R v Leung [2012] NSWSC 1451

Supreme Court New South Wales

Medium Neutral Citation: R v Leung [2012] NSWSC 1451 Hearing dates: 12 November 2012 Decision date: 14 November 2012 Jurisdiction: Common Law - Criminal Before: Price J Decision: Evidence not admitted Catchwords: CRIMINAL LAW - evidence - admissions made in course of mental health assessment at police station - protected confidence - s 90 Evidence Act - unfairness to an accused - reliability - public interest. Legislation Cited: Criminal Procedure Act 1986 s 130, s 130A(2) Evidence Act 1995 S 90, s 126A, s 126B, s 137 Cases Cited: Em v The Queen [2007] HCA 46; 232 CLR 67 JB v Regina [2012] NSWCA 12 R v Sophear Em [2003] NSWCCA 374 Category: Procedural and other rulings Parties: Regina Philip Leung Representation: Mr M Hobart SC (Crown) Mr W Terracini SC (Accused) File Number(s): 2008/6766 Publication restriction: These reasons are not to be published until further order of the court

Judgment 1HIS HONOUR: I propose to give my reasons for rejecting the Crown's application to adduce in evidence a conversation between the accused and Amanda Salmon at Redfern Police Station. 2The accused is charged with the manslaughter of Mario Guzzetti on 7 April 2007. They had been in a relationship for some years. He was arrested on the morning of the deceased's death and taken to the police station. 3The accused had been hysterical at the crime scene and continued to cry uncontrollably both in the police vehicle and at the police station. He was described by police as being "hysterical" when they rang the accused's former partner, Raymond Carter and asked him to attend. 4Police called Amanda Salmon, a clinical nurse specialist with the Mental Health Crisis team attached to the Royal Prince Alfred Hospital requesting that she assess the accused as to whether he was exhibiting mental illness or a psychotic episode and to assess if he was at risk of harming himself in custody or was a suicide risk. 5At about 1.30pm, Nurse Salmon examined the accused as to his mental state in the police station's examination room. In the course of the examination, the accused was unable to recount to Nurse Salmon exactly what had happened, but said that he and the deceased had been "arguing alot, the last few weeks"; "they argued last night" and "they argued this morning." Nurse Salmon also recorded that the accused reported "bad arguments" last night and "this am." 6The Crown case against the accused is founded upon circumstantial evidence, one of the circumstances being that the accused and the deceased had been arguing. The conversation between the accused and Nurse Salmon was said by the Crown to be highly probative as it showed not only that there had been arguments for some weeks, but also that the arguments the night before and on the morning of the deceased's murder were "bad". 7This is the third trial that the accused faces for the death of the deceased. During the first trial before Rothman J, the Crown submitted that Nurse Salmon's evidence was admissible, but Rothman J declined to admit it. It appears that there had been some debate before his Honour as to whether the accused's statements about the arguments were "protected confidences" within s 126A Evidence Act 1995 and should be excluded under s 126B. In his ex tempore judgment, his Honour did not consider it necessary to finally determine this issue but said at [14]: "that the unfair prejudice to the accused of the admission of a statement, induced by a representation to him that anything he said would be confidential, far outweighs the probative value of the statement in itself." 8His Honour excluded the evidence under s 137 Evidence Act which provides: "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." 9The Crown did not appeal against the interlocutory ruling under s 5F Criminal Appeal Act 1912 nor did the Crown seek to adduce the evidence in the second trial before Adams J. A question that arises is whether Rothman J's decision was a pre-trial order so that it is binding upon me, unless I am of the opinion that "it would not be in the interests of justice for that order to be binding": s 130A(2) Criminal Procedure Act 1986. The Crown argued that an evidentiary ruling does not fall within the scope of a "pre-trial order" and s 130A did not apply. 10I do not think it is necessary for present purposes to consider whether Rothman J's decision to reject the evidence was a "pre-trial order" as I am also of the opinion that it should be excluded. My conclusion, however, is not founded on s 137 Evidence Act but on s 90 Evidence Act which is as follows: "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." 11Before discussing this provision, the basal facts are as follows: The information that the accused gave to Nurse Salmon was provided during an assessment by her of his mental state. He was not cautioned, but was told that she would like to speak to him in order to help him with any issues that he might have with self-harm. The accused had been informed of Nurse Salmon's professional qualifications. She considered that the examination was confidential. It was her practice to advise the patient that the information provided was confidential and only information relevant to the risk of self-harm would be disclosed to police. Nurse Salmon was acting in a professional capacity as a Mental Health Nurse at the time the disclosures were made and the accused was her patient. 12Mr Crown submitted that there was no unfairness to the accused as he had not made an admission to the offence but rather an "unguarded incriminating statement." 13I do not think that submission should be upheld as it places too narrow a construction of the word "admission" in the Evidence Act, which in the Dictionary to the Act is defined to mean: "...a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding." 14The disclosures made by the accused to Nurse Salmon are previous representations that are plainly adverse to his interest in the outcome of the trial. They bolster the Crown's circumstantial case and are admissions. 15In Em v The Queen [2007] HCA 46; 232 CLR 67, Gummow and Hayne JJ described at [109] the discretion given by s 90 as a "final" or "safety net provision". Their Honours at [112] noted that "s 90 of the Act expressly directs attention only to the fairness of using the evidence at the trial of the accused" and that questions of reliability may have no part to play in the operation of s 90. Their Honours had earlier stated at [109]: "When it is "unfair" to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. "Unfairness", whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways." 16Gleeson CJ and Heydon J considered at [72] that "the reliability of evidence was a factor affecting the fairness of its use." 17In R v Sophear Em [2003] NSWCCA 374, Howie J (with whom Ipp JA and Hulme J agreed) observed at [110] that, apart from the question of reliability, the "probative value" of the admission was not a matter of significance in the exercise of the discretion under s 90. 18Howie J said at [104]: "Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated...There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion..." (citations omitted), 19In JB v Regina [2012] NSWCCA 12, Whealy JA quoted with favour what was said by Howie J in Sophear Em. The Court in JB considered whether an admission made by the appellant, a juvenile, to a support person should have been rejected under s 90 by the trial judge. In dismissing this ground of appeal, Whealy JA (with whom Hislop J and Grove AJ agreed) said at [29]-[31]: "29 With respect, I am unable to accept this argument. I shall briefly state my reasons. First, Mr Clayton's relationship with the appellant did not fall within any of the restricted categories of relationship (as outlined by Parliament) that protect unique relationships. There is, for example, no protection equivalent to s 118 Evidence Act for the relationship between a support person and a juvenile. There is no protection for the relationship between a support person and a juvenile as a "special relationship" such as may arise under s 126A, or in the case of religious confessions (s 127) and other privileged communications. 30 Secondly, it may be seen that there is a fundamental difference between each of those "protected" relationships and the relationship, on the other hand, of a support person and young person. Certain specific relationships have been given special legislative protection because it is central to the function of those relationships that free and frank disclosure exist between the two persons involved. For example, a lawyer needs to obtain confidential information from his client to do his job adequately. It is part of the legal requirement of the solicitor/client relationship that confidences exchanged between them are to be strictly treated as confidential by the practitioner. No such legal or ethical relationship applies to a person playing a support role for a juvenile at a police station. The fundamental role of the support person is to assist the juvenile in his or her dealings with the police. It is to protect children from the disadvantaged position they are in as a consequence of their age. It is to protect them from police impropriety or from the disadvantages that arise simply because they are in a custodial situation and at the mercy of mature and experienced police officers ( R v Honan; DPP v Toomalatai; and R v Huynh and Phung ). 31 In a given situation, the role undertaken by a support person may require that advice be given to a juvenile that he or she may or should remain silent during a police interview; it may require the tendering of advice or the giving of practical assistance during the actual interview itself. Such a role, though important, does not demand per se confidentiality in relation to admissions made freely by the juvenile to the support person outside the interview room, and in the absence of the police." 20Section 126A Evidence Act defines a protected confidence to mean: "a communication made by a person in confidence to another person (in this Division called the confidant): (a) in the course of a relationship in which the confidant was acting in a professional capacity; and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant." 21In the present case, Nurse Salmon, the confidant, was acting in a professional capacity and was under an express obligation not to disclose the contents of the interview, save for her assessment of the accused's risk of self-harm. 22Unlike that of a support person, the relationship between a clinical nurse specialist who is called to a police station to make a mental health assessment and an accused person is a protected relationship under s 126A Evidence Act. Ensuring that a person in custody is not a risk of self-harm is a matter of importance not only to the police force but to our society as a whole. It is fundamental to the reliability of the assessment that accused persons be able to speak freely to the health professional without fear that their conversation might be used in evidence against them. To be balanced against that consideration is the public interest in solving serious crimes such as manslaughter. However, it is unlikely that accused persons in custody would co-operate in a mental health assessment if they understood that the interview was not to be confidential. 23Another matter favouring rejection of the admissions is the issue of their reliability. Nurse Salmon described the accused as being distressed, anxious and in shock during the interview. She said that he was not "feigning" or "faking it": T76 10-25 21/04/09. She had been called in by police, who had described the accused as being "hysterical". 24It is not possible to reconcile the Crown's proposition that the accused would not suffer harm if the admissions went into evidence with the Crown's submission that the probative value of the evidence is high. At the very least, the accused would be placed in the position of having to give some explanation about what was said in the interview and would be unfairly forensically disadvantaged. 25For these reasons, I conclude that having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence. In my view, the introduction into evidence of the admissions would result in an unfair trial. Accordingly, the evidence is rejected.