New South Wales Supreme Court CITATION : Regina v A S Moffatt [No 2] [1999] NSWSC 226 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 070092/96 HEARING DATE(S) : 03/03/99, 04/03/99, 05/03/99, 08/03/99, 15/03/99,18/03/99 JUDGMENT DATE : 18 March 1999 PARTIES : Regina Anthonty Stuart Moffatt JUDGMENT OF : Kirby J COUNSEL : P K Lynch (Crown) A M Martin (Accused) SOLICITORS : Crown Solicitor (Crown) Joan Baptie, Solicitors (Accused) CATCHWORDS : Criminal Law; Practice & Procedure; Admissibility of ERISP; Probative value ACTS CITED : Evidence Act ss 135 & 137 DECISION : See para 11 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION KIRBY J Thursday 18 March 1999 REGINA v Anthony Stuart MOFFATT [No 2] JUDGMENT (on admissibility of ERISP - MFI 4) 1 HIS HONOUR: In this matter an application has been made on behalf of the accused resisting the tender of the record of interview video and accompanying transcript, which is generally known as the ERISP interview, MFI 4. 2 The basis of the challenge is ss 135 and 137 of the Evidence Act, and the discretion which those sections give me to exclude evidence in certain circumstances. 3 Section 135 provides that the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might do various things, relevantly be unfairly prejudicial to a party, or be misleading or confusing. 4 Section 137 provides that, in criminal proceedings, a Court may refuse to admit evidence adduced by a prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 5 In the course of these proceedings, the video tape has been shown, and I have had the opportunity of examining the transcript. Dr Perl, a pharmacologist who has expertise in the area of persons affected by alcohol and their responses, has given evidence, as has Dr Wong and others, concerning their reaction to the record of interview. 6 It appears plain that, at the time of the interview, the accused was affected by alcohol and that, at approximately 8am, when a blood sample was taken, he was found to have a blood alcohol level of 0.18 grams per 100 millilitres of blood. Working back, one can estimate the level of intoxication at 6.15am, when the interview began. It was of the order of 0.2 to 0.23. By ordinary standards, that is a significant level of alcohol. 7 However, the accused is not a person to be measured by ordinary standards. It is common ground that the accused is, or was at the time of the alleged offence, a person with a long history of alcoholism who had developed significant tolerance to alcohol. Dr Perl formed the view that his responses to the interview were lucid and rational, and that the answers he provided were responsive to the questions that had been asked. 8 Dr Wong formed the same view. Indeed, Dr Wong drew attention to a number of aspects of the interview where, for instance in question 23, the accused sought clarification of what was meant, and demonstrated in question 86, that he was prepared to disagree with what was being put to him. In question 27 he anticipated correctly certain questions that were to be put to him. The general impression from the interview is of someone who understood what was being put and who responded appropriately. There is a deal of internal consistency in the answers provided at different stages of the interview to similar questions. 9 Quite apart from this, other evidence has been given which would tend to corroborate aspects of what is said in the interview. The Crown has mentioned some of them in address; namely, the presence of a broken mirror in the flat, the presence of a hammer, a claw hammer, which was recovered from the flat and later shown to the accused in the interview, the fact that the accused refers to having heard a lot of cracks, including specifically, a crack of the neck, and the autopsy having revealed broken ribs and a fracture to the larynx. 10 It seems to me, therefore, that there is certainly probative value in the record of interview. The issue is whether or not its admission, given that value, is unfairly prejudicial to the accused, or whether it is likely to mislead or confuse, or that its probative value is outweighed by the danger of unfair prejudice to Mr Moffatt. 11 It seems to me that, confining myself to s 135, the probative value is not substantially outweighed by the danger of unfair prejudice to the accused, and it cannot be said that the interview is either misleading or confusing. Similarly, in respect of s 137, I do not believe that its probative value is outweighed by the danger of unfair prejudice to the accused and, therefore, I propose to admit the interview and the transcript which accompanies it. ********** Last Modified: 03/23/1999 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.