Citation: R v Christos PODARAS [2009] NSWDC 369
Court: District Court of New South Wales
Date: 26 October 2009
Judge(s): Cogswell SC DCJ
Background
The accused was charged with assisting another person in assaulting a third party. The Crown alleged that the accused and his co-offender fabricated a false account to explain the presence of blood on the co-offender, which involved making a triple-0 call to report a fictitious assault by the alleged victim.
When police attended the unit in response to that call, the accused told the attending officer that nothing was going on and that no one had called the police. The Crown sought to tender a police officer's written statement recording that exchange as evidence of a lie told by the accused.
The defence opposed the tender on several grounds, including that the accused had a documented history of developmental delay and cognitive impairment, with verbal abilities assessed as falling within the moderately mentally retarded range.
Legal Issues
- Whether s 281 of the Criminal Procedure Act 1986 required a tape recording of the accused's words as a precondition to admissibility
- Whether s 85 of the Evidence Act 1995 required exclusion of the statement on the basis that the circumstances made it unlikely the truth of the admission was not adversely affected, having particular regard to the accused's cognitive impairment
Decision
On the s 281 objection, the court held that the provision did not apply. At the time police knocked on the door, they attended in response to a complaint about a neighbour being assaulted and could not reasonably have suspected the accused of having committed an offence. The absence of a tape recording was also treated as reasonably excusable given the circumstances of an unplanned doorstep interaction.
On the s 85 objection, the court applied the statutory requirement that an admission is only admissible if the circumstances in which it was made were such as to make it unlikely that its truthfulness was adversely affected. Section 85(3) expressly permits the court to consider any mental, intellectual, or physical disability of the person said to have made the admission.
The court was not satisfied that the circumstances met the threshold for admissibility. The psychiatric evidence of significant cognitive impairment, the accused's very limited verbal ability, and other contextual matters in the trial collectively meant the court could not be satisfied that the truth of the admission was unlikely to have been adversely affected.
The court also observed, without needing to decide the point formally, that admitting the evidence would have been unfair to the accused in light of his cognitive limitations.
Orders Made
- The tender of the police officer's statement was rejected.
Key Takeaways
- The District Court confirmed that s 281 of the Criminal Procedure Act 1986 is not engaged unless investigating police could reasonably have suspected the person of having committed an offence at the time the statement was made.
- Where a suspect was not yet the target of police inquiry, the absence of a tape recording of their words may also be reasonably excusable in the circumstances.
- Under s 85 of the Evidence Act 1995, a court may exclude an admission where the circumstances of its making were not such as to make it unlikely that its truthfulness was adversely affected, with the accused's cognitive or intellectual disability being an expressly relevant consideration under s 85(3).
- Psychiatric evidence of cognitive impairment, combined with contextual trial evidence about limited verbal ability, can be sufficient to displace the admissibility of an otherwise responsive answer to a police question.
- A court retains a separate discretion to exclude evidence as unfair where the circumstances in which an admission was obtained are coloured by the accused's cognitive vulnerability, even if strict statutory exclusion is not technically required.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), s 85 (including s 85(3))
Cases cited: None cited in the judgment.