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District Court 27 August 2021

R v BLAKE

[2021] NSWDC 536

HomicideTraffic & driving
CRIME DRIVING OCCASIONING DEATH FAIL TO STOP AND GIVE ASSISTANCE EVIDENCE ADMISSIBILITY OF ERISP WHETHER INTERVIEW WAS VOLUNTARY

Citation: R v Blake [2021] NSWDC 536
Court: District Court of New South Wales
Date: 27 August 2021
Judge: Lerve DCJ

Background

The accused was charged with one count of driving occasioning death and failing to stop and give assistance, arising from an incident on 26 October 2019 in Wagga Wagga. While driving a taxi with two passengers, the accused struck a man who was seated on the road. The passengers told him he had hit a kangaroo. The accused drove on to a nearby service station, where the vehicle damage was inspected, and he did not return to the scene. The deceased died instantly on impact.

The accused presented himself voluntarily at Wagga Wagga Police Station the following day and participated in an electronically recorded interview (ERISP) lasting over three hours. He also made statements to the wife of his employer, Ms Kathleen Beeby. The Crown relied substantially on the admissions in the ERISP and on the statements made to Ms Beeby.

Critically, earlier that morning, a police officer had been told by the accused's employer and his wife that the accused had an acquired brain injury, was prone to wanting to please, and should have a support person present when police spoke to him. That officer did not pass the information on to the interviewing officers.

Legal Issues

  • Whether the accused was a "vulnerable person" within the meaning of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (LEPRA)
  • Whether the ERISP was obtained in contravention of LEPRA, and if so, whether it should be excluded under section 138 of the Evidence Act 1995
  • Whether the admissions in the ERISP should be excluded under section 85 of the Evidence Act on the basis that they may be unreliable
  • Whether the admissions were involuntary and should be excluded under section 90 of the Evidence Act on grounds of unfairness
  • Whether the statements made to Ms Kathleen Beeby should be excluded under section 90 of the Evidence Act
  • Whether the trial should be conducted by judge alone pursuant to section 365 of the Criminal Procedure Act 1986

Decision

Issue 1: Vulnerable person status under LEPRA

Two psychologists, Dr Sowden and Dr Ashkar, provided unchallenged expert reports. Dr Sowden assessed the accused's full scale IQ at 68, placing him in the mild to borderline impaired range, with particular deficits in non-verbal reasoning consistent with brain injury. Dr Ashkar opined that the conditions of the interview were not optimal for the accused's cognitive functioning, that the caution was not explained in concrete terms, and that the accused was especially vulnerable to suggestive questioning under stress. The court accepted those findings and held that the accused was a vulnerable person within the meaning of Regulation 28(1)(b) of LEPRA, by reason of impaired intellectual functioning (at [54]).

Issue 2: Exclusion under section 138 of the Evidence Act

Acting Sergeant Poulsen had been told by the accused's employer and his wife that the accused had an acquired brain injury, that he was a person who wanted to please, and that a support person should be present when police spoke to him. Poulsen did not pass that information on to the interviewing officers, Senior Constables Powell and Bartlett. The court found this failure meant the interview was conducted in contravention of LEPRA's requirements for vulnerable persons, none of which were observed (at [63]-[64]). Applying section 138 of the Evidence Act, the court weighed the probative value of the evidence against the seriousness of the impropriety. The court characterised Poulsen's failure as reckless rather than deliberate, noting that it should have been obvious to any officer that an acquired brain injury was highly significant to decisions about whether to interview a suspect and on what terms (at [72]). Although the offence was serious, the Crown had conceded that stopping would not have saved the deceased's life and that there was no allegation of improper driving. The court concluded that the desirability of admitting the evidence was not outweighed by the undesirability of admitting evidence obtained in breach of LEPRA, and excluded the ERISP after question and answer 56 (at [76]).

Issue 3: Exclusion under section 85 of the Evidence Act

As a secondary basis for exclusion, the court considered whether there was a real possibility the admissions were made in circumstances making them unreliable. The court observed that the interviewing officer delivered questions at a rapid pace, that leading questions were used at various points, and that the accused oscillated during the interview between asserting he believed he had struck a kangaroo and acknowledging he had struck a person, which was a relevant factor to reliability (at [106]). The court also noted that the accused had been told by his employer before the interview that he had struck a person, making the source and reliability of his descriptions a live issue. Taking into account the accused's intellectual functioning, the manner of questioning, and the expert evidence on suggestibility, the court upheld the exclusion on this basis as well (at [107]).

Issue 4: Exclusion under section 90 of the Evidence Act

The court further excluded the post-caution ERISP on the ground of unfairness under section 90. Dr Ashkar had reported that when asked why he agreed to speak to police without a support person or lawyer, the accused said he thought he would be in more trouble if he did not speak to them. The court found this particularly significant to the question of whether the admissions were truly voluntary (at [115]). Given the accused's limited capacity to understand the caution and the predicament in which he found himself, the court found on balance that the admissions were not voluntary and that admitting them at trial would place the accused at a very great forensic disadvantage (at [117]-[119]).

Issue 5: Statements to Ms Kathleen Beeby

The court declined to exclude the statements the accused made to Ms Beeby. The court drew a distinction between an informal exchange between people well known to each other and official police questioning. The considerations relevant to LEPRA, such as the presence of support persons and the administration of a caution, did not apply to that conversation. The accused's statements to Ms Beeby were volunteered rather than made in response to questioning, and Peter Beeby's evidence to the same effect was unchallenged. The court found no unfairness in admitting the relevant portions of Ms Beeby's statement (at [125]-[127]).

Issue 6: Trial by judge alone

The accused applied under section 365 of the Criminal Procedure Act for a judge-alone trial. The Crown opposed the application. The court noted that the expert evidence of Drs Ashkar and Sowden was complex and that accommodating the accused's particular needs during trial would be more efficiently managed in a judge-alone setting (at [136]). The court also noted that the offence, while serious, did not raise issues of community values of a kind that made jury determination particularly important. The application was granted (at [140]).

Orders Made

  • The content of the ERISP after question and answer 56 is rejected.
  • The admissions made by the accused to Ms Kathleen Beeby on 27 October, as contained in paragraphs 25 and 30 of her statement, are admitted.
  • Any trial is to be conducted by judge alone pursuant to section 365 of the Criminal Procedure Act.

Key Takeaways

  • The District Court held that knowledge held by one officer of a suspect's acquired brain injury is attributable to "the police" as a whole for the purposes of the LEPRA vulnerable person framework, even when the individual interviewing officers were kept in the dark by a colleague's failure to pass on that information (at [63]-[64]).

  • Where a suspect is found to be a vulnerable person under LEPRA and the required protections are not observed, the interview is obtained in contravention of the Regulation, enlivening the discretion to exclude under section 138 of the Evidence Act. The seriousness of the impropriety increases when the failure to implement those protections is reckless (at [72], [76]).

  • A material distinction exists between admissions made in informal conversation with a person well known to the accused and admissions made during official police questioning. LEPRA-based vulnerability considerations, including caution requirements and the need for support persons, do not attach to the former category (at [125]).

  • Under section 90 of the Evidence Act, reliability of admissions is not the relevant consideration; the focus is on whether admission of the evidence at trial would be unfair. An accused's belief that remaining silent would worsen their position may support a finding that admissions were not truly voluntary, particularly where cognitive limitations affected understanding of the caution (at [115]-[117]).

  • Complex expert evidence about an accused's cognitive functioning and special needs during trial proceedings is a relevant factor when assessing an application for a judge-alone trial under section 365 of the Criminal Procedure Act. Such accommodations may be more efficiently addressed without a jury (at [136]).

Legislation and Cases Referenced

Legislation
- Crimes Act , 1900
- Criminal Procedure Act , 1986
- Evidence Act , 1995
- Law Enforcement (Powers and Responsibilities) Regulation 2016

Cases
- Em v The Queen (2007) 239 CLR 204; [2007] HCA46
- Haines v R [2018] NSWCCA 269
- R v Pitts (No. 1) (2012) 229 A Crim R 387; [2012] NSWSC 1652
- R v Ye Zhang [2000] NSWSC 1099
- Redman v R [2015] NSWCCA 110
- Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150
- Severino v R [2017] NSWCCA 80