Supreme Court New South Wales Medium Neutral Citation: R v Dwayne Anthony CARR (No 2) [2011] NSWSC 724 Hearing dates: 12/07/2011 Decision date: 13 July 2011 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: The ERISP, or evidence of statements made in the interview, is inadmissible. Catchwords: EVIDENCE - admissibility - lies as consciousness of guilt - unfair prejudice - misleading or confusing evidence in the context of the proceedings - same lie told be innocent persons and the accused Legislation Cited: Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: Edwards v R [1993] HCA 63; (1993) 178 CLR 193 R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 R v Cook [2004] NSWCCA 52 R v Esposito (1998) 105 A Crim R 27 R v Horton (1998) 104 A Crim R 306 R v Keli LANE (No 13) [2010] NSWSC 1540 Category: Procedural and other rulings Parties: Regina (Crown) Dwayne Anthony Carr (Accused) Representation: G Tabuteau (Crown) R J Webb (Accused) Office of the Director of Public Prosecutions (Crown) Frontier Law Group (Accused) File Number(s): 2010/143570 Judgment 1The Court has before it an accused charged with manslaughter and, alternatively, with recklessly inflicting grievous bodily harm. The circumstances are in short compass. The Crown seeks to tender an electronically recorded interview of 28 April 2010 with the accused. The accused objects to its tender. Facts of the alleged crime 2Somewhere between 7.00pm and midnight on 25 November 2009, the accused was at a party in the home of the deceased. There were a number of people present, although the precise number is moot. With the exception of one person, all of the partygoers were consuming alcohol and marijuana. This includes the deceased. The one exception was imbibing alcohol but not consuming marijuana. 3During the course of the evening, the accused was involved in an argument with his then pregnant partner. The deceased intervened, it seems, to ensure that the raised voices were lowered and, possibly, to prevent the accused from continuing to hold on to the arm of his partner. 4In the last of those interventions, the accused released the arm of his partner, who immediately left the unit in which the party was occurring. The accused pushed the deceased away with some force. The deceased, who, on the evidence, was heavily intoxicated from significant amounts of alcohol and marijuana, was forced back on to a wall in the lounge room. 5The deceased's shoulders hit the wall first and then his head, in a whiplash fashion, hit the wall loudly and with much force. On the evidence currently before the Court, the deceased was dazed and leaning against the wall. It also seems that, a short time (approximately 2 seconds) after hitting the wall, the deceased raised his hand to the back of his head. 6Shortly thereafter, if not immediately thereafter, two of the partygoers left the premises. One of them, a juvenile, shook hands with the deceased and spoke to him. 7A minimum of 2 hours later, the ambulance was called and arrived within minutes. The deceased was unconscious on the kitchen floor. The ambulance officers were told that the deceased had slipped on the kitchen floor. There was water on the floor in the vicinity of the deceased at least some of which, the ambulance officers were told, had been an unsuccessful attempt to wake (or render conscious) the deceased. The deceased was admitted to hospital, was the subject of surgical intervention and died a few days later. 8The expert pathology evidence adduced by the Crown is to the effect that the deceased died from the combination of two injuries to the head: one at the back or crown (the first injury); and the other in the right temporal region (the second injury). There is no evidence as to which of these injuries occurred earlier in time and the reference to the first injury and to the second injury, in the foregoing, is not intended to indicate any temporal relationship. The pathologist opined that the first injury was more likely to be caused by a fall to the floor than by banging the back of the head on the wall, particularly where the shoulders have hit the wall first. 9The second injury is unlikely to have occurred as a result of a simple fall to the floor, as the shoulder is likely to have prevented such injury, without some form of intervention by a complex surface or the occasioning of an injury by the act of another. The pathologist accepts that it is reasonably possible that both injuries could have been caused by a fall that is interrupted by a knock on the corner of a wall or cupboard, or a fall to the floor on which there are complex surfaces that could have effected both injuries. Circumstances of the interview 10The particular issue with which the Court must deal in this judgment is the admissibility of an interview with the accused. The police undertook the interview during the course of the investigation of the death of the deceased. Prior to the interview occurring, the police had available to them fingerprints of the accused taken from the deceased's premises. They were also aware that the phone call to the ambulance was made from a phone connected to the accused. 11The police had interviewed a number of other "partygoers" and, particularly, had already interviewed the accused's then partner. The then partner had told the police officers that she was not in the premises and, at the time, was in Wellington, a country town in New South Wales in which family of the accused lives. At the time of the interview with the accused, it is clear that the police expected that the accused would tell them the same story. At the time, the accused was the primary suspect. 12The police arrived at the accused's premises and "invited" him to attend the police station with them. At the time that this invitation occurred, the police advised the accused that he was not required to speak to the police and that anything he said to them could be used in evidence against him. 13The accused was unable to go with the police, because he was required to attend the funeral. The police enquired as to the time that he could be at the police station; the accused gave a time and arrived at the police station at about the time indicated. 14During the course of the police investigation police interviewed a number of persons, including each of the "partygoers". Both the accused and the accused's partner denied being at the unit at any time and denied knowing the deceased. Ms Mongta was reluctant to give a statement, but agreed that she was there at the time. Mr Simms denied being at the premises. Mr Stewart denied being at the premises at the time. Mr Windell denied being at the premises at any time during the night, having left, it was said, much earlier. In summary, with the exception of Ms Mongta, no witness, initially, admitted to being in the premises. I have omitted a reference to "Vinnie" (Mr Steve Holten), who said, and continues to say, that he was asleep during the whole of the events and awoke when the commotion occurred arising from the deceased's fall on the kitchen floor. 15The interview with the accused occurred on 28 April 2010 and the accused was arrested and charged on or about 9 June 2010. Between the time of the interview and the arrest the police obtained a statement from Ms Mongta. The police also sought to identify the persons in the premises at the time that the ambulance officers arrived, by showing photographs to the ambulance officers. There are difficulties associated with identification by photograph, but they are irrelevant to current matters, because the identification was unsuccessful. 16Further statements were later obtained from Mr Simms, Mr Holten and the juvenile. On legal advice, the accused declined to make any further statement. The accused objects to the ERISP of 28 April 2010 being admitted into evidence. 17The relevant police officer attests to the fact that she was unaware of any intellectual impairment suffered by the accused, although she describes him in terms which are to the effect of being "unintellectual" and unsophisticated. There is evidence of some disadvantage suffered by the accused in this area and the accused is unable to read or write. His mother, as a support person, accompanied the accused during the interview. The accused was 21 years of age at the time of the interview. Relevance and use of the interview 18The Crown submits that the principal use of the ERISP, and its principal probative value is that it discloses a lie by the accused about his presence at the premises at any time and, in particular, at the function that took place on the night of 25 November 2009. The minor probative uses of the ERISP is that it discloses knowledge in the accused of other persons who were in attendance at the premises at the time. This latter aspect is of almost no significance in the scheme of this trial as there is no issue as to the knowledge by those persons of the accused, or knowledge by the accused of those persons. 19The accused relies on submissions that include an objection on the basis of relevance; the exercise of the discretion of the Court under s 90 of the Evidence Act 1995 (hereinafter "the Act"); and the provisions of ss 137 and 135 of the Act. 20The relevance of the material is determined by an examination of whether the material, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Act. If so, it is admissible in the proceeding: s 56 of the Act. 21The statement is not hearsay because it is not relied upon for the truth of the statement, but, rather, that it was made, and it is, an admission within the broad meaning given to that term in s 81 of the Act and the Dictionary thereto: see R v Horton (1998) 104 A Crim R 306 at 317, per Wood CJ at CL; R v Esposito (1998) 105 A Crim R 27 at 42, per Wood CJ at CL; R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 at [34]-[66]. 22Because the Dictionary to the Act only requires that the representation be "adverse to the person's interest in the outcome of the proceeding" a statement which is exculpatory, but is used as evidence of a lie, is an admission, because it is adverse to the interests of the maker of the statement in the outcome of the proceeding. 23Plainly, in my view, the statement by the accused is relevant and, in so stating, I emphasise the use of the word "could", together with the premise that the evidence may be accepted, in s 55 of the Act. 24Having accepted, as I do, that the evidence is relevant, the Court is required to deal with the submissions of the accused that are based upon the unfairness to which s 90 of the Act refers and the danger of unfair prejudice (weighed against probative value) to which s 137 refers. The two issues are interrelated. Further, the accused relies upon s 135 of the Act. I take the view that paragraph (a) of s 135 of the Act has no work to do in criminal proceedings, because of the existence of s 137 of the Act. Theoretically, at least, paragraphs (b) and (c) of s 135 still have effect. Although, if evidence were misleading or confusing, it is likely that it would also be unfairly prejudicial. 25The accused relies upon a combination of factors. The accused submits that the police deliberately delayed the charging of the accused in order to circumvent the procedures that are required under the Law Enforcement (Powers and Responsibilities) Act 2002 (hereinafter "LEPRA"). LEPRA requires a warning at the time of the ERISP, the presence of a support person for vulnerable persons (including members of the Indigenous community) and contact, in the case of members of the Indigenous community, with the Aboriginal Legal Service. The police, in evidence on the voir dire, attest to their understanding that the Aboriginal Legal Service always advises their clients, in serious charges, not to speak to the police or be interviewed, at least in the absence of a solicitor. 26There is no doubt that the accused was the primary suspect at the time of the interview. There is also no doubt that the police conducted the interview in a manner which "trapped" the accused into a statement that they expected him to make, given the prior statements by other witnesses. That statement was the denial of attendance at the deceased's premises. That "trap" was successful. The accused did as the police expected and, essentially, as had every other witness. 27Nevertheless, the police followed, to the letter, their protocols and did not behave unlawfully. As already stated, at the time of the interview the police had the accused's fingerprints and his relationship with the telephone used at the premises, but, of itself, it cannot be said that there was sufficient to require the charging of the accused. 28I do not consider that the police behaved inappropriately or, in the process of the interview, unfairly toward the accused. There are some aspects that cause the Court some disquiet, but they would not, of themselves, cause a rejection of the ERISP on the basis of s 90 of the Act. I make it clear, however, that the intellectual impairment of the accused was not obvious and if it were, a different attitude would have been taken on this issue. 29The submissions of the accused rely on the judgment of Whealy J (as he then was) in R v Keli LANE (No 13) [2010] NSWSC 1540. The orders made by his Honour arising from these reasons were vacated by the Court of Criminal Appeal on 2 November 2010. The full reasons for those orders by the Court of Criminal Appeal were reserved at that time and have not yet issued. Short reasons issued which make clear that consciousness of guilt does not involve circular reasoning; there was, as a matter of fact, a lie; and the evidence could be used as consciousness of guilt and, for that reason was relevant. His Honour Whealy J had determined that the evidence was irrelevant. 30Nevertheless, Whealy J's adumbration of the principles associated with the admissibility of a lie, and its use as consciousness of guilt, fully and appropriately summarises the principles. I adopt, without repeating, his Honour's analysis and summary of cases in Lane , supra, at [20] and particularly the extensive quote from the judgment of Simpson J (with whom Ipp JA and Adams J agreed) in R v Cook [2004] NSWCCA 52 at [21]-[25] and [50]. I do not repeat that passage. 31I also rely, without repeating, on the passage that his Honour cites at [22] of Lane , supra, from the joint judgment of Deane, Dawson and Gaudron JJ in Edwards v R [1993] HCA 63; (1993) 178 CLR 193. In Edwards , supra, McHugh J, in dissent, summarised the principles as being that the lie must be deliberate; that it must relate to a material issue; and that the motive must be a realisation of guilt and fear of the truth. In a further passage (other than that cited by Whealy J, in Lane , supra) from the joint judgment of Deane, Dawson and Gaudron JJ (at [10]), the following appears: "But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him (Eade v. The King (1924) 34 CLR, at p.158). In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'." 32I stress the proposition in the joint judgment above that the lie must be one "which an innocent person would not tell". And that the lie, to be used as consciousness of guilt, must unequivocally point to a consciousness of guilt of the offence with which the accused is charged, and not some other offence. 33In this case, almost every witness, most of whom are innocent, have told the exact same lie. The accused was on parole at the time of this incident. His involvement in consuming marijuana, and probably other activities engaged in on that evening, unrelated to the death of the deceased, would have been a breach of his parole conditions. His partner was pregnant and he had significant reasons, over and above the ordinary ones, to avoid any association with the events of that evening, regardless of his involvement with the death of the deceased. The combination of these factors satisfies the Court that it would be unfairly prejudicial to the accused to use the ERISP as evidence of consciousness of guilt and, if the evidence be admissible, its use should be restricted pursuant to the terms of s 136 of the Act so that it could not be used in that way. 34Moreover, the Crown has all but completed its evidence. There is no evidence before the jury of the same lie having been told by other persons at the party. As a consequence, using this lie against the accused would be to take the lie wholly out of its context and mislead the jury as to its "uniqueness". In those circumstances it would seem that the provisions of s 135(b) of the Act would also apply. 35Once the evidence is denied its utility and predominant purpose as probative of consciousness of guilt, its probative value is almost insignificant. Given the context in which the jury would hear this evidence, the absence of evidence from the other witnesses or about the other witnesses as to the circumstances that led them to lie, and their reaction to the suggestion that they were lying, the danger of unfair prejudice to the accused by the admission of this evidence is extremely high. 36In my view, and for the foregoing reasons, the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused and the Court excludes the evidence under the provisions of s 137 of the Act. I emphasise that I have taken into account that there would be significant directions that could be given by the Court to the jury in the manner in which the evidence could be used, but I do not consider, in the particular context of this proceeding, that those directions would overcome or ameliorate the danger. 37If it be necessary to go further, I make it clear that I would also exercise my discretion under the provisions of s 135(b) of the Act because, in the context of this proceeding, the probative value of the evidence is substantially outweighed by the danger that the evidence might be misleading or confusing. I rule that the ERISP, or evidence of statements made in the interview, is inadmissible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2011