Citation: Regina v A S Moffatt [No 2] [1999] NSWSC 226
Court: Supreme Court of New South Wales (Criminal Division)
Date: 18 March 1999
Judge(s): Kirby J
Background
The accused faced criminal proceedings in the Supreme Court of New South Wales. The Crown sought to tender an electronically recorded interview with a suspected person (ERISP), consisting of a video recording and accompanying transcript of a police interview.
The accused challenged the admission of that interview on the basis that he was significantly intoxicated at the time it was conducted. A blood alcohol reading of 0.18 g/100mL was recorded at approximately 8am, and expert evidence estimated his blood alcohol level was between 0.20 and 0.23 g/100mL when the interview began at around 6.15am.
The accused had a long history of alcoholism and had developed a significant tolerance to alcohol. The central question was whether the interview could fairly be admitted into evidence, given the level of intoxication recorded.
Legal Issues
- Whether the probative value of the ERISP was substantially outweighed by the danger of unfair prejudice to the accused, under s 135 of the Evidence Act
- Whether the probative value of the ERISP was outweighed by the danger of unfair prejudice to the accused, under s 137 of the Evidence Act
- Whether the interview was misleading or confusing such that it should be excluded under s 135
Decision
Kirby J reviewed the video recording and transcript and considered expert evidence from two medical witnesses, Dr Perl (a pharmacologist with expertise in alcohol-affected responses) and Dr Wong. Both experts concluded that the accused's responses during the interview were lucid, rational, and responsive to the questions asked.
The judgment highlighted several specific indicators of the accused's comprehension during the interview: he sought clarification of questions, demonstrated willingness to disagree with propositions put to him, and correctly anticipated certain lines of questioning. Kirby J also noted strong internal consistency across the accused's answers to similar questions at different points in the interview.
Kirby J further observed that aspects of the interview were corroborated by other evidence, including physical items found at the scene (a broken mirror and a claw hammer) and autopsy findings that were consistent with what the accused had described. This independent corroboration reinforced the interview's probative value.
Applying ss 135 and 137, Kirby J held that the probative value of the interview was not substantially outweighed by any danger of unfair prejudice, and that the interview was neither misleading nor confusing. The ERISP and its accompanying transcript were admitted into evidence.
Orders Made
• The interview and transcript are admitted into evidence
Key Takeaways
- High blood alcohol concentration alone does not necessarily render an ERISP inadmissible; an individual's tolerance to alcohol is a relevant consideration when assessing the weight and reliability of an electronically recorded interview.
- Expert pharmacological evidence played a central role in this ruling, with the court relying on opinions from two specialists that the accused was lucid and responsive despite his measured intoxication level.
- Under ss 135 and 137 of the Evidence Act, the test is not simply whether some prejudice exists, but whether probative value is substantially outweighed (s 135) or outweighed (s 137) by the danger of unfair prejudice.
- Behavioural indicators within the interview itself, such as seeking clarification, disagreeing with propositions, and demonstrating consistency across answers, informed Kirby J's assessment of the interview's probative value.
- Corroboration from independent physical and forensic evidence can reinforce the probative value of a disputed record of interview when assessing admissibility under the Evidence Act.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 135 and 137
Cases cited:
No cases were cited in the judgment.