Citation: Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 26 August 2022
Judge(s): Beech-Jones CJ at CL; Button J; Hamill J
Background
The respondent faced a District Court trial for the manslaughter of a man who died after being struck by a car on a busy road in August 2017. The Crown alleged the respondent fought with the deceased at a service station forecourt and, through his aggressive conduct, caused the deceased to end up on the roadway where he was struck. CCTV footage and eyewitness accounts did not clearly establish how the deceased came to be on the road.
The following day, police conducted an electronically recorded interview with the respondent (known as an ERISP). The respondent stated during that interview that he could not recall certain parts of the fight, including how the deceased came to be on the road. Police also conducted a video-recorded "walkthrough" at the service station that afternoon. Evidence established the respondent had consumed a substantial quantity of alcohol on the night of the incident and remained affected by alcohol into the following morning, though the ERISP itself did not commence until around 12.30pm the next day.
The trial judge conducted a voir-dire (a preliminary hearing on admissibility) and ruled that portions of the ERISP and the entirety of the walkthrough should be excluded. He excluded the ERISP portions under section 90 of the Evidence Act 1995 (NSW), a discretionary power to exclude admissions where unfairness to the accused warrants it, and excluded the walkthrough under section 135, which allows exclusion of evidence whose probative value is substantially outweighed by the danger of unfair prejudice. The DPP appealed those rulings under section 5F(3A) of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the trial judge made a factual error in finding that the respondent suffered cognitive impairment during the fight due to alcohol consumption, given that part of his reasoning relied on expert evidence directed at a different question.
- Whether the trial judge erred by failing to account for the jury's capacity to assess the reliability of the respondent's answers in the ERISP when determining whether unfairness warranted exclusion under section 90.
- Whether the trial judge erred in excluding the entirety of the walkthrough interview, given his findings about the ERISP were premised on only a partial loss of memory.
Decision
On the cognitive impairment finding: The Court accepted that part of the trial judge's reasoning about cognitive impairment during the fight drew on Crown expert evidence that addressed a different topic. However, the Court found this error was not decisive. The broader finding of cognitive impairment during the fight remained open on the evidence, including the respondent's own account of his alcohol consumption, observations by police of his intoxication, and his incoherence on the 000 call. The appeal on this ground was dismissed.
On the jury's ability to assess reliability: The DPP argued the trial judge failed to consider that the jury could evaluate for themselves how much weight to give the respondent's answers, making exclusion unnecessary. The Court rejected this argument. Once the trial judge concluded that the respondent's answers about matters he could not recall amounted to no more than hypothesis rather than genuine recollection, it followed that admitting those answers would be unfair regardless of whether a jury could scrutinise them. The appeal on this ground was also dismissed.
On the walkthrough: Here the Court found error. The trial judge's approach to the ERISP was premised on the respondent's memory being only partly affected. He excluded specific portions of the ERISP on that basis, leaving other portions in. Yet he excluded the walkthrough in its entirety, which was inconsistent with that same reasoning. If the respondent retained some genuine memory during the ERISP, the same logic required a portion-by-portion assessment of the walkthrough rather than wholesale exclusion. The Court set aside the walkthrough ruling and remitted that question to the trial judge for reconsideration on a consistent basis.
Orders Made
- Appeal allowed in part.
- The trial judge's decision to exclude the entirety of the walkthrough interview was set aside.
- The question of which parts, if any, of the walkthrough should be excluded (on the basis that answers concerned matters the respondent could not recall) was remitted to the trial judge.
- The appeal against the exclusion of the ERISP portions was otherwise dismissed.
- The DPP was required to notify the chambers of Beech-Jones CJ at CL within one week of the completion of proceedings at first instance (to facilitate later publication of the judgment).
Key Takeaways
- A finding of cognitive impairment affecting admissibility does not fail simply because some supporting reasoning relied on evidence directed at a different question, provided the overall finding remains reasonably open on the evidence as a whole.
- Where a trial judge determines that an accused's answers in a police interview reflect hypothesis rather than genuine memory, the jury's general capacity to assess credibility does not cure the unfairness of admitting those answers under section 90 of the Evidence Act 1995 (NSW).
- Internal consistency is required when a trial judge applies a partial-memory framework to different pieces of interview evidence. Excluding an entire interview on grounds that only justify excluding portions is an error susceptible to appellate correction.
- The Court of Criminal Appeal confirmed that a DPP interlocutory appeal under section 5F(3A) of the Criminal Appeal Act 1912 (NSW) can result in remittal to the trial judge rather than a final determination, particularly where a fresh evaluative exercise is required.
- Suppression of published reasons until trial completion remains an available step where publication could affect the fairness of imminent proceedings.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Criminal Procedure Act 1986 (NSW), s 130A
- Evidence Act 1995 (NSW), ss 85, 90, 135
Cases:
- Brendas v Genter [2018] NSWCA 8
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- R v Tarantino (No 6) [2019] NSWSC 1174
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31