Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Wade v Mid North Coast Area Health Service [2004] NSWIRComm 254 PROSECUTOR Inspector Paul Wade PARTIES : DEFENDANT Mid North Coast Area Health Service FILE NUMBER: 3146; 3147; 3148; 3149; 3150 and 3151 of 2003 CORAM: Staff J CATCHWORDS : Evidence - Admissibility - Voir dire - Interview with employee of defendant - Whether admissions within the scope of employment - Employee on sick leave - Whether unfair to use interview in evidence - Whether danger unfairly prejudicial, misleading or confusing - Occupational Health & Safety Act 1983, s 15(1) and s 16(1) - Evidence Act 1995 (NSW), s 85, s 87, s 90, s 135 and s 137 Occupational Health and Safety Act 1983 LEGISLATION CITED : Mental Health Act 1990 Evidence Act 1995 Bugge v Brown (1919) 26 CLR 110 Cleland v The Queen (1982) 151 CLR 1 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 Foster v The Queen (1993) 67 ALJR 550 Lustre Hosiery Ltd v York (1935) 54 CLR 134 Ordukaya v Hicks [2000] NSWCA 180 R v Ames [1964-1965] NSWR 1489 R v Bowhay (No 3) [1998] NSWSC 660 R v Clark (2001) 123 A Crim R 506 R v Esposito (1998) 105 A Crim R 27 CASES CITED : R v Helmhout (2000) 112 A Crim R 10 R v Helmhout (2001) 125 A Crim R 257 R v Horton (1998) 45 NSWLR 426 R v Munce [2001] NSWSC 1072 R v Phan (2001) 123 A Crim R 30 R v Swaffield, Pavic v The Queen (1998) 192 CLR 159 R v Williamson [1972] 2 NSWLR 281 Stead v State Government Insurance Commission (1986) 161 CLR 141 Surujpaul v R [1958] 1 WLR 1050 WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 HEARING DATES: 07/19/2004; 07/20/2004; 07/21/2004; 07/27/2004; 07/28/2004; 07/29/2004 DATE OF JUDGMENT: 08/31/2004 PROSECUTOR Ms A F Backman of counsel Solicitor: Mr G Diggins WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr A Henskens of counsel Solicitor: Mr A Riordan Colin Biggers & Paisley JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J 31 August 2004 Matter No IRC 3146 of 2003 INSPECTOR PAUL WADE v MID NORTH COAST AREA HEALTH SERVICE Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 Matter No IRC 3147 of 2003 INSPECTOR PAUL WADE v MID NORTH COAST AREA HEALTH SERVICE Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 Matter No IRC 3148 of 2003 INSPECTOR PAUL WADE v MID NORTH COAST AREA HEALTH SERVICE Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 Matter No IRC 3149 of 2003 INSPECTOR PAUL WADE v MID NORTH COAST AREA HEALTH SERVICE Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 Matter No IRC 3150 of 2003 INSPECTOR PAUL WADE v MID NORTH COAST AREA HEALTH SERVICE Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 Matter No IRC 3151 of 2003 INSPECTOR PAUL WADE v MID NORTH COAST AREA HEALTH SERVICE Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 INTERLOCUTORY JUDGMENT NO 1 [2004] NSWIRComm 254 1. On 12 June 2003, Inspector P Wade of the WorkCover Authority of New South Wales ("WorkCover") charged the Mid North Coast Area Health Service ("the defendant") with three breaches of s 15 of the Occupational Health & Safety Act 1983 ("the OH&S Act") and three breaches of s 16 of the OH&S Act. 2. In opening for the prosecution, Ms A F Backman (as she then was) submitted that the charges could be grouped into three. The first group of charges, those in matter Nos IRC 3150 of 2003 and 3151 of 2003, allege a failure on the part of the defendant to provide adequate instruction and training as necessary to staff in relation to an admission policy which was current at Kempsey District Hospital at the time of an incident. 3. The second group of charges, those in matter Nos IRC 3148 of 2003 and 3149 of 2003, allege a failure of the defendant to implement at Kempsey District Hospital the requirements of the New South Wales Health Policy ("Safety and Security - Minimum Standards of Health Care Facilities") dated September 1998. 4. The third group of charges, those in IRC matter Nos 3146 of 2003 and 3147 of 2003, allege a failure to provide safe systems in that there was no adequate policy, procedure or training in place at Kempsey District Hospital to ensure a timely and appropriate response to the activation of duress alarms in emergency situations. 5. The incident that led to the charges was that at some time in the morning of 2 July 2001 Victor Roy Trimarchi threatened his wife at home with violence, including a threat to decapitate her with a machete. The police took Mr Trimarchi into custody and at about 10.30 am Mr Trimarchi, in police custody and handcuffed, arrived at the Accident and Emergency Department of Kempsey District Hospital. 6. Mr Trimarchi was assessed by a psychiatric nurse who arranged for a non-specialist medical practitioner on duty in the Emergency Department of the Hospital to undertake a second assessment. Neither was of the view that Mr Trimarchi should be scheduled under the Mental Health Act 1990. During the assessment process Mr Trimarchi was handed an admission agreement form which dealt with admission as a patient to Kempsey District Hospital. Mr Trimarchi signed the form but it was neither witnessed nor dated. At about 1.30 pm Mr Trimarchi was taken to Unit 149 where he was allocated a bed. At about 5.00 pm Mr Trimarchi asked to be signed out of the hospital. This request was declined on the basis that although Mr Trimarchi was a voluntary patient, if he left the hospital, the hospital would be required to contact the police who would return him to the hospital which, it was suggested, would almost certainly result in him being scheduled. 7. At about 6.00 pm the police arrived at the hospital and served an interim apprehended violence order, taken out against Mr Trimarchi by his wife, on Mr Trimarchi, together with a statement from his wife. These documents were placed on Mr Trimarchi's file. 8. At about 1.00 am on 3 July 2001, Mr Trimarchi began displaying bizarre behaviour and threatened another patient. This patient was removed from the ward. 9. At about 3.00 am Mr Trimarchi assaulted a nurse, striking her in the face and knocking her to the floor. A second nurse was punched in the face and knocked to the floor. Both nurses were kicked whilst they were lying on the floor. 10. Mr Trimarchi returned to Unit 149 where he severely assaulted a patient who later died of her injuries. 11. During the investigation of this incident by Inspector Wade of WorkCover a number of records of interview were obtained from the employees on duty at the hospital on 2 and 3 July 2001. A record of interview was also obtained from Mr Phillip Watman, the Director of Nursing at the time at Kempsey District Hospital. Mr Watman was on annual leave at the time of the incident. 12. Ms Backman sought to tender the record of interview between Inspector Wade and Mr Watman pursuant to s 87(1)(b) of the Evidence Act 1995 ("EA"). 13. Mr A Henskens of counsel, who appeared for the defendant, raised a threshold question of admissibility in relation to the transcript of the record of interview and the tapes of the interview. Mr Henskens sought a voir dire in respect of Inspector Wade and Mr Watman in relation to the admissions, particularly in respect of "whether the circumstances in which the admission was made was such as to make it unlikely that the truth of the admission was adversely affected" (s 85(2) EA) Extensive argument ensued regarding s 87 of the EA and in the light of Mr Henskens' objection to the tender of the transcript of the record of interview and the tapes, how that matter should be resolved and how the trial should proceed. Mr Henskens summarised his position as follows (T 131): I will be asking your Honour to in respect of Nurse Watman, I may be asking your Honour to exercise a discretion to not permit the receipt of the record of interview, and the basis for that will be in broad terms, your Honour, the criteria that are set out in sections 85, 90, 135 and 137. I can tell your Honour my questioning of the witness will only be confined to the matters which would inform your Honour's discretion under those sections. I am not proposing to go outside that. 14. I permitted a voir dire of Inspector Wade and Mr Watman. 15. The matter therefore proceeded on the basis that the record of interview of Mr Watman contained admissions against the defendant (s 87(1)(b)). The Legislation 16. I set out the sections of the EA which are relevant to a consideration of the objection. 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. 85 Criminal proceedings: reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) in the course of official questioning, or (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (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. 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority. 90 Discretion to exclude admissions 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. 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 142 Admissibility of evidence: standard of proof (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or (b) any other question arising under this Act, have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding, and (b) the gravity of the matters alleged in relation to the question. Submissions of the Prosecutor 17. Ms Backman commenced her submissions by referring the Court to s 142 of the EA which provides that the standard of proof necessary for deciding whether evidence should be admitted or not is whether it has been proved on the balance of probabilities. 18. Ms Backman accepted that the onus was on the prosecutor to persuade the Court of the application of s 85 of the EA but in relation to the discretionary provisions of s 90, s 135 and s 138 of the EA it was submitted the onus shifts to the defendant. 19. In respect of the proper test to be applied in respect of s 85(2) of the EA, Ms Backman relied on the statement by Wood CJ at CL in R v Esposito (1998) 105 A Crim R 27 particularly at 42-44. At 44 his Honour stated: 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), Evidence Act ). 20. Ms Backman then referred to a judgment of Bell J in R v Helmhout (2000) 112 A Crim R 10. This case dealt with both s 85 and s 90 of the EA. It involved an interview of the accused, where, it was alleged, that he was intoxicated and also suffering from a depressive disorder. Nevertheless, the record of interview was held to be admissible under s 85 and s 90 of the EA. 21. At [28] of Helmhout her Honour said: The only authority to which I was referred which touches on the question of intoxication as it may relate to the admissibility of admissions under the provisions of the Evidence Act is Donnelly (1997) 96 A Crim R 432. In that case there was some evidence that the accused was affected by prescribed drugs in combination with a condition of severe depression. Hidden J in the context of reviewing the considerations set out in s 85(3) of the Act observed (at 441): "The common law relating to the admissibility of confessions by persons suffering a mental disorder or disability was summarised by Gleeson CJ in Parker (1989) 19 NSWLR 177 at 183-184; 47 A Crim R 281 at 286-287, and what his Honour there said, is applicable mutatis mutandis, to the relevant provision of the Evidence Act . As his Honour observed, 'Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting the truth'." 22. At [33] her Honour went on to say: In Garth (1994) 73 A Crim R 215, where Olsson J, with whom Prior J agreed, held that admissions contained in an electronically recorded interview with an intoxicated suspect were voluntary. His Honour took into account that the accused's answers to questions generally appeared coherent and responsive. When asked to read three pages of a detective's handwritten notes, the accused did so without apparent difficulty, on occasions identifying errors in them concerning the spelling of his name. He was able to gesticulate during the interview and his motor functions appeared coordinated and controlled. He had demonstrated a remarkable memory for various details of the events of the day. His Honour concluded that the appellant: "... fully appreciated his situation, agreed to answer questions, understood what was asked of him and gave rational responses, the accuracy of a number of which were independently verified by other objective evidence." (at 234) 23. Bell J at [34] then observed: ... I am satisfied that the accused was aware that he had been arrested and was being interviewed in connection with an allegation of murder. The introductory questions and answers make clear that the accused was aware of his surroundings and that he was able to recall the sequence of events from the time he was woken by police and informed that he was under arrest. In answer to question 23 he corrected a piece of incidental information he had supplied in the preceding answer... 24. Ms Backman submitted that the condition that Mr Watman informed the Court that he was suffering at the time of the interview was not anywhere as severe as appears to be the case in Helmhout. I will deal with this aspect later in this judgment. 25. Bell J went on to observe at [39] as follows: 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. 26. Her Honour concluded at [41] as follows: Having regard to the opening passages in the interview, I accept that the accused was not so affected by alcohol or drugs as to not understand that he had a right to refuse to answer questions. Further, I accept he was informed that he had a right to make contact with a lawyer and that he chose not to do so. In these circumstances, I am not of the view that it would be unfair to the accused to allow the evidence to be given. 27. An appeal against her Honour's decision was dismissed: R v Helmhout (2001) 125 A Crim R 257. 28. Ms Backman then referred to R v Swaffield, Pavic v The Queen (1998) 192 CLR 159. The majority (Toohey, Gaudron and Gummow JJ) in considering the term "unfairness" said at [53]: The term "unfairness" necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear: "[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement: Van der Meer v The Queen (1988) 62 ALJR 656 at 666. 29. Ms Backman submitted that the focus by the High Court was on the circumstances, as they appear to be in s 85 of the EA. 30. Finally, Ms Backman referred to a decision of the New South Wales Court of Criminal Appeal in R v Clark (2001) 123 A Crim R 506 which considered the application of s 135 and s 137 of the EA. This case dealt with the admissibility of relationship evidence. Evidence was sought to be led from five persons that the deceased was scared of the accused and that there had been hostility and aggression in the past. The witnesses of the deceased's statements were all present for cross examination. There was very little cross examination on the evidence complained of. The appellant was there to deny having said or done any of the things attributed to him and, credibly or not, he did deny most of them. Their Honours observed that the deceased was not there for cross examination but, if the impossibility of challenging the veracity of hearsay statements by non-witnesses were generally to justify, or often to be a significant factor in justifying, a decision to exclude evidence in the Court's discretion under s 135 or by reason of a finding of "unfair" prejudice under s 137, the result would be write the hearsay exceptions out of the Act to a large extent. 31. Their Honours went on at [164]: ... Further, in Papakosmas at 325 [91]-326 [93] McHugh J said: "Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In BD (1997) 94 A Crim R 131 at 139 (emphasis in the original) Hunt CJ at CL pointed out: 'The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.' (Footnote omitted). In its Interim Report, the Australian Law Reform Commission explained (at Vol 1, par 644): 'By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie, on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact finder's sympathies, arouses a sense of horror, provides an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.' 32. Ms Backman submitted that all proper procedures were followed by Inspector Wade in respect of obtaining the record of interview of Mr Watman. Ms Backman rejected the criticisms sought to be made of Inspector Wade for failing to provide Mr Watman questions in advance. It was submitted that there was no authority that supported that proposition and furthermore that such failure was not a breach of s 85(2) of the EA. 33. Ms Backman submitted that the evidence disclosed that Inspector Wade was aware that Mr Watman was on sick leave at the time of the interview. Inspector Wade's evidence was that he was not informed by Mr Watman that his psychiatrist had said he was unfit for an interview and he was not provided with a certificate from Dr W D Wade, his psychiatrist prior to the interview. 34. Ms Backman analysed the admissions made by Mr Watman during the record of interview and submitted that there was nothing to suggest that the truth of any admissions had been adversely affected or anything unfair had occurred that might warrant the exclusion of those particular admissions. I do not propose to analyse each of the admissions at this time in the light of the ruling that I subsequently make in respect of the admission of the record of interview. 35. Ms Backman summarised the effect of Mr Watman's evidence as follows: · He said at the time of the interview he was unwell. · That his symptoms at the relevant time included anxiety, depression, disordered thoughts and poor concentration. · He said that he was being treated by a psychiatrist at the time with regard to his symptoms and that the psychiatrist was Dr Wade. · He said his psychiatrist told him that he should not attend the interview. · He said that he had no idea what he was walking into. · He said he had poor thought processes. · He said that he didn't get the transcript of the interview until last week. · That during the interview he felt confused, empty, numb and that he was on automatic. 36. Ms Backman conceded that there was some support for the symptoms described by Mr Watman in the WorkCover of New South Wales medical certificate dated 30 August 2001 and medical reports from Dr W D Wade dated 19 September 2001, 8 November 2001 and 12 November 2001. However, Ms Backman pointed to a medical certificate of Dr P Brown, a consultant psychiatrist and psychologist, dated 11 October 2001, tendered by the prosecutor, submitting that this report points to the source or possible cause of any illness suffered by Mr Watman as being work-related and relating back to the appointment of Ms Ashton, which occurred on 29 January 2001 and the difficulties that Mr Watman faced after Ms Ashton's appointment which resulted in him going on extended leave from 28 May 2001. 37. Ms Backman submitted that whatever illness or symptoms Mr Watman was suffering at the time of the record of interview, had nothing to do with the incident on 2 and 3 July 2001 which deals with the admission of Mr Trimarchi to Kempsey District Hospital. Dr Brown notes that Mr Watman told him that the onset of his current psychological problems began in March 2001 noting "his symptoms were at their worst between May and September 2001". It will be recalled that the record of interview with Inspector Wade occurred on 15 October 2001. 38. Ms Backman observed that Mr Watman was not prescribed any medication in relation to any of the symptoms that he was said to be suffering. 39. Ms Backman submitted that Dr Brown's report could in no way lead to a conclusion that Mr Watman, during Inspector Wade's interview, was in any way incapable of accurately understanding questions and giving coherent responses. It was further submitted that on the face of the interview Mr Watman not only understood the questions being asked but that if he disagreed with a proposition or believed it to be incorrect, he was more than capable of disputing the proposition and dealing with it. 40. Ms Backman observed that no medical certificate was provided by Mr Watman to support his contention that his psychiatrist advised him not to attend the interview and furthermore no explanation was provided as to why this was not done. Prior to the interview, Mr Watman had been in contact with the Nurses Association of New South Wales and a representative from that Association attended the record of interview. 41. Ms Backman further observed that the examinations conducted by Dr Wade of Mr Watman, as set out in reports dated 8 and 12 November 2001 did not refer to the interview with Inspector Wade. 42. Ms Backman submitted that in respect of Mr Watman's evidence that he was unaware of what he was embarking upon in participating in the record of interview, this had to be considered against the background that Mr Watman was the ex Director of Nursing at Kempsey District Hospital and that he had been an Acting Executive Officer with extensive responsibilities and knowledge of the systems and procedures that prevailed at the hospital up to the time that he took leave in May 2001. 43. Ms Backman submitted that there was nothing contained in the record of interview that demonstrated that Mr Watman felt confused, empty, numb or was otherwise on automatic. 44. Finally, Ms Backman submitted that it followed from the evidence and from the authorities to which the Court had been taken that the admissions were made in circumstances that made it unlikely that the truth of admissions were adversely affected (s 85) and that in those circumstances the record of interview of Mr Watman should be admitted. 45. In respect of discretions available under s 90, s 135 and s 137 of the EA Ms Backman submitted that the Court should find there was no unfairness made out and, even if there was some unfairness found, that does not warrant exclusion. Ms Backman submitted that there was no prejudice to the defendant and that the onus remained on the defendant to persuade the Court that the record of interview be excluded. Submissions for the Defendant 46. In opposing the record of interview of Mr Watman being admitted into evidence, Mr Henskens submitted that the following matters should be taken into account in the general exercise of the Court's discretion to exclude the record of interview: · Mr Watman's record of interview is the first of eight records of interview that the prosecutor wishes to tender through Inspector Wade. · Each of the interviewees are available to give evidence in the proceedings. 47. It was submitted that this case was unique and distinguishable from the authorities that Ms Backman took the Court to which involved the tender of an individual defendant's record of interview. It was contended by Mr Henskens that the Court would have to listen to every one of the tapes of the records of interview that were also being tendered in the proceedings to understand the context of the record of interview and to assist in assessing the demeanour of the witnesses. 48. In turning to deal with the relevant sections of the EA, Mr Henskens submitted that the prosecutor should be required to identify what are the admissions in the record of interview that it seeks to tender under s 87 of the EA. The Court should then assess whether it is proper to consider the representation an admission. It was submitted that to approach the matter as the prosecutor does and fail to identify the admissions within the record of interview denies the defendant natural justice because the basis of the tender is not made clear: Stead v State Government Insurance Commission (1986) 161 CLR 141. 49. Mr Henskens submitted that in addition to establishing that a representation is an admission under s 87 of the EA, the prosecution must also establish that the representation containing the admission was: At the time of the conduct of the record of interview, Mr Watman had the authority to make statements on behalf of the defendant in relation to the matter (s 87(1)(a); or (b) the previous representation related to a "matter within the scope of Mr Watman's employment" (s 87(1)(b); or (c) the previous representation related to a "matter within the scope of Mr Watman's authority" (s 87(1)(b)). 50. There was no issue that on 15 October 2001 Mr Watman was an employee of the defendant. 51. Mr Henskens submitted that there was no evidence that Mr Watman had authority on 15 October 2001 to speak on behalf of the defendant and that s 87(1)(a) of the EA was not satisfied. 52. Mr Henskens submitted that the words "within the scope of their employment" or "within the scope of their authority" are words of limitation: Bugge v Brown (1919) 26 CLR 110. It was submitted that this case makes it clear that whether a statement is within a person's scope of employment or authority is a question of fact in each case and that each alleged representation has to be assessed against the evidence as to the scope of employment or authority. 53. Mr Henskens submitted that the prosecutor had not led any evidence prior to the voir dire as to the scope of Mr Watman's employment or authority and submitted that none of the admissions came within Mr Watman's scope of employment or authority. It was observed that on the dates of the alleged offences and at the time of the record of interview, Mr Watman was on leave. 54. Mr Henskens submitted that the prosecutor had the burden of proof to establish that the admissions were not adversely affected under s 85(2) of the EA. It was submitted that matters which may establish that it is likely that the truth of the admission was adversely affected include, but are not limited to, the nature of the questions and the manner in which they were put: (s 85(3)(b)(i) of the EA) and any relevant condition or characteristic of the person who made the admission (s 85(3)(a) of the EA). 55. It was submitted it does not matter, for the purposes of the discretion, whether the admission subsequently turns out to be true. The public policy behind the section is to review the methods used to obtain admissions. 56. Mr Henskens submitted the evidence as to the circumstances in which the record of interview was made by Mr Watman overwhelmingly suggests that the truth of any statements made by him was adversely affected. 57. The following were given as examples: · Mr Watman was on leave at the time of the record of interview with a diagnosed psychiatric condition by Dr Wade and a psychological condition diagnosed by Dr Brown · The advice of his psychiatrist, Dr Wade was not to attend any interview. · The evidence suggests that he was told, probably by Inspector Wade, and possibly by a representative of the Nurses Association that he had to attend the interview or he would be subpoenaed. · Mr Watman's thought processes were significantly impaired during the interview with Inspector Wade and at times he was "vacant". 58. Mr Henskens submitted that this evidence is significantly corroborated by the answers Mr Watman gave in the record of interview which are also evidence of significant impairment: see answers to Q. 25 "I couldn't tell you the exact date"; Q. 129 "My memory is not there"; Q.155 "I can't recollect any other. There's something but I can't"; Q.177 "My mind has sort of gone a bit, I can't tell the exact time"; Q.225 "I was trying to think of something to say then"; Q.276 "I can't specifically remember direct things in the relationship"; Q.295 "I can't think clearly"; Q.313 "I can't remember"; Q.316 "I can't honestly remember without reading it. No I can't remember Paul"; Q.325 "I can't recollect it at this point in time"; Q.340 "I just can't remember"; Q.372 "I can't remember - no I just can't remember at the moment, I'm sorry"; Q.393 "My memory is not good at the moment." 59. Mr Henskens submitted that at times the questioning was fast, aggressive and involved talking over and interrupting the answers given by Mr Watman. The questions included leading questions, questions involving hearsay and cross-examination. 60. Furthermore, it was submitted that in a significant number of questions, information in the possession of Inspector Wade was misrepresented to Mr Watman. The Court was taken to the various examples relied upon by Mr Henskens. Mr Henskens submitted that Mr Watman was not given an opportunity to prepare himself by having the questions, topics of questions or documents identified in advance of the record of interview, nor was he given an opportunity to reflect on the questions and answers and amend what was said in the record of interview at a future point in time. The transcript of the interview was provided to him approximately two years after the interview. Furthermore, it was submitted that the magnitude of some of the documents that were referred to during the interview were significant. 61. It was submitted that the cumulative effect of all these matters combined to make it clear that the prosecution had not discharged its onus that it was unlikely that the truth of the answers to the record of interview were adversely affected. 62. In addressing s 90 of the EA Mr Henskens submitted that the defendant had not been able to find a single case where the record of interview of every witness for the prosecution had been sought to be tendered as an admission under s 87 of the EA. It was submitted that this approach was highly wasteful of judicial resources and undesirable because of the unfairness in the process of obtaining the records of interview. 63. Mr Henskens relied on the matters that he had taken the Court to in respect of his submissions in support of s 85 of the EA as also being matters of unfairness to the defendant in allowing the tender of the record of interview under s 90 of the EA. It was submitted that these aspects of unfairness in the questioning process were compounded by the fact that Mr Watman attended the interview under an express or implied understanding of compulsion and did not have the ordinary rights of silence. 64. Mr Henskens submitted that no good reason had been advanced as to why it is necessary or desirable to tender the record of interview when the witness is available to give oral evidence which would be more efficient than voir dires in relation to each record of interview. It was submitted that the quality of justice in the case would also be much more superior if witnesses gave their evidence in the witness box. 65. Mr Henskens submitted that the tendering of the record of interview in lieu of evidence in chief being given by Mr Watman is unusual for the following reasons, as evidence in chief is usually: (a) given in the presence of the judicial officer hearing the case, the parties and their legal representatives (see s 27 of the EA); (b) on oath (see s 21 of the EA); (c) in a judicially controlled environment of procedural fairness (see s 26 of the EA); (d) where the judicial control of the procedure ensures the accuracy of the representation by reason of various other rule of evidence and Court practice. In particular it should be noted that: (i) examination in chief is to be the first evidence of the witness (s 28(a) of the EA); (ii) examination in chief is conducted by questions in a non-leading fashion (s 37 of the EA); (iii) hearsay is generally excluded because of its unreliability (s 59 of the EA); (iv) opinion evidence is generally excluded because of its unreliability (s 76 of the EA); (v) strict rules as to how a witness's memory may be revived by documents or otherwise is observed (s 32 of the EA); (vi) strict rules governing the way in which previous representations of other persons or documents may be admitted into evidence (s 34 of the EA); (vii) rules of fairness such as the placing of a document before a witness and the opportunity to read the document before a person is asked about a document are also observed. 66. It was submitted that evidence in chief, through a record of interview, falls short of being reliable evidence because: (a) the record of interview did not take place in the presence of the judicial officer and the legal representatives of the parties and so evidence of chief is not (sic); (b) the record of interview is not conducted on oath; (c) the record of interview is not conducted in a judicially controlled environment ensuring procedural fairness; (d) leading questions are put to the interviewee and cross-examination takes place; (e) witnesses are contaminated by being told the evidence of other persons; (f) a witness's memory is not necessarily exhausted before it is revived; (g) witnesses are questioned about documents without being given an opportunity to read them; (h) hearsay answers are given; (i) opinions are given. 67. Mr Henskens submitted that the effect of what the prosecutor seeks to do in this case is to replace the usual system of open justice with a "star chamber-like" procedure conducted by investigators from the WorkCover Authority. 68. It was submitted by Mr Henskens that the probative value of examination in chief through a record of interview is significantly inferior to oral evidence in court. Furthermore, it was submitted that other matters going to the probative value of the evidence include that Mr Watman was not working at Kempsey District Hospital on the night of the alleged offence, as he was on leave. It followed, it was submitted, that his evidence was of very low probative value in the proceedings as a consequence. 69. In respect of the weight of evidence Mr Henskens submitted that admissions based on hearsay evidence are of a very low probative value: Lustre Hosiery Ltd v York (1935) 54 CLR 134. In criminal cases, an admission based on hearsay was found to be an unsafe basis upon which to convict: Surujpaul v R [1958] 1 WLR 1050. 70. In respect of s 135 of the EA, Mr Henskens submitted that if the evidence in examination in chief of each prosecution witness is to be split between the record of interview and examination in chief then a misleading and confusing procedure is being advocated by the prosecution. It was submitted that there will be two tiers of evidence by a witness, one in a controlled judicial environment where demeanour can be observed while the evidence is given and another in a nonjudicially controlled environment where demeanour cannot be observed. The splitting of the evidence of witnesses, as submitted, will cause the evidence to lose its coherence and comprehensibility. It was further submitted that the procedure adopted by the prosecution is wasteful of the Court's time, particularly in circumstances where no good reason for departing from the usual course of obtaining evidence by examination in chief is given. Mr Henskens further submitted that all of the matters that the Court was entitled to take into account as to unfairness under s 90 of the EA should also be taken into account in respect of s 135 and s 137 of the EA. 71. Finally, in respect of s 137 of the EA, in addition to relying upon the unfair prejudice already referred to, Mr Henskens submitted that the probative value of the evidence is low for the reasons already outlined. Mr Henskens referred to Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at [19] where a record of interview by an unavailable witness was held admissible under s 87 of the EA but excluded under s 137 of the EA because its probative value was outweighed by its unfair prejudice. Consideration 72. The issue for determination is whether in the exercise of the discretion available under s 85, s 90, s 135 and s 137 of the EA, admissions made by Mr Watman in a record of interview with Inspector Wade should or should not be admitted into evidence. 73. In R v Williamson [1972] 2 NSWLR 281 Maguire J at 289 observed: The first question here is whether, the Crown having tendered the whole document (record of interview) it became evidence of the truth of self-serving statements contained in it. I think that it did, but the weight to be attached to such statements would, of course, be a matter for the jury. 74. In addition, Lee J at 295 said: ... In other words, the question arises, it is said, whether the jury would be entitled to treat as evidence of the facts alleged those parts of the record of interview which were of a self-exculpatory nature. It is to be remembered that the accused's statement from the dock did no more than refer to the fact that he did what he did to protect himself and his wife and his family, and that he was scared of the other accused ... ... As long ago as 1829 Parke B. in R. v. Higgins (13) said: "What a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against the prisoner; however, if the prosecutor makes the prisoner's declaration evidence, it then becomes evidence for the prisoner, as well as against him." In Archbold's Criminal Pleading Evidence and Practice, 36th ed., p. 1128, the following passage occurs: "In all cases the whole of the confession should be given in evidence, for it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge ... It's application to trials in New South Wales has never been questioned as far as I can ascertain and in my view it is the law here. It is thus for the jury to give the statement such weight as it sees fit. 75. Ms Backman relied upon R v Horton (1998) 45 NSWLR 426 as authority that an "admission" is a very wide concept. Wood CJ at CL, with whom Sully and Ireland JJ agreed, observed at 437-438 of Horton: Whatever may have been the position at common law, or under the Crimes Act, s 410, I am of the view that it is now necessary, for the reasons previously mentioned, to have regard to the Evidence Act in determining precisely what is the "admission" of which s 424A of the Crimes Act speaks. The dictionary definition is certainly wide enough to include, within that expression, any form of representation, whether by conduct or by oral or written statement, so long as it is "adverse to the (maker's) interest in the outcome of the proceedings". That expression is itself sufficiently wide to encompass both inculpatory statements and exculpatory statements of the kind discussed in Piche v The Queen that may turn out to be harmful for the defence. 76. Walton J, Vice-President considered admitting the statement made by an employee to a WorkCover inspector in WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23. After referring to s 87 of the EA his Honour said at [15]: In this case, I am satisfied that when Mr Burcher was interviewed by Inspector Penfold he was an employee of the defendant and that his statement related to matters within the scope of his employment. I do not consider that the prejudice to the defendant occasioned by the admission of the statement requires the exercise of my discretion to exclude the evidence under s135 of the Evidence Act . Section 87 of the Evidence Act 77. Submissions were put in respect of s 87 of the EA and for completeness it is appropriate that I deal with those submissions. Section 87 requires a court to admit a representation if it is reasonably open to find that the person was an employee of the party and the representation related to a matter within the scope of the person's employment or authority. There is no issue that Mr Watman was, at the time of the record of interview, an employee of the defendant. However, Mr Henskens contended that the representations (admissions) made by Mr Watman were not related to a matter within the scope of his employment. 78. Ms Backman and Mr Henskens both sought to rely on Bugge, a decision of the High Court which considered the scope of employment. In that case Isaacs J set out seven propositions as to the meaning of scope of employment and scope of authority. 79. Mr Henskens contended that the analysis which was undertaken by their Honours in Bugge was required to be undertaken by the prosecutor in this case to justify the tender under s 87 of the EA. I reject this submission. Bugge was a case involving the negligence of an employee not the admissibility of evidence under s 87 of the EA. 80. I raised with Mr Henskens whether I was entitled to take into account that the scope of Mr Watman's employment was nursing. Mr Henskens rejected this approach submitting that what was required, in accordance with Bugge, was to carefully consider the facts of the case, to define the limits of the scope of employment or authority, and to see whether the admission relates to a matter within that scope. It seems to me that I am entitled to take into account that nursing involves, among other things, a knowledge of the procedures for the admission of patients to hospitals; the care of patients in hospital; writing up of clinical notes; the administering of medication to patients and assisting doctors. 81. Although Mr Watman was on sick leave at the time of the record of interview, the substantive position prior to him going on leave was Director of Nursing or Nurse Manager. Prior to holding that position he was Acting Executive Officer. It therefore seems to me that Mr Watman can make statements in respect of his knowledge of procedures in place at Kempsey District Hospital including the implementation or non-implementation of procedures, the adequacy of training in respect of those procedures and the adequacy of duress alarms. 82. Although Mr Watman was not on duty on 2 and 3 July 2001, the focus in terms of breaches of s 15 and s 16 of the OH&S Act is on the failures which result in a risk to the health, safety and welfare of both employees and non-employees and not on the incident itself. In my view admissions made by Mr Watman related to matters within the scope of his employment. Section 85 of the Evidence Act 83. I now turn to consider s 85 of the EA. The question that arises is whether the statements made by Mr Watman suggest that the truth of such statements made by him were adversely affected: s 85(2). I have earlier set out the test that Woods CJ at CL stated in Esposito with respect to s 85(2). 84. Dealing with the record of interview conducted by Inspector Wade, Mr Henskens contended that the interview was fast, aggressive and involved talking over and interrupting the answers given by Mr Watman. It was further submitted that information in the possession of Inspector Wade was misrepresented to Mr Watman. 85. Having carefully considered the evidence of Inspector Wade and the record of interview, I am satisfied that proper procedures were followed. Preliminary questions were asked at the commencement of the interview, temporary suspensions occurring during the interview, there was no conversation during the suspensions. Furthermore, Mr Watman was asked if he was under any threat in relation to responses to questions. He answered "no". During the course of questioning, Mr Watman disputed certain matters put to him which he did not agree with. In cross examination Ms Backman asked Mr Watman did he understand the questions during the interview and he answered "yes". Mr Watman had an independent person accompanying him during the whole of the interview to provide any support that was necessary. 86. Mr Henskens criticised the interview by Inspector Wade on the basis that specific questions had not been provided to Mr Watman prior to the interview. Neither counsel could provide the Court with any authority to support the proposition that specific questions were required to be put to a person prior to an interview in order to satisfy s 85(2) of the EA. 87. In considering the provisions of s 85(2) of the EA I am required to consider whether the reliability of any admission may have been impaired by the way it was obtained. In my view, the failure to provide questions in advance does not, of itself, lead to a conclusion that the admissions were impaired. Section 85(2) of the EA is directed to the methods used to obtain an admission rather than whether it is in fact reliable. In my view, such a failure cannot be said, of itself, to affect the truthfulness or reliability of admissions so as to render the admissions inadmissible. 88. Another issue which was raised was the question of Mr Watman's fitness to take part in the interview and whether Inspector Wade was made aware that Mr Watman was unfit to take part in the interview. Inspector Wade's evidence was that he was aware Mr Watman was on sick leave, however, his evidence was that the specific fact that his psychiatrist had said he was unfit for an interview was not relayed to him. 89. It was further suggested that Inspector Wade put either misleading or false suggestions to Mr Watman during the interview. The interview with Mr Watman was one of the last conducted by Inspector Wade of employees at Kempsey District Hospital. Inspector Wade had interviewed some seven nurses and Dr Winder prior to interviewing Mr Watman. Although it emerged in cross examination that Inspector Wade had put incorrect information to Mr Watman, for example, regarding who had attended aggression training, far from being confused or misled, Mr Watman disputed the accuracy of this information. Another example was Inspector Wade's reference to Constable Hennessey's statement. 90. I am not persuaded, on the balance of probabilities, that Inspector Wade deliberately sought to put misleading information before Mr Watman. Inspector Wade accepted that some information that had been put to Mr Watman was false but not deliberately so, however, it seems to me that the issue is not whether the proposition put to Mr Watman was correct or incorrect, but whether it had any effect on the reliability or truthfulness of the answers given by Mr Watman in that regard. In my view, there is nothing to suggest the truth of any admission has been adversely affected or that there was any unfairness that might warrant the exclusion of particular admissions. 91. I instance the following example: Q. 158 (Inspector Wade) I read just somewhere in here, I am sure I read that they wouldn't accept those sorts of patients, they didn't fit the category of the lower level of psychiatric illness for the management and treatment? A. (Mr Watman) Well they must have suited it to be accepted, as I said it is a clinical call by the psychiatrist as to what he, him and the staff decide. Q.159 So it is entirely up to them - as the Director of Nursing that yourself and the hospital had no responsibility in the matter? A. Oh no, no, no. We do, there are guidelines there about that, and as I said to you, there are many patients that come in that are suicidal or a threat to themselves and that, that never get past the front door and that, they are scheduled they are sorted out and treated appropriately and then scheduled off to the relevant hospital. 92. It is clear that Mr Watman disagreed with what Inspector Wade put to him and in my view it cannot be contended that there is an adverse affect on the truth. 93. It was also contended that Inspector Wade interrupted answers of Mr Watman during the interview. Inspector Wade's evidence in this regard was that on occasions he thought that Mr Watman had finished his answer. An examination of the record of interview where this occurred clearly indicates that Mr Watman is properly following the questions and is not misled. Mr Watman clearly responds without being distracted. 94. I turn to deal with Mr Watman's evidence in respect of the record of interview. Mr Henskens submitted that Mr Watman was unwell at the time of the interview. Medical reports were tendered from Dr Wade and also Dr Brown. Dr Brown's report points to the source of Mr Watman's illness as relating to the appointment of Ms Ashton which caused Mr Watman to go on leave. It is clear that whatever illness Mr Watman was suffering from at the time of the interview, it had nothing to do with the incident on 2 and 3 July 2001. Mr Watman was not prescribed any anti-depressant medication. 95. Under the heading "Mental State Examination" Dr Brown stated: Mr Watman was orientated in time, place and person and there was no objective impairment evident in his concentration at interview. His cognitive processes were normal. His intelligence was not impaired. He described no psychotic symptoms. 96. Ms Backman submitted that the examination by Dr Brown occurred on 9 October 2001, six days before Mr Watman's interview with Inspector Wade. Later in the report Dr Brown states: In my opinion his current psychological condition is not an aggravation of a prior condition. His symptoms are not due to a medical condition. I could ascertain no other stresses that might have caused or be sustaining them. 97. Under the heading "Summary" Dr Brown states: Mr Watman has developed an Adjustment Disorder as the result of his perception as to the cause of problems with his Manager at work. His symptoms should not be expected to abate until he knows the outcome of his employment and he had dealt with the consequences of this. His psychological condition is due to his work if Ms Ashton has acted unreasonably in this matter. If she has not then Mr Watman would have caused his own symptoms through his own behaviour. In any event he will need the assistance of a Psychiatrist to deal with his emotions. 98. In my view, in light of Dr Brown's report, there is no evidence to suggest that Mr Watman was incapable of properly and accurately understanding questions put to him in the record of interview with Inspector Wade or incapable of giving coherent responses. A reading of the record of interview demonstrates that Mr Watman understood the questions being asked of him and when he disagreed, he was capable of dealing with the question or proposition being put to him. At the time of the interview, Mr Watman was in receipt of advice from the Nurses Association of New South Wales and did not provide a medical certificate that he was unfit to undertake a record of interview. Although Mr Watman's evidence in the voir dire was that he had no idea what he was walking into when he undertook the record of interview, Mr Watman is the ex Director of Nursing at Kempsey District Hospital. He had extensive responsibilities and knowledge of the systems and procedures in operation at the hospital up to the time when he took leave in May 2001. 99. The record of interview does not read like a person who does not understand what is occurring. There is nothing contained in the record of interview that bears out Mr Watman's evidence on the voir dire that he felt confused, empty, numb or was otherwise on automatic. Such feelings, in my view are contrary to Mr Watman's responsiveness and ability to understand, answer and/or dispute questions. When asked by Ms Backman if he understood what was being asked of him during the interview Mr Watman answered "yes I think so". Mr Watman was provided with tapes of the interview at its conclusion and the fact that he was not provided with a written transcript until approximately two later years is, in my view of no significance. Mr Watman was invited to add to the interview if he so chose. He did not. He agreed that he had answered all of the questions of his own free will without any threat, promise or inducement and that the answers given in the record of interview were true and correct. At no stage after the completion of the record of interview did Mr Watman raise any matters with Inspector Wade. 100. In my view, there is nothing to suggest that Mr Watman's illness incapacitated him significantly in the course of the interview. Mr Watman had good recall and was coherent during the interview. Although there is considerable debate in respect of the question of whether the test under s 85(2) of the EA is subjective or objective, I propose to focus on the objective likelihood of whether Inspector Wade's conduct would have affected the reliability of the admissions. McLellan J (as he then was) in R v Munce [2001] NSWSC 1072 at [28] focused on the objective circumstances in which an admission was made and put to one side the defendant's "undoubted psychiatric problems". 101. I am satisfied that the prosecution has discharged its onus of establishing that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission/s was adversely affected. Section 90 of the Evidence Act 102. I now turn to deal with the discretion under s 90 to exclude admissions. It was accepted that the onus in respect of s 90 falls to the defendant. Mr Henskens relied on the same matters which, he submitted, affected the likelihood of the truth of the material in the records of interview advanced in support of the s 85 discretion, as also being matters going to the unfairness to the defendant in allowing the tender of the record of interview under s 90 of the EA. Mr Henskens submitted that the unfairness in the questioning process was compounded by the fact that Mr Watman attended the interview under an express or implied understanding of compulsion and did not have the ordinary right of silence; R v Phan (2001) 123 A Crim R 30 at [51]. This submission is misconceived. There is no case either in respect of the interview or on the evidence that Mr Watman was considered the suspect. A breach of the OH&S Act was being investigated by Inspector Wade which involved the defendant in these proceedings, not Mr Watman, as an individual. There are no charges brought against Mr Watman. In relation to corporate entities, the defendant is one and there is no self incrimination in any event. 103. Mr Henskens conceded that the matters relating to unfairness to the defendant were narrower under s 90 of the EA than they were in respect of the broader discretionary matters under s 135 and s 137 of the EA. Section 135 directs itself to evidence that may be unfairly prejudicial, misleading or confusing. Section 137 directs itself to rejecting evidence if its probative value is outweighed by the danger of unfair prejudice to a defendant. Mr Henskens contended that all of the matters that I am entitled to take into account as to unfairness under s 90 of the EA, may also be taken into account in respect of s 135 and s 137 of the EA. In addition, it was submitted that there are circumstances of unfair prejudice to the defendant which might go beyond the circumstances in which the admission was made which fall under s 135 and s 137, as opposed to s 90 of the EA. 104. The leading case in this area appears to be Swaffield, where in the majority judgment Toohey, Gaudron and Gummow JJ reconsidered, and re-formulated, the common law relating to evidence of admissions in criminal proceedings. Their Honours dealt with the exercise of discretion and referred to s 90 of the EA and, as set out earlier in this judgment, provided a definition of what constitutes unfairness. At [67] their Honours observed that the concept of unfairness has been expressed in the widest possible form in the EA, referring to s 90. Their Honours then discussed what they considered to be an appropriate approach to be taken by the Court in looking at these discretionary factors and at [69]-[70] their Honours set out the approach to be taken in respect of the admissibility of such evidence. This approach should be seen as turning firstly, on the question of voluntariness, next, on exclusion based on consideration of reliability and finally, an overall discretion which might take into account all of the circumstances of the case to determine whether the admission of the evidence is "bought at a price which is unacceptable having regard to contemporary community standards". 105. At [74] their Honours referred to Cleland v The Queen (1982) 151 CLR 1 at 34 where the High Court considered the overlapping nature of the unfairness discretion and the public policy discretion. It was held in that case that where a voluntary confession had been obtained by the use of improper or illegal means but nevertheless was shown to be voluntary, a discretion is exercisable by the trial judge to exclude it from evidence on the basis that to admit it would be unfair to the accused. It seems to be clear that any significant infringement of a defendant's rights must ordinarily result in the exclusion of the admission: Foster v The Queen (1993) 67 ALJR 550 at 555. However, I note the New South Wales Court of Criminal Appeal has taken a more restrictive view of s 90 of the EA, expressly holding that it would not necessarily be unfair to admit evidence of an admission even though it was accepted that, if there had been no impropriety, the admission would not have been made: R v Helmhout (2001) 125 A Crim R 257 at [48]-[52] per Hulme J. 106. Later at [76] of Swaffield their Honours observed "the wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion". It was also noted at [78] that "unreliability is an important aspect of the unfairness discretion but it is not exclusive. Their Honours observed "the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights". It was further observed "there may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence". 107. Ms Backman submitted, applying the above principles to Mr Watman's interview, that in respect of procedural fairness Mr Watman was an educated person employed in a highly regarded position at the hospital. Ms Backman further submitted that, on its face, all clear procedures were properly and rigidly adhered to. There were appropriate suspensions during the interview; there was no conversation in relation to the matter during the suspensions; Mr Watman was asked at the beginning of the interview and also at the conclusion of the interview whether he wished to say anything, whether any threat, promise or inducement had been made and whether any answer he had given was untrue. 108. Unreliability and procedural rights are important considerations in determining whether a discretion should be exercised under s 90 of the EA to exclude admissions. In this case, I am not satisfied that there was any attempt by Inspector Wade to influence Mr Watman to make any untrue admissions. In according Mr Watman procedural fairness, to the extent that it has application in this regard, in my view, procedures were properly and rigidly adhered to. I accept that Mr Watman is an educated person who held a senior position at Kempsey District Hospital. Perhaps I should observe that in my view, I would not regard questioning as unfair merely because it was persistent. In addition, on the evidence before me, the statements made by Mr Watman were voluntary, done so in the presence of a representative from the Nurses Association of New South Wales and after clear procedures for the interview were outlined by Inspector Wade. 109. It should be observed that in Helmhout each of the authorities considered by Bell J presuppose that an interview that was conducted with the defendant occurred in circumstances where either the defendant was affected by a drug, alcohol or had a depressive disorder. Her Honour held, and this finding was not disturbed on appeal, that those factors alone don't make a person incapable of giving coherent, responsive, correct answers such that they may warrant exclusion under s 90 of the EA. 110. I have earlier dealt with Mr Watman's illness at the time of the interview. In my view, Mr Watman's depressive disorder was not such that he was so affected as to not understand the questions that were being put to him by Inspector Wade, nor was he unable to answer them in a coherent manner. The procedures that were to operate during the interview were explained to Mr Watman at the outset and he was accompanied by an independent person. Mr Watman was not entitled to a right to silence as he was not the accused. In these circumstances, I am of the view that it would not be unfair to the defendant, in terms of s 90 of the EA, to allow the tender of the record of interview. Sections 135 and 137 of the Evidence Act 111. In considering whether I should exercise a discretion under s 135 and s 137 of the EA to exclude the record of interview, I take into account the matters that I have earlier considered. However, s 135 of the EA provides a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial, misleading or confusing, cause or result in a waste of time. I note that such evidence may be excluded under s 137 of the EA if its probative value is outweighed by the danger of unfair prejudice to the defendant. 112. The Court is required to balance the "probative value" of the evidence against the dangers set out in s 135 of the EA. It should be noted that these dangers must "substantially" outweigh the probative value of the evidence. It follows that there is a heavy onus on the defendant to justify exclusion. 113. Ms Backman submitted that there was no relevant prejudice to exclude the evidence under s 135 and s 137 of the EA. Mr Henskens' submission was that the record of interview was of low probative value because Mr Watman was not at Kempsey District Hospital on the day of the offence. As I have observed the onus is on failures in respect of breaches under s 15 and s 16 and resultant risk to safety. The failures alleged by the prosecution go to systems and procedures that were in place and of which Mr Watman, being a former senior employee of the hospital is capable of giving evidence. 114. The Court is required to balance the probative value of the evidence against the "danger of unfair prejudice to the defendant". It does not seem to me that there is a real danger that the evidence of Mr Watman will be of minimum probative value nor do I believe there is a danger that the Court would give Mr Watman's evidence more significance than it deserves. 115. Mr Henskens contended that the record of interview contains hearsay statements. Such matters can be dealt with in accordance with the usual procedures, however, it is not suggested that the defendant will be unable to cross examine Mr Watman on any issue or challenge Mr Watman's reliability. Even if this was so, members of the Court of Appeal have approved the notion that the inability to cross examine on materials sought to be introduced is not, of itself, unfairly prejudicial: Ordukaya v Hicks [2000] NSWCA 180 at [35]-[41]. Although the Court was considering civil proceedings in this case, as I have observed the prosecution proposes to call Mr Watman to give evidence. 116. Odgers Uniform Evidence Law 5th ed, Lawbook Co 2002 gives an example of a situation where the power to exclude evidence because of unfair prejudice to the defendant should be exercised as being where the prosecution tenders gruesome photographs of the deceased in a murder trial, where a pathologist has already described the injuries and there is little forensic assistance to be derived from the photographs: R v Ames [1964-1965] NSWR 1489. However, in R v Bowhay (No 3) [1998] NSWSC 660, Dunford J considered that the photographs of a deceased had a high probative value in showing the "viciousness" of the attack on him noting "in this day and age where people see 'blood and guts' on the television and on the movie screen day after day and week after week, I fail to see how it could be expected the jury would misuse this evidence". I am not considering evidence of this type in this matter. 117. Mr Henskens submitted that if evidence in chief of each prosecution witness is to be split between the record of interview and examination in chief then a misleading and confusing procedure is being advocated by the prosecution. I do not share Mr Henskens' concern. All the persons interviewed by Inspector Wade were employees of the defendant and all employees will be made available by the prosecutor during the hearing for cross examination. It was also submitted that the Court would not have a proper opportunity to observe the demeanour of the witnesses in circumstances where they had provided a record of interview and were subsequently going to give evidence in chief and be cross examined. In my view the Court will have every opportunity to evaluate the demeanour of witnesses and the proper weight that should be accorded to the evidence given by witnesses called by the prosecutor. I do not see that there is any prejudice to the defendant in this regard. 118. It was further submitted that by admitting the record of interview, it would result in a procedure of there being undue waste of the Court's time. I disagree with Mr Henskens' approach in this regard. It seems to me that the tendering of the records of interview will significantly reduce the evidence in chief of the prosecution witnesses as opposed to prolonging the proceedings if an alternate approach was adopted. 119. Mr Henskens relied on a decision of Pearlman J in Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 where her Honour admitted the tender of a record of interview given by a Mr Beveridge to an officer of the prosecutor under s 87 of the EA, determining at [19]: ... that the record of interview, although hearsay, was admissible as an admission by the defendant, but I excluded it under s 137 of the Evidence Act upon the basis that its probative value was outweighed by the danger of unfair prejudice to the defendant. 120. The difficulty with this case is that her Honour did not set out what the prejudicial factors were or why the document was of such low probative value that her Honour chose to exclude it. I therefore do not find this case of assistance. 121. I have considered whether the evidence should be rejected at the discretion of the Court, under both s 135 and s 137 of the EA, but I do not think it should be. It seems to me that its probative value well outweighs its capacity to unfairly prejudice the defendant. It may be that the evidence is adverse to the defendant's interest, but not unfairly so. It is not so significantly prejudicial and so impossible to challenge that it would be wrong to allow the tender of the record of interview. This is not a jury trial. The relevant weight of this material can be considered at the conclusion of the trial after hearing all the evidence and submissions of the parties. I am not persuaded that the evidence will be misused. 122. I decline to exclude the evidence, being Mr Watman's record of interview provided to Inspector Wade, on the basis of s 85, s 90, s 135 and s 137 of the EA. 123. I reserve the question of costs. 124. This matter will be listed at 9.30 am on 3rd day of September 2004 for the purpose of fixing further dates for hearing. 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.