Citation: R v McKnight (No. 2) [2014] NSWSC 557
Court: Supreme Court of New South Wales
Date: 5 May 2014
Judge: Campbell J
Background
The accused stood trial for the murder of David Ray, following an incident in George Street, Sydney in the early hours of 25 March 2012. It was not in dispute that the accused had repeatedly kicked the deceased. The contested questions were whether he held the requisite intention to inflict really serious bodily harm, and whether the partial defence of substantial impairment reduced his liability from murder to manslaughter.
The accused exercised his right to silence, declining to participate in a formal police interview and not giving evidence at trial. However, three categories of statements attributed to him were before the jury: contemporaneous statements to police on 25 March and 3 April 2012; entries in clinical records relating to his treatment for paranoid schizophrenia or schizoaffective disorder; and histories he provided to two forensic psychiatrists, Doctors Allnutt and Nielssen, for the purpose of their medico-legal examinations.
The question before Campbell J arose in the course of the trial: whether the jury should receive a warning about the potential unreliability of those accounts, and, if so, in what form.
Legal Issues
- Whether a reliability warning under s 165 of the Evidence Act 1995 (NSW) should be given in respect of some or all of the three categories of statements attributed to the accused
- Whether a more limited direction, in the form approved in Mule v The Queen [2005] HCA 49, was more appropriate, having regard to the accused's right to silence
- Whether the appropriate direction varied depending on which category of statement was under consideration
Decision
Issue 1: The s 165 Warning
The Crown sought a direction under s 165 of the Evidence Act 1995 (NSW) warning the jury that the accounts given by the accused, particularly the medico-legal histories, may be unreliable. The Crown's concern was that a person in the accused's position may, as Campbell J put it neutrally, "put their best foot forward" when providing information to forensic psychiatrists for the purpose of advancing a defence. The judge also noted that portions of those accounts were potentially inconsistent with contemporaneous CCTV footage.
Issue 2: Balancing Reliability Against the Right to Silence
Campbell J accepted the Crown's concern about potential unreliability, but was cautious about the broader s 165 direction. Drawing on R v Wilson (2005) 62 NSWLR 346, he described the exercise of giving such a direction as "delicate," because pointing out the potential unreliability of out-of-court statements attributed to the accused risks undermining the right to silence. The judge observed that the degree of potential unreliability varied significantly across the three categories, which made a sweeping direction particularly difficult to calibrate appropriately.
Issue 3: Differential Treatment of the Three Categories
Campbell J distinguished between the categories. The contemporaneous police statements were considerably less likely to be unreliable than the medico-legal histories. The pre-25 March clinical records, made in the context of seeking medical treatment, carried inherent reliability. The medico-legal histories presented the greatest concern. Ultimately, he declined to give the fuller s 165 direction across all categories, and instead determined that a Mule v The Queen direction was appropriate only in relation to the histories provided to Doctors Allnutt and Nielssen. Defence counsel, who had initially opposed any direction, ultimately accepted this more limited approach during oral argument.
Orders Made
- A Mule v The Queen direction, as formulated by Senior Counsel for the Crown, will be given in relation to the medico-legal histories provided to Doctors Allnutt and Nielssen.
Key Takeaways
- Where out-of-court statements attributed to an accused are in evidence, any judicial direction about their potential unreliability must be carefully calibrated to avoid effectively undermining the accused's right to silence, an exercise described in R v Wilson as "delicate."
- A Mule v The Queen direction represents a more limited alternative to a full s 165 reliability warning, and may be more appropriate where the broader warning risks diluting the significance of an accused's exercise of their right to silence.
- The Supreme Court here treated the three categories of statements differently, finding that spontaneous contemporaneous statements to police and clinical records made for treatment purposes carried greater inherent reliability than histories given to forensic psychiatrists in the context of preparing a medico-legal defence.
- Under s 165 of the Evidence Act 1995 (NSW), a reliability warning is available in respect of hearsay accounts attributed to an accused, but the scope and form of that warning requires close attention to the facts and the nature of each category of statement.
- Accounts provided to forensic psychiatrists for the purpose of medico-legal examinations were identified as carrying a particular risk of unreliability, warranting at least a limited Mule direction.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 165
Cases
- Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
- R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20