R v McParland; R v Wingate (No 3) [2011] NSWDC 266

District Court New South Wales

Medium Neutral Citation: R v McParland; R v Wingate (No 3) [2011] NSWDC 266 Decision date: 18 July 2011 Before: Cogswell SC DCJ Decision: Application to tender record of interview against accused Wingate refused. Catchwords: CRIMINAL LAW - Evidence - judicial discretion to admit or exclude evidence -unfair in the circumstances to admit evidence contained in record of interview - accused tried unsuccessfully to exercise his right not to do an interview and to speak to a solicitor. Legislation Cited: Evidence Act 1995 (NSW), ss 85, 90, 135, 137. Cases Cited: R v Em [2003] NSWCCA 374 R v Fernando [1999] NSWCCA 66 Category: Procedural and other rulings Parties: Regina (Crown) Troy McParland (Accused) Luke Wingate (Accused) Representation: Counsel: F M Sullivan (Crown) N E Keay (Accused - McParland) J E Healey (Accused - Wingate) File Number(s): DC 2010/388494 (McParland) DC 2010/394917 (Wingate)

Judgment 1Ms Sullivan who appears for the Director of Public Prosecution in this case has tendered against the accused Luke Wingate a record of interview. Ms Healey of counsel who appears for Mr Wingate objects to its tender. Ms Healey objects to its tender based upon s 135 and s 137 of the Evidence Act 1995 (NSW). In addition she relies on s 85 and s 90 of that Act. 2Ms Healey argued that there is, in terms of s 137, unfair prejudice to her client and, in terms of s 135, danger that the record of interview might be unfairly prejudicial to her client. She played part of the interview and asked me to conclude that her client appeared intoxicated. He may be intoxicated from the use of illegal drugs or indeed prescribed drugs or from alcohol. There was evidence that the accused had been drinking. There is evidence that he had with him at the time of his arrest some syringes and there is evidence that he was being treated for pain and opium addiction. She argued that her client's demeanour in the interview was such that he was not in a fit state to undergo the interview. 3The probative value of the interview is high. Mr Wingate gives an explanation for the allegations which are levelled against him and which are the subject of this trial. However to my mind there is no unfair prejudice or danger that the evidence might be unfairly prejudicial to him. To my mind he does not appear to be so intoxicated as not to be in a fit state to be interviewed. I would accept Ms Sullivan's description of him as animated. I do not regard the application under either s 135 or 137 as having sufficient merit. 4Ms Sullivan for the prosecution argues, so far as s 85 is concerned, that the interview was given in circumstances which were such as to make it unlikely that the truth of the admission was adversely affected. I think she is right in that argument. I do not regard him as being demonstrably intoxicated. He seemed fairly articulate, engaged in the process of the interview and, as Ms Sullivan argued, ready to explain his part in the circumstances which led to him being charged. 5Ms Healey's final argument is that having regard to the circumstances in which the admission was made it would be unfair to her client to use the evidence. She points to three or four passages in the record of interview. 6In question 4 when asked whether Mr Wingate and the police were the only persons in the room, he answered, "Yeah. Hold on. Before we get into all this, I am not doing any interview that, what I, what I". The police officer responded, "Okay you just have to let me finish this. Okay. So let me finish this and then". 7A short time later in the interview Mr Wingate's rights were explained to him by the custody manager and he was asked whether he wanted to exercise any of his rights. Mr Wingate's response was "well, like I just said, me girl was trying to ring up a, a solicitor to find out why I'm actually sitting here, like you said, on an allegation." The police officer's response was, "Yeah. You, we can get a chance to ring your solicitor once we're finished." Mr Wingate acknowledged that he had been given a piece of paper by a custody manager about his rights and when asked whether he wanted to exercise any of them he replied, "No, I can't remember all the rights off the top of me head, but just continue. You're right. Keep going.". 8Ms Sullivan argues, correctly I think, that Mr Wingate made it clear that in all the circumstances he did not object to being interviewed and that despite his hesitations he was prepared to proceed with the interview. 9The authorities on this question emphasise - for example in R v Fernando [1999] NSWCCA 66 at [30] - that the courts need to "be vigilant to ensure that evidence is not permitted to be introduced at an unacceptable price". And in R v Em [2003] NSWCCA 374 at [104] the Court said that the "purpose of the discretion is the protection of the rights and privileges of the accused." 10The three qualifications which Mr Wingate attempted to make in response to the police officer's questions concern me. Right at the start when he indicated that he was not doing an interview he was told by the police that he had to "let me finish this". When he raised the question of speaking to a solicitor he was told that he would get a chance "once we're finished". He then said that he could not remember his rights. 11In my opinion it would be unfair to use the evidence contained in the interview against Mr Wingate in those circumstances. Although I am satisfied he was fit to be interviewed and although I am satisfied that he proceeded to provide an articulate and engaged interview, his attempts right at the start to exercise his rights - his right not to do an interview and to speak to a solicitor -were it seems to me overridden by the police officer's understandable desire to proceed with the interview. The police officer no doubt understood that he would be going through a process of asking whether the person he was interviewing understood his rights but to my mind it would be unfair to use the contents of the interview against Mr Wingate in circumstances where he has given those responses which I have highlighted. 12For those reasons I refuse to admit VDB against Mr Wingate.