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District Court 31 March 2015

R v Kevin Pocknell

[2015] NSWDC 333

Sexual offences
CRIMINAL EVIDENCE

Citation: R v Kevin Pocknell [2015] NSWDC 333
Court: District Court of New South Wales
Date: 31 March 2015
Judge(s): Judge S Norrish QC

Background

The accused faced charges of sexual assault and indecent assault alleged to have occurred at Woolloomooloo in May 2011. The Crown's case on the principal charge depended almost entirely on admissions made by the accused during a recorded police interview conducted at Kings Cross Police Station on 4 March 2013.

The accused had been arrested outside St Vincent's Hospital Emergency Department that same afternoon. He was described as highly intoxicated at the time of arrest, and his hospital records from the preceding days documented a history of heavy alcohol use, alcohol withdrawal symptoms, and medication for epilepsy and schizophrenia. After a "recovery period" in custody that included lunch and cigarettes, the interview commenced at 4:34 pm.

Defence counsel objected to the admissibility of the recorded interview on several grounds under the Evidence Act 1995, contending that the interview was obtained improperly or should otherwise be excluded in the exercise of judicial discretion.

Legal Issues

  • Whether the interview was obtained improperly within the meaning of section 138 of the Evidence Act 1995, by reason of a failure to comply with section 122 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), which requires a detained person to be informed of their rights in a meaningful way.
  • Whether, under section 85(2) of the Evidence Act, the circumstances of the interview were such that the prosecution could not establish it was unlikely the truth of any admissions was adversely affected.
  • Whether the court should exercise its discretion under section 90 of the Evidence Act to exclude admissions on the ground that it would be unfair to the accused to use the evidence.

Decision

Section 138: Improper Obtaining

The court accepted that the Custody Manager committed a relevant impropriety by reading the accused his Part 9 LEPRA rights at a time when the accused was intoxicated, without re-reading the document when the accused was later deemed fit to be interviewed (at [23], [26]). The court also noted that the interviewing officers did not reiterate the Part 9 rights at the outset of the recorded interview, which, while not sinister, would have been more prudent (at [27]).

However, the court was not satisfied that the interview was "obtained" by that impropriety. The accused's conduct throughout the interview demonstrated confidence and a willingness to speak, and it was speculative to conclude he would have sought legal advice or declined to participate had the document been re-read (at [35]). Even if the causal link had been established, the court found that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that manner, having regard to the probative value and importance of the evidence, the nature of the impropriety, and the absence of any deliberate misconduct by police (at [36]-[37]).

Section 85: Reliability of Admissions

The court found that the accused demonstrated a sharp presence of mind throughout the interview. He volunteered information relevant to the investigation, recalled precise details about the alleged events from almost two years earlier, corrected questions, and engaged coherently with questioning (at [40]). His tremors during the interview were consistent with alcohol withdrawal rather than ongoing intoxication (at [33]). The accused himself stated he was sober at interview, and the interviewing officer observed he seemed lucid with clear responses (at [42]-[43]).

The prosecution satisfied the court that the circumstances were such that it was unlikely the truth of any admissions was adversely affected. To the extent any admissions may have been untrue, this was more likely the result of the accused constructing an exculpatory account than of any impairment from intoxication or mental condition at the time of the interview (at [44]-[45]).

Section 90: Fairness Discretion

The court declined to exclude the first part of the interview under section 90, noting that the accused himself persuaded the officers to continue questioning and engaged actively in the process up to question 57 (at [46]).

However, after a 10-minute break taken around question 265, the accused clearly indicated through his body language and words that he did not wish to continue. Police failed after the break to re-establish his willingness to be interviewed, re-read the caution, or remind him of his right to silence. The interview that followed was repetitive and the accused grew visibly more frustrated and showed increasing signs of alcohol withdrawal. An ambulance was called to the police station roughly two hours after the interview ended (at [46]-[47]). The court exercised its section 90 discretion to exclude the portion of the interview from question 266 onwards, with the exception of questions and answers to be admitted by consent.

Orders Made

  • The second part of the interview, conducted after the 10-minute break from question 266 onwards, is excluded, with the exception of those answers to be admitted by consent.

Key Takeaways

  • A failure to re-read Part 9 LEPRA rights to a detained person who was intoxicated when first informed of those rights may constitute an impropriety under section 138 of the Evidence Act, but the interview will not be excluded if the court is not satisfied the evidence was obtained as a result of that impropriety (at [35]).

  • Where a suspect's conduct throughout a recorded interview demonstrates coherent engagement, precise recall, and a willingness to speak, those factors can satisfy the prosecution's burden under section 85(2) that the circumstances were unlikely to have adversely affected the truth of admissions, even where the suspect was intoxicated at the time of arrest (at [40]-[45]).

  • Under section 90 of the Evidence Act, fairness to an accused requires that, after any significant break in a recorded interview, police take steps to re-establish the suspect's genuine willingness to continue and remind them of their right to silence. Failure to do so may ground exclusion of the post-break portion of the interview (at [46]-[47]).

  • The District Court confirmed, consistent with R v Shamouil and R v XY, that the reliability of an accused as a historian is relevant to the weight given to admissions, not to the probative value assessment on a section 85 application (at [32]).

  • Tremors or physical symptoms in a chronic alcohol user during a police interview are not necessarily indicators of intoxication. The court found they may reflect alcohol withdrawal occurring hours after the cessation of drinking, a distinction that bears on the assessment of the accused's capacity at interview (at [33]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995
- Law Enforcement (Powers and Responsibilities) Act 2002

Cases
- Em v The Queen [2007] HCA 46
- R v Shamouil [2006] NSWCCA 112
- R v XY [2013] NSWCCA 121