Citation: R v McParland; R v Wingate (No 3) [2011] NSWDC 266
Court: District Court of New South Wales
Date: 18 July 2011
Judge: Cogswell SC DCJ
Background
The accused Wingate was charged with criminal offences and had given a record of interview to police following his arrest. The prosecution sought to tender that interview as evidence at trial. The accused was being treated for pain and opium addiction at the time of arrest, and there was evidence he had been drinking. He also had syringes in his possession when arrested.
The defence objected to the tender of the interview on several grounds, including that the accused was intoxicated and unfit to be interviewed, and that it would be unfair in the circumstances to use the interview against him.
Legal Issues
- Whether the accused's apparent intoxication rendered the interview inadmissible under ss 135 and 137 of the Evidence Act 1995 (NSW) on the basis of unfair prejudice
- Whether the circumstances in which the interview was obtained adversely affected the reliability of any admissions, engaging s 85 of the Evidence Act 1995 (NSW)
- Whether it would be unfair to use the interview against the accused under s 90 of the Evidence Act 1995 (NSW), given his attempts at the outset to decline the interview and request a solicitor
Decision
The court rejected the intoxication-based objections under ss 135 and 137. Cogswell SC DCJ observed that while the accused may have consumed alcohol or drugs, he appeared animated, articulate, and engaged throughout the interview. The court was not persuaded he was so intoxicated as to be unfit for interview, and found no sufficient danger of unfair prejudice from that ground.
The court also rejected the s 85 challenge. It was satisfied the circumstances of the interview were not such as to make it unlikely that the truth of any admissions had been adversely affected. The accused was coherent and actively participated in explaining his position.
However, the court upheld the s 90 objection. At the very start of the interview, the accused indicated he did not want to do an interview, was told by the officer to "let me finish this." When he raised wanting to speak to a solicitor, he was told he could do so "once we're finished." He then said he could not remember his rights. Cogswell SC DCJ found these three responses demonstrated that the accused had tried, at the outset, to exercise his right not to be interviewed and his right to speak to a solicitor, and that those attempts had been overridden by the officer's desire to proceed.
The court acknowledged that the police officer's conduct was understandable and that the accused ultimately proceeded to give an articulate and engaged interview. Nevertheless, the court concluded it would be unfair to admit the interview in those circumstances. The purpose of the s 90 discretion, drawing on the Court of Criminal Appeal's observations in R v Fernando and R v Em, is to protect the rights and privileges of the accused, and courts must be vigilant that evidence is not admitted at an unacceptable price.
Orders Made
- The record of interview (VDB) was refused admission into evidence against the accused Wingate.
Key Takeaways
- The District Court confirmed that the s 90 discretion to exclude admissions can apply even where an accused is fit to be interviewed and ultimately participates in an articulate and engaged way, if the accused's initial attempts to invoke their rights were effectively overridden.
- A pattern of three responses, at the outset of an interview, in which an accused indicated reluctance to proceed and sought access to a solicitor, was sufficient to engage the s 90 exclusionary discretion, even absent bad faith by the interviewing officer.
- Under ss 135 and 137, apparent signs of intoxication will not automatically render an interview unfairly prejudicial; the court will assess the accused's actual state and demeanour throughout the interview.
- The court drew on the principle from R v Fernando and R v Em that the purpose of these discretions is to protect the rights and privileges of the accused and to prevent evidence being admitted at an unacceptable price.
- High probative value of an interview does not preclude exclusion under s 90 where the manner in which the interview was obtained was procedurally unfair.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 85, 90, 135, 137
Cases:
- R v Fernando [1999] NSWCCA 66
- R v Em [2003] NSWCCA 374