grass and followed them up the hill behind their home. They led to a fire trail, which ascended rapidly behind the house. Walking up that trail, he soon encountered his four-wheel-drive ute, parked rather precariously off the side of the track only being supported by some trees. He went down to the ute and saw a bottle of bourbon on the floor with most of its contents spilled. On the trail he also noticed some garden hose with some duct tape attached. It appeared to him that this hose may have run from the exhaust of the ute to the window of the car. The hose had fallen off when the vehicle went over the edge of the trail. He returned to the house and saw his wife cradling the accused outside at a dam about 200 metres from the house. The accused had apparently jumped into the dam. When he approached it appeared to him that the accused had almost passed out. An ambulance was called and the accused was taken to hospital. 16 The records from hospital test results indicate that the accused had a significantly elevated carbon monoxide level shortly after admission. This would support a conclusion that the accused had attempted to gas himself using the ute's exhaust. 17 The accused' father was asked whether there appeared to be any bottles of wine missing from his wine rack and he said no. There were no bottles of wine lying about the house. What he did find were a series of notes including the note to which objection is taken. It is accepted that the note containing the alleged admission could not have been written when the accused was suffering from the inhalation of carbon monoxide as that apparently happened in the car. Consequently the only thing that might have been affecting him at this point was his abnormal mental state and his consumption of alcohol. In my estimation the accused had no more than half a bottle of bourbon to drink before he took the ute up the hill behind the house. That is a significant amount of alcohol but not such that I find any statement he made, whilst so inebriated, necessarily unreliable so that it would be unfair to admit that statement as an admission. Clearly he was also in a disturbed state of mind to some degree at that time but it is noteworthy that the psychiatrist did not rely on that as a basis for the suggested unreliability of the accused' statements. 18 Mr Stitz on behalf of the accused also points out that other parts of the note include statements that are untrue. For example the accused wrote that he and the complainant were engaged. The complainant does not admit to this and Mr Stitz said on his instructions it was not true. However it is also noteworthy that the accused had said in some other written material given to the complainant that he would marry her. As a statement of fact the words "we are engaged" was not true. However as a statement of desire it may well have been accurate. In any case it does not, of itself, or in combination with the other factors of alcohol consumption and disturbed mind, significantly call into question the reliability of his statements in this note. 19 In the course of considering this matter I have also had reference to a number of authorities. Many of those are conveniently summarized in the judgment of her Honour Bell J in R v Helmhout (2000) 112 A Crim R 10. In short there is no reason to find that in every case where someone is inebriated at the time of making an admission that by reason of that fact alone the admissions should be excluded in fairness to the accused. There may be circumstances where such a result would follow. But in my view there is insufficient basis shown here for the exclusion of the evidence under section 90 of the Act. Conclusion 20 The evidence should be admitted. That ruling does not prevent the issue being raised in front of the jury. The jury might conclude, by reason of the accused consumption of alcohol and his disturbed state of mind, that the admission was not a reliable expression of fact made on his part. That is a matter for them. Further if I am asked I may provide an additional warning under section 165 of the Evidence Act as to the reliability of this particular evidence. Whether I do provide that warning or not may depend on the state of the evidence at that time. 13/09/2006 - Format errors - Paragraph(s) n/a 13/09/2006 - Format errors - Paragraph(s) n/a 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.