Supreme Court New South Wales Medium Neutral Citation: R v Patricia Anne Gallagher [2013] NSWSC 1102 Hearing dates: 6, 7, 8, 9, and 13 May; 21 June; 22, 23, 24, 25, 26, 30 and 31 July 2013 Decision date: 19 August 2013 Before: Bellew J Decision: 1.I find the accused not guilty of the murder of William Grant on 12 February 2009. 2.I find the accused not guilty of the manslaughter of William Grant on 12 February 2009. 3.I enter verdicts of acquittal in respect of both matters. Catchwords: CRIMINAL LAW - Murder - special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 - where Crown relied upon circumstantial case - necessity to consider the entirety of the circumstantial case in determining whether the accused's commission of the alleged offence was proved beyond reasonable doubt EVIDENCE - admissions - exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair - where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment - where accused had been interviewed by the police on two occasions and had denied killing the deceased - where police subsequently implemented undercover operation - where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence - where police continued with the undercover operation in those circumstances - where accused initially repeatedly denied responsibility for the deceased's death to undercover operative - where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased - whether the actions of the police in implementing and continuing the undercover operation were improper - whether the circumstances in which the admissions were made were otherwise improper - whether the evidence of the accused's admissions should be excluded as having been improperly obtained - alternatively whether evidence of the accused's admissions should be excluded on the basis of unfairness EVIDENCE - admissions - where evidence that the accused had allegedly admitted to the killing of the deceased - where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made - whether the evidence of the admission should be excluded on the basis of unfairness. EVIDENCE - lies - where Crown relied upon lies told by the accused as evidence of consciousness of guilt - whether the statements made by the accused were in fact lies - whether the lies were deliberate - whether the lies were evidence of consciousness of guilt EVIDENCE - tendency evidence - whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressively Legislation Cited: Evidence Act 1995 Mental Health (Forensic Provisions) Act 1990 Cases Cited: BP v R; R v BP [2010] NSWCCA 303 Director of Public Prosecutions v AM (2006) 161 A Crim R 219; [2006] NSWSC 348 Douglass v R (2012) 290 ALR 699 Edwards v R (1993) 178 CLR 193 Em v R (2007) 232 CLR 67 FB v R [2011] NSWCCA 217 Fleming v R [2009] NSWCCA 233 Knight v Maclean [2002] NSWCA 14 R v AH (1997) 42 NSWLR 702 R v Chamberlain [No. 2] (1984) 153 CLR 521 R v Chittadini [2008] NSWCCA 256; (2008) 198 A Crim R 492 R v Cornwell (2003) 57 NSWLR 82 R v Coulstock (1998) 99 A Crim R 143 R v Eade (2000) 118 A Crim R 449; [2000] NSWCCA 369 R v Ellis (2003) 58 NSWLR 700 R v Hillier (2007) 228 CLR 618 R v Lockyer (1996) 89 A Crim R 457 R v Lodhi [2006] NSWSC 672 R v Medcalfe [2002] ACTSC 83 R v Nelson [2004] NSWCCA 231 R v Jarrett [2012] NSWCCA 81 Ridgway v R (1984) 184 CLR 19 Riley v R [2011] NSWCCA 238 Robinson v Woolworths Limited trading as Woolworths Plus Petrol Werrington (2005) 64 NSWLR 612; (2005) 227 ALR 353; (2005) 158 A Crim R 546; [2005] NSWCCA 426 Shepherd v R (1990) 170 CLR 573 Teubner v Humble (1963) 108 CLR 491 Tidy v Battman [1934] 1 KB 319 Tofilau and ors v R (2007) 231 CLR 396; [2007] HCA 39 Zoneff v R (2000) 200 CLR 234 Texts Cited: Uniform Evidence Law (10th Ed) - Odgers Category: Principal judgment Parties: Regina - Crown Patricia Anne Gallagher - Accused Representation: Mr J Crespo - Crown Mr M Austin - Accused Director of Public Prosecutions (NSW) - Crown Legal Aid New South Wales - Accused File Number(s): 2010 / 381412 Publication restriction: Passages of judgment suppressed in accordance with orders made on 29 July 2013 and 22 August 2013 Judgment INTRODUCTION 1Between the late evening of 11 February 2009 and the early hours of the morning of 12 February 2009 William Grant ("the deceased") was stabbed at his home in suburban Revesby. At about 4.14am on 12 February 2009 he was pronounced dead. There is no issue that the cause of his death was an abdominal stab wound which severed his thoracic aorta. The Crown alleges that Patricia Anne Gallagher ("the accused") was responsible for his murder. 2A special hearing has been held pursuant to the provisions of s. 19 of the Mental Health (Forensic Provisions) Act 1990 ("the Forensic Provisions Act") which are in the following terms: 19 Court to hold special hearing after advice received from Director of Public Prosecutions (1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 45 (3) or 47 (5) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court: (a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and (b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken. (2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. (3) If the Director of Public Prosecutions advises the Court under subsection (1) (a) that no further proceedings will be taken in respect of the offence, the Director of Public Prosecutions is also to give that advice to the Minister for Police. (4) Subsection (1) does not apply if the Court has already held a special hearing in relation to the offence concerned. 3On 30 August 2012 the court received a report from the Mental Health Review Tribunal advising (inter alia) that because of her severe cognitive impairment, the accused was not fit to be tried for the offence of murder and that on the balance of probabilities, that situation would continue and the accused would not become fit during the ensuing 12 months. A determination was made by the Director of Public Prosecutions pursuant to s. 19 of the Forensic Provisions Act that further proceedings were to be taken in the matter. It is against this background that the special hearing has been conducted. 4Pursuant to s. 21A of the Forensic Provisions Act, a special hearing is to be conducted by a Judge alone unless an election is made by either the Crown or the defence that there be a jury. No such election was made by either party in the present case. 5Pursuant to s. 22(1) of the Forensic Provisions Act, the following verdicts are available to be returned: (i)that the accused is not guilty of the offence charged; (ii)that the accused is not guilty on the ground of mental illness; (iii)that on the limited evidence available, the accused committed the offence charged; and (iv)that on the limited evidence available the accused committed an offence available as an alternative to the offence charged. 6As to the matter in (iv), manslaughter is an available alternative verdict, given that the accused has been indicted for the offence of murder. 7At the commencement of the hearing, counsel foreshadowed that there would be a number of evidentiary issues which I would be asked to determine. However, neither party sought the preliminary determination of such issues. By agreement with counsel for the accused, the Crown adduced the entirety of its evidence and indicated, in the course of doing so, those particular parts of it which were relevant to the evidentiary issues which I would be asked to determine. At the conclusion of the entirety of the evidence, both Counsel addressed these specific issues individually, before proceeding to make submissions as to the evidence as a whole. AN OVERVIEW OF THE CROWN CASE 8At the time of his death, the deceased lived at Unit 5, 16-22 Blackall Street, Revesby. The accused, who had known the deceased for some years, lived in the nearby suburb of Padstow. Although it is not completely clear, it appears that they may have been in a sexual relationship at some point. 9At the time of the deceased's death the accused had a cognitive impairment as a result of numerous aetiologies. The accused and the deceased both drank to excess, sometimes in the company of each other. 10At or about midday on 11 February 2009 the accused went to the deceased's unit block. In or about the early afternoon of that day the deceased and a neighbour, Jack Jones ("Jones") moved a refrigerator from the deceased's premises to a garbage area made available for residents. The accused was present during that activity and was heard to tell the deceased that she would "kill him" if he didn't "get off the wine". 11In or about the late afternoon or early evening of the same day the accused attended the premises of Michael Baston ("Baston") who lived in Unit 3, and who was known to the accused and others as "Pommy Dad". The accused left two shopping bags at Baston's premises before attending Jones' premises at Unit 9 where she and Jones had an argument. The accused also attended the residence of Elisabeth Smith at Unit 7, either before or after visiting Jones. 12At some point, the accused made her way to the deceased's premises. At 7.21pm she made a 000 call from the landline of the deceased, apparently complaining that Jones had indecently assaulted her. 13In response to that call, police arrived at the deceased's premises at about 8.50pm, at which time both the deceased and the accused were present. 14The attending police formed the view that the accused was affected by alcohol. They described her as aggressive, difficult to understand and "rambling" as she gave her account of what had allegedly happened between her and Jones. 15The deceased who was sitting on a lounge chair at the time, said to the accused: "Calm down Pat, they're just doing a job. Just listen." 16The accused told the police that earlier in the day, she had gone to Jones' premises. According to the accused, Jones expressed his affection for her and in doing so, grabbed her breasts. The accused told police that she simply wanted Jones "spoken to" and that she did not wish any action to be taken beyond that. 17Police left the deceased's premises and spoke with Jones who admitted that the accused had been at his premises earlier in the day. He also said that he had asked her to leave as a consequence of her removing food from his premises, and otherwise denied the accused's allegations. 18Late on the evening of 11 February a number of calls were made from the landline attached to the deceased's premises to a televised appeal for donations for bushfire victims. There were also calls made from that landline to the premises of Hilda Fetch during that evening as well as in the early hours of 12 February. Mrs Fetch was the mother of Norman Fetch, an acquaintance of the accused. It is the Crown case that each of the calls made to her number were made by the deceased. 19At some time during the late evening of 11 February, the accused left the deceased's premises and went to Baston's premises where she collected the shopping bags which she had left there earlier in the day. The accused told Baston that she was feeling tired and wanted to go home. Baston saw the accused leave his premises and walk across the car park of the unit complex, in a direction opposite to that of the deceased's premises. 20At 12.28am on 12 February the accused called 000 from the deceased's premises. She told the operator (inter alia) that the deceased was bleeding from the stomach. 21Ambulance officers arrived at the deceased's premises at about 12.43 am. The accused, who was known to one of the ambulance officers as a patient whom he had previously treated, was present at the time. She was described as being upset, and in a state of panic and distress. When asked what had happened the accused said (inter alia): "I don't know". 22The deceased was observed by the ambulance officers to be sitting at the base of the toilet in the bathroom with a towel covering his chest. He was conscious and when asked what happened by the ambulance officers he too answered: "I don't know". 23The ambulance officers then commenced to treat the deceased at the scene. One of them said (inter alia): "Who's done it? Who stabbed him?" 24The accused replied: "I don't know. He tried to kill himself before. He's got mental health issues". 25The accused's assertion that the deceased had previously tried to take his own life is said by the Crown to be a deliberate lie, and thus evidence of her consciousness of guilt. 26The accused also said to police: "He's stabbed himself and overdosed before". 27On the Crown case that statement was a second deliberate lie told by the accused. 28After police attended the deceased's premises, the deceased had a conversation with a police officer in which he said: "You think I did this to myself? I wouldn't, I have never done anything to myself". 29The deceased was transported to hospital by ambulance. On the way to the hospital he was again asked what had happened to him, and he again replied that he did not know. He also told the ambulance officers that he had been drinking. 30On the way to the hospital, the deceased was asked by one of the ambulance officers whether he had inflicted the injury upon himself. He responded: "Don't be a bloody idiot, I've survived cancer, why would I try and kill myself?" 31Although the deceased was treated at hospital, he was pronounced dead at about 4.14 am on 12 February 2009. The cause of death was an abdominal stab wound which severed his thoracic aorta. 32The accused participated in two lengthy interviews with police. The first of those interviews was conducted in the early hours of 12 February 2009, and the second on 30 March 2009. The accused was not placed under arrest on either occasion and she denied being responsible for the deceased's death. 33Scientific evidence establishes that a bloodstain, said by the Crown to be left by the deceased, was found on the floor of the kitchen of his premises. Nearby, there was a knife seized by police which, when subjected to a presumptive test, revealed the possible presence of blood. 34The Crown alleges that some days after the deceased's death, the accused telephoned the landline of Hilda Fetch and left a message on an answering machine in which she admitted having stabbed the deceased. Whether this evidence should be admitted is another of the evidentiary issues for determination. 35In 2009, police commenced an undercover operation with the objective of obtaining admissions from the accused as to the killing of the deceased. The accused was befriended by an undercover police officer referred to in these proceedings as UCO-1, with whom she met regularly over the ensuing 12 months. Despite the frequency of their meetings, and despite the deceased's death being a subject of discussion between them, the accused made no admissions to UCO-1. SUPPRESSED. Other matters which were the subject of discussion included the accused's psychological treatment, and her alcohol addiction. 36On the morning of 16 November 2010, as part of the undercover operation, police attended the accused's premises and informed her that she had been identified as the main suspect in the murder of the deceased, and that she was required to attend the police station at 8.00 am on the following morning for questioning. Following that visit by the police, UCO-1 attended the accused's premises at which time the accused informed her of the earlier visit by the police. UCO-1 then informed the accused that she too had been questioned by the police as to her association with the accused. SUPPRESSED. 37SUPPRESSED who was in fact another undercover officer known as UCO-2. Consistent with the discussions which had previously taken place between UCO-1 and the accused, SUPPRESSED. The entirety of the accused's conversation with UCO-2 was recorded and is in evidence before me. 38In the course of these discussions, the accused made a number of statements denying any involvement in the deceased's death. These denials were met, in almost every case, by UCO-2 expressing some disbelief of them, SUPPRESSED. Finally, the accused told UCO-2 that she had stabbed the deceased. Shortly after doing so, other police officers who had been monitoring the conversation in an adjoining room, entered the room and arrested the accused. After the accused was conveyed back to the police station, she made further admissions to the police. Whether the evidence of the accused's admissions to UCO-2 and the other police should be excluded is another of the evidentiary issues I am required to determine. 39It is part of the Crown case that the accused was a person who had a tendency to act in a violent and aggressive manner. Whether some of the evidence relied upon by the Crown in this respect should be admitted as tendency evidence is another of the evidentiary issues for determination. 40In summary, the Crown case is that the accused, having consumed alcohol, armed herself with a knife from the kitchen of the deceased's premises and stabbed him, either before she left his premises late on the evening of 11 February, or when she returned in the early hours of the morning of 12 February 2009. The Crown alleges that she did so either intending to kill him, or intending to inflict grievous bodily harm upon him. 41The Crown further alleges that having murdered the deceased, the accused cleaned the knife which she had used to stab him, before returning it to the knife block which was located on the kitchen bench. 42The primary position of the accused is that the entirety of the evidence is insufficient to establish that she was responsible for the death of the deceased. THE EVIDENTIARY ISSUES 43As I have noted in outlining the case, I have been asked to determine the following evidentiary issues: (1)whether the admissions made by the accused to UCO-2, and subsequently to other police, should be excluded, pursuant to either s. 138 or s. 90 of the Evidence Act 1995 ("the EA"); (2)whether evidence of previous behaviour on the part of the accused should be admitted as evidence tending to establish that she is a violent and aggressive person; (3)whether evidence of an admission, said to have been left by the accused in a message on a telephone answering machine, should be excluded pursuant to the provisions of either s. 90 or s. 137 of the EA; and (4)whether statements made by the deceased constitute lies which evidence a consciousness of guilt. 44I have dealt with the last of those issues when considering the ultimate issue of whether or not the evidence establishes, beyond reasonable doubt, that the accused murdered the deceased. THE ACCUSED'S ADMISSIONS The undercover operation 45In or about mid July 2009, the officer in charge of the investigation, Detective Taylor, made contact with the undercover branch of the New South Wales Police. On that occasion, he discussed what he described as "strategies" for the ongoing investigation. At some point, a decision was taken to implement an undercover operation. In broad terms, it was proposed that an undercover officer, UCO-1, would befriend the accused over a period with a view to obtaining admissions from her regarding the deceased's death. 46The accused had been admitted to hospital in about mid 2009, causing the commencement of the undercover operation to be delayed. On 1 October 2009 Detective Taylor made the first of a series of applications for warrants authorising the use of listening devices by UCO-1, the officer who was to meet with and befriend the accused. Those meetings took place over a period of approximately 12 months, and the transcripts of what was said in those meetings are before me in evidence. 47As events transpired, the accused made no admissions to UCO-1. However, in the circumstances more fully described below, the accused ultimately met with another undercover operative, UCO-2, to whom she admitted having stabbed the deceased. Shortly after making that admission, the accused made further admissions to Detective Taylor. In order to determine whether the evidence of these admissions ought be excluded, it is necessary for me to set out, in some detail, the relevant aspects of the undercover operation. The accused and UCO-1 meet 48UCO-1, who first met the accused on 28 October 2009, gave evidence (commencing at T215 L10) of the manner in which the operation was conducted, and its objectives: Q. That undercover operation was carried out over the course of a year? A. Yes. Q. During that undercover operation the intent, in terms of your involvement, was to record admissions by Patricia Anne Gallagher in relation to the murder? A. Not myself, no. Q. You were recording your conversations with Patricia Gallagher? A. Mmmmmm. Q. When you were having conversations with Patricia Gallagher, your hope was that she would discuss the murder? A. Yes. Q. And make admissions against her interests in relation to that murder, is that right? A. Yes. Q. In terms of that operation, that was unsuccessful in that on no occasion did she make such admissions? A. Not to me, no, she didn't. Q. In terms of that operation, she wasn't talking to anyone else? A. My understanding is there was one operation, Strike Force Woodfield. It was the one operation. 49UCO-1 first met with the accused on the morning of 28 October 2009. On that occasion she stopped the accused on a street in Padstow and, on the pretext of being new to the area, she struck up a conversation with the accused in which she (UCO-1) asked her to recommend a nearby coffee shop. They spoke to one another over a period of about one hour on that day, in the course of which the accused provided (at UCO-1's request) her contact details. Their meeting concluded with an arrangement to meet again the following week. 50UCO-1 subsequently met with the accused on numerous occasions between October 2009 and September 2010. She also spoke with the accused on the telephone on various occasions during that same period. It is not necessary for me to set out the entirety of the subject matter that was discussed on those occasions. Much of it was somewhat mundane conversation which was obviously directed to the objective of UCO-1 forming a relationship with the accused in which the accused would feel sufficiently comfortable to speak about the deceased and admit to killing him. There were, however, some particular matters which were the subject of discussion to which I must refer, and which are relevant to the issue of whether or not the accused's admissions ought be excluded. 51Firstly, the accused and UCO-1 discussed the fact that the accused was, at the time, undertaking some form of psychiatric or psychological treatment. For example, in the conversation recorded on 16 March 2010 the following appears (commencing at T 6): "UCO-1: And Robbie's the psychiatrist. Accused: Yeah. UCO-1: Now I got you. Accused: Yeah. UCO-1: So how does, I don't understand how it works. Accused: Well get...paper, and she writes... UCO-1: Yeah. Accused: ...oh well, I... UCO-1: Tell me about it. They, everyday, there's another one, isn't there? Accused: ...She said, There's...and she said, actually there are... UCO-1: Yeah. Accused: ...bullshit UCO-1: They are, a lot of them. Yeah. Accused: She'd write that down and then she gives me a, like, a book...and then my...and then I gotta...don't know what that means... UCO-1: Yeah. Accused: And am I...treatment. UCO-1: Yeah. Accused: Unsatisfied and I write very satisfied. UCO-1: What happens if you say an unsatisfied? Accused: Hmm. UCO-1: What happens if you say unsatisfied? What do they do? Accused: Put me onto another. UCO-1: Oh, so if your unsatisfied with that person, with Robbie? Accused: Yeah. UCO-1: Ok. I got you. Accused: Yeah. And then that goes...hand. UCO-1: So Robbie's a girl? Accused: They're both girls. UCO-1: They're, ok. Accused: Yeah. UCO-1: Yeah. Accused: ... UCO-1: Oh, yeah, I knew...but Robbie is girl? Accused: Yeah. UCO-1: Yep. Ok. Accused: ... UCO-1: Sweet. Accused: But on the back seat, I said...to much... UCO-1: Yeah. Accused: And on that...like, why would you do that...and I just write, well with the hell I've been through, I don't know what I'd do without counselling. UCO-1: ...yeah. Accused: I, I don't UCO-1: Yeah. Accused: I never had it before. UCO-1: No. Accused: Never got a, are you mental, is that why you're here... UCO-1: Is that what they said? Accused: Yeah. If you are here on...are here because you have mental issues and I go, Robbie...so. I'm here 'cause and then I'm...she says, No, you're here anger management. UCO-1: Yeah. Accused: Well its got no anger management or not, its got mental. But she give it to me don't worry about that, you don't worry about...and I go, Well, what'd you give it to me for." 52This was not the sole occasion on which the accused discussed her psychological care and treatment with UCO-1 (see conversation of 13 April 2010 at T 2; conversation of 30 April 2010 at T 1; conversation of 1 July 2010 at T 1 and 5; conversation on 15 August 2010 at T 37 - 40; conversation of 15 September 2010 at T 34). 53Secondly, both in the context of conversations concerning the accused's psychological treatment as well as independently of that, the accused told UCO-1 that she had been having suicidal thoughts. For example, in the conversation of 15 August 2010 (commencing at T 37) the following exchange took place: "Accused: - - -if I could shop (sic) my head off and put somebody else's then I would do it but I mean, I tell you what lately I've just been thinking and can't get...my car and I'm chicken. UCO-1: Don't do anything stupid Pat. Accused: And then I thought, I'd been thinkin' I'll nip me fuckin' self. UCO-1: No you don't do, no, no, no. Accused: Why am I thinkin' it? UCO-1: If knew that you've nipped yourself or you've taken pills I'll fuckin' come down on you like a ton of bricks, no don't do that, there's ways around it, if you have to move, move. If you're not happy where you are, move or find a ... that, that's not the answer its not. And if you're feeling that way you really need to go and see someone professional - - -" 54In a later conversation on 15 September 2010 there were references to Banks House, an institution which the accused referred to as a "nut house", as well as references to the accused having considered suicide. 55Thirdly, there were references in the accused's conversations with UCO-1 (in the context of her psychological treatment) to the fact that she had been prescribed, and was apparently using, some form of medication. For example, in the conversation of 15 August 2010 the following exchange took place (at T 42): Accused: See all this medication, it's not working; UCO-1: So you need to tell her. Who's given you the medication? Accused: ... UCO-1: Well have you told him that, what's he got you on? Accused: I don't know. 56Finally, there were references in conversations with UCO-1 to the accused's attendance at Alcoholics Anonymous. For example, in the course of the conversation of 15 September 2010 the following exchange took place (at T 33): UCO-1: Mmm. So yeah, so your week, what days are good for you so I can plan my life around you, what days do you go to AA? Accused: Thursday, tomorrow AA; 57UCO-1 was cross-examined by counsel for the accused in relation to her role in the undercover operation and, in particular, in relation to her knowledge of the accused's psychological condition. She told the court that in the absence of reviewing the transcripts (a task which, for reasons which are unexplained, she had not undertaken prior to giving evidence) she had little memory of the content of her conversations with the accused. 58The cross-examination of UCO-1 by Counsel for the accused included the following (commencing at T220 L27): Q. From your dealings with her over the year, did you form the view she had a problem with alcohol? A. No, because every time I met her it was for a coffee, and she was never drunk on occasions I met her... ... Q. Did you become aware she was being treated for psychiatric problems at Banks House in Bankstown? A. No. ... Q. Do you remember her mentioning the first names of psychologists, one being Robbie and one being Veronica? A. I remember the name Robbie, yes. Q. You remember that as a psychologist? A. I remember the name Robbie. Q. Do you remember her on occasion discussing with you suicidal thoughts? A. No. 59This cross-examination culminated in the following (commencing at T221 L40): "Q. On any account, can I take this from those answers, that you when you spoke to Detective O'Toole, prior to the commencement of the operation at SUPPRESSED, you didn't raise with him any issues of Patricia Gallagher being an alcoholic, you didn't raise that with him? A. No. Q. Any psychological problems she may have? A. No. Q. Any problems with her memory? A. No. Q. Any problems in relation to brain injuries she had suffered in the past? A. No, not that I recall. I don't remember any of that being mentioned." 60It is impossible to reconcile at least some of UCO-1's evidence with the content of the transcripts of some of her conversations with the accused. For example, as I have pointed out, the accused's attendance at Alcoholics Anonymous was the subject of a specific discussion with UCO-1. In these circumstances, I do not accept UCO-1's evidence that she did not form a view that the accused had some problem with alcohol. I also do not accept UCO-1's denial of any knowledge of the accused's treatment at Banks House. That too was the subject of a specific reference in one of the conversations. In my view, UCO-1 must have been aware of the fact that the accused was under some form of psychological treatment, that she was taking medication and that she was undergoing treatment for alcohol dependence. 61In these respects, the evidence of UCO-1 may be usefully contrasted with that of Detective O'Toole who was her supervisor and who, in that capacity was someone with whom UCO-1 was in regular contact during the course of the operation. 62Detective O'Toole took over the management of the undercover operation in February 2010, approximately 3 months after its actual commencement. On 31 March 2010 he contacted a Behavioural Science Team in the Forensic Services Group of the NSW Police due to what he described as "difficulty" in UCO-1 building a relationship with the accused. Detective O'Toole corresponded with that group between April and July 2010 and, on one occasion, he and UCO-1 met with a Psychologist to discuss how UCO-1 could build a stronger relationship with the accused. Throughout this period Detective O'Toole supervised UCO-1's meetings with the accused. 63In cross examination, Detective O'Toole explained (commencing at T229 L42) that the reason he contacted the Behavioural Science Team was that UCO-1 was having "some issues" in dealing with the accused. When asked by me about the nature of such "issues" Detective O'Toole responded (at T229 L49): "Just not concentrating on discussions as they were taking place and things to that sort of regard". 64Detective O'Toole went onto to describe (at T230 L5) the accused as being "a different person to deal with than (he) was certainly used to". When asked to elaborate on the difficulties that UCO-1 was experiencing in dealing with the accused Detective O'Toole said (at T230 L17): "From my memory, it was mainly just having her concentrate on a topic of conversation. She would go off on tangents. If something more interesting was happening around her, she would concentrate on that other than the topic of conversation with UCO-1". 65Detective O'Toole agreed that he had been made aware that the accused had some issues with alcohol and that he was generally aware of the possibility that she may have abused alcohol at some stage in her life. He also agreed (at T231 L13) that he had been informed that the accused was receiving treatment for anger management, although he thought that the source of that particular information was Detective Taylor. Detective O'Toole then gave the following evidence (commencing at T231 L38): "Q. Do you have any recollection of being told that she was under the care of any psychologist for any particular condition? A. During a particular deployment I recall Patricia telling UCO-1 that she was speaking to somebody about some psychological issues, I believe. Q. Was that someone she only mentioned by first name, Robbie or Veronica? A. Robbie does ring a bell with me. Q. Does this refresh your memory that Robbie was her case worker at Revesby Medical Centre? A. I'm not sure. I recall the name Robbie being mentioned. HIS HONOUR Q. Were you aware of all of these things at the time that the forensic psychologist at the Behavioural Science Team became involved? A. I believe I was, yes. Q. So you were aware at that time, were you, that there was some history of the accused having what might be described as anger management issues? A. Yes. Q. You were aware at that time she was being treated by some form of health professional for psychological issues? A. She was undergoing some sort of treatment, yes. Q. For psychological issues? A. I don't recall if it was psychological issues but certainly some treatment. Q. What form of medical treatment did you think it was or was it simply the case that you didn't know? A. Well, thinking back now, I was just aware it was medical treatment. I didn't concern myself with knowing what branch of the medical treatment it was taking. Q. You are also aware from your conversations with UCO-1 that there was a difficulty, if not an inability on the part of the accused to concentrate in the course of a concentration? A. Yes." 66I formed the view that Detective O'Toole gave candid and honest evidence. I am satisfied that at some point after he assumed the management of the operation, he became aware of the fact that the accused had the difficulties he identified in his evidence, as a result of which he sought professional advice as to how those difficulties might be overcome, and a closer relationship forged between UCO-1 and the accused, so as to increase the prospect of the accused making admissions. 67Within the period during which UCO-1 spoke with the accused there were two meetings which were particularly significant. The first was a meeting on 13 April 2010 and the second a meeting on 15 August 2010. The meeting on 13 April 2010 68When she met with the accused on 13 April 2010 UCO-1 put an offer to the accused regarding work with SUPPRESSED a role later adopted by UCO-2. On that occasion, the following was said (commencing at T 13): UCO-1: I've got a proposition for you if you're keen. Accused: (LAUGHS) UCO-1: But it goes nowhere. It's between you and me and no - one else. Accused: ... UCO-1: Yeah, definitely. Thank you. Ta. Accused: Thank you. UCO-1: Well, you are, you're like a sister to me. Um, SUPPRESSED. Um I've mentioned him before. Accused: Hmm. UCO-1: SUPPRESSED Accused: But he doesn't know me from a bar of soap. UCO-1: No, and he doesn't want to know you. He wants, needs, like, SUPPRESSED Accused: Oh, eh... UCO-1: Yeah, yeah. Um, but I said, like, I trust you with me life and everything and he was pretty happy with that but, um, so if you're interested, like, I'll have to speak to him obviously. SUPPRESSED Accused: Oh... UCO-1: - - - You keep it at your place, I come and get it off you." 69The conversation concluded with arrangements being made, in general terms, to speak in the coming weeks. The meeting on 15 August 2010 70When she met with the accused on 15 August 2010, and after the accused had made a reference to the deceased, UCO-1 sought to direct the conversation towards that subject, saying (at T 7): "I poured my heart out to you about the bloke that flogged the crap out of me, you never told me about you and Billy". 71In the ensuing conversation, the accused spoke of the history of her relationship with the deceased. She also told UCO-1 that the deceased was the victim of a "fatal stabbing" and that she had found the deceased and called 000. At no stage of the conversation did the accused admit stabbing the deceased. The meetings between UCO-1 and the accused conclude 72The undercover operation, in so far as it incorporated conversations between the accused and UCO-1, was unsuccessful in securing any admissions from the accused. There followed the introduction of the undercover operative UCO-2 into the investigation. UCO-1 explained how that came about (commencing at T219 L16): "Q. On any account, the activity at SUPPRESSED was different in terms of what was being done, if we could put it in those terms, from Ms Gallagher, from the activities that you had been involved with in the operation up to that point. Is that right? A. Yes. Q. The decision to carry out the investigation, if that term could be used for it, at SUPPRESSED, was made after a lengthy period of you having discussions with Patricia Gallagher which resulted in no admissions by her in relation to the murder. That is right, isn't it? A. Yes, she didn't make admissions to me. Q. The reason for proceeding with the use of the Undercover Operative UCO-2 at SUPPRESSED was because up to that point the operation had been unsuccessful in terms of obtaining admissions from Ms Gallagher. That is right? A. Yes. 73A question did arise in the proceedings as to whether the undercover operation incorporating the meetings between the accused and UCO-1 was a separate operation to that which took place at SUPPRESSED, or whether the latter was simply a continuation of the former. In my view, nothing turns on that question, and it is not necessary for me to resolve it. The police attend the accused's premises on 16 November 2010 74As a prelude to that part of the undercover operation which ultimately took place at SUPPRESSED, Senior Constable Dabin attended the accused's premises on 16 November 2010. On that occasion, he told the accused that he had been assigned to investigate the death of the deceased and that the accused had been identified as the "main suspect" in that investigation. He told the accused that he required her to attend the Bankstown Police Station at 8.00 am the following morning so that detectives could "speak" with her. The conversation between the accused and Senior Constable Dabin included the following: Dabin: Ok. I want you to get some legal advice from a lawyer and bring one with you tomorrow to the police station. Accused: A lawyer. Where will I get lawyer from? I don't know any lawyers. Should I call my caseworker? Dabin: I don't know if your caseworker can help you. Maybe you have a friend that can help you with that I don't know. I just want you to know that I need you to come to Bankstown Police Station tomorrow morning at 8am. Accused: Yes. Yes. I just don't know. Dabin: Patricia. As you know this investigation has been ongoing for quite some time? Accused: Yes I know that. Dabin: Ok. I believe that we have enough evidence surrounding the case now that identifies you as the main suspect which is why I am giving you the chance to get a lawyer and bring him with you. I don't where to get a lawyer from. You might have a friend who knows one I don't know. You might want to bring some spare clothes also. Accused: Clothes. I can do that. Dabin: Good. Look I am just trying to be fair with you today. If the murder happened yesterday then I would probably arrest you right now. But because it happened almost 2 years ago I am going to let you get some help. Ok." 75Following his conversation with the accused at her home, Senior Constable Dabin went to SUPPRESSED where he spoke with Detectives Stamoulis and Taylor. 76Senior Constable Dabin did not record the time at which he arrived at, or departed from, the accused's premises. The evidence establishes that UCO-1 made calls to the accused's landline at 12:12pm, 2:02pm, and 2:16pm on that day. None of those calls were answered and on each occasion UCO-1 left a recorded message. Between the first and second of those calls UCO-1 attended a briefing with other police. UCO-1 attends the accused's premises on 16 November 2010 77At about 3.16pm on 16 November 2010, following the visit by Senior Constable Dabin, UCO-1 drove to the accused's premises and had a conversation with her. It is evident from reading the transcript of that conversation that the accused was in an agitated state which, I infer, was a consequence of what she had earlier been told by Senior Constable Dabin. 78UCO-1 told the accused that the "cops had just pulled her over" and had questioned her about her association with, and knowledge of, the accused. The accused then told UCO-1 that she had been accused of the deceased's murder. At that point UCO-1 told the accused that she had "spoken to SUPPRESSED". UCO-1 also told the accused that SUPPRESSED. UCO-1 and the accused travel to SUPPRESSED 79The accused and UCO-1 travelled by car from Padstow to SUPPRESSED. As with all of the other conversations between the accused and UCO-1, the conversation which took place between them on the way to SUPPRESSED was recorded and a transcript of that conversation is before me in evidence. 80Significantly, that conversation included the following (at T 9): "UCO-1: Yeah. I think we need SUPPRESSED, Pat, don't you? Accused: Yeah, but I didn't, I didn't kill Billy." (my emphasis). 81Later (at T 15) the accused said: "They, they're giving me a chance. I didn't kill anyone. Now, they reckon I've killed someone, though, right? Well why did they just leave me there? (my emphasis). UCO-1: I've got no idea mate. I don't understand how they work. I don't know. I don't have a legal mind. I don't know what that does." 82As they reached SUPPRESSED UCO-1 said to the accused: "We'll ask him. All we can do is ask. SUPPRESSED." 83Upon arrival at SUPPRESSED, UCO-1 took the accused to meet UCO-2 in a room which was equipped with a recording device. The subsequent conversation between the accused and UCO-2 was monitored by Detectives Taylor and Stamoulis who were in the adjoining room. The DVD recording of that meeting, and the transcript of what was said, are in evidence before me. The accused meets with UCO-2 at SUPPRESSED 84At the commencement of the conversation with UCO-2, and as the accused sat down, the following was recorded: "Accused: Oh, this is like the psychologist's chair. UCO-1: Um, I went around to see Pat - - - UCO-2. Accused: Yeah. UCO-1: - - - cause we were going to catch up for a coffee today, right. UCO-2: Psychologists chair. Accused: Yeah. UCO-2: Yeah. Accused: I go to psychology. UCO-2: Do they do any good? Accused: No, no." 85The conversation proceeded with UCO-2 speaking to the accused about SUPPRESSED which had previously been the subject of discussion between the accused and UCO-1 (at T 5): "UCO-2: SUPPRESSED Accused: Oh, right. UCO-2: SUPPRESSED Accused: Ah hmm. UCO-2: Alright. Alright." 86It is appropriate to note at this stage that as he explained it, SUPPRESSED. Notwithstanding the somewhat basic terms in which that was explained, it is evident that the accused, initially at least, fundamentally misunderstood what was being asked of her. In particular, and despite no such request having been made, she apparently understood SUPPRESSED. So much is evident from the following conversation which followed: "Accused: SUPPRESSED UCO-2: SUPPRESSED me. Accused: SUPPRESSED UCO-2: SUPPRESSED (INTERFERENCE) Accused: Oh, got you." 87It was not until UCO-2 explained it again that the accused expressed a clear understanding SUPPRESSED 88The conversation between the accused and UCO-2 then moved to the subject of the murder of the deceased. UCO-2 explained to the accused that SUPPRESSED "UCO-2: SUPPRESSED Accused: SUPPRESSED UCO-2: SUPPRESSED Accused: Oh, what. UCO-2: SUPPRESSED 89At that point of the conversation the accused interrupted UCO-2 and stated: "I didn't kill Billy". (my emphasis) 90Following that interjection, UCO-2 continued: "UCO-2: SUPPRESSED 91UCO-2 then SUPPRESSED: SUPPRESSED 92The accused then made reference to various events on the evening of the deceased's death and told UCO-2 (inter alia) that she found the deceased in the bedroom of his premises. Those statements made by the accused were entirely exculpatory. This seemingly prompted UCO-2 to interject and say to the accused: "UCO-2: SUPPRESSED 93SUPPRESSED 94At that point the accused interjected and said: "Billy and I have never hurt each other" (my emphasis) 95I should note that the statement made by the accused in [94] is not fully transcribed. The transcript records the words "Billy and I" and then records the word "interference". However, having listened to the recording carefully on a number of occasions, I am satisfied that the words that were said by the accused at that time were as I have recorded them. 96At that point, UCO-2 continued: SUPPRESSED 97The accused said: "Yeah. But what, I didn't stab him" (my emphasis). 98UCO-2 continued: SUPPRESSED 99At this point the accused interrupted and said: "I can't say I stabbed a person when I didn't" (my emphasis). 100The conversation then continued with the following exchange: "UCO-2: Here's the big one, OK. Forgive me for saying this, but dead men tell, tell no lies. Accused: Hm. UCO-2: Ok. Accused: I've heard that story. UCO-2: SUPPRESSED Accused: I didn't even know what the - - - UCO-2: Well anyway, I'll finish. So - - - Accused: I don't know how many times he was, how many times was he - - - UCO-2: SUPPRESSED Accused: Right." 101UCO-2 then reiterated to the accused that he required SUPPRESSED SUPPRESSED 102The accused then proceeded to give an account of the events of the evening. She told UCO-2 that the deceased had gone to bed and at that time he was "alright". At that point the following ensued: "UCO-2: Are you, are you going to tell me that you didn't stab him? Accused: He went to bed, Billy did go to bed. Can I talk? UCO-2: Yeah, you can, SUPPRESSED Accused: Do you want me to talk? UCO-2: SUPPRESSED Accused: Billy did go to bed." 103The accused then explained that she left the deceased's premises and went to Baston's premises. She then explained what happened when she left: "Accused: Right. So I went "I'm going home now, ok". I shut door before I go, went on my way out. When I got there he was, he, this was this mmm, mmm, he was crunched on, he was crunched up to here like, may I? UCO-2: Listen, listen. Accused: And he's like that. UCO-2: Yeah. Accused: So someone - - - UCO-2: Ok. Now stop there, stop there. SUPPRESSED Accused: Yeah. UCO-2: SUPPRESSED Accused: Yeah. UCO-2: I like the sound of you, I, I like that you can handle yourself and I like that you're older and, that you trust us, UCO-1 trusts you, all that sort of thing, alright. Accused: Yeah. UCO-2: SUPPRESSED Accused: Right UCO-2: SUPPRESSED Accused: Ah hmm UCO-2: SUPPRESSED Accused: That's want me to take clothes. UCO-2: Yeah. So - - - Accused: I don't want to take clothes - - - UCO-2: SUPPRESSED 104UCO-2 then continued: "UCO-2: SUPPRESSED Accused: It was in, in the abdomen they said (my emphasis). UCO-2: SUPPRESSED 105At that point the accused said: "Ok. We'd had a little bit, alright, little bit of an argument." 106When asked by UCO-2 to tell him what she did the accused said: 'Billy, I don't want to do this, its going to kill me to do this, but I've had it'. 107At that point the accused demonstrated a blow in a downwards direction with her hands clasped. 108The accused then explained how she telephoned 000 and the following exchange took place between her and UCO-2: Accused: Yeah. He got out. UCO-2: He got out of bed? Accused: Yeah. UCO-2: What, after you stabbed him? Accused: That's what I'm talking about. 109It will be evident from the extracts of the conversation between the accused and UCO-2 set out above that the accused denied, on a number of occasions, killing the deceased. On each of those occasions, SUPPRESSED. He also told her that he did not believe her denials that she had killed the deceased. 110UCO-2 SUPPRESSED. For example he said (commencing at T28): "He's laying in bed, you lay next to him, you've got a knife hidden under your pillow just in case, you're rowing, you're rowing. He turns around and says "Fuck you" grabs the knife and comes at you. You grab it so you're laying here, you grab his hand, look at me. You grab his hand as it comes over you, he's, he's old, he's pissed, he's not real strong. You've, he's got the knife coming down at you like this, stabbing down and you've got, you've got a knife - - - Accused: Well it wouldn't be the first time he come at me. UCO-2: Exactly. And then you just go like this. Accused: Yeah, well - - - UCO-2: Hear me. You just go like this, woofa, whack, he stops it, he goes away, he drops the knife, you step back, you shit yourself. And you say that, you say 'I panicked, he dropped the knife'. You've curled up in a ball, like you said, so you grab his knife, you grab your knife, cleaned it off, you put them both back in the block and then you rang triple-0. And the reason that you - - - Accused: I didn't have 2 knives, I only had one. UCO-2: No, you had one, he has one. Accused: Oh, I got it" 111After further discussion about the scenario put by UCO-2, the following conversation took place (commencing at T31): "UCO-2: Well, what do you think about that? SUPPRESSED Pretty simple. Accused: We'd be practising all night" 112There was then further discussion between UCO-2 and the accused, SUPPRESSED 113UCO-2 gave evidence before me and was cross examined about information he had been given about the accused prior to meeting with her. He was unable to recall whether he had been informed that the accused may be an alcoholic, and was similarly unable to recall whether he had been made aware of the accused having any psychological or psychiatric problems. In this regard, UCO-2 said (at T183 L28): "I'm may very well have been, but its three years ago, I can't recall" 114UCO-2 ultimately appeared to accept (commencing at T183 L33) that he had been given some information about the accused but could not recall any detail of it. The accused is arrested by police 115After a little over one hour of conversation with UCO-2, Detectives Taylor and Stamoulis, along with Constable Pigott, entered the room. The accused was cautioned and then arrested for the murder of the deceased. At that stage, the following conversation took place: "Accused: Yes, why did you use the bloke - - -want to know why I did it and set me up why?" Taylor: We'll talk about that back at the Police Station. Accused: He was telling me to lie, SUPPRESSED - - -How stupid could I have been - - - SUPPRESSED and where did UCO-1 go? (my emphasis) Taylor: We'll talk about it when we get back." The accused is taken to the Police Station 116The accused was then conveyed to the police station, where Detective Taylor had the following conversation with her: "Taylor: Patricia, I have just charged you with murder, do you understand that? Accused: Yeah, I knew that was going to happen. Taylor: Patricia is (sic) there any questions you wish to ask me at this stage? I know that you have spoken to Detective Sergeant Stamoulis . He informed me that you are unable to get a solicitor at this stage. If you still want to speak to us after you speak to a solicitor we can do that at another time. Accused: Phil, can you make sure my dogs are ok? Taylor: That is the least of your problems, do you understand that you have just been charged with the murder of Billy (William) Grant that occurred on or around the 12th February 2009? Accused: Phil, I know that. I was drunk when I did it, that's what I want to say. I did it when we were drunk. Taylor: Patricia, as I said we were formally interview you when you receive legal advice if that is what you still want. Is there anything else that you wish to ask me? Accused: Phil, you and Lauren looked after my dogs when I was in hospital last time, could you please go and see Kay Fowler at 9 School Parade and get the Animal Welfare League to look after my dogs. She will know what to do. Please don't get the RSPCA, just the Animal Welfare League. Taylor: Patricia, I will see what I can do, I have to go now. Is there anything else that I can do for you? Accused: Thanks, thank you Phil." 117In addition, the accused had a conversation with Detective Stamoulis which was in the following terms: "Stamoulis: Patricia, do you wish to partake in a record of interview? Accused: I was drunk when I did it, I don't remember. I want to speak to a lawyer". The Police attend upon the accused in custody 118On 1 March 2011 Detective Taylor in the company of Senior Constable Paff, went to the Metropolitan Remand Centre and spoke with the accused. On that occasion the following conversation took place: "Taylor: Patricia, we are here today to speak to you in relation to the murder of William Grant. Just after the arrest on 19 November 2010 you indicated that you wanted to speak to a solicitor before speaking to us. Have you spoken to a solicitor? Accused: Yes and she told me not to say anything. Taylor: Do you wish to participate in an electronic record of interview? Accused: I want to talk to you but I've been told by my solicitor not to say anything to you." 119There is a large body of medical evidence before me which bears upon the issue of the accused's cognitive impairment and which is necessarily relevant to the question of whether her admissions to police should be excluded, be it on the grounds of impropriety or unfairness. 120The majority of the experts who provided reports also gave oral evidence. It is appropriate that I deal with evidence of each of them individually. Dr Susan Pulman 121Dr Pulman, a Clinical and Forensic Neuropsychologist, was requested to carry out a neuropsychological assessment of the accused. She provided a report dated 11 October 2011. The initial recommendation for Dr Pulman's assessment had come from Dr Olav Nielssen, a Forensic Psychiatrist who also provided a report and gave evidence in the proceedings. 122Part of the history obtained by Dr Pulman was contained in medical records of the accused's general practitioner and treating psychologists. In this regard Dr Pulman reported: "A letter from Ms Gallagher's General Practitioner, Dr Odysseas Missiakos dated 21 March 2011 reported that she "suffered from cigarette induced asthma and alcoholism" and epilepsy. To his knowledge, (she) had stopped drinking alcohol in early 2010. At that time, she was referred to a psychologist, Robbie Kordian and commenced antidepressant medication to treat anxiety and depression. Progress reports from Robbie Kordian document that Ms Gallagher was seen for treatment between February and April 2010 for anger management and anxiety, interpersonal relationship skills, psycho education about alcohol relapse prevention, and alcohol abstinence maintenance. The reports noted that she had made some progress and her mood was stable; however she required further communication problem solving training, and (alcohol) relapse prevention." 123Dr Pulman noted that available records from Bankstown Hospital indicated multiple admissions of the accused between 2006 and 2009, and complaints by the accused of depression and intoxication. 124Dr Pulman also had access to Justice Health records from 2010. In this regard she reported: "Justice Health records from 2010 documented ongoing mental health issues on a background of head injury, alcohol related brain damage, asthma and grand mal epilepsy...They also reported (17 and 18 November 2010) a suicide attempt by hanging four weeks earlier. On 18 November 2010 it was reported that Ms Gallagher had impaired cognition including poor memory." 125Dr Pulman administered psychometric testing which demonstrated (inter alia) that the accused's overall level of intellectual functioning fell within the extremely low range, with her individual results falling below the first percentile (0.5). These results led Dr Pulman to conclude: "In summary, Ms Gallagher's performance on tests of executive functioning was well below average. Her verbal and nonverbal abstract reasoning skills were extremely low and borderline respectively. On a conceptual reasoning task her performance was impaired and she was extremely perseverative. Her mental flexibility was also impaired. Verbal fluency for letters and semantic categories was low average and borderline respectively. She showed some disinhibition and perseveration on these tasks. Her copy of a complex geometric figure was impaired, significantly affecting her recall of the figure after a short delay. She demonstrated a very rushed and haphazard approach, despite repeatedly being instructed to slow down and take her time." 126Ultimately, Dr Pulman expressed (inter alia) the following opinion: "On current neuropsychological testing, Ms Gallagher shows vast differences between her verbal and nonverbal abilities. Her nonverbal abilities, which are less affected by cultural and educational factors, suggest that her true intellectual ability is more likely to lie within the borderline range. Her verbal skills are significantly weaker, falling in the extremely low range. This is not unexpected given her poor educational and vocational background; however this discrepancy is considered unusual, possibly supporting her reports of learning difficulties and hearing problems. She also has severely impaired intentional abilities, significant executive dysfunction, including mental flexibility, conceptual and abstract reasoning, planning and organisation, disinhibition and perseveration. Her new learning and memory is also extremely low. Her processing speed, basic language, visuo spatial and visuo constructional skills remain relatively intact. Finally she endorses significantly elevated levels of depression, stress and anxiety at present." 127Dr Pulman gave evidence before me which included the following (commencing at T279 L24): "Q. In relation to Patricia Gallagher, what is your opinion as to the presence of any underlying brain injury which contributes to her condition? A. When I assessed her in 2011, I saw a pattern, a cognitive profile, which was consistent with a history of both repeated head injuries and the alcohol dependency, alcohol abuse. Alcohol abuse, particularly, given the deficits I observed in her memory, you find the hippocampus, which is an area of the brain which stores memory and is very susceptible to alcohol, you could find shrinkage of that area of the brain or sclerosis of the hippocampus area. And also, if you take the history of seizures on top of that, you are getting a threefold effect of brain injury, epilepsy, alcohol abuse which together would show impairments in memory. Then the traumatic injuries or the brain injuries would affect the front area of the brain, so we are talking about this area here, compared to the hippocampus, and that is where you find a much slower thought process, and when I interviewed her she was particularly her processing speed you could notice was slow, her thinking was slow. Just in conversation it was at a much reduced speed than what you would say was in the normal range. So both her presentation, from a clinical perspective and from the results of neuropsychological assessment, were consistent with a history of alcohol brain injury and epilepsy. Q. In relation to alcohol, long-term alcohol abuse can leave damage in the brain itself that is present even when alcohol isn't being consumed. Is that the case? A. Yes, alcohol dependency is highly variable. When somebody ceases consuming alcohol, some individuals recover very well, others show very limited recovery and others show virtually no recovery at all. It depends upon the individual, their own cognitive resilience and the extent of the alcohol use and, without knowing exactly how much alcohol was consumed over a period of years, it is difficult to say. ... Q. In her case, there may be indicated from the results some degree of damage to the brain due to years of alcohol abuse, is that right? A. Yes. Q. But on any account what is clear is there is significant damage to the frontal lobe area of her brain that is indicated by the results of your testing and other materials you have examined? A. Yes, and also by the MRI scan which I understand showed white matter changes in the frontal lobe of the brain, ischaemic changes." 128Dr Pulman expressed the opinion (commencing at T281 L2) that in 2009 and 2010 (i.e., during the period of the undercover operation in which the accused was meeting with UCO-1) the accused's level of impairment would have been in the vicinity of that which she had outlined in her report. In response to being asked whether the accused's impairments were such as would render her likely to be more easily led by others, Dr Pulman said (commencing at T281 L18): " When we look at the individual's higher order reasoning, they are less able to think through the options that are available to them when they are making decisions. They are less likely to think ahead of what could happen tomorrow. They are more than likely to think about the here and now. They are much more concrete in their thinking in the sense of not understanding the bigger picture and that was clear in police interviews. You can see at the very beginning of the process the concrete thinking. So having said that, there can be implications, whether that is being easily led, whether it is making easy decisions, whether it is making very disorganised thought processes, there could be a whole presentation around those sorts of reasoning abilities that were different from your typical, average person in the street." 129In cross-examination by the Crown, Dr Pulman's attention was drawn to the interviews in which the accused participated, the footage of which Dr Pulman had viewed. In this regard she said (commencing at T283 L5): "She digressed quite a lot during the DVDs that I watched. She would probably become because she wouldn't have insight into these difficulties, she wouldn't necessarily understand why she was being redirected, because she wouldn't see necessarily she was off topic. So with individuals like that, because of their quite poor insight, they get quite annoyed when you bring them back to topic because they think they are telling you something that is of interest, but it is not really necessarily of interest so when you try to bring them back to topic they can get quite irritated. I have noticed that from my years of experience. HIS HONOUR Q. Does the fact they are off topic reflect a lack of understanding of the question put or the topic A. It can be both but it is they really don't understand the point of the question because she also has very poor verbal abstract reasoning, so she can't understand the concept of what you are trying to get at, won't see the big picture, what is a theoretical or hypothetical question, won't necessarily understand that. So both poor insight and very poor verbal abstract reasoning would, in combination, get many people irritated. ... Q. Leaving aside the testing, did you detect some impediment and abstract reasoning in your interactions with her? A. Yes, because you have to be careful of the way you ask questions, you might have to word them slightly differently. They have to be very concrete, don't put too many points within a question, only ask one very clear, straightforward, succinct question like I could have said to her "for the purpose of this interview I know you are Patricia, but for the purpose of what we are doing now we need you to tell me what your name is". So there are different ways you would ask questions that, from my experience you know has that abstract reasoning difficulty. They are not necessarily trying to be difficult; they just don't understand your question. Q. Did you deliberately simplify the terms in which you conversed with her for that reason? A. Yes, for the interview I did, but when the testing is conducted, that is standardised and that is not changed. " Dr Olav Nielssen 130Dr Nielssen provided a report of 30 September 2011 following his examination of the accused. For the purposes of providing that report, Dr Nielssen had also viewed the DVD recordings of the interviews conducted by police with the accused. He described the answers given by the accused to questions asked of her on those occasions as "disorganised and digressive". 131Following his examination of the accused's mental state, Dr Nielssen reported (at page 5): "Her speech was quite disorganised and difficult to follow and she seemed to have trouble finding words and also in keeping to the topic of conversation, in a way that was consistent with damage to the frontal lobe of the brain. She denied ever experiencing symptoms of psychotic illness and no delusional believes (sic) were elicited, including any apparently delusional beliefs involving Mr Grant. Her attention and concentration were quite impaired as she was easily distracted and wandered from the point." 132Dr Nielssen diagnosed: (1)an alcohol dependence and abuse disorder; (2) a brain injury, both traumatic and alcohol related; and (3)epilepsy. 133His ultimate opinion included the following (at page 6): "The pattern of intellectual impairment was consistent with damage to the frontal lobes of the brain which influences planning, emotional regulation, social judgment and impulse control. At the time of the ERISP and during the recent interview Ms Gallagher was inappropriately cheerful, emotionally labile, and was disorganised in her speech in a way that was consistent with frontal lobe injury...Ms Gallagher was not thought to have a mental illness of a kind that might leave open the defence of mental illness. However, traumatic brain injury is an underlying condition that is likely to have resulted in impairment in Ms Gallagher's ability to control her actions, notwithstanding the effects of intoxication with alcohol, because her intoxication with alcohol would exacerbate the effects of her underlying brain injury." 134When called to give evidence, Dr Nielssen was asked to comment upon any particular aspects of the accused's mental state which he considered might render it more difficult for her to deal with official questioning. He said (commencing at T297 L29): " Well, I mean, having her brain injury or brain damage would make it more difficult to understand questions, to understand the thrust of questions, if you like, in an abstract way, possibly even recognising the exact significance of being questioned, but I will just make one other observation from her treating team was that Ms Gallagher has a propensity to confabulate, which is to fill in gaps in memory with made up information, which is very characteristic of people who have alcohol related dementia. Hence her answers might be quite unreliable" 135In cross-examination by the Crown, Dr Nielssen described (at T 298 line 19) the history provided by the accused as "very scattered" such that the impairment in her cognitive function was "obvious". He then gave the following further evidence in the course of cross examination by the Crown (commencing at T298 L25): "Q. When my learned friend was asking you questions you indicated that the most prominent symptom that you observed in the course of your examination of Ms Gallagher was her communication disorder, is that correct? A. Yes. Q. By that, communication disorder, can I take it that it means that her speech can be quite disorganised? A. That's correct, not finishing a sentence. Q. She has trouble finding words? A. That's right, using odd words, and I have given a couple of quotes of odd usages. Q. Did she find it difficult keeping on topic? A. Definitely. Q. She has difficulties with attention concentration which impacts on that ability to communicate? A. Yes. Q. That is very different to the ability to understand and appreciate what one is being asked, isn't it? A. Yes, although it is difficult to pursue a person's clear understanding if they are not keeping on the topic and confirming that they understood what you asked them but, yes, maybe her receptive language might have been a little better than her expressive language. Q. You told my friend in his evidence that alcohol exacerbates the symptoms that she displays as a consequence of this underlying disorder you found, is that right? A. Yes. Q. If she were to be questioned at a time when she hasn't been consuming alcohol, the symptoms would not manifest themselves to the degree they would if she had been consuming alcohol? A. Yes. Q. Therefore, her ability to communicate might be better, her ability to understand and appreciate what is being asked would be more acute? A. Than when affected by alcohol, yes." Dr John McMahon 136A report of Dr John McMahon, Clinical Psychologist, dated 30 March 2012 was tendered by the Crown, although Dr McMahon did not give oral evidence in the proceedings. Dr McMahon had been asked by the Director of Public Prosecutions to undertake a neuropsychological assessment of the accused. He conducted that assessment over a period of two days and diagnosed: (1)dementia; (2)an alcohol dependence disorder; (3)a sedative dependence disorder; (4)dependent and avoidant traits; (5)epilepsy; and (6)a brain injury. Dr Stephen Allnutt 137Dr Stephen Allnutt, Forensic Psychiatrist, provided three reports at the request of the Director of Public Prosecutions. The first of those reports was dated 1 March 2012 in which (in the context of expressing an opinion as to the fitness of the accused to stand trial) Dr Allnutt said: "...(she) seemed to become quite easily confused, suggesting she has learning difficulties; this became more apparent near the end of the interview when she seemed to have difficulty in understanding the consequences of a finding of guilty or not guilty requiring some degree of clarification on my part; while she appeared to understand this I have concerns about probable underlying cognitive impairments that would impact on her capacity to follow proceedings and thus engage adequately and qualitatively with counsel during the course of the trial." 138On 13 April 2012 Dr Allnutt provided a further report having had the benefit of reading that of Dr McMahon to which I previously referred. He noted that the contents of the report of Dr McMahon were consistent with the conclusions he had reached, and reaffirmed his opinion that the accused was unfit to stand trial. 139On 19 June 2013 Dr Allnutt provided a further report in which he recorded (inter alia) the following: "She believed that around the time of the alleged offending that she was taking Dilantin and Tegretol prescribed by her general practitioner; she said had been taking this medication since age 18 since, she was hit by a truck and developed epilepsy; she stated that alcohol sometimes would trigger seizures; she estimated these occurring "twice in a blue moon" and described seizures consistent with grand mal; her last episode of seizure before the alleged offending was about 12 months at Christmas time while in the shopping centre but said she could not be sure about this. She was also taking valium and serapax (both Benzodiazepines) which she was getting from friends at the time; by the time of the index incident she was taking about four tablets of between 10 and 20mg of valium as well as serapax two tablets a day; sometimes she was only taking valium and on other occasions she would take a combination of valium and serapax; she would take this medication in addition to Dilantin and Tegretol; she said that she had been taking the Benzodiazepines for about one year; she said when she took the combination of the Benzodiazepines and the anti-epileptic medication she would have "not a care in the world". 140Dr Allnutt also had access to the DVD footage of the accused's interviews with police. He described the accused in those interviews as having "demonstrated persistent cognitive difficulties in the absence of substances". 141Dr Allnutt's ultimate opinion included (inter alia) the following (at page 8 of his report): "In my opinion the defendant likely manifests underlying cognitive impairment secondary to chronic alcohol abuse, recurrent head injury with associated grand mal epilepsy; this has been demonstrated to be consistent with dementia on neuropsychological testing." 142When called to give evidence, Dr Allnutt said (commencing at T265 L17) that there was evidence of disorganisation in the accused's thought processes, leading to a diminution in her capacity to comprehend. He went on to explain (at T265 L36 and following) that although he was able to interact with the accused, her answers to questions were not always appropriate, leading to the quality of such interaction being (as Dr Allnutt described at it) "somewhat disorganised". 143When asked whether the inappropriate nature of some of her responses to questions asked of her may have been reflective of a lack of understanding of the questions asked, Dr Allnutt said (at T266 L4): " I don't think it was necessarily the lack of understanding of the questions asked, no. I think look, my memory doesn't give me that impression, my impression is that her responses however, in other words the way she formed her responses to me was pathological and indicative of disorganised thought processes but she probably had capacity to understand questions and I note she was able to be redirected in the interview so that would indicate the capacity to understand the questions." 144Dr Allnutt went on to express the view (commencing at T267 L25) that the accused's diminution in cognitive ability was evident upon objective observation. When asked whether there was evidence of disorganised thought processes he said (at T267 L29): "I thought disorganised thought processes and that seems to be consistent, it is not just my subjective view, it was an impression I had when I saw her, which is why we found her unfit. Two neuropsychologists tested her to show she had underlying condition. If you have cognitive problems in brain damage, alcohol and substances can compound that. That was my reasoning in this case". 145Dr Allnutt confirmed that there was evidence of damage to the frontal lobe area of the accused's brain which he thought could be consistent with head injuries and a history of substance abuse, including alcohol abuse. He agreed that on the assumption that Dr Pulman's test results and opinions were accurate, a person with that level of disability could be more easily led, or could have a propensity to be more easily led, than those who did not similarly suffer, although he added that this was not the impression that he formed in the present case. In re-examination, when confirming the existence of brain damage, Dr Allnutt said (at T274 L11 and following): "Let me just say my conclusion of brain damage is based on the neuropsychological assessment, and to the extent to which that is accurate and valid, that would then indicate organic brain damage in broad terms, it means biological damage to brain function and structure." The relevant statutory provisions 146Counsel for the accused relied upon two statutory provisions in support of his application that the accused's admissions be excluded. The first was s. 138 of the EA which provides as follows: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 147The second was s. 90 of the EA which provides 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. 148I will deal with each of these provisions, and the submissions made by the parties in relation to them, separately. The submissions of the parties - exclusion under s. 138 149Mr Austin submitted that I would be satisfied that there had been impropriety on the part of the police in obtaining the accused's admissions and that, having reached that conclusion, I would further conclude that the various factors in s. 138(3) of the EA weighed in favour of the exclusion of the evidence. He submitted that for the purposes of determining whether the evidence ought be excluded (be it pursuant to s. 90 or s. 138) there were no differentiating factors between the accused's admissions to UCO-2 and those subsequently made to Detectives Taylor and Stamboulis, such that they should, in effect, be treated together. 150In terms of impropriety, Mr Austin submitted that I would conclude that the police were aware from an early stage of the investigation that the accused suffered from some form of intellectual impairment. He submitted that the relevant impropriety stemmed from the fact that, seized of such knowledge, the police implemented, and persevered with, an undercover operation, in circumstances where they gave no, or no proper, consideration to the accused's mental state. 151As I understood it, Mr Austin submitted that the impropriety became more significant as the operation progressed. This submission was put on the basis that as UCO-1's interaction with the accused increased over time, the police necessarily had an increasingly greater awareness and appreciation of the accused's impaired intellectual capacity. The thrust of Mr Austin's submission was that in these circumstances the police should have terminated the undercover operation. 152Mr Austin argued that impropriety on the part of the police was further demonstrated by the nature of the interrogation to which she was subjected by UCO-2 at SUPPRESSED. In developing this argument, Mr Austin submitted that it must have been evident to police by that time that the accused suffered from some form of mental disability, yet she was subjected to what he described as a "process of interrogation" in which she was unreasonably pressured to confess to the deceased's murder. He pointed out that in the course of such a process, the accused had steadfastly denied to UCO-2 (as well as to UCO-1 on the way to the SUPPRESSED) that she was responsible for the deceased's murder. He pointed out that in response to those denials, UCO-2 threatened to withdraw (inter alia) SUPPRESSED and repeatedly urged her to tell the truth. In this regard, Mr Austin called in aid the provisions of s. 85 of the EA. Although he did not suggest that those provisions were directly applicable to the present case, he submitted that the accused's mental state was illustrative of the vulnerability to which that section was directed. 153Mr Austin then addressed the factors contained in s. 138(3). In doing so he accepted, as I understood it, that the importance of the evidence (s. 138(3)(b)) and the seriousness of the offence (s. 138(3)(c)) were factors which weighed in favour of the admission of the evidence. 154However, in terms of its probative value (s. 138(3)(a)) Mr Austin submitted that the evidence should be regarded as unreliable. Such unreliability arose, it was submitted, primarily from the accused's mental state, although Mr Austin also relied upon the form of UCO-2's questioning of the accused. 155In terms of ss. 138(3)(d) and (e), Mr Austin did not submit that the impropriety upon which he relied was deliberate, in the sense that the police, knowing of aspects of the accused's mental condition, made a deliberate and conscious decision to exploit it or take advantage of her. However, Mr Austin submitted that the impropriety upon which he relied was at least reckless. That recklessness, he submitted, was reflected in the fact that the police were on notice of the general nature of the accused's mental state but nevertheless proceeded with the undercover operation in the circumstances which I have described. 156The Crown did not argue against the proposition that the admissions made by the accused to UCO-2 and later to Detectives Taylor and Stamboulis should be effectively be dealt with as one. The Crown submitted that in light of the submissions advanced on behalf of the accused, the question of impropriety was to be determined having regard to: (i)the nature of the accused's mental state; (ii)the extent of the knowledge of police as to that mental state; and (iii)whether having regard to that knowledge, the police made a conscious decision to take advantage of the accused in that respect. 157As to the first of those matters, the Crown accepted that there was a body of expert evidence which supported the conclusion that the accused was cognitively impaired. However, the Crown placed particular reliance upon Dr Allnutt's rejection of the proposition that the accused's cognitive deficits rendered her likely to be more easily led by others. The Crown also relied upon the evidence that the accused had some capacity to understand questions put to her, albeit a diminished capacity. 158The Crown also pointed to the fact that there was no suggestion that the accused had consumed alcohol prior to meeting with UCO-2. In this regard, the Crown relied upon the evidence of Dr Nielssen (in [134] above) that the accused's ability to communicate was greater when she had not been drinking. 159As to the second matter, the Crown accepted that it was open to me to take into account the accused's demeanour in the two recorded interviews in which she participated with the police when considering the issue of the extent to which the police were aware of the accused's condition. The Crown conceded that there was "no question" that the accused's demeanour and presentation in those interviews was consistent with the existence of some form of cognitive deficit. 160In these circumstances, the Crown conceded that it was open to me to conclude that the police knew to "some degree" that they were dealing with a person who had some form of intellectual impairment. In this regard, the Crown made specific reference to the evidence of Detective O'Toole and conceded that it would be open to me to conclude that there was "some interaction" between Detective O'Toole and UCO-1, as a result of which they both understood that the accused had some form of cognitive impairment. Notwithstanding these concessions, the Crown did not accept the thrust of the submission made on behalf of the accused that these circumstances effectively gave rise to some obligation on the part of the police to cease the controlled operation. However, no submission was advanced as to what responsibilities did fall upon the police in those circumstances. 161As to the third matter, the Crown submitted, with some force, that there was no evidence upon which it would be open to me to conclude that the police, seized with some knowledge of the accused's mental state, deliberately set out to exploit that circumstance or take advantage of the accused in some related way. The Crown submitted that the accused's responses to the questions put by UCO-2 exhibited "a degree of astuteness" and that although her answers may not have been "delivered in a sophisticated or cultural way", there was "an understanding of what had been put to her and the situation she was in". In all of these circumstances, the Crown submitted that I would not find that there was impropriety on the part of the police. 162In advancing the submission that I would not be satisfied that there was any impropriety within the meaning of s. 138, the Crown relied, in particular, on the decision of Basten JA in Robinson v Woolworths Limited trading as Woolworths Plus Petrol Werrington (2005) 64 NSWLR 612; (2005) 227 ALR 353; (2005) 158 A Crim R 546; [2005] NSWCCA 426. The Crown submitted that the mere fact that the accused had some mental incapacity which was known to police would not, of itself, be sufficient to demonstrate impropriety, and that the decision of the police to implement an undercover operation needed to be balanced against (inter alia) the serious nature of the offence and the responsibilities of the police to investigate it. However, having made that submission, the Crown also said (commencing at T333 L34): "... and when one puts all that together, I wouldn't say it was improper. There may be doubts as to whether it was an appropriate course in all the circumstances to take, and the courts may perhaps say something to caution police about taking such a course in circumstances where they haven't informed themselves fully of the cognitive impairments of a particular individual". 163Finally, the Crown submitted that the mere fact that the undercover operation involved deception did not, of itself, support a conclusion of impropriety. In this regard, the Crown sought to draw some comparison between the facts of this case and those considered by the High Court in Tofilau and ors v R (2007) 231 CLR 396; [2007] HCA 39. 164In respect of the provisions of s. 138(3) the Crown submitted that: (i)the probative value of the evidence was high (s. 138(3)(a)); (ii)the evidence was important in the proceedings (s. 138(3)(b)); (iii)the alleged offence was obviously a serious one (s. 138(3)(c)); and (iv)the gravity of any impropriety, if found, would fall at the lower end of the scale(s. 138(3)(d)) and would not be regarded as deliberate or reckless (s. 138(3)(e)). 165Further, and bearing in mind that the considerations that the court may take into account are not limited to those set out in s. 138(3), the Crown submitted that there was no evidence that the accused held any delusional beliefs. It followed, he submitted, that her evidence should therefore be regarded as cogent and reliable. CONSIDERATION AND CONCLUSION General principles governing s. 138 166Before considering the submissions of the parties it is necessary to set out some principles which guide the application of s. 138. 167The onus is on the party seeking exclusion of the evidence (in the present case the accused) to establish that the evidence was improperly or illegally obtained. If that is established, it is then for the party seeking to have the evidence admitted (in this case, the Crown) to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, having regard to the way in which it was obtained (see generally R v Eade (2000) 118 A Crim R 449; [2000] NSWCCA 369). 168It is therefore not appropriate to speak of a discretion to exclude the evidence. Section 138 requires me to exercise a discretion to admit the evidence, notwithstanding some impropriety or illegality. However, the onus remains upon the accused in the present case to establish the impropriety or illegality before any onus is placed upon the Crown to persuade me that the evidence should nevertheless be admitted (see generally R v Coulstock (1998) 99 A Crim R 143). 169It is also necessary to bear in mind that a finding that evidence was obtained as a consequence of some impropriety is a serious and significant one. In this regard Howie J in R v Cornwell (2003) 57 NSWLR 82 said (at [87]-[88]) said: "I am of the view that, otherwise than when subs 138(2) or s 139 apply, the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect." 170Subsequently in Director of Public Prosecutions v AM (2006) 161 A Crim R 219; [2006] NSWSC 348, Hall J (at [45]) said: "As Howie, J. stated in Cornwell at 87, an imperfection or defect in procedures utilised by law enforcement officers will not necessarily equate to impropriety within the meaning of s.138 of the Evidence Act. Similarly, in my opinion, not all inappropriate conduct of a law enforcement officer will necessarily be improper with the meaning of that term in s.138(1)(a)." Impropriety in the context of s. 138 171In Robinson (supra), Basten JA specifically considered the concept of impropriety in the context of s.138. His Honour said (at [23]): "It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases, the joint judgment in Ridgway (at 39) referred to offences being procured or induced." 172His Honour went on to say (at [36]): "These principles should inform the determination of a court as to what constitutes "improperly" obtained evidence or "impropriety" for the purposes of s 138. In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety. [37] Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement': Ridgway (at 36). Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject... The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion." 173His Honour's references to Ridgway were references to the decision of the High Court in Ridgway v R (1984) 184 CLR 19, a case decided prior to the enactment of the EA. In that case, Mason CJ, Deane J and Dawson J observed (at page 37) that: "...the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances." 174Their Honours in Ridgway also acknowledged that effective investigation by police may involve subterfuge and deceit, and may extend to the intentional creation of opportunities for the commission, by a suspect, of a criminal offence. They also acknowledged that a finding that law enforcement officers had engaged in clearly improper conduct would not suffice, of itself, to give rise to the discretion to exclude evidence of the alleged offences. They also accepted that deceptive tactics which did not involve illegal conduct will ordinarily be legitimate. In Robinson (supra) it was determined that these principles should be applied to s. 138 when considering whether particular events constituted an impropriety (see Fleming v R [2009] NSWCCA 233 at [17] per McClellan CJ at CL (as his Honour then was). Analysis of the medical evidence 175In considering the medical evidence, it should be noted at the outset that although the various examinations of the accused were conducted after her arrest, there was no suggestion that her mental state at that time was different to what it was at the time of the deceased's death, or during the period of the controlled operation. As I have noted (at [128] above) this issue was specifically addressed by Dr Pulman. 176In my view, when the medical evidence is closely analysed, there is little or no difference in the opinions expressed by the various experts concerning the accused's mental state. Based on those opinions, I am satisfied that during 2009 and 2010 the accused was suffering from (inter alia) brain damage, an alcohol dependence disorder, dementia and epilepsy. 177I am further satisfied that as a consequence of these conditions, the accused was cognitively impaired and had a reduced level of intellectual functioning. It may well be, as Dr Nielssen properly conceded in cross-examination, that the accused's ability to communicate was better in the absence of being affected by alcohol. However, that does not convert to the proposition that in the absence of consuming alcohol, she was not impaired at all. As Dr Allnutt pointed out (at [140] above) the accused's cognitive difficulties were apparent and persistent, even in the absence of substances. 178I am satisfied on the evidence that the accused's cognitive difficulties manifested themselves in a number of ways. In particular her thought processes were impaired, in the sense that they were slowed and disorganised. That, in turn, affected her ability to properly and effectively communicate, and led to a diminution in her capacity to comprehend. As a consequence of her underlying conditions, she had a propensity to become easily confused. 179To the extent that there was any difference at all in the opinions expressed by the experts, it concerned the issue of the capacity of the accused to understand questions which were put to her, as well as the related issue of whether or not she might be prone to being "easily led". 180Dr Nielssen expressed the opinion that the accused's brain injury would have rendered it more difficult for her to understand the "thrust" of questions which were put to her, to the point of possibly not understanding the significance of being questioned at all. However, he conceded in cross-examination that at least some of the accused's communication difficulties were distinguishable from, and different to, an inability to understand a question which was put to her. 181Dr Allnutt thought that the accused "probably" had the capacity to understand questions put to her. He did not form the impression that her various mental impairments led to a propensity for her to be more easily led than might otherwise have been the case. However, as I have set out (at [142]) Dr Allnutt also thought that the level of disorganisation in the accused's thought process resulted in a diminution of her capacity to comprehend. 182I am not satisfied that the evidence establishes that the accused had a propensity to be more easily led in the sense suggested in the cross- examination of Dr Allnutt by counsel for the accused. I am satisfied that the accused had some capacity to understand questions put to her. However I am also satisfied that as a result of her cognitive and intellectual impairments, her capacity in that regard was diminished. 183Moreover, the fact that the accused may have had some capacity to comprehend questions does not lead to the conclusion that her answers to those questions were responsive or, more importantly, reliable. Dr Pulman expressed the view (in [124] above) that a "three fold effect" of brain injury, epilepsy and alcohol abuse would lead to an impairment of memory. Dr McMahon diagnosed the accused as suffering from dementia. As I have noted, there was no submission made that any of the conditions from which the accused was diagnosed as suffering did not exist in 2009 and 2010. 184Bearing in mind the findings of Dr Pulman, and the diagnoses of Dr McMahon, it is relevant to note that Dr Nielssen (at [134]) referred to the accused's team of treating practitioners having concluded that she had a propensity to confabulate, or as he put it, to "fill in gaps in memory with made up information". He described this as being "very characteristic of people who have alcohol related dementia". In the opinion of Dr Nielssen this had the capacity to render any answers given by the accused to questions put to her "quite unreliable". Dr Nielssen's opinion in this regard was not the subject of any challenge in cross-examination, nor was any contrary opinion expressed by any other expert who gave evidence in the proceedings. 185In these circumstances, I accept Dr Nielssen's opinion. It follows that even if it is accepted that the accused had some capacity to understand questions put to her, her answers to those questions may nevertheless have been unreliable as a consequence of her intellectual impairments. Is impropriety established? 186One of the fundamental bases of Mr Austin's submissions was the proposition that the police involved in the investigation knew, at least in general terms, of the accused's mental state and that their knowledge increased over time, such increase being generally commensurate with the degree of contact between the accused and UCO-1. In fairness to the police involved, it is important to recognise that they obviously did not have available to them the body of expert medical evidence which is before me and which I have summarised above. However notwithstanding that, I am satisfied that a number of the officers involved in the investigation were aware, at least in general terms, of the fact that the accused suffered from some form of cognitive impairment or intellectual deficit. 187As I have noted, part of the evidence which the Crown conceded was available to me in order to consider the extent of the knowledge of the police of the accused's mental condition was the DVD footage of the two interviews conducted with her on 12 February 2009 and 30 March 2009 respectively. The first of those interviews was of approximately three hours duration, and the second approximately five hours duration. The footage of both of those interviews was played in the proceedings before me and I have reviewed it for the purposes of preparing this judgment. 188The first interview was conducted within a matter of hours of the deceased's death. At the conclusion of the interview, when informed that the deceased had died, the accused became visibly distraught. However, even prior to that time, her demeanour was overly animated. In my observation she was, generally speaking, discursive in her answers to questions, often to the point of giving an answer which was unresponsive to the question asked. My impressions of her presentation on that occasion are generally consistent with the medical evidence I have summarised above. 189Had the evidence of interviews between the accused and the police been limited to that which was conducted on 12 February 2009, it may have been possible to explain the accused's demeanour by factors such as the early hour of the day at which the interview took place, along with the fact that it was concluded only a matter of hours after the deceased had been taken to hospital by ambulance. However, the accused's presentation in the second interview was, generally speaking, the same as it had been in the first. 190Detective Taylor, who is the officer in charge of the matter, was not only present at the second interview, he was the principal questioner. As such, he was responsible for putting the vast majority of questions to the accused. This, in my view, rendered him particularly well placed to make observations of the accused's presentation. 191I accept that Detective Taylor does not have any professional expertise or qualification which enables him to diagnose a psychiatric or psychological condition. However in my view, the accused's presentation in both interviews with police was such as to make it evident that, at the very least, she had difficulty in concentrating upon, and responding to, questions which were put to her. In his capacity of what might be described as the principal questioner in the second of the two interviews, I am satisfied that Detective Taylor was aware of those matters and that it was in those circumstances that he put the necessary steps in place to facilitate an undercover operation. 192To the extent that Detective Taylor may have been in any doubt about the accused's mental state, I am satisfied that the fact that she suffered from some impairment would have been apparent to him as the operation progressed, and as she had greater contact with UCO-1. It is inconceivable that as the officer in charge of the case (albeit not the manager of the undercover operation) Detective Taylor would not have been in contact, and discussed aspects of the investigation, with UCO-1 and Detective O'Toole. Although this issue was not the subject of specific cross-examination it would, in my view, be fanciful to suggest that such discussions did not take place, and that they did not include references to the accused's mental state. This is particularly so in circumstances where firstly, aspects of the accused's psychological state had been the subject of discussion between the accused and UCO-1 and secondly, where Detective O'Toole considered it appropriate to obtain advice from a Psychologist as to how to go about forging a relationship with the accused, whom he described as "different". 193I am also satisfied that UCO-1 was aware of the fact that the accused had some form of cognitive difficulty. In particular, I am satisfied that UCO-1 was aware of the fact that the accused was attending Alcoholics Anonymous, that she was under some form of medical treatment, that she had been prescribed some form of medication, and that she was unstable, to the point where she had been having thoughts of suicide. Her knowledge of those matters came directly from her discussions with the accused. I do not accept UCO-1's evidence that she was unaware of the fact that the accused had a problem with alcohol. Such an assertion simply flies in the face of the terms of some of her conversations with the accused. 194Further, and particularly in light of the content of such discussions, I do not accept that UCO-1 did not observe anything about the accused which was suggestive of a psychological impairment. I have already commented upon the accused's presentation when interviewed by police, as depicted on the DVD footage. There is no reason to conclude that the accused's demeanour when she met with UCO-1 was any different to what it was when she was interviewed. Whilst I do not have similar footage of the meetings between the accused and UCO-1, the transcripts of what was said on those occasions by the accused would tend to suggest that her presentation was precisely the same as it had been when interviewed by police. UCO-1, of course, was not only able to observe such presentation. She was able to do so in the context of what the accused was telling her about her personal circumstances. 195In answer to some questions which were put to her in cross examination, UCO-1 explained that her inability to recall aspects of the accused's presentation was due to the fact that she had not reviewed the transcripts of her conversations with the accused prior to giving evidence. Given the importance of the issue to which her evidence related, that failure was, to say the least, unfortunate. The court is entitled to expect that a police officer who is on notice that he or she is required to give evidence will undertake the task of reviewing any necessary material before doing so. This is particularly so when the relevant events occurred some years before. 196I am satisfied that UCO-1 was in regular contact with Detective O'Toole in the course of the undercover operation. According to UCO-1, she did not raise, with Detective O'Toole, any issues regarding the accused's presentation at any time. It is clear from the evidence of Detective O'Toole, who, as I have said, impressed me as a frank and honest witness, that he became aware (at least in general terms) of the fact that UCO-1 was having difficulties forging a relationship with the accused which might result in admissions being made. On the evidence, the only person who was dealing with the accused directly at the time was UCO-1. As a matter of common sense, the information which caused Detective O'Toole to form the view that the accused was "different", and to seek professional assistance in relation to the best way in which to gain her confidence, emanated from UCO-1. For these reasons, I reject UCO-1's evidence that she did not raise, with Detective O'Toole, any issue stemming from the accused's presentation. I am satisfied that whatever the precise level of Detective O'Toole's knowledge of these matters might have been, UCO-1 was the primary source of it, and that it was sufficient to cause him to seek particular professional assistance on how to best advance the operation. 197For all of these reasons, I regard the various aspects of UCO-1's evidence to which I have referred as most unsatisfactory. 198The evidence of UCO-2 as to his knowledge of the accused's mental state was also unsatisfactory, albeit for a different reason. In short, his evidence in relation to this issue was vague in the extreme. As I have noted, he told the court that he "would" have been given information prior to meeting with the accused but could not remember any of the detail. Despite his inability to recall such detail, any suggestion that he would not have been given information as to those aspects of the accused's presentation which had a bearing upon the role that he was to play would be contrary to common sense. However, the evidence does not permit me to make a specific finding as to what he was told. 199It follows that I am satisfied that the members of the police investigative team were aware, to the extents that I have described, of the accused's psychological condition. I am also satisfied that their knowledge increased over the period of the operation, commensurate with the ongoing contact between the accused and UCO-1. However, and perhaps leaving aside the accused's alcoholism, I am not satisfied that the police were aware of the precise nature of the accused's condition, in the sense of being aware of a diagnosis. However, they were sufficiently aware of the general nature of it to decide that it was necessary to obtain guidance from a Psychologist in an effort to further the operation, and preserve its integrity. 200It was in such circumstances that a decision was made to implement, and importantly to continue, the undercover operation. There is no evidence that either Detective Taylor, as the officer in charge, or Detective O'Toole, as the manager of the undercover operation, turned their respective minds to the question of whether or not it was appropriate to implement, or continue, the operation in light of the accused's cognitive difficulties as they were aware of them. Given the decision which was made to seek the assistance of a Psychologist, I am satisfied that the principal objective of the police was to continue the operation with a view to achieving its objective, namely to obtain admissions from the accused. I am satisfied that neither Detective Taylor nor Detective O'Toole considered the question of whether the operation should cease in view of the accused's psychological state. 201In terms of the questioning by UCO-2 at SUPPRESSED, I do not accept that Mr Austin's description of it being in the nature of an "interrogation" is necessarily an accurate one. Moreover, the fact that some of the circumstances which prevailed might fall within the provisions of s. 85 of the EA is really not to the point, given that no application was made under that section for the exclusion of the evidence. 202Perhaps the more significant factor, as the Crown submitted, is that the evidence does not support a finding that any of the officers involved in the investigation consciously made a decision to take advantage of the accused, or to exploit her mental state, with a view to obtaining admissions from her. No such suggestion was even vaguely explored in cross-examination, much less put directly to any of the police who gave evidence. 203This is a case in which the police simply did not turn their minds to the question of whether an undercover operation should be implemented at all, or the associated question of whether, it having been implemented, it should continue. In my view, whilst the situation might well have been different had they had no knowledge at all of the accused's mental state, the prevailing circumstances imposed, at the very minimum, an obligation upon the police to at least give consideration to the questions I have identified. Whilst I accept that their failures were inadvertent rather deliberate, they nevertheless constituted a breach of the minimum standard which the community is entitled to expect from those engaged in law enforcement. The implementation and continuation of an undercover operation targeting a person who was mentally ill at the time, in the absence of giving any, or any proper, consideration to that person's mental illness, is in my view, not something to be encouraged. 204All of that said however, the evidence does not establish that the police acted in any way unlawfully. I also accept the Crown's submission that the fact that the police may employ methods of deception in an undercover operation does not mean that their actions are improper (see generally Tofilau (supra)). Perhaps even more importantly, there is no evidence that a conscious decision was made to implement or continue the operation with a view to exploiting the accused, or taking advantage of her. 205Whilst there are, as I have said, aspects of this investigation which are not to be encouraged, I am not satisfied that impropriety has been established in terms of s. 138, in circumstances where the police did not act unlawfully and did not seek to take advantage of the accused's mental illness. In these circumstances I am not required to consider the provisions of s. 138(3). 206Whilst impropriety has not been established, it is another question entirely as to whether, in the circumstances I have described, the evidence of the accused's admissions should be excluded pursuant to s. 90 on the grounds of unfairness. It is that issue to which I now turn. Submissions of the parties - exclusion under s. 90 207Mr Austin firstly submitted that there was inherent unfairness in instigating and continuing an undercover operation directed to the accused when the police knew, or ought to have known, that the accused was suffering some form of mental illness. 208Secondly, he submitted that I would come to the view that the accused's admissions were unreliable. In this regard he relied upon the medical evidence and, in particular, on the evidence of Dr Nielssen (to which I have referred) as to the accused's tendency to confabulate. Mr Austin submitted that in light of that evidence, there was a very real possibility that the accused had no memory of the relevant event at all, and that her admissions to the police were simply an example of her filling the gap to compensate for her lack of memory. 209Thirdly, Mr Austin relied upon the nature of UCO-2's questioning of the accused at SUPPRESSED. He submitted that some "real pressure" was placed on the accused to admit to stabbing the deceased, such pressure emanating from UCO-2's repeated exhortations to the accused to be truthful, in circumstances where she repeatedly denied any wrongdoing. 210The Crown submitted that for the purposes of s. 90 the question to be determined was whether it would be unfair to the accused to use the evidence of the admissions. In this regard the Crown submitted that the fact that there was a covert recording of the conversation with UCO-2 did not establish unfairness, nor did the fact that the operation involved deception. In this latter respect the Crown again relied upon the decision in Tofilau (supra). The Crown also relied upon the decision in Tofilau in answer to Mr Austin's submission that the form of the conversation which had taken place between the accused and UCO-2 was unfair. SUPPRESSED in Tofilau, the High Court reaching the conclusion that the admissions by the accused in that case were nevertheless voluntary. 211The Crown further submitted that in the context of s.90, no unfairness arises from unreliability if a tribunal of fact is in a position to assess and evaluate the reliability of the admission. In support of that submission the Crown relied upon the decisions in R v Nelson [2004] NSWCCA 231; Riley v R [2011] NSWCCA 238. 212Finally, the Crown submitted that unlawfulness and impropriety were also relevant considerations in determining whether the evidence ought be excluded under s. 90. He submitted that I would find that there was neither impropriety nor unlawfulness on the part of the police in the present case. CONSIDERATION AND CONCLUSION 213In Em v R (2007) 232 CLR 67 Gleeson CJ and Heydon J (at [56]) observed that the language in s. 90 is so general that it would not be possible, in any particular case, to mark out the full extent of the meaning of the section. Their Honours also observed that the application of the section was likely to be highly fact-specific, such that the result would turn on the facts of the particular case under consideration. They further observed (at [63]) that the onus of establishing unfairness under s. 90 lies upon the accused. 214In the same case Gummow and Hayne JJ (at [107]) noted that whilst the section requires that regard be had to the circumstances in which the admissions were made, it is the use of the evidence at the trial which must be characterised as unfair in order to support its exclusion under the section. Their Honours also observed (at [72]) that reliability of evidence is a factor affecting the fairness of its use, although it is not exclusive (see R v Swaffield; R v Pavic (1998) 192 CLR 159 at 197; [78] per Toohey, Gaudron and Gummow JJ). 215Gummow and Hayne JJ also pointed out in Tofilau (supra) (at 423; [68]) that aside from reliability, other forms of disadvantage may arise in a situation such as the present, but that the chief focus remains upon the fairness of the use of the evidence, as opposed to any purpose of disciplining police or controlling their investigative methods. 216Just as the fact that deception is employed by law enforcement agencies to detect the commission of a crime does not, of itself, evidence impropriety, it similarly does not, of itself, lead to the conclusion that there will be unfairness in the use of any admission so obtained. In Swaffield (supra) Brennan CJ observed (at 185; [35]) (citations omitted): "The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of opportunity to invent plausible falsehoods". 217As I have noted, the Crown placed particular reliance upon the decision in Tofilau (supra) to support the submission that there was no unfairness in the use of the admissions made by the accused. In that case, undercover police had posed as criminals and had told a murder suspect that in order to join their gang to participate (and profit from) their activities, he was required to tell their boss about his involvement in a murder. He was also told that if he did so, their boss could make his problems "go away". The initial denials by the accused were met with insistence on the part of the police upon the need to tell the truth. Ultimately, a confession was made by the accused and an issue arose as to whether it was to be regarded as voluntary. The High Court concluded that the deception which was practiced did not render the statements involuntary. 218SUPPRESSED. This was, at least in part, the basis upon which the Crown submitted that the admissions in the present case should not be excluded under s. 90. 219SUPPRESSED Tofilau does not, however, inevitably lead to the conclusion that the result must be the same in terms of the admission of the evidence. In Knight v Maclean [2002] NSWCA 14 Heydon JA (as his Honour then was) observed (at [61]) that it was "tempting but erroneous" to compare closely the facts of cases decided in the past with the facts of the case calling for decision. His Honour went on to observe: "In Tidy v Battman [1934] 1 KB 319 at 322, Lord Wright said: 'It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts'. In Teubner v Humble (1963) 108 CLR 491 at 503 Windeyer J said: 'Decisions on the facts of one case do not really aid the determination of another case. Observations made in the course of deciding issues of fact ought not to be treated as laying down rules of law' ... " 220Whilst his Honour's observations were made in the context of common law proceedings involving allegations of negligence on the part of a driver towards a pedestrian they are, in my view, of universal application. Indeed, they are of particular significance in a case such as this where, as I have observed, the question of exclusion pursuant to s. 90 will be highly fact specific. 221The use of deception in the present case was not, in my view, productive of unfairness. To that extent, the decision in Tofilau provides some support for the Crown's position. However, there is an important circumstance which distinguishes the facts of the present case with those considered in Tofilau, namely that the accused in this case was cognitively impaired at the relevant time. It is that particular circumstance upon which Mr Austin primarily relies as giving rise to the unreliability of the admissions. He relies, in turn, upon that unreliability in support of his submission that the use of the evidence would be unfair. 222As I have previously noted, the Crown submitted that there is no unfairness in the context of s. 90 if the circumstances are such that the tribunal of fact is in a position to assess and evaluate the reliability of the admission which is made. For present purposes, I obviously constitute the tribunal of fact. 223In Nelson (supra), which was the first of two authorities relied upon by the Crown in this regard, exclusion of an admission had been sought on the basis that at the time that it was made the appellant was (inter alia) drunk and in shock, in circumstances where she had been involved in a serious car accident and had become aware that her child was badly injured. The Court rejected the proposition that the trial judge had erred in not excluding the admission pursuant to s. 90. 224Grove J (at [19]), having referred to the decision in Swaffield (supra), noted that the concept of unfairness is lacking in precision and necessarily involves an evaluation of all of the relevant circumstances. His Honour concluded that on the facts and circumstances of that case, there was little, if anything, arising out of the appellant's emotional state to suggest that her statement might be unreliable. 225Sperling J said (at [55]): "Insofar as the relevant statement was made when (the appellant) was distressed, that was a factor which the jury was well able to assess and evaluate in weighing the exercise of statements made by the appellant shortly after the accident. The appellant's intoxicated state is also relied upon in the appeal as a further reason for it being unfair to the appellant for the evidence to be used against her. That also was a factor which the jury was well able to take into account". 226The second authority relied upon by the Crown in this regard was Riley (supra). In that case, the appellant asserted that the trial judge had erred in admitting into evidence a document which was described (at [50]) as a "narrative of the appellant's problems (which was) centred very much on chronic depression throughout his life". There was evidence that the appellant had suffered from chronic depression from time to time and that on occasions he took prescribed medication which was capable of inducing a "high". 227McClellan CJ at CL (with whom Hoeben J and Grove AJ agreed) said (at [155]): " ..... there are suggestions in R v Nelson [2002] NSWCCA 231 at [54] - [55] that where the characteristics of the person making the admission may affect the reliability of that admission (for instance, intoxication), exclusion under section 90 may not be justified if the jury would be well able to assess and evaluate such matters in weighing the evidence". 228 A number of observations should be made in relation to these authorities. 229Firstly, the nature and extent of appellant's mental state in Nelson, which was described by Sperling J as "distressed" and "intoxicated", were somewhat removed from the circumstances of the present case. 230Secondly, as Grove J pointed out in Nelson, the concept of unfairness is imprecise. Consistent with that observation are the more recent observations of Gleeson CJ and Heydon J in Em (supra) (cited at [213] above), namely that (inter alia) the application of the section is likely to be highly fact specific, in circumstances where unfairness is not defined and necessarily covers a wide range of factors. 231Thirdly, the nature and extent of the appellant's mental state in Riley was a depressive condition which was treated with medication and which resulted in the appellant having what McClellan CJ at CL described as a "confused state of mind". The mental state of the accused in the present case, whilst it incorporates a confused state of mind, extends far beyond that. 232Fourthly, I do not read the judgment of McClellan CJ at CL in Riley (supra) as authority for the proposition that a conclusion that a tribunal of fact is in a position to assess and evaluate the relevant characteristics of the person making the admission must prohibit exclusion under s. 90. His Honour simply concluded that this may be the case. Whether it is will depend upon a consideration and evaluation of all of the relevant circumstances. 233In the present case, although the evidence establishes that the accused had some capacity to comprehend questions put to her, it is clear that such capacity was impaired. It is also clear that her thought processes were disorganised, that her ability to effectively communicate was impaired, and that she had a propensity to become easily confused. In my view, all of these matters necessarily have a resultant effect upon the reliability of any answer she gave to any question put to her. In terms of reliability, they are conditions of substantially greater gravity than conditions of distress, intoxication or depression. 234Moreover there is evidence, which for the reasons that I have previously outlined (at [183] - [184] above) I accept, that the accused's illnesses were productive of a propensity to confabulate. In other words, she had a propensity to fabricate some imaginary experience so as to compensate for a loss of memory. 235In Uniform Evidence Law (10th Ed) the author (at [1.3.5820]) cites, by reference to the decision in R v Medcalfe [2002] ACTSC 83, the danger of confabulation as one of the circumstances which might render exclusion under s. 90 appropriate. In Medcalfe Higgins J, in circumstances where the accused had been found unfit to plead and where there was a considerable body of evidence regarding his mental state, formed the view that the accused did not understand a caution which had been given to him by police, and was giving answers he thought would please. 236The decision in Medcalfe (supra) was referred to by the Court of Criminal Appeal in R v Jarrett [2012] NSWCCA 81, a case in which the court upheld an appeal by the Crown against the decision of a trial judge to exclude confessional material under s. 90 on the basis of evidence that the accused was mentally disordered. Blanch J (with whom Basten JA and Hall J agreed) noted (at [16]) that the facts were significantly different from those considered in Medcalfe before continuing (at [17]): "In this case there was no evidence of the mental state of the respondent at the time of the admissions. A bare assertion that he was mentally disordered was not sufficient to conclude that it would be unfair to admit the evidence. The doctor was not called to give evidence and it is plain from the hospital notes that the only basis for concluding the respondent was mentally disordered was his concern he might go to gaol as a result of committing the offences and was threatening to commit suicide". 237The evidentiary position in the present case regarding the accused's mental state is obviously substantially different to that considered by the court in Jarrett. 238In Nelson (supra) Grove J concluded that the appellant had failed to demonstrate that the evidence of the admission would have been excluded had an objection been taken at trial. One of the circumstances which his Honour took into account (at [23]) was that in the context of all of the evidence, there was little, if anything, to suggest that the evidence in question might be unreliable. That could not be said to be the case here. Indeed, there is specific evidence before me which suggests the contrary of the position which was before Grove J. 239His Honour then proceeded to observe (once again at [23]): "Unreliability is not synonymous with unfairness, but it is a relevant indicator of whether admission of particular testimony might be unfair". 240Apart from the accused's mental state, I have had regard to the circumstances in which the accused's admissions were made to UCO-2. They came against a background of the accused consistently denying that she was responsible for the deceased's murder, and were made in the context of UCO-2, in effect, pre-empting her denials and repeatedly interrupting her account to remind her SUPPRESSED if she did not tell the truth. In some circumstances, such methods of investigation may not give rise to any unfairness (SUPPRESSED). However, each case must be determined according to its own facts. In the present case, such method was utilised not only in respect of a person who was cognitively impaired, but who had demonstrated a difficulty in comprehending the basic terms of some of the things she had previously been told (see [85] - [87] above). 241In my view, the evidence of the accused's mental state and its consequences support the conclusion that her statements to UCO-2, and those to Detective Taylor and Detective Stamboulis, are unreliable. These circumstances, along with those others to which I have referred, lead me to the conclusion that the use of the accused's admissions to UCO-2, Detective Taylor and Detective Stamoulis would be unfair. 242For these reasons, that evidence should be excluded pursuant to s. 90 of the EA. THE TENDENCY EVIDENCE The relevant notice 243The Crown served three tendency notices pursuant to s. 97 of the EA although it is only the third of those notices, namely that dated 15 May 2013, which is relevant for present purposes (its contents encompassing the contents of the first and second). Paragraphs (1) and (2) of that notice are in the following terms: (1)The person whose "tendency" is the subject of the evidence sought to be adduced is Patricia Anne Gallagher. (2)The tendency sought to be proved is her tendency to: (i)have a particular state of mind - that being an explosive or volatile aggressive temperament; and (ii)to act in a particular way - to lash out in a physically aggressive or violent manner. 244Section 97 of the EA is in the following terms: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. Note: The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. 245Section 101 of the EA is in the following terms: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. 246The evidence relied upon by the Crown came from a number of witnesses. I will deal with their evidence separately. The evidence of Veronika Depinski 247In 2009 Ms Depinski was a resident of the same complex as the deceased. She gave evidence (commencing at T 102 L5) of an incident with the accused on the afternoon of 6 September 2008 in which the accused was said to have punched her in the stomach and cut a blind in her premises. It was put to Ms Depinski that neither event had occurred, a proposition she denied. The evidence of Belinda Wiltshire 248Ms Wiltshire gave evidence that she had met the accused, through another friend named "John", in or about mid 2005. There were two aspects of her evidence which were relied upon by the Crown as tendency evidence. 249The first concerned an incident, said to have occurred in or about the winter of 2005. According to the evidence of Ms Wiltshire (commencing at T 115 L 42) she was in the company of the accused on that occasion when the accused became intoxicated and was asked by "John" to leave. Ms Wiltshire told the court that she and the accused then engaged in a "punch on" after which she was pushed down some stairs. 250The second aspect of Ms Wiltshire's evidence upon which the Crown relied in this respect (commencing at T120 L1) concerned an assertion by Ms Wilshire that the accused had admitted to making an attempt to strangle the deceased with a belt on an occasion prior to his death. Ms Wilshire also asserted that following the deceased's death, the accused had expressed that she was "happy" that the deceased had died. The evidence of Richard Shane Swan 251Mr Swan gave evidence that he had met the accused in or about 2003. From that time onwards he saw her regularly at a local community centre. The first aspect of Mr Swan's evidence (commencing at T 150 L1) which was relied upon by the Crown as tendency evidence concerned an incident at the accused's premises where, according to Mr Swan, the accused had been drinking with the deceased and slapped him (the deceased) in the face. Mr Swan maintained that there were also other occasions on which this occurred. 252The second aspect of Mr Swan's evidence which was relied upon by the Crown (commencing at T 151 L29) concerned a second incident at the accused's home, after the deceased's death. According to Mr Swan the accused had been drinking and a call was received from "Belinda" (i.e. Ms Wiltshire), following which Mr Swan went to leave. According to Mr Swan, the accused grabbed him by the shirt collar, but he managed to break free. He fled the premises but was pursued by the accused who, according to Mr Swan, struck him in the head with a house brick. The evidence of Jennifer Susan Glover 253The evidence of Ms Glover upon which the Crown relied (commencing at T92 L22) was that she was at the accused's premises late one evening when the accused appeared to have been drinking. According to Ms Glover, she attempted to leave the premises when the accused said words to the effect "you're not leaving" before placing her hands around Ms Glover's throat and squeezing it. After a short period, Ms Glover managed to open the front door of the premises and flee. The evidence of Mark Thomas Pride 254The evidence of Mr Pride relied upon by the Crown as tendency evidence concerned an incident in January 2009 at the accused's home. According to Mr Pride (commencing at T234 L39) he saw the accused one evening after she had been drinking appearing "over (him) as he lay on the bed with a knife in her hand .... moving it around and sort of flicking it around in her hands and looking vacantly at (him)". The submissions of the parties 255Mr Austin submitted that the evidence of Jennifer Glover and Mark Pride should not be admitted as tendency evidence. Mr Austin raised no issue about the admissibility, as tendency evidence, of that of Mr Swan, Ms Wiltshire and Ms Depinski. For reasons which it is not necessary to detail, the Crown subsequently withdrew the evidence of Jennifer Glover from the tendency notice. Accordingly, the only issue I am left to determine is whether the evidence of Mark Pride should be admitted as tendency evidence. 256Mr Austin submitted that, having regard to the terms of the relevant notice, the evidence of Mr Pride was not admissible as tendency evidence. His primary submission was that even when taken at its highest, Mr Pride's evidence provided no support for the tendency relied upon by the Crown because it simply did not tend to establish that the accused acted in the particular way which the Crown suggested. He further submitted that some of Mr Pride's answers to questions put in cross-examination rendered his evidence unreliable. 257The Crown pressed the evidence of Mr Pride as being admissible as tendency evidence, submitting that there was sufficient similarity between the incident he described and the circumstances surrounding the deceased's death. Consideration and conclusion 258No issue is raised by Mr Austin in respect of notice. Accordingly, the first matter I am required to consider is that raised by s. 97(1)(b), namely whether the evidence will, either by itself or having regard to other evidence adduced, "have significant probative value". 259Evidence that a person has, or had, a particular tendency can be adduced in order render more probable the proposition that, on a particular occasion relevant to the proceedings, the person acted in particular way or had a particular state of mind. Section 97 proceeds on the basis of inferential reasoning that people behave consistently in similar situations (see FB v R [2011] NSWCCA 217 at [23]; R v Chittadini [2008] NSWCCA 256; (2008) 198 A Crim R 492.) 260In order for the evidence of Mr Pride to have significant probative value as required by s. 97, it is necessary for the Crown to establish that the evidence possesses a degree of relevance to the events charged, such that it could be said that the evidence is "important or of consequence" (see FB v R (supra) at [25]), citing R v AH (1997) 42 NSWLR 702). 261It is important to bear in mind that in determining the probative value of the evidence, there is no need for there to be a striking pattern of similarity between the evidence of the two incidents. In particular, it is not necessary that the incidents which are relied upon as evidence of tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way that is closely similar to the act which is alleged against the accused. That said, and generally speaking, the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value in the sense referred to in s. 97 (see BP v R; R v BP [2010] NSWCCA 303 at [108] per Hodgson JA). 262The meaning of the phrase "significant probative value" was considered by Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457 at 459 where his Honour observed: "...the probative value of evidence is the degree of its relevance to the particular fact in issue. There is no definition of significant probative value as that phrase is used in s.97. In its context as I have outline it however, significant probative value must mean something more than mere relevance but something less than a substantial degree of relevance...One of the primary meanings of the adjective 'significant' or 'important' or 'of consequence'. In my opinion that is the sense in which it is used in s. 97. To some extent, it seems to me the significance of the probative value of the tendency evidence must depend upon the nature of the fact in issue to which it is relevant and to the significance (or importance) which that evidence may have in establishing that fact." 263Even if I were to come to the view that the evidence of Mr Pride had significant probative value, I would be required to have regard to the further restrictions imposed by s. 101(2). That section requires that I exclude the evidence unless I come to the view that its probative value substantially outweighs any prejudicial effect it may have upon the accused. In that regard, I must apply the precise terminology of the section: (R v Ellis (2003) 58 NSWLR 700 at [90] per Spigelman CJ.) 264The essence of the evidence of Mr Pride was that on the occasion of which he spoke the accused was "over him" with a knife in her hand. He described the accused as "moving" the knife and "sort of flicking it around" at that time. According to Mr Pride, the accused was "ranting and raving" at the time and making derogatory comments about the accused, and appeared "vacant". 265According to the notice served by the Crown, the tendency which is sought to be proved is that: (1)the accused had an "explosive or volatile and aggressive temperament"; and (2)that the accused had a tendency to "lash out in a physically aggressive or violent manner." 266Leaving aside the inconsistencies between the statement made by Mr Pride and some of his answers in cross-examination, it was not suggested by Mr Pride that the accused had displayed any explosive or volatile aggression on the occasion of which he spoke, nor was it suggested that the accused had "lashed out" in a physically aggressive or violent manner. At its highest Mr Pride's evidence was that the accused was "moving" the knife around and "sort of flicking it" in her hands. Far from asserting any accompanying act or appearance of aggression, Mr Pride described the accused looking "vacant" as she did so. 267In my view, even when this evidence is considered with the other evidence in the case, and particularly when one has regard to the terms of the notice served by the Crown, the probative value of the evidence is far from significant. 268In these circumstances the evidence of Mr Pride should be rejected as tendency evidence. THE ACCUSED'S ALLEGED ADMISSION TO NORMA BOON The evidence of the admission 269Norma Boon is an acquaintance of the accused who, at one time, was in a relationship with Norman Fetch. Ms Boon gave evidence that in March 2009, she was with Mr Fetch when he played her a number of messages left on an answering machine in his mother's premises in which he was staying. She recalled that there were three messages one of which was left in a voice that she recognised to be that of the accused. According to Ms Boon the message left by the accused said: "I stabbed him". 270Ms Boon made a statement to police on 15 April 2009, only a matter of weeks after the death of the deceased (and similarly only a matter of weeks after allegedly hearing the message). She made no mention of the message in that statement. It was not until April 2013, more than 4 years later, that Ms Boon first disclosed the message to the police. The circumstances in which she did so are not completely clear. She gave evidence that the police attended her premises in April 2013 to inform her of her obligation to attend court to give evidence, and that it was only then that she told police that she had overheard the message said to have been left by the accused. When asked whether there was any reason for omitting any reference to it in her first statement she said: "Well at the time with (Mr Fetch's mother) being as sick as what she was, almost dying, when we had to move her, and I just totally, with Hilda and Norm at the time, and it just totally slipped my mind when I was making my statement. It wasn't until after I went up with Norm thought back what I heard and cleared my head after I few years relationship with him and that is what I remember hearing." 271When cross-examined Ms Boon agreed that at the time of making her first statement in 2009 she had understood that the police were interested in the messages which had been recorded on the answering machine. When asked whether she thought that police would have a particular interest in the message said to have been left by the accused, Ms Boon said (at T129 L36): "Well, like I said at the time, we had a lot going on with Norm's mum, running back and forwards to the hospital, and I never thought of that." 272Ms Boon told counsel for the accused that she thought nothing more of the message said to have been left by the accused in the intervening four year period until the police contacted her in April of this year. In this regard, she explained: "...because when I split up with Norm, I was going through counselling and it, my counselling sessions, it got brought up." 273Ms Boon then told the court that in either late 2011 or early 2012 (that is, more than 12 months before she made her second statement to police) the message said to have been left by the accused was raised in the course of psychological counselling she was undertaking at that time. When asked whether, at that time, it had occurred to her that she should inform the police, she said: "Well, I tried to contact them but Phil was always on leave, or whatever." 274The reference to "Phil" was a reference to Detective Taylor, the officer in charge of the investigation. Ms Boon went on to say (commencing at T130 L32) she did not leave a message for Detective Taylor but "kept ringing back...two or three times". The submissions of the parties 275Mr Austin's primary submission was that the evidence of Ms Boon ought be excluded pursuant to s. 90 on the basis that it was unreliable and that, as a result, there would be unfairness if it were used against the accused. Mr Austin submitted that such unreliability stemmed primarily from the circumstances in which the evidence was disclosed. He also relied on the fact that Norman Fetch provided no corroboration for Ms Boon's assertions. 276In the course of his submissions, but still within the context of s. 90, Mr Austin submitted that the probative value of the evidence was outweighed by the danger of its unfair prejudice. When that submission was made, I made the observation that the terms in which it had been couched appeared to lend themselves more to a submission that the evidence should be excluded pursuant to the provisions of s. 137 of the EA. 277At that point, the Crown indicated that he did not wish to be heard on the exclusion of the evidence. He expressly conceded that the evidence of Ms Boon had, as he described it, "many difficulties". Consideration and conclusion 278In my view, the evidence of Ms Boon as to the accused's alleged admission should, consistent with the Crown's proper concession be excluded. Ms Boon's explanations for the circumstances in which the evidence emerged some four years after the event were entirely unconvincing. The evidence is unreliable in the circumstances and its use would be unfair to the accused. THE REMAINING EVIDENCE AGAINST THE ACCUSED 279Having dealt with those evidentiary issues, I now turn to the fundamental question of whether the entirety of the evidence is sufficient to establish, beyond reasonable doubt, that the accused was responsible for the deceased's murder. The accused's lies 280As I have previously indicated, part of the evidence relied upon by the Crown are two statements made by the accused which, it submits, are lies which constitute evidence of the accused's consciousness of guilt. It is appropriate that I deal with this issue before summarising the balance of the evidence. In doing so, it should be noted that there is evidence of other statements having been made by the accused in terms which are similar to those relied upon by the Crown as lies. However, the Crown made it clear that the only two statements relied upon in this regard are those set out below. The first lie 281The first of the accused's statements which is said to be a lie was made to Peter Dilonardo ("Dilonardo") an ambulance officer who attended the scene of the deceased's stabbing and who gave evidence of having had the following conversation with the accused: "I said to Pat, 'Who's done it? Who's stabbed him? Pat said, 'I don't know. He's tried to kill himself before. He's got mental health issues' ". 282It is the italicised portion of this passage which is said to amount to the lie. The second lie 283The second statement made by the accused which is said to constitute a lie was made in a conversation with Detective Chapman in the early hours of 12 February 2009, again at the deceased's premises. Detective Chapman's evidence was that the conversation included the following: "I said, Has Billy tried to harm himself before?" Patricia Gallagher said, "Yeah, he was in Bankstown Hospital again. He doesn't want to lose me. He's stabbed himself and overdosed before." 284Again, it is the italicised portion of this passage of conversation which is said to constitute the lie The evidence relied upon by the Crown to establish the lies 285The evidence relied upon the Crown to establish that the statements were in fact lies is comprised of: (i)the dying declarations of the deceased; (ii)evidence of the deceased's treating general practitioner; (iii)evidence of the deceased's sister and brother-in-law; (iv)evidence of relevant hospital and other records. The dying declarations of the deceased 286Dilonardo gave evidence that he had the following conversation with the deceased during the trip from his home to Liverpool Hospital: "Dilonardo: What happened?" Deceased: I don't know. Dilonardo: Did you do this to yourself? Deceased: Don't be a bloody idiot. I've survived cancer, why would I try and kill myself?." 287In addition, Senior Constable Hickey, who attended the deceased's premises at or about the same time as Dilonardo, gave evidence that after Dilonardo had informed him (presumably on the basis of information provided by the accused) that the deceased had a history of self harm, the deceased began to become "slightly aggressive in his tone of voice" before saying: "You think I did this to myself? I wouldn't, I have never done anything to myself". The evidence of the accused's treating medical practitioner 288A statement of Dr Odysseas Missiakos, a general practitioner who treated the deceased on 5 occasions between 29 October 2008 and 10 February 2009, was tendered in evidence. In paragraph 6 of his statement Dr Missiakos, having outlined his awareness of the deceased's medical history (which included the fact that at the end of 2008 renal scans had evidenced a renal cell carcinoma), said: "Mr Grant was aware that diagnosis meant he had an incurable illness. I am not aware of any significant psychiatric history for this patient. There was no previous evidence of self-harm or attempted suicide." 289In the same paragraph he also stated: "I can recall that Mr Grant stated on 10/02/2009 that if the cancer was found to have spread, he could not live with this idea." The evidence of the deceased's sister and brother-in-law 290The Crown also relied on the evidence given by Margaret Turner and Thomas Turner, the deceased's sister and brother-in-law respectively, to establish the accused's lies. Both gave evidence that they had visited the deceased in December 2008, two months before his death. Mrs Turner told the Court that although the deceased was undergoing Chemotherapy at the time he was "quite happy" and that he had told her that "things were positive". Mr Turner told the Court that the deceased was in "good spirits" at the time and that everything "looked on the up and up". Hospital and other records 291Finally, the Crown relied on the evidence of Detective Taylor who searched the records of Bankstown and Liverpool Hospitals, along with the internal records of the "COPS" system. Detective Taylor's evidence established that, having had access to medical records produced by the Liverpool and Bankstown Hospitals, there was no entry in respect of the deceased having been admitted for any purpose related to self-harm or suicide. 292His evidence further established that the COPS reports in relation to the deceased revealed no information which suggested any report having been made by or on behalf of the deceased in relation to self harm. The submissions of the parties 293The Crown submitted that the statements made by the accused constituted lies which were evidence of consciousness of guilt. The Crown accepted that in order for me to accept this submission, it would be necessary for me to conclude that the statements of the accused were in fact lies (that is, that they were untrue to the knowledge of the accused) and that they were deliberate. The Crown also accepted that the evidence of the accused's mental state would have some bearing upon those issues. However, the Crown relied on the fact that there was no evidence which established that the accused's mental state affected her capacity to tell the truth, nor was there any evidence which established that she was delusional. 294The Crown further submitted that I should conclude that in asserting that the deceased had a history of self harm, the accused had made a conscious decision to try and divert attention from herself as the person responsible for the deceased's murder, and thus implicate the deceased as the person who inflicted the wound that ultimately caused his death. He submitted that the time at which the statements were made, namely shortly after the arrival of police and ambulance officers, was significant in this respect. 295Mr Austin firstly submitted that the statements of the accused did not amount to lies at all. Alternatively, he submitted that even if they did, they were not capable of constituting evidence of consciousness of guilt because I would not be satisfied that they were deliberate. In this regard Mr Austin again relied on the medical evidence of the accused's cognitive impairment. He submitted, in particular, that her mental state might well have been such that she believed that certain incidents of self harm had occurred, when in fact they had not. Consideration and conclusion 296In Edwards v R (1993) 178 CLR 193 (at [210] - [211] per Deane, Dawson and Gaudron JJ), and subsequently in Zoneff v R (2000) 200 CLR 234 at [244] (per Gleeson CJ, Gaudron, Gummow and Callinan JJ) the question of how evidence of lies may be used was discussed. The principles established in those two cases were summarised by Whealy J (as his Honour then was) in R v Lodhi [2006] NSWSC 672 at [24] (citations omitted): "The statements of principle in Edwards v R, as clarified in Zoneff v R, may be summarised as follows: (1) a lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue); (2) the lie must be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest; (3) the jury must be satisfied that the lie was a deliberate lie; (4) the lie may be taken into account only if the jury is satisfied, having regard to the circumstances and events, that it reveals a knowledge of the offence, or some aspect of it, and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the commission of the offence; (5) it is necessary for the jury to be reminded that there may be reasons for the telling of a lie apart from the realisation of guilt." 297His Honour observed that these "beguilingly simple statements of principle, were often much more complicated in their application" before continuing at [27]: "...the weight of authority and academic opinion favours a very cautious approach to the issue as to whether lies evidencing consciousness of guilt should be left for a jury in a criminal trial. (R v Sutton (1986) 5 NSWLR 697 at 701 per Street CJ; R v Heyde (1990) 20 NSWLR 234 at 236 per Gleeson CJ; R v Ray [2003] 57 NSWLR 616 at 632 per Wood CJ at CL; Zoneff v R (supra) at 244". 298His Honour then said (at [29]): "...the duty of a trial Judge in circumstances such as the present is to enquire, as a preliminary, whether the statements made by the accused in the witness box or prior to trial are capable of being fairly regarded as lies. It would also be necessary for the trial Judge, as a preliminary, to enquire whether it is open to the jury to draw an inference that the lie, if it be a lie, resulted from fear of the truth, in the sense that that expression is mentioned in the authorities." CONSIDERATION AND CONCLUSION 299In order to for this evidence to be used in the manner urged by the Crown I must firstly be satisfied that either or both of the statements of the accused, namely "He's tried to kill himself before" and "He's stabbed himself before" are, in fact, lies within the meaning of that term as it is used in the authorities. In order to be so satisfied, I must be satisfied firstly that what the accused said on either or both occasions was untrue, and secondly that what was said was untrue to the accused's knowledge. 300The deceased's denials that he had harmed himself on this particular occasion are directly relevant to the question of the existence of an alternative hypothesis which might explain his death, an issue which I have considered further below. However, they have less of a bearing on the question of whether he had attempted self harm at any time prior to this occasion. In other words, the acceptance of the deceased's denials that he had harmed himself on this occasion does not mean that he had not done so, or attempted to do so, in the past. 301Similarly, whilst the evidence of Mr and Mrs Turner, as well as that of Dr Missiakos, establishes that the accused's frame of mind was generally positive in the two months prior to his death, it does not, in my view, establish that there had been no attempt at self harm prior to that time. Significantly, the evidence of Mr and Mrs Turner was essentially restricted to the deceased's frame of mind when they saw him in December 2008. Neither Mr Turner nor Mrs Turner were asked any question at all concerning their respective knowledge of any attempts by the deceased to harm himself at any time prior to that. Similarly, the fact that Hospital and other records are bereft of any reference to the deceased having previously harmed himself is far from conclusive. 302However, amongst the statements made by the deceased to Senior Constable Hickey was his statement that he had "never done anything to (himself)". Based upon that evidence, I am satisfied that the accused's statements to the contrary were untrue. 303However, in order to conclude that the accused's statements were lies in the sense discussed in the authorities to which I have referred, I must also be satisfied that those statements were untrue to the knowledge of the accused when they were made. In this regard, there is force in Mr Austin's submission that the accused's mental state was such that she may have believed that previous incidents of self harm had occurred when in fact they had not. Although there is not, as the Crown pointed out, evidence that the accused suffered from some delusional state, there is, as I have noted, evidence (inter alia) that her thought processes were confused and that she had a tendency to confabulate. 304For these reasons, I am not satisfied that the statements, although untrue, were untrue to the knowledge of the accused. I am therefore not satisfied that they are properly regarded as lies. 305Even if I was satisfied that the statements were lies, before using the evidence in the manner urged by the Crown I would also have to be satisfied that the lies were deliberate, in the sense of being told by the accused out of some fear that the truth would implicate her. Other than the fact that the statements were made at or about the time of the arrival of the police and ambulance officers, the Crown did not point to any other evidence which was said to support the conclusion that the accused had made a conscious decision to lie for the purposes of distancing herself from the responsibility for the deceased's stabbing. 306Finally, and even had I reached the point of concluding that the accused had told a deliberate lie or lies, before using that evidence in the manner urged by the Crown I would be required to remind myself that people do not always act rationally, and that the telling of a lie may be explained on another basis. Had I reached that point, the evidence of the accused's mental state would, once again, have been relevant. 307In these circumstances, the evidence of lies told by the accused does not constitute evidence of consciousness of her guilt. 308It was not clear to me whether the Crown, in the alternative, argued that the statements made by the accused were nevertheless relevant to her credit. However as I have outlined, although I am satisfied that the statements were untrue, I am not satisfied that they were untrue to the knowledge of the accused. Accordingly, they are not lies and are thus not capable of being used as evidence bearing upon the accused's credit. THE REMAINING EVIDENCE OF THE EVENTS OF 11 AND 12 FEBRUARY 2009 309In light of the conclusions I have reached in relation to the evidentiary issues I was asked to determine, I now turn to the remaining evidence relied upon by the Crown. 310Jones gave evidence that at about 11.00am on 11 February 2009 he assisted the deceased in moving a refrigerator from his premises. He told the court that the accused was present when that was being done. When asked whether the accused said anything to the deceased in his (Jones') presence, Jones answered: "They were having muttering their differences, and that, after the fridge was released, and was walking and she turned around and said to Bill, "I'll kill you if you get back on the wine." I remember that very definitely. Those sorts of things stay with you." 311Another resident of the unit block, Jean Thompson ("Thompson") also observed that the accused was present when Jones and the deceased were moving the refrigerator, although she gave no evidence of hearing anything said between the deceased and the accused at that time. 312In the course of cross-examination, Jones was asked whether or not he had ever heard arguments between the deceased and the accused. He said (commencing at T72 L13): " Yeah, I have and it was, sort of, like she was arguing with him. She would be out the front of his place, that was the time of the argument. She would shout at him, you know. Q. When you say "she", are you referring to Pat? A. Yes. Q. How often did you hear A. About two or three Q. On two or three occasions? A. Yes. Q. Is that prior to the events of 11 February? A. Prior, yeah. Q. Did you hear Pat say or scream anything on those occasion? A. I heard her threatening him, and things like that. Q. What did you mean by threatening? A. I'll kill you if do you this; I'll kill you if do you that." You just take with a grain of salt, like a domestic argument, type of thing." 313Baston told the court that he saw the accused at about 4:00pm on the afternoon of 11 February 2009 when she attended his premises and asked if she could leave some shopping bags there. He gave evidence that the accused had stayed at his place on that occasion "about 5 minutes" after which she went back to the deceased's premises. According to Baston, the accused was in the habit of referring to the deceased as her brother. 314A call was made to 000 from the deceased's premises at 7.21pm, in response to which police attended the deceased's premises at about 8.50pm. Constable Cross gave evidence that she had been informed by police radio that the "victim" (i.e. the accused) had reported that she had been indecently assaulted by a man named "Jack" (i.e. Jones). Upon arrival, Constable Cross spoke with the accused, who introduced the deceased as her brother. According to Constable Cross, the premises were untidy at the time. 315According to Constable Cross, the accused admitted that she had been drinking during the day. In Constable Cross' assessment, the accused was "well affected" by alcohol. She also observed that the accused's demeanour: " ..... fluctuated between levels of calmness, aggression and disbelief as she attempted to convey to us what had occurred that afternoon. Gallagher was very confusing and hard to understand as she continued to ramble about previous incidents which had occurred the day before, week before, and with other incidents which had no bearing on what police had attended the location to investigate". 316Constable Cross managed to ascertain that the accused alleged that Jones had grabbed her breasts earlier in the evening. However, the accused then informed Constable Cross that she did not wish the matter to be further investigated. 317Constable Cross gave evidence that she informed the accused that if she wished to take the matter further, she would be required to provide a statement to the police whilst sober. She then stated: "Gallagher then became defensive and started to pace between Constable Scipione and I whilst rambling about previous incidents which had upset her where other police officers had attended and spoke to her in the past. I then saw (the deceased) turn his chair. (He) said, "Calm down, Pat. They're doing a job. Just listen." 318Constable Cross described the deceased as being "tolerant and understanding" when he said those words. 319Constable Cross subsequently spoke to Jones who denied the allegations. Constable Cross then left the unit block at some time after 9.30 pm, having spoken with Jones. 320There is evidence that calls were made from the landline of the deceased's premises to the telephone service of Hilda Fetch (the mother of Norman Fetch) at the following times on the evening of 11 February and the morning of 12 February: 20.02.32 - duration 40 s. 22.47.00 - duration 46 s. 22.52.40 - duration 18 s. 22.53.26 - duration 201 s. 00.27.49 - duration 25 s. 321There is also evidence that calls were made from the mobile telephone of Norman Fetch to the landline at the accused's premises at the following times on 11 February: 12.19.16 - duration 35 s. 15.08.25 - duration 0 s. 18.26.25 - duration 25 s. 21.14.01 - duration 4 s. 21.14.36 - duration 4 s. 21.20.17 - duration 0 s. 21.20.48 - duration 5 s. 22.34.29 - duration 2 s. 22.49.09 - duration 4 s. 22.38.37 - duration 23 s. 23.18.55 - duration 0 s. 23.32.04 - duration 13 s. 322Further, there is evidence that calls were made from the accused's landline to Norman Fetch's mobile telephone at the following time on 11 February: 15.19.23 - duration 402 s. 323There is also evidence that a call was made from the deceased's landline to Norman Fetch's mobile telephone at the following time: 16.11.43 - duration 40 s. 324Finally, there is evidence that a call was made from the deceased's landline to the accused's landline at 00.10.00 on the morning of 12 February 2009. The duration of that call was 54 seconds. 325Norman Fetch gave evidence that he had known both the accused and the deceased for a period of approximately 40 years and he had been in a relationship with the accused for a short period approximately 12 months prior to the death of the deceased. Mr Fetch accepted that during February 2009 his mother was in hospital and that he was residing at her premises. Mr Fetch was taken to each of the calls set out in [320] to [323] above but could recall nothing about any of them. He explained that he had been an alcoholic for a number of years and that this had an effect upon his memory. 326There is also evidence that calls were made from the deceased's landline to Channel 7 at 23.22.55 and 23.26.19 on 11 February. There is evidence of a further call to a "Bushfire Appeal Hotline" at 23.30.49 on the same night. In the course of her second interview with police, the accused stated that she had made each of those calls. 327Baston gave evidence that the accused returned to his premises at about 12:30am on 12 February 2009 and collected her shopping bags before leaving. However, the 000 call to emergency services reporting the deceased's injury (which was clearly made by the accused) was logged at 00.28.39. The Crown accepted that in these circumstances it was unlikely that Baston's evidence as to the time at which the accused attended his premises was accurate. 328Baston's evidence in relation to that issue was given by reference to various television shows that he said he was watching at the time. The last of those television shows, entitled "Life", commenced at 11:50pm. It was Baston's evidence that the accused did not attend his premises when he was watching this particular program. It follows, that whatever time the accused attended his premises and collected her shopping bags it must have been at some time before 11:50pm on 11 February 2009. 329Veronika Depinski, upon whose evidence the Crown relied in support of the tendency notice, also gave evidence that when watching a television program which commenced at 7.30 pm on 11 February 2009, she heard the accused "screaming on (the deceased)" and that this continued until about 9.00 pm. She was then woken up by the accused screaming "Come fast .... He can die like this". She then heard the accused recite the deceased's address and telephone number. 330Jean Thompson, another resident of the unit block, gave evidence that whilst watching television at some time after 8.30 she heard a noise and voices outside her premises. She then heard a conversation at about 10.30 pm between two people which she described as "commotion" and "raised voices". Although she gave evidence that she thought that one of the people was a female, she had previously told police that she could not distinguish. She said in her evidence that she thought that one of the voices she had heard was that of Baston. 331As previously noted the accused called 000 from the deceased's premises at 00.28.39. Both a recording of that call and an accompanying transcript were tendered in evidence. The accused sounded obviously distraught. She told the operator that she was at her "brother's" and that he was bleeding from the stomach. She was advised to treat the bleeding with a towel, and that an ambulance was on its way. 332Dilonardo, accompanied by another officer, Anthony Painter, arrived at the deceased's premises at 12.43 am on 12 February. Upon arrival, Dilonardo was told by the accused: "He's in the bathroom, he's bleeding". 333When Dilonardo asked the accused what happened she replied: "I don't know". 334Contrary to the earlier observations of Constable Cross, Dilonardo said that the premises appeared to be clean and tidy. Dilonardo noted that the accused had no blood on her skin or clothes. He found the deceased sitting on the floor of the bathroom, conscious, and with his eyes open. When he asked the deceased (on two separate occasions) what had happened the deceased replied each time: "I don't know". 335On the second occasion on which he asked the deceased what had happened, Dilonardo described the deceased as becoming "narky". 336Dilonardo then gave the following evidence: I said to Pat, "He's been stabbed". Pat said, "He's been stabbed...no". Pat started to become upset and had tears in her eyes. ... The conversation I had with Grant and Pat went back and forth. I continually asked "What happened?" "Who's done this to you?" Grant said "I was in the bedroom, I noticed I was bleeding so I got up and went to the bathroom." I said to Pat, "Who's done it? Who's stabbed him?" Pat said, "I don't know, he's tried to kill himself before. He's got mental health issues. We've had problems with the neighbour upstairs, he's threatened him before. The police were here not long ago." I said, "Was he alright when the police left?" Pat said, "yes." I said to both Grant and Pat: Who's done it, how could you not know you've been stabbed?" Grant kept saying "I don't know, I don't know." I said: "Where have you been today?" Pat said: "I've been here all day", I said: "If you've been here all day how could you not know what's happened." Pat said: "I went out for a couple of hours. I've only been back a couple of hours". I said: "Was he alright when you got back?" Pat said: "I don't know." Pat started to get agitated and panicky. I said: "What time did you get back? Was it still daylight or was it dark?" Pat said: "I don't know". At some stage Pat said, "He's been drinking all day". ... [16] I walked back into the bathroom. I said: "What 's happened". Grant said: "I don't know". Grant was closing his eyes but when he would speak to me he would open his eyes. [17] As we were wheeling him out I said: "What happened?" Pat said: "We're having problems with the guy upstairs. I don't know what happened". 337On the way to Liverpool Hospital, Dilonardo again asked the deceased what had happened and the deceased again replied that he did not know. It was at this time that the deceased denied harming himself in the terms I have previously described. He also admitted to Dilonardo that he had been drinking. 338Upon arrival at Liverpool Hospital Dilonardo overheard the admitting doctor ask the deceased what happened. The deceased again replied that he did not know. 339At about 12.55am on 12 February 2009 Constables Cullerton and Hickey responded to a request to attend the deceased's premises. Upon arrival they heard the accused yelling "He's going through Chemotherapy, they won't listen, tell them". Constable Cullerton described the accused as being "very agitated and suffering the effects of intoxicating liquor". She asked the accused what had happened but could not understand her response. 340Constable Hickey gave evidence that she had been informed by an ambulance officer that the deceased had a history of self harm. She then had a conversation with the deceased in which the deceased denied harming himself on this occasion. The full text of that part of the conversation was said by Constable Hickey to have been as follows: "Grant then began (sic) slightly aggressive in his tone of voice and said "You think I did this to myself, I wouldn't, I have never done anything to myself." I said: "What happened". He said: "I don't know, I was on my bed and next thing I know I am in the bathroom and I'm stabbed". I said: "Who stabbed you?" He said: "I don't know". I said, "Did you stab yourself?" He said: "No, I told you, I wouldn't do that." I said: "The police were here earlier tonight, what did you do after they left?" He said: "I had a few beers and I went to bed and then next thing I wake up and I have been stabbed." I said: "Where is the knife?" He said: "I don't know." 341Constable Hickey searched the deceased's premises. She found no sign of blood and no implement which might have been used to harm the deceased. She then had a conversation with the accused in the following terms: "I said: "what happened". She said: "I came in and I could hear him making a noise". Gallagher then demonstrated a whining and groaning noise. She said: "I went in and found him stabbed so I rang triple 0, they told me to get a towel so I did and I put it on him." I said: "How he got (sic) into the bathroom?" She said: "I don't know, he got up I put towel on him." I said: "Did he walk into the bathroom, how did he get in there?" She said: "No, he crawled in there." I said: "What happened before he got stabbed? Where were you?" She said: "I went to see Pommy Dad". I said: "How long were you gone for?" She said: "About half and (sic) hour." 342Constable Hickey, in the company of other police, then attended at Jones' premises. Those premises were searched but nothing of interest was found. 343At 3:05am Detective Chapman arrived at the deceased's premises. He observed the front wooden door of the premises to be open, but the front screen security doors closed. There did not appear to be any damage to the screen door lock, or to any external window or door at the front of the premises. 344In the presence of Constable Macarthur, Detective Chapman had a conversation with the accused which was set out in his statement in the following terms: "I said: "Patricia, my name is Detective Chapman and this is Detective Macarthur from Bankstown Police. Can you tell me what happened here tonight?" Patricia Gallagher said: "Billy's been stabbed. I don't know, he doesn't need a priest. I said: "How was he stabbed?" Patricia Gallagher said: "that what we're trying to find out". I said: were you there when he was stabbed?" Patricia Gallagher said: "No, I've told you where I've been. Pommy Dad's up there. I know whose in on it, Jack, unit 9. Me and Billy told him off, we've had a few arguments with Jack, not between me and Billy." I said: "What happened when you found Billy?" Patricia Gallagher said: "he was singing out Mum, Mum, Mum, Mummy. I rang triple 0." I said: "Where were you before this?" Patricia Gallagher said: "I've been two places, Pommy Dad and UCO-2. Came from Pommy Dad's and also I visited Betty to give her some hot cross buns." I said: "Was the door open when you came back?" Patricia Gallagher said: "I always leave it open. It was ajar." I said: "I understand police came here earlier in the night and spoke to you and Billy. What happened after the police left? Patricia Gallagher said: "Everything was alright, me and Billy were half nude. He's said I'm going to die, he's got diarrhoea at the moment." I said: "Did you see Billy go anywhere last night." Patricia Gallagher said: "Billy didn't leave the house." I said: "What were you and Billy doing last night?" Patricia Gallagher said: "Me and Billy were watching TV." I said: "What happened when you found Billy." Patricia Gallagher said: "There was blood on his singlet. I rang triple 0, lots of blood in the bedroom. I said help quick, Billy's bleeding." I said: "Has Billy tried to harm himself before?" Patricia Gallagher said: "Yeah, he was in Bankstown Hospital again. He doesn't want to lose me. He's stabbed himself and overdosed before." I said: "Did you stab Billy?" Patricia Gallagher said: "Why would I want to stab him for? Me and Billy blue all the time but we always make up" 345At about 6:20pm on 12 February police met with Mr and Mrs Turner, who advised that a message had been left on their home answering machine by the accused. There is evidence that a call was made from the deceased's landline to the number of Mr and Mrs Turner at 00:39:32 on 12 February 2009. The message left on the machine was in the following terms: "Margaret and Tom, its me, Patty, listen Billy's bleeding and suffering through diarrhoea. The ambulance is on its way, Bankstown, ok, listen, ohhhhh, can you please resp...please gimme a call on this number...he's just...Mum or something just, Mum, Mum, I don't know, just get in contact...straight away please." 346There is also a body of scientific evidence relied upon by the Crown which can be summarised as follows. 347Dr William Allender, a Forensic Scientist, recorded that a blood sample taken from the deceased prior to his death was found to have present (inter alia) alcohol of 0.230 grams per 100ml of blood. A post-mortem sample was found to contain 0.143 grams per 100ml of blood. Dr Allender stated: "At a blood alcohol concentration of 0.230g in 100ml or above, all people would be under the influence of alcohol to the extent that there would be substantial impairment of their faculties. These include cognitive, motor and visual functions such as reaction skills, motor co-ordination, perception, judgment and decision-making skills, which I would expect to all be substantially impaired at this blood alcohol concentration or above...Based on my specialised knowledge, and relying on the information supplied, I am of the opinion that at the time of the incident, given the level of alcohol in (the deceased's) blood, his ability to repel any possible attack with a knife (or similarly sharp object) would have been compromised". 348The Crown also tendered a statement of Detective Taylor which summarised the results of a fingerprint examination undertaken of various areas of the deceased's premises. No fingerprints of the accused were found at any of the areas of the deceased's premises which were subject to fingerprint examination. 349The Crown also tendered a statement of Senior Constable Lee, a member of the Forensic Services Group, who attended the deceased's premises at about 7:30am on 12 February 2009. At paragraph 21 of his statement, Senior Constable Lee stated: "A brown and beige coloured plastic knife block with a "Wiltshire" brand black handled carving knife and a black handled fork was located at the eastern end of the southern bench (marker J). There was a dark coloured staining to the base of the blade, adjacent to the handle, of the black handled carving knife. I later collected the black handled knife, and the knife block with black handled fork from Marker J". 350Marker J, knife, and the knife block, referred to by Constable Lee, were depicted in photographs 40 and 41 of a group of photographs tendered by the Crown. Constable Lee marked the knife item 10 and the knife block item 11. The Crown tendered a further statement of Detective Griffin in which he recorded the results of an examination of the knife which had been conducted on 26 November 2010. Detective Griffin stated that material which was red/brown in colour was scraped from "beneath" the handle of the knife. The precise point beneath the handle from which the sample was taken was not further specified. A presumptive test for the presence of blood returned a positive result, indicating that blood may be present. There is no evidence of the age of the substance from which the sample was taken. 351In cross-examination, Detective Griffin agreed that it was "almost certain" that the presumptive test which had been carried out was what was known as a "Hemastix test". He agreed that such a test was incapable of differentiating between human blood and animal blood. He also agreed that the positive result which is returned following the application of a presumptive test can be consistent with the presence of substances other than blood, including rust and potato starch. 352Constable Lee also found evidence of a bloodstain on the floor of the kitchen of the deceased's premises at which he placed another marker, "I". A swab was taken from that bloodstain which returned a positive result when screened for blood. Rebecca Williams produced a report dated 25 January 2011 which was tendered by the Crown, in which she expressed the opinion that DNA recovered from that sample could be that of the deceased. In a supplementary report dated 20 June 2013 she expressed the opinion that the DNA profile recovered from the swab of the stain at marker I was expected to occur in fewer than 1 in 10 billion individuals in the general population. There is no evidence as to the age of the bloodstain on the kitchen floor. 353Dr Matthew Orde, a Forensic Pathologist, provided two reports which were tendered by the Crown. In the second of those reports Dr Orde stated (inter alia) the following: "[7] In light of both the initial autopsy findings and the information provided by Dr Theivendran, it appears that the deceased sustained a single stab wound to the epigastric region (upper front part) of his abdomen, with associated injury to his liver, duodenum and inferior vena cava. [8] Whilst the internal injuries would undoubtedly have bled profusely, there appears to be no significant arterial injury which would have resulted in haemorrhage under pressure. [9] In my opinion it is entirely possible that the great majority of the haemorrhage stemming from these internal injuries could have been retained within the abdominal cavity. Given the position of the stab wound through the abdominal wall, if the deceased had been positioned lying on his back, then this would seem more likely. There would of course have been at least some bleeding from the skin wound, though it is possible that this may have been relatively minor, and may well have also partly have been absorbed into the fabric of clothing which the deceased had been wearing. [10] Conversely, it is of course also possible that there may have been significant external loss of blood from the stab wound to his abdomen, and any such bleeding is likely to have been enhanced by movement of the deceased away from a supine recumbent position". 354In an addendum to his reports dated 18 June 2013, Dr Orde stated that in his opinion the nature and location of the stab wound sustained by the deceased did not preclude a conclusion that the wound was self inflicted. 355Finally, and as I have previously indicated, the Crown tendered the recordings, and accompanying transcripts, of the accused's two interviews with police. Neither party addressed me to any real degree upon the contents of those interviews, although the Crown did place some reliance upon the accused's admissions that she was responsible for making the calls from the deceased's landline at 23.22.55 and 23.30.49 (to Channel 7) and at 23.30.49 (to the Bushfire Appeal Hotline). The elements of the offence of murder 356In order to establish that the accused murdered the deceased, the Crown must establish beyond reasonable doubt: (i)that the deceased died on the morning of 12 February 2009; (ii)that the accused did an act, namely the act of stabbing, which caused the death of the deceased; and (iii)that the act of the accused which caused the death of the deceased was done by the accused either; (a)with the intention to kill the deceased; or (b)with the intention to inflict really serious bodily injury upon the deceased. 357There is no issue that the deceased died on the morning of 12 February 2009 as the result of a single stab wound to the abdomen which severed his thoracic aorta. The real issue in the present case is whether the evidence is sufficient to establish, beyond reasonable doubt, that it was the act of the accused which caused the deceased's death. If I am not so satisfied, I must find the accused not guilty of the deceased's murder. If, on the other hand, I am satisfied that it was the accused who stabbed the deceased, I must then proceed to consider a number of alternative issues including the question of the deceased's intention and, depending on the resolution of that issue, whether or not the deceased should be found guilty of the alternative count of manslaughter. Further, and depending on what view is reached in relation to some or all of those issues, I am required to give consideration to the issue of whether or not the accused was substantially impaired at the time. The submissions of the parties 358Both the Crown and counsel for the accused structured their submissions around the principle question that I have identified. 359The Crown emphasised that in case dependent on circumstantial evidence, it was necessary for me to consider the entirety of the evidence, and not approach my evaluation of it in a piecemeal way by reference to individual aspects of it. The Crown's submissions touched upon a number of aspects of the evidence of events which took place on 11 and 12 February. Whilst those submissions were not structured in a chronological sequence, the position advanced by the Crown may be better understood if I summarise the submissions in that way. 360In terms of the evidence of Jones the Crown referred, in particular, to his evidence that he had observed the accused and the deceased, "muttering their differences" during the early afternoon of 11 February. In particular, the Crown relied on Jones' evidence that he had heard the accused say to the deceased "I'll kill you if you get back on the wine". Even allowing for the evidence of Jones that in his observation, statements and behaviour of that nature were perhaps not atypical of the relationship between the accused and the deceased, the Crown submitted that such evidence served to paint something of a background picture, against which the evidence of the subsequent events of the day ought be assessed. 361The Crown also submitted that the evidence of Jones established the accused's state of mind at that time. The Crown argued that this evidence was generally consistent with the tendency evidence to which I previously referred. The Crown submitted that such evidence established that the accused was, generally speaking, a person prone to violence. 362The Crown also relied upon the evidence of the telephone calls to which I have previously referred. The Crown submitted that the evidence established that the accused was present at the deceased's premises at 9.21.16 on the evening of 11 February 2009, when a call was made to 000 for the purposes of the accused complaining about Jones. It was submitted that having regard to the statements made by the accused in the second of her interviews, and having regard to the nature of the complaint which was made at the time, I would be satisfied beyond reasonable doubt that it was the accused who made that telephone call and that I would thus be satisfied that she was at the deceased's premises at that time. The deceased was obviously alive at that time. 363The Crown submitted that I would be satisfied on the evidence that when the police arrived at the deceased's premises shortly after 8.50 pm on the evening of 11 February, the demeanour of the accused was consistent with her having an aggressive state of mind. This, he submitted, was consistent with her engaging in an aggressive act of killing the deceased some hours later. 364The Crown also relied upon the evidence that the deceased had intervened and told the accused to (inter alia) "calm down" when the police were at the premises during the evening of 11 February. The Crown's submission, as I understood it, was that there was an inference available that the accused's subsequent act of stabbing the deceased was a reaction to the deceased's earlier intervention. In this context the Crown also relied upon the tendency evidence to which I have previously referred. 365The Crown submitted that I would be satisfied that the accused was at the deceased's premises at 23.22.55 and 23.26.19 (at which time calls were made to Channel Seven), at 23.30.49 (at which time a call was made to a bushfire appeal) and again at 00.28.39 (at which time the accused called triple 0 advising that the deceased was bleeding). 366The Crown also relied upon the telephone contact between the accused and Norman Fetch which I have earlier set out. The Crown submitted that I would be satisfied that each of the calls made from the landline of the deceased's premises, firstly to the landline of Hilda Fetch and secondly to the mobile service of Norman Fetch, were made by the accused. The Crown submitted that, if such a conclusion were reached, that evidence sustained the inference that the accused was in the deceased's premises at the time of the making of each of those calls. 367The Crown also addressed me in relation to the evidence of fingerprints. He submitted that such evidence established that there was a fingerprint of the deceased present near the front door, along with two fingerprints of a Mr Finlay, who had been identified as a locksmith who had worked on the door some days before. The Crown pointed out that there was no identified fingerprint of any other person at or around the front door. He submitted that this tended against the proposition that some other person had entered the deceased's premises after the accused had left to go to the premises of Baston. However, the Crown candidly conceded that such a submission was deserving of limited weight, and specifically stated that he did not "put that submission highly". 368In respect of the evidence of Dr Orde, the Crown submitted that the fact that the accused was not found to have any blood on her clothes did not exculpate her in view of the opinion of Dr Orde that the haemorrhage suffered by the deceased would have been confined within the abdominal cavity. 369The Crown further submitted that I would find that whomever was responsible for stabbing the deceased had cleaned the knife and the knife block which were the subject of examination by the police. In this regard, the Crown pointed, in particular, to the bloodstain which was found on the kitchen floor of the premises which, he submitted, I would find was the blood of the deceased. He submitted that this evidence was consistent with the person responsible going to the kitchen to return the knife, observing the blood on the floor and then cleaning the knife and the block. In these respects the Crown also relied upon the fact that a swab taken from the blade of the knife did not reveal the presence of blood. 370The Crown identified two competing hypotheses concerning the circumstances of the deceased's death. The first was that the deceased had harmed himself. The Crown invited me to reject that hypothesis, principally on the basis of the same evidence as that which was relied upon in support of the earlier argument that the accused had told lies about how the deceased was harmed. He also submitted that the evidence of the bloodstain on the kitchen floor, and what he submitted was the cleaning of the knife, was inconsistent with such a hypothesis. 371The second was that an unknown person had entered the deceased's premises and stabbed him, in circumstances where the accused had left the front door of the premises open. The Crown submitted that this was not a reasonable hypothesis because there was no evidence of any identified person having a motive to harm the deceased in any way. 372The fundamental proposition advanced by Mr Austin on behalf of the accused was that when the evidence was viewed as a whole it established little more than the fact that the accused had an opportunity to kill the deceased. He submitted that the evidence fell short of being sufficient to establish, beyond reasonable doubt, that the accused had in fact done so. 373Mr Austin took me to the evidence of the relationship between the accused and the deceased and, in particular, the evidence of Jones as to his observations of the two of them during the course of 11 February 2009. Mr Austin submitted that the conclusion to be reached on the basis of that evidence was that interactions between the accused and the deceased of which Jones gave evidence were a normal incident of their relationship and that the accused's expressions to the effect of "I'll kill you" were not said with an intention to carry out such a threat, and were not (and were not intended to be) expressions of aggression or violence. To the extent that the accused had told the deceased that she would "kill him" if he did not stop drinking wine, Mr Austin submitted essentially submitted that expressions of that nature were often said by people, be it out of frustration or otherwise, and without any accompanying intention to ever carry out such a threat. It should be noted that the Crown, when taking me to that evidence, conceded that it was "not a piece of evidence ..... which one would place great weight on". 374Mr Austin submitted that the evidence did not support the conclusion that the knife, or the knife block, had in fact been cleaned. He pointed out that the evidence of the results of the presumptive test were equivocal, that there was no evidence of the age of the blood stain (if it was, in fact, a human blood stain) that was found on the knife, and that there was similarly no evidence of the age of the bloodstain found on the floor. 375Mr Austin did not argue against a finding that the accused was in an agitated state when the police attended the deceased's premises at 8.51 pm following her complaint about Jones. However, he submitted that even if that were the case, it did not follow that she was similarly agitated three hours later and that she stabbed the deceased in that frame of mind. In this regard Mr Austin pointed out that the accused's agitation at that earlier time was directed towards Jones, not the deceased. Although there is evidence that the deceased told the accused at that time to "calm down", Mr Austin submitted that this intervention was not of a kind which would have provided some catalyst for the accused to want to harm the deceased several hours later. 376Mr Austin also relied on the fact that there was nothing in the evidence of the statements made by the deceased which was in any way inculpatory of the accused. He also pointed out, that the deceased was asked on more than one occasion what happened and he repeatedly replied to the effect "I don't know". 377In these circumstances, Mr Austin submitted that the entirety of the evidence established nothing more than the fact that the accused had the opportunity to kill the deceased. He submitted that neither of the competing scenarios could be excluded as a possibility and that the Crown had failed to establish, beyond reasonable doubt, that it was the act of the accused which killed the deceased. CONSIDERATION AND CONCLUSION General principles 378Both the Crown and counsel for the accused made reference, in the course of their submissions, to the fact that the Crown case was entirely circumstantial. As the tribunal of fact, it is necessary for me to consider and weigh all of the circumstances established by the evidence in deciding whether there is an inference consistent with innocence open on that evidence (see generally R v Hillier (2007) 228 CLR 618 at 637 per Gummow, Hayne and Crennan JJ). 379It is also important to recognise that often in a case based upon circumstantial evidence there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. However, a circumstantial case is not to be considered in a piecemeal fashion. Consideration must be given to the weight which is to be ascribed to the united force of all of the circumstances put together (Hillier (supra) at 638 citing R v Chamberlain [No. 2] (1984) 153 CLR 521). At the conclusion of such a consideration, the guilt of the accused should not be simply a rational inference. It should be the only rational inference that is able to be drawn in all of the circumstances (see generally Shepherd v R (1990) 170 CLR 573). The accused is presumed innocent until her guilt is proved beyond reasonable doubt, such a standard being an exacting one (see Douglass v R (2012) 290 ALR 699 at [47]). What circumstances are established by the evidence? 380The accused and the deceased had known one another for some time. Whilst the precise nature of that relationship is not completely clear, I am satisfied that it was characterised by arguments taking place between them, in the course of which the accused had threatened to kill the deceased. However I am not satisfied that those threats, when made, were accompanied by an intention on the part of the accused to in fact kill the deceased. 381Both the accused and the deceased were prone to drinking excessive amounts of alcohol. The evidence also establishes that the accused was prone to acting aggressively, particularly when she had been drinking. Mr Swan gave evidence of one occasion on which he saw the accused be violent towards the deceased, although that is the only evidence of such an incident having taken place. 382I am satisfied that during the course of 11 February 2009 the accused went to Baston's premises and had left two shopping bags there. She had also been present in the vicinity of the unit block when the deceased and Jones were moving a refrigerator in the course of which she had told the deceased, in Jones' presence, that she would "kill (him) if (he) did not get off the wine". That, I am satisfied, was not atypical of statements which the accused would make towards the deceased from time to time. However, there is no evidence that the statement was accompanied by any overt display of aggression on the part of the accused, and there is no evidence of anything else about her demeanour on that occasion which would support a conclusion that she intended to put her threat into effect. 383I am satisfied that the accused called 000 from the deceased's premises at 19.21.16 on 11 February 2009 in order to complain about the alleged indecent assault by Jones. I am satisfied that the when the police arrived at about 8.50 pm that evening, the accused was well affected by alcohol, that she was confused, and that she was exhibiting a mood which fluctuated between being calm and aggressive. There is no evidence that there had been any act on the part of the deceased which might have caused the accused's aggressive frame of mind. To the extent that the accused was aggressive at that time, the evidence supports the conclusion that her aggression was directed towards Jones, not the deceased. 384I am satisfied that in the course of the accused making her complaint to the police at that time, the deceased intervened and urged the accused to (inter alia) "calm down". However, there is nothing to suggest that the deceased did so in an aggressive fashion. On the contrary, I accept the evidence of Constable Cross that the deceased intervened in a fashion which was "tolerant and understanding". In these circumstances I do not accept the submission advanced by the Crown that the deceased's intervention on that occasion somehow provided a reason or motive for the accused to be aggressive towards the deceased and kill him some hours later. There is nothing in the evidence which would suggest that there was any particular behaviour on the part of the deceased at any time during the course of 11 February 2009, or at any other relevant time, which might have provided some motive to the accused to want to kill him. 385The evidence establishes that the police spoke to Jones following the accused's complaint at 9.30 pm. The time at which they left the deceased's premises is not clear but in circumstances where Jones' premises were in the same unit block, I am satisfied that it was some time shortly before 9.30 pm. The accused and the deceased were present in the deceased's premises when the police left. 386The evidence establishes that between 9.30 pm and 11.30 pm, a total of three calls were made from the deceased's landline to the landline of the premises of Hilda Fetch, who was the mother of Norman Fetch. Norman Fetch had known both the deceased and the accused for a considerable period of time. However, he had had greater contact in recent years with the accused, having been in a relationship with her for a short of period of time some 12 months prior to the deceased's death. 387In these circumstances, bearing in mind the other evidence of telephone contact between the accused and Mr Fetch on or about the day of the deceased's death, and notwithstanding Mr Fetch's inability to recall any detail whatsoever of calls which were recorded as having been made to or by him, I am satisfied that all of the calls which were recorded as having been made from the deceased's premises to those of Mrs Fetch were made by the accused. It follows that I am satisfied that the accused was present at the deceased's premises at the times of those calls being made. 388In particular, I am satisfied that the calls made to Mrs Fetch's premises on the evening of 11 February 2009 at 22.47.00, 22.52.40 and 22.53.26 were made by the accused and that the respective durations of those calls were 46 seconds, 18 seconds and 201 seconds respectively. Mr Fetch could remember nothing about these calls, or indeed any of the calls which were made to his mother's landline or his own mobile service. I am satisfied that his inability to do so is attributable to his alcoholism. Accepting that he spoke with the accused on those various occasions, there is no direct evidence, nor is there any other evidence which would support an inference, as to what was discussed on any of those occasions. The only possible exception to that is the call made from the deceased's premises to those of Mrs Fetch at 12.27 am to which I have referred below. 389I am satisfied that the accused made two calls to Channel 7 at 23.22.55 and 23.26.19, and that she made a further call to the "Bushfire Appeal Hotline" at 23.30.49. The duration of the last of those calls was 54 seconds. In these circumstances, I am satisfied that the accused was present at the deceased's premises at least until just after 11.31 pm on 11 February 2009. 390The accused subsequently went to Baston's premises and collected the two shopping bags which she had left there earlier in the day. The evidence does not enable me to be precise about the time at which she left the deceased's premises to go to Baston's. However, in light of Baston's evidence that the accused did not attend his premises in the course of a particular television program which had started at 11.50 pm, I am satisfied that it was some time prior to that. I am also satisfied that the accused left Baston's premises walking in a direction opposite to that of the premises of the deceased, having told Baston that she was tired and that she was going home. 391There is evidence of a call having been made at 00.10.00 from the deceased's premises to the landline of the accused, the duration of which was 54 seconds. Neither party addressed me in relation to what inferences were available to be drawn from the fact of that call having been made. However, in light of Baston's evidence about what the accused told him when leaving his premises, I am satisfied that the accused, having left the deceased's premises, returned home and was in fact at her own premises when the call was made from the deceased's premises in the early hours of the morning of 11 February 2009, and that it was the deceased who called her on that occasion. The evidence does not permit a finding as to what was discussed on that occasion. 392The evidence establishes that a call was made from the deceased's premises to those of Hilda Fetch at 00.27.49. The duration of that call was 25 seconds. For the reasons previously outlined I am satisfied that the accused made that call. There is again no direct evidence of what may have been discussed in the course of that call. However, the call to 000 which was made by the accused followed immediately after at 00:28:39. In the second of her two interviews with police, the accused made reference to Mr Fetch having previously been a paramedic. Irrespective of whether or not this was in fact the case, that evidence, along with the proximity of the two calls, supports the inference that the accused was ringing Mr Fetch to obtain his assistance in respect of the reporting of the deceased's injury. 393The Crown opened its case on the basis that the accused killed the deceased at one of two times. The first was at some time prior to leaving the deceased's premises to go to those of Baston. As I have indicated, the time at which she left to go to Baston's premises it not clear but I am satisfied that it was between about 11.30 pm and 11.50 pm on the evening of 11 February. Alternatively, the Crown put that the accused killed the deceased after she had returned to his premises in the early hours of the morning of 12 February. Whilst I am satisfied that the accused was back at the deceased's premises at 12.27 am on 12 February (when she made the call to Mr Fetch) I am not able to determine the time at which she arrived there. 394I have already made reference to the evidence that a call was made from the deceased's premises to those of the accused at 12.10 am on the morning of 12 February which lasted 54 seconds. I am satisfied that the deceased was at her home at that time. 395Other than being at her home at 12.10 am, the evidence does not establish the whereabouts of the deceased between some time after 11.30 pm on 11 February, and shortly prior to 12.27 am on 12 February. Importantly, there is no evidence which places her at the premises of the deceased with that period. Depending upon what time she left to go to Baston's premises, that period could be almost one hour. 396When the ambulance arrived at the deceased's premises following the 000 call by the accused, she was observed to be in an agitated state. She repeatedly stated that she did not know what had happened. The deceased made numerous statements to the same effect. Other than submitting that some of the statements of the accused were lies, the Crown did not suggest that anything said by the accused (or for that matter by the deceased) on that occasion pointed towards the accused being responsible for the deceased's stabbing. 397The Crown relied upon the scientific evidence to establish (inter alia) that there was blood on the knife found in the kitchen of the deceased's premises. At its highest, the evidence establishes that a presumptive test indicated the possible presence of blood on the knife. However, no confirmatory test was conducted. It is also clear that the results of the presumptive test may have constituted a reaction to the presence of something other than blood. Even if it were accepted that the substance on the knife was blood, the evidence is that the presumptive test does not distinguish between the blood of a human, and that of an animal. Moreover, there is no evidence of its age. 398 Crown submitted that there was an available inference that the person responsible for stabbing the deceased had gone to return the knife to the block, noticed the blood on the knife, turned around to the sink and washed the knife, and then returned it to the block. The Crown submitted that this would explain the presence of what was found to be the deceased's blood on the kitchen floor, the submission being that the blood on the floor had dripped from the blade of the knife. The Crown also submitted that such an inference was supported by the fact that a swab taken of the knife blade was negative flor blood, along with the fact that a presumptive test of a sample of red/brown matter taken from beneath the handle was consistent with blood. 399I am satisfied that the blood stain found on the floor of the kitchen was that of the deceased. However, there is no evidence of its age. It is in my view entirely possible that it was deposited onto the floor in circumstances other than dripping from the blade of the knife after the deceased was stabbed. 400Moreover, the fact that a swab taken from the knife blade was negative for the presence of blood does not, either alone or in combination with the other matters upon which the Crown relied, establish that the knife had been cleaned of blood and placed back in the knife block. This is particularly so in circumstances where the evidence falls short of establishing that the remaining substance which was scraped from beneath the handle of the knife was even blood, let alone the blood of the deceased. In the circumstances, I am unable to accept the submission of the Crown that the evidence sustains an inference that the knife was cleaned. 401There is evidence that in the opinion of Dr Orde, the mechanism of the deceased's injury does not preclude a finding that it was self inflicted. Notwithstanding that evidence, a conclusion that the deceased harmed himself on this occasion is not, in my view, reasonably open on the evidence. Quite apart from the fact that the deceased repeatedly denied that suggestion, there is evidence from his sister and brother in law that when they saw him only two months prior to his death, the deceased was in a generally positive frame of mind, notwithstanding that he had been diagnosed with cancer and was undergoing a course of Chemotherapy. There was certainly nothing in the deceased's demeanour at that time which was consistent with an intention to harm himself. 402The evidence of Dr Missiakos did include reference to the fact that on 10 February 2009, i.e. only 2 days prior to his death, the deceased had said that if the cancer was found to have spread he "could not live with the idea". However, even allowing for the proximity between that statement and his death, there is no evidence that the deceased was provided with any information in the intervening two day period which suggested to him that the disease had spread, and which might have caused himself to take his own life. 403There was, as I have pointed out, a period in respect of which the evidence of the deceased's movements is largely silent, and within which there is no evidence to place her at the accused's premises. For the reasons previously advanced, I am satisfied on the evidence that the accused was at her home during at least some of that period. 404Neither the Crown nor counsel for the accused sought to place any significant reliance upon anything said by the accused in the course of her two interviews with the police. The reasons for that will be self evident from the matters I have previously discussed. In the second of those interviews the accused told police that when she left to collect her bags from Baston's premises she left the door of the deceased's premises unlocked. If it was the case that the door was left unlocked it would explain how an unknown person could have gained access to the deceased's premises and stabbed him. However, even if the deceased's assertion about leaving the door open was wrong, the possibility of some unknown person entering the premises cannot, in my view, be excluded. It is entirely possible, for example, that the deceased could have answered a knock at the door and opened it. 405The principal submission put by the Crown against the possibility of another person entering the deceased's premises and stabbing him was that there was no evidence that any other person had a motive to want to harm the deceased. The difficulty with that submission is that the Crown did not point to any evidence of motive on the part of the accused, but relied upon her tendency to act aggressively. I accept that the accused had that tendency, but that is not evidence of motive. The only other matter to which the Crown pointed in this respect was the evidence of the deceased's intervention when the police attended his premises at about 8.50 pm on 11 February, when he told the accused to (inter alia) "calm down". For the reasons I have already outlined, the evidence of the deceased's intervention, delivered as it was in an apparently caring fashion, does not provide evidence of a motive on the part of the accused to want to harm the deceased several hours later. In fact in my view, it tends wholly against this suggestion. 406It is the Crown case that the accused stabbed the deceased either before she left the deceased's premises to go to Baston's premises late on the evening of 11 February, or alternatively after she returned to the deceased's premises on the morning of 12 February. There is no medical or other evidence which might assist in establishing the time at which the deceased was stabbed. It must be accepted that the accused had the opportunity to kill the deceased either before she left the deceased's premises, or once she had returned. 407At the same time, there is a period approaching one hour during which the evidence does not place the accused at the deceased's premises. At one point within that time, I am satisfied that she was at home. The possibility that an unknown person stabbed the deceased within that time, and that the accused later found him bleeding cannot, in my view, be excluded. Evidence of opportunity is not sufficient to establish that the accused stabbed the deceased, and no amount of suspicion can substitute for proof beyond reasonable doubt. 408In these circumstances I am not satisfied that the evidence establishes that the accused was responsible for the act which caused the death of the deceased. 409Accordingly, and for these reasons, I find the accused not guilty of the murder of William Grant on 12 February 2009. It follows that I also find the accused not guilty of the manslaughter of William Grant on 12 February 2009. ORDERS 410I make the following orders: (i)I find the accused not guilty of the murder of William Grant on 12 February 2009; (ii)I find the accused not guilty of the manslaughter of William Grant on 12 February 2009; (iii)I enter verdicts of acquittal in respect of both matters. ********** 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: 23 August 2013