District Court New South Wales Medium Neutral Citation: R v Hunter (a pseudonym) [2019] NSWDC 543 Hearing dates: 21 March 2019, 26 April 2019, 19 June 2019 Decision date: 23 August 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Electronically recorded interview of accused by Police excluded from being admitted into evidence in the Special Hearing Catchwords: Vulnerable person - protection of rights - LEPRA regime not complied with Legislation Cited: Law Enforcement (Powers and Responsibilities) Regulations 2005; Evidence Act 1995 (NSW), ss 85, 90, 138,139 and 144; Mental Health (Forensic Provisions) Act NSW, ss 16 and 19. Cases Cited: R v Phung and Huynh [2001] NSWSC 115. Category: Procedural and other rulings Parties: Regina (Crown) Hunter, a pseudonym (Accused) Representation: Mr Sfinas (ODPP Parramatta) Ms Climo (Accused) File Number(s): 2015/174928 Publication restriction: Non publication order of the name of the accused or the complainant and of any other fact or thing that may identify either of them, directly or indirectly. Judgment 1. On 13 June 2015, the accused was interviewed by police in connection with an allegation that he had had unlawful sexual intercourse with the complainant on 7 June 2015 (the complainant being a person who had a cognitive impairment). 2. At the time he was interviewed, the accused himself suffered from a mild intellectual disability in both his cognitive reasoning and adaptive behaviour, with the result that he functioned at a level lower than 99 per cent of his age peers (his age at that time being 64). Specifically, his functional age in relation to his communication skills was the equivalent of a child aged 7 and a half years old; and his functional age in relation to his ability to address new problems was the equivalent of a child aged 5 years. 3. On 22 September 2017, the accused was found unfit to be tried by another Judge of this Court. 4. On 15 March 2018, and pursuant to s 16 of the Mental Health (Forensic Provisions) Act, the Mental Health Review Tribunal found that the accused was unfit to be tried and would not become fit within 12 months of the Court's finding. 5. On 20 March 2019, the Director of Public Prosecutions, pursuant to s 19 of the Mental Health (Forensic Provisions) Act, notified the Court that he intended to proceed with the charge against the accused. 6. On 21 March 2019, a special hearing before me commenced. The accused was arraigned and I directed that a plea of not guilty be entered in relation to the one Count on the indictment. 7. I then commenced the first of three anticipated voir dires – that first voir dire being whether the electronically recorded interview with the accused was admissible in the Crown case in the special hearing. 8. For the reasons that follow, I have decided it is not admissible. 9. By reason of his intellectual disability, the accused was, at the time of his arrest and interview, a vulnerable person within the meaning of Part 3 Division 3 of the Law Enforcement (Powers and Responsibilities) Regulation 2005. 10. Those regulations, together with sections 85, 90, 138 and 139 of the Evidence Act, constitute the "legislative regime" to which Wood CJ at CL was referring in R v Phung and Huynh [2001] NSWSC 115. 11. It is helpful to repeat what is Honour said at [34] and following: "[34] It may be accepted that the purpose of the legislative regime, that now applies to the interview of [vulnerable persons], and particularly those in custody following arrest, is to protect them from any disadvantage inherent in their [vulnerability], as well as to protect them from any form of police impropriety. As to the former, what is required is compliance with the procedure laid down so as to prevent the… vulnerable accused from being overawed by the occasion of being interviewed, at a police station, by detectives who are likely to be… more experienced than they are. … [37] That position is reinforced by the requirements of the regulations so far as they apply in relation to vulnerable persons…. In particular regulation 20 requires the custody manager to assist a vulnerable person in exercising that person's rights, and regulation 26 requires the custody manager to explain to a support person that his or her role is not confined to acting merely as an observer, but also extends to doing the other things specified. [38] It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights, of some significance, which attach in particular to [vulnerable persons]… [39] The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law". 1. To give effect to the legislative scheme to which his Honour was referring, police maintain Custody Management Records. They did so for the present accused. 2. The record shows that he arrived at the Parramatta Police Station at 7:30pm; and that the arresting officer started custody at 7:58pm. 3. Thereafter, various assessments were made by the relevant custody manager. 4. That custody manager was an experienced officer who stated in cross-examination that, in the context of a person having impaired intellectual functioning, it was not always apparent, on a first glance, that somebody might have an intellectual disability; and that sometimes further inquiries might need to be made (see T33). 5. Such a statement accords with not only common sense but is a matter of common knowledge within the meaning of s 144 of the Evidence Act. In this regard, people with intellectual disabilities are frequently not aware of, or have no insight into, that fact - or are in denial. Self-evidently, it is not adequate to merely ask a person whether he/she has an intellectual impairment. 6. The custody manager also stated that, as he goes through the Custody Management Record, he does "look up at the detainee occasionally", but primarily he is looking at his checklist (T29). Further, he said that in going through the checklist, he spent 2 to 3 seconds at the most on the topic "vulnerability assessment" (T28) – emphasis added. 7. I pause to note that the entire Custody Management Record on this occasion seems to have been completed by the custody manager within 60 seconds. 8. A helpful – and easy – check to test whether a detainee has impaired intellectual functioning would be to ask the detainee, in connection with the caution for example, what he understood by the right to silence. 9. The relevant custody manager could not remember whether he had done so in this case. 10. Having seen the accused in the subsequent recorded interview, I have no doubt that if the custody manager had looked up at this detainee and asked that question, the answer would have revealed reasons to be concerned as to whether he did have an intellectual impairment and for further enquiries to be made. 11. In this fundamental respect, there was a failure to give proper regard to the regime to which Wood CJ at CL was referring. 12. That is sufficient to engage the exclusionary aspects of the sections of the Evidence Act called in aid by Counsel for the accused. 13. The problems, however, go further as the obligations of the regime did not end with the custody manager, but extended to the interviewing officers. 14. The contents of the interview itself clearly confirm that the accused had not understood the effect of the caution. See, for example, the exchanges between the accused and the officer conducting the interview when the accused said: "Don't charge me and I won't do it again". Moreover, the difficulties in understanding the accused's speech should have indicated to the interviewing officers that the accused had some kind of disability which required further investigation. 15. And the problems go yet further. 16. I got the clear impression looking and listening carefully to the accused that he was, on crucial issues, giving answers which he thought would please the officers rather than what was necessarily the truth. In this respect, I specifically agree with Professor Hayes at page 10 of her report dated 1 December 2016. His answers were in many respects, therefore, unreliable. 17. In the result, I am satisfied that the accused has discharged the onus he bears for each and all of the sections called in aid; that the necessary statutory unfairness or prejudice has been established; and that that unfairness and / or prejudice is of such significance that it outweighs any probative value in the evidence. 18. The electronically recorded interview, and the preceding hand-held interview, are excluded from evidence in the special hearing. 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: 08 October 2019