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Supreme Court 14 November 2001

Regina v Munce

[2001] NSWSC 1072

Homicide
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE RECORD OF INTERVIEW

Citation: Regina v Munce [2001] NSWSC 1072
Court: Supreme Court of New South Wales (Criminal Division)
Date: 14 November 2001
Judge(s): McClellan J

Background

The accused was charged with the murder of Leslie Forrest, who died on 21 January 1971 after falling down a companionway on a merchant vessel berthed in Newcastle harbour. A coronial inquiry at the time returned a finding of accidental death. Nearly three decades later, in November 1999, the accused contacted police in Auckland and participated in a formal electronically recorded interview (ERISP) in which he made admissions to deliberately kicking the deceased, causing the fatal fall.

The ERISP was complex in character. It contained both admissions that the accused caused or contributed to the deceased's fall and statements that contradicted those admissions. The Crown's case at trial was to rest almost entirely on this interview, supplemented by the evidence of a fellow seaman (who did not witness the incident but could speak to a possible motive) and a forensic psychiatrist.

The accused had a long history of serious alcohol and drug dependence dating from his teenage years, as well as chronic depression and persistent psychiatric symptoms, including flashbacks and nightmares relating to the alleged offence. He had told his treating psychiatrist that he only came to believe he had killed the deceased after years of such intrusive symptoms, and that following further psychiatric treatment after the confession, those symptoms had subsided and he no longer believed he had pushed the deceased.

  • Whether the ERISP was admissible under section 85 of the Evidence Act 1995 (NSW), which concerns the reliability of admissions made in official questioning
  • Whether the court should exercise its discretion to exclude the ERISP under section 90, which allows exclusion of admissions where it would be unfair to use them
  • Whether the ERISP should be excluded under section 135(b) or (c) on the grounds that it was misleading or confusing, or would cause undue waste of time
  • Whether the ERISP should be excluded under section 137, which requires exclusion of prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant

Decision

McClellan J conducted a voir dire (a preliminary hearing to determine admissibility, held in the absence of the jury) and received evidence from the Crown's forensic psychiatrist, Dr O'Dea, as well as a report from the defence psychiatrist, Dr Westmore. The psychiatric evidence painted a picture of a man whose admissions arose after decades of flashbacks and nightmares, heavy substance abuse, and profound guilt, and who had later recanted those admissions following further treatment.

On the section 85 and section 90 grounds, the court acknowledged the real frailties in the ERISP. The admissions were internally inconsistent, and the medical evidence about the accused's psychiatric condition and substance use history cast considerable doubt on their reliability. Nevertheless, McClellan J declined to exclude the ERISP on either basis, treating the internal contradictions and psychiatric context as matters going to weight rather than admissibility.

On section 135, the court rejected the argument that the ERISP was misleading or confusing, or that admitting it would cause undue waste of time. These grounds were not made out. On section 137, the court concluded that although the ERISP carried little probative value, no unfair prejudice to the accused beyond the ordinary tendency to prove guilt could be identified, so the mandatory exclusion provision was not engaged.

McClellan J was candid about the difficulties facing the Crown case, describing the ERISP as carrying "some, but little, probative value" and noting the considerable challenges of a prosecution that depended almost entirely on an admission riddled with inconsistencies and complicated by the accused's psychiatric history. Despite this, the court concluded that the question of what weight to give the ERISP was properly a matter for the jury, and no legal basis for exclusion existed.

Orders Made

• The ERISP evidence is admitted into evidence

Key Takeaways

  • McClellan J confirmed that internal inconsistencies within an ERISP, and psychiatric evidence undermining the reliability of admissions, go to the weight of the evidence rather than its admissibility, provided no specific statutory exclusion ground is made out.
  • Under section 137 of the Evidence Act 1995, the relevant "prejudice" is prejudice beyond the ordinary inculpatory effect of the evidence; a low probative value alone does not trigger mandatory exclusion if no additional unfair prejudice is identified.
  • The probative value of evidence for the purposes of sections 135 and 137 necessarily incorporates considerations of reliability, following the approach of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297.
  • Where an admission is admitted into evidence over objection, the weight to be given to that admission remains entirely a question for the jury, informed by any directions the trial judge provides.
  • A voir dire on admissibility of an ERISP was permitted even where the grounds of objection were contested in their application, consistent with the approach endorsed in Charajit Singh-Bal (1997) 92 A Crim R.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW): sections 85(1), (2), (3); 90; 135(b), (c); 137

Cases
- Charajit Singh-Bal (1997) 92 A Crim R
- R v Rooke (unreported, CCANSW, 2 September 1997)
- R v Braun (unreported, SCNSW, 24 October 1997)
- R v Taylor [1999] ACTSC 47 (26 May 1999)
- R v Swaffield; Pavic v The Queen (1998) 192 CLR 159
- Sinclair v The King (1946) 73 CLR 316
- Papakosmas v The Queen (1999) 196 CLR 297