Citation: R v Hunter (a pseudonym) [2019] NSWDC 543
Court: District Court of New South Wales
Date: 23 August 2019
Judge(s): Colefax SC DCJ
Background
The accused, a 64-year-old man with a mild intellectual disability, was interviewed by police at Parramatta Police Station on 13 June 2015 in connection with an allegation of unlawful sexual intercourse with a complainant who also had a cognitive impairment. The accused's intellectual disability meant he functioned at a level lower than 99 per cent of his age peers, with communication skills equivalent to a child aged seven and a half and problem-solving ability equivalent to a child aged five.
The accused had previously been found unfit to stand trial. The proceedings before Colefax SC DCJ took the form of a special hearing under the Mental Health (Forensic Provisions) Act, following the DPP's decision to proceed with the charge. The first matter for determination was a voir dire (a preliminary hearing within the main hearing) on whether the electronically recorded police interview of the accused was admissible in evidence.
Legal Issues
- Whether the police complied with the obligations imposed on them by the LEPRA regime (Part 3 Division 3 of the Law Enforcement (Powers and Responsibilities) Regulation 2005) in their treatment of the accused as a vulnerable person
- Whether the recorded interview, and the preceding handheld interview, should be excluded from evidence under sections 85, 90, 138 and 139 of the Evidence Act 1995 (NSW)
Decision
Issue 1: Failure at the custody management stage
The accused qualified as a vulnerable person under the LEPRA regime by reason of his intellectual disability (at [9]). The custody manager completed the entire Custody Management Record in approximately 60 seconds, spending no more than two to three seconds on the vulnerability assessment (at [17]-[18]). The custody manager primarily focused on his checklist rather than the detainee, and could not recall whether he had asked the accused any question to test his understanding of the caution, such as what the right to silence meant (at [17], [20]). The court found this fell short of the proper regard required by the legislative regime (at [22]).
Issue 2: Failures by the interviewing officers
The obligations under the regime extended beyond the custody manager to the interviewing officers themselves (at [24]). The content of the interview confirmed that the accused had not understood the caution: he responded to the caution by saying "Don't charge me and I won't do it again." The court found that difficulties in understanding the accused's speech should also have prompted further inquiry (at [25]).
Issue 3: Reliability of the interview
Beyond procedural failures, the court formed the clear view that the accused was, on crucial issues, giving answers he believed would please the officers rather than truthful answers, consistent with the opinion of an expert witness (at [27]). His answers were therefore unreliable in material respects.
Issue 4: Balancing probative value against unfairness
The court was satisfied the accused had discharged the onus required under each of the invoked Evidence Act provisions. The unfairness and prejudice established was of sufficient significance to outweigh any probative value in the interview evidence (at [28]). Both the electronically recorded interview and the preceding handheld interview were excluded (at [29]).
Orders Made
- The electronically recorded interview of the accused by police is excluded from evidence in the special hearing
- The preceding handheld interview is also excluded from evidence in the special hearing
Key Takeaways
- The District Court confirmed that the LEPRA regime governing vulnerable persons imposes obligations not only on custody managers but also on interviewing officers, and a failure at either stage can enliven the exclusionary provisions of the Evidence Act (at [24]).
- A vulnerability assessment conducted in two to three seconds, with the custody manager primarily focused on a checklist rather than the detainee, was found to fall short of the proper regard required by the legislative scheme (at [17]-[18], [22]).
- Asking a detainee what they understand by the right to silence, in connection with the caution, was identified as a practical and accessible check for impaired intellectual functioning (at [19]).
- Under section 144 of the Evidence Act, it is a matter of common knowledge that intellectual disability is not always apparent on a first glance, and that merely asking a person whether they have an impairment is not an adequate inquiry (at [16]).
- Where a recorded interview reveals that the accused did not understand the caution, and where there is evidence the accused gave answers to please rather than inform, a court may find the unfairness and unreliability outweighs any probative value and exclude the interview entirely (at [27]-[28]).
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Regulations 2005; Evidence Act 1995 (NSW), ss 85, 90, 138,139 and 144; Mental Health (Forensic Provisions) Act NSW, ss 16 and 19.
Cases
- R v Phung and Huynh [2001] NSWSC 115.