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District Court 16 March 2015

R v R Abokhalil

[2015] NSWDC 48

Drugs
CRIMINAL

Citation: R v R Abokhalil [2015] NSWDC 48
Court: District Court of NSW
Date: 16 March 2015
Judge: Judge S Norrish QC

Background

The accused was arrested in the early hours of 24 September 2013 and interviewed by police approximately two and a half hours later, between 6.09am and 6.52am. An ice pipe had been found near the vehicle in which he was sitting when first approached by police. The interview was recorded and the prosecution sought to tender it as part of its case against him.

The accused sought exclusion of the recorded interview and transcript. He argued that his long-standing intellectual disability, history of mental health treatment, and likely drug intoxication at the time raised serious questions about the reliability and fairness of the admissions recorded within it.

A voir dire was conducted. The court received evidence from the arresting officer (Senior Constable Zammit), the officer in charge (Detective Otley), a clinical psychologist (Mr Watson-Munro), hospital records from St George Hospital, and two earlier reports from a psychologist and a psychiatrist prepared in 2013 and 2014.

Legal Issues

  • Whether the prosecution had demonstrated, under section 85(2) of the Evidence Act 1995, that the circumstances of the admissions were such as to make it unlikely that the truth of those admissions was adversely affected.
  • Whether the court should exercise its discretion under section 90 of the Evidence Act 1995 to exclude the interview on grounds of unfairness.
  • Whether the court should exercise its discretion under section 138 of the Evidence Act 1995 to exclude improperly or illegally obtained evidence.
  • Whether the accused was a "vulnerable person" within the meaning of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and its Regulation, and whether police complied with the protective obligations that status triggered.

Decision

Issue 1: Section 85(2) Evidence Act 1995

The court accepted that the accused had an intellectual disability that had existed for most of his life and was not initially caused by drug use, though it may have been aggravated by methylamphetamine consumption (at [56]). However, the expert evidence was impressionistic and lacked the precision of comprehensive psychometric testing, leaving the degree of impairment uncertain (at [57]). Having reviewed the interview itself, the court was satisfied that the prosecution had discharged its obligation under section 85(2): the accused appeared alert, answered questions in a reasonably direct fashion, and gave a coherent account of himself throughout (at [51], [69]). The section 85(2) ground for exclusion therefore failed.

Issue 2: Section 90 Evidence Act 1995 (Discretionary Exclusion for Unfairness)

The decisive point arose from what occurred around questions 31 to 34 of the interview. At that point, the accused made reference to section 22 of the Mental Health Act 2007, alerting Detective Otley to a possible connection with mental health proceedings. Despite this, the officer continued questioning the accused about the substance of the investigation without pausing to consider whether protective provisions under LEPRA applied (at [63]-[68]).

The court found that Detective Otley effectively put the cart before the horse: he used the accused's answers to the investigative questions themselves as a means of assessing fitness to be interviewed, rather than first undertaking the inquiries that LEPRA required (at [66]-[67]). Had he checked the COPS database at that point, he would have found entries flagging prior section 22 Mental Health Act actions against the accused (at [68]). The court found the accused was objectively a vulnerable person by reason of his intellectual impairment and possible underlying mental disorder (at [68]).

The court exercised the discretion under section 90 to exclude the interview. Although reliability of the admissions was not definitively established to be compromised, reliability is not the sole criterion for the fairness discretion (at [70]). The failure to afford the accused the protections Parliament had specifically enacted for vulnerable suspects rendered the subsequent questioning unfair. The court drew on the High Court's analysis in EM v The Queen [2007] HCA 46 and the Court of Criminal Appeal's decision in R v Fernando [1999] NSWCCA 66 in applying section 90 (at [71]).

Issue 3: Section 138 Evidence Act 1995

Having excluded the interview under section 90, the court found it unnecessary to consider section 138 (at [74]).

Orders Made

  • Exclusion of the recorded electronic interview and related transcript of the accused on the basis that subsequent questioning after question 34 was unfair, with the discretion under section 90 of the Evidence Act 1995 exercised in the accused's favour.

Key Takeaways

  • The District Court confirmed that section 85(2) of the Evidence Act 1995 requires the prosecution to establish that circumstances of the admissions made it unlikely the truth was adversely affected, but satisfaction of that test does not preclude separate discretionary exclusion under section 90 on fairness grounds (at [69]-[70]).

  • Where a detained person raises a matter during questioning that places an interviewing officer on notice of a possible connection to mental health proceedings, LEPRA's protective framework requires that inquiries be made before questioning continues, not assessed by reference to answers given to investigative questions (at [66]-[68]).

  • A failure to check readily available police database records (COPS) after being alerted to potential mental health concerns during an interview can constitute a substantial failing that renders subsequent questioning unfair under section 90 (at [68], [70]).

  • Under section 90, unreliability of admissions is not a prerequisite for the exercise of the fairness discretion: the failure to provide legislatively mandated protections to a vulnerable suspect can itself be sufficient to warrant exclusion (at [70]-[71]).

  • Psychological and psychiatric evidence that is impressionistic, based on limited testing, or reliant on the accused's self-reported history may be insufficient to establish the precise degree of intellectual impairment, even where the court accepts that some level of impairment exists (at [57]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 - ss 85, 90,138
- Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) - Part 9 Schedule 2
- Mental Health Act 2007 - s 22

Cases
- EM v The Queen [2007] HCA 46
- Forster v The Queen (1993) 67 ALJR 550
- R v Fernando [1999] NSWCCA 66