DISTRICT COURT OF QUEENSLAND

CITATION:	R v O’Connell [2015] QDC 338	
PARTIES:	R
v
RAYMOND O’CONNELL	
FILE NO/S:	45/14	
DIVISION:	Criminal	
PROCEEDING:	Application	
ORIGINATING COURT:	District Court, Dalby	
DELIVERED ON:	16 October 2015 	
DELIVERED AT:	Brisbane	
HEARING DATE:	1 October 2015	
JUDGE:	Smith DCJA	
ORDER:	The application to exclude the interview dated 17 May 2011 and confessions to medical staff in 2011 is dismissed.	
CATCHWORDS:	CRIMINAL LAW – confessions and admissions – whether interview should be excluded in the exercise of the fairness discretion
Criminal Code 1899 (Q) s 590AA
Evidence Act 1977 (Q) s 130
EM v R (2007) 232 CLR 67
R v Gillespie (1988) 36 A Crim R 235
R v Parker (1990) 19 NSWLR 177
Sinclair v R (1946) 73 CLR 316
R v Swaffield (1998) 192 CLR 159
Tofilau v R (2007) 231 CLR 396	
COUNSEL:	Mr J. McInnes for the defendant
Mr D. Jones for the Crown  	
SOLICITORS:	Legal Aid Queensland for the defendant
Office of the Director of Public Prosecutions for the Crown	

Introduction
[1]	This is an application pursuant to s 590AA of the Criminal Code 1899 (Q) for a ruling that the confession made on 17 May 2011 should be ruled inadmissible as it was not made voluntarily.  The defence originally relied upon s 10 of the Criminal Law Amendment Act 1894 (Q) and the common law.  Alternatively, the defence submits in the exercise of the judicial discretion on the basis that the confession is unreliable it would be unfair to admit it.
[2]	The suggestion of involuntariness was abandoned at the commencement of argument. Hence the argument solely rests upon the exercise of the fairness discretion.
[3]	Also the argument was expanded to include confessions made the medical staff. 
Charges
[4]	The defendant is charged with the following counts:
1.	count 1 – that on the ninth day of December 2007, at Dalby, he wilfully and unlawfully set fire to a building;
2.	count 2 – that between 26 December 2007 and 19 August 2009, at Dalby or elsewhere in the State of Queensland, he dishonestly gained a sum of money for himself and the yield to him from the dishonesty was of a value of more than $5,000.
Background
[5]	It is common ground that the defendant lived at Dalby with his wife and, on the evening on 9 December 2007, his house caught fire.  His wife was not present at the time.  He was in the house when it caught fire and was rescued.  He was hospitalised for several days.  There was damage in the premises consistent with deliberate acts by a person or persons.  
[6]	On 20 December 2007 the defendant was interviewed by Detective Goan at Palm Beach.  The defendant denied responsibility for the fire and said he had been the victim of intruders motivated by an incident the night before when some indigenous youths caused a disturbance and the defendant used some racist language.  
[7]	A statement was then provided by him.  At the conclusion of taking the statement, Detective Goan looked in to the defendant’s background and found a complaint made by him which was later withdrawn about an incident in Wynnum during which he had been stabbed with a syringe.  Detective Goan suggested to the defendant that his wounds on that occasion had been self-inflicted.  Detective Goan said to the defendant that a number of things within the dwelling did not add up and he was considering a scenario that the defendant had lit the fire.  Detective Goan then put to the defendant that he had deliberately lit the fire and, like the syringe incident, it had been an attention seeking exercise.  The defendant said he felt sick.  The detective asked if he felt sick because he had raised a touchy subject.  He asked several times if the defendant had a psychiatric illness.  The defendant was observed to be in distress and sweating profusely.  His wife attended the police station and a further conversation was recorded.  The defendant told his wife, “He said I did it, he said I did for attention.”  An ambulance attended, and the defendant told the ambulance officer that his condition was “shock from what the police have said”. 
[8]	In February 2008 he provided written answers to questions forwarded to him by an insurance investigator. The investigator prepared a statement based on these answers which the defendant did not sign. He repeated the same version he had given in December 2007.  
[9]	Thereafter, he received assistance for suspected post-traumatic stress disorder on several occasions from 2008 and onwards.  In March 2008 the defendant was admitted to the Robina Hospital (Gold Coast) as a voluntary patient suffering suicidal thoughts.  In December 2010 he was taken to the Redlands Hospital by police under an involuntary treatment order following his attendance at an office of a member of Parliament threatening self‑harm.
[10]	On 17 May 2011 the defendant attended the Wynnum Police Station and made a confession to Detective Morton.  Detective Morton sought a support person from the Redlands Mental Health Service from which the defendant was receiving assistance but nobody could attend.  He then contacted the defendant’s son, but the son left after an argument and a JP was then arranged.  In the interview the defendant told the police the following:
(a)	the house was so dry it went up so quick;
(b)	he used ignition to start the fire;
(c)	he was specific as to using accelerants, namely car oil and petrol;
(d)	he told the police officers why he had a container of petrol;
(e)	he told the police how many containers of accelerant were used;
(f)	he told the police where the accelerants come from;
(g)	he told the police where he had poured the accelerants;
(h)	he told the police he had poured the accelerants in the hallway, front bedroom, second bedroom, lounge room and part of the kitchen;
(i)	he caused wilful damage to the house prior to the arson i.e. he pulled the fridge down;
(j)	he told the police he set fire to paper first;
(k)	he told the police that the reason he committed the offence was he had tried to work but became angry with himself, more depressed, and he ended up just totally destroying parts of the house;
(l)	he also distanced himself from the group of Aborigines that he said invaded his house in the first interview.
[11]	There appears to be other evidence which corroborates the admissions made as follows.
[12]	With respect to the admission that he used car oil and petrol, exhibit 9 photographs 8 and 11 showed two containers of engine oil in a bedroom and in the living room.
[13]	With respect to the admission that he poured accelerants in the hallway, front bedroom, second bedroom, lounge room and part of the kitchen, an inspector with the Queensland Fire and Rescue Service, Graham Cook, in his statement says there were several seats of fire identified in the hallway, dining, lounge and three bedrooms.
[14]	With respect to the admission that he pulled the fridge down, this is consistent with photograph 34 contained in exhibit 9.
[15]	With respect to the admission that he set fire to paper first, this appears to be consistent with photographs 91 and 92 in exhibit 9.  
[16]	The following day after the confession, the defendant attended the Wynnum Police Station and asked to be charged.  He was arrested.  He was taken to the Redlands Hospital, where he saw Dr Mohan.  He told Dr Mohan he had lit the fire and also said he had swallowed nails, but an x-ray found no evidence of the latter.  
[17]	He confessed to the Prison Health Mental Service on 8 June 2011 and the Acute Care Team at the Ipswich Mental Health Service on 9 September 2011 portraying the fire as a suicide attempt.  
[18]	On 14 September 2011 he was admitted to the Ipswich Hospital Mental Health Unit for six weeks and after 10 days recanted his confession.  He received six sessions of electroconvulsive therapy during that stay.  On 24 February 2012 he was examined by a Dr Keen.  
[19]	On 20 September 2012 he was examined by a psychiatrist, Dr Schramm, who found him to be suffering from Post-Traumatic Stress Disorder and a severe adjustment disorder with a disturbance of mood and anxiety.  
Dr Schramm’s evidence
[20]	Dr Schramm’s report is dated 20 September 2012.  He told Dr Schramm in the several years leading to the offences he had been completely abstinent from alcohol.  Dr Schramm noted that the defendant’s first contact with mental health services was in 1987.  This was in the context of him suffering a work injury to his back, severe pain and surgery and marked reduction of function thereafter.  There was a suicide attempt in 1987.  After this, he alleged he came good mentally and returned to his physical fitness, and he considered he was in good mental health until the fire.  However, there were contacts with the mental health services in 2005.  
[21]	Dr Schramm noted, “In the years after the fire as part of a wide ranging and severe disturbance in mood, anxiety, self-loathing and PTSD symptoms, there seemed to be distinct lability of mood which featured at times periods of excitement and overestimation of his abilities.”  
[22]	Dr Schramm then analysed the medical records concerning the defendant.  On 7 March 2005 there was an intake form for the Bayside Mental Health Service where the defendant reported being very unwell over four years and considered himself a trauma victim.  He also had a grudge against Dr Coroneos, a neurosurgeon, and indeed on 11 March 2005 was charged with making a threatening phone call to the doctor.  Between April and August 2005 he was occasionally visited at home by mental health services.  In August 2005 there was a complaint by him about having been attacked with a syringe.
[23]	There was an admission to the Robina Hospital Mental Health Unit between 24 February 2008 and 4 March 2008.  At that stage he presented with thoughts of walking into traffic as well as difficulty with sleep, nightmares, panic attacks and depression after being “a victim of house fire and assault” in December 2007.  He was treated with the antidepressant Sertraline.  There was a letter from Dr Lynch a GP dated 30 April 2009 which referred to a diagnosis of depression of PTSD and analgesics being prescribed.  On 15 October 2010 Blue Nurses contacted the Bayside Mental Health Team concerned that the defendant may be paranoid.  On 18 November 2010 the defendant’s wife presented to the Mental Health Clinic distressed seeking advice as to her husband who was taking large amounts of pain medication and Diazepam.  On 25 October 2010 he was brought to the Redlands Hospital by ambulance claiming not being able to eat properly for two years and smelling of alcohol.  On 15 December 2010 he was brought to the Redlands Hospital under an Emergency Examination Order.  The local Member of Parliament telephoned police because the defendant presented to his office accusing police of corruption and threatened to come back and kill himself.  He complained to the MHU at the Redlands Hospital that he had not been eating for 18 months and had terminal cancer.  Subsequent investigations revealed no basis for such a claim.  There was grandiosity with respect to his presentation as well as allegations suggesting paranoia including claiming he had received death threats from police and criminals.  He was hypomanic and there was an early diagnosis of a delusional disorder made although this was later revised.  He was treated with antipsychotic medication and discharged on 23 December 2010 but on no antipsychotic medication.
[24]	 On 5 January 2011 he was brought to the Redlands Hospital by ambulance after complaining of eight months of left sided weakness.  No particular medical signs could be found at the hospital.  On 23 January 2011 he presented at the emergency department of the Redlands Hospital complaining of chronic pain.
[25]	On 18 May 2011 the day after his confession he went to the Redlands Hospital Emergency Department claiming he had ingested nails.  There was no evidence of this on x-ray.
[26]	On 19 May 2011 a psychiatrist wrote to the Cleveland Magistrates Court noting that the predominant picture was somatic preoccupation, abnormal illness behaviour and cluster B personality traits (borderline/histrionic) complaining of multiple physical problems many of which had no medical cause.  He gave inconsistent information about swallowing the nails.  He told Dr Mohan that he had set the house alight himself and was now sad for putting his family through the ordeal.  There were no active symptoms of major mental illness at that point.  During his remand in custody he was diagnosed with a moderate depressive disorder but there was no evidence of psychosis or mania.  
[27]	When examined by the psychiatric registrar for the prison mental health service on 8 June 2011 he admitted that he had deliberately lit the fire wanting the home insurance payout.  
[28]	On 9 September 2011 he was assessed by the Acute Care Team at the Ipswich Mental Health Service.  There were some paranoid ideas that people wanted to kill him and his son.  Whilst he reported a very heavy alcohol use history he had not drunk for 10 years.  He told the assessing psychologist he had set fire to the house with the intention to die the same way his mother had died.  He was assessed as suffering from a severe depressive episode with psychotic symptoms and started on antipsychotic medication.
[29]	On 14 September 2011 he had shown minimal improvement such that he required admission.  The diagnosis was bipolar disorder type II current episode depressed with psychosis.  He was discharged on a medication regime.
[30]	He met a new psychiatrist on 19 January 2012 and reiterated his version he had falsely admitted to setting the fire.  The doctor opined that the defendant had a complex presentation with elements of somatoform history of dependent traits and mood symptoms.
[31]	Turning to the period leading up to the confession Dr Schramm notes that the defendant stated that in the months leading up to making the confession he recalled being a client of the Bayside Community Mental Health Service.  He said these were terrible months for him and he was living in hell having panic attacks and feeling dreadful.  He said he began to swallow nails pulled out of a fence from wood which he believed to have been treated with arsenic in the hope he would die.  He went to the Bay on a number of occasions with the idea of drowning himself but the tide always seemed to be out or people there tried to stop him.  On the day he made the confession to the police he was feeling so desperate he went to the garage to hang himself and in fact made a noose but looked through the window and saw a young girl looking at him.  He gave up the attempt and spent the next few hours agitated and pacing around.  He felt like a coward and worthless as a human being.  He had a poorly formed idea about being taken to jail so he could be killed.  He thought that if he was to confess to the fire this would be a means of going to jail and his family would be better off without him.  In hindsight it was a terrible mistake to falsely confess to this fire.  On examination he presented with no major disturbance.  He was fully alert and oriented.  He impressed as a man of at least average intelligence.  He was well aware of what he was charged with and could give a detailed account.
[32]	After a very long interview and accessing thousands of pages Dr Schramm could not be entirely certain he could make a definitive diagnosis.  
“Whether or not his account of the fire is genuine I will not be drawn on that other than to say it appears at least superficially plausible I am reasonably satisfied that he suffers from a severe form of post-traumatic stress disorder in relation to being in that fire (whether it was lit by himself or other persons) the complications of such a severe condition as well as the emotional turmoil endured as a result either of the guilt at having set the fire or as he would have it the guilt and shame of his actions in leading to the fire and the subsequent effect on his family since have led your client to a state of what is reported by him and documented by others to be quite extreme emotional disturbance following the offence and leading to the confession.  I do not find it easy to make a definitive diagnosis (beyond PTSD) for such a great disturbance.  I appreciate that the potential for a bipolar effective disorder has been raised by Redlands (although even then that seems to have been reassessed at Ipswich Hospital.  I take issue with this diagnosis and cannot find compelling evidence of the presence of manic or hypomanic states (needed for the diagnosis).  I suggest that those making such an initial diagnoses have placed too much weight on his presentation and its strengths …  my best diagnosis for those years following the fire would be of a man suffering from PTSD, a severe adjustment disorder with disturbance of mood and anxiety and possible somatoform disorder (where one presents with multiple physical complaints in excess of medically explainable).  Such disturbance seems to be occurring upon the background of quite an abnormal personality featuring histrionic independent traits.  I would suggest that the breakdown he suffered leading to that contact with mental health services in 2005 would also be classed as some adjustment disorder with depressed and angry mood occurring in that vulnerable individual.

…

Importantly I cannot identify on your client’s account to me today any particular severe mental disease and action at the time of the fire … whilst I very much appreciate that on the surface such a story seems very difficult to accept, after spending such a long interview with him I can say that one cannot least imagine the possibility that by the time of May 2011 your client was operating in such an extreme state of depression, distress and guilt that this could have led him to this particular course of action (to make a false confession).”
[33]	Exhibit 4 are Dr Schramm’s notes made after he examined the records of interview.
[34]	He stated the following:
(a)	the defendant looked depressed in the 2011 interview;
(b)	he was flat in affect and spoke in a monotone;
(c)	the interview did not change his opinion.
[35]	Dr Schramm also gave evidence. He said that he was somewhat confused as to what the precise diagnosis was in this man’s case.  He was fairly satisfied there was a severe Post-Traumatic Stress Disorder.  He responded to stress in an unhealthy way causing trouble to himself and others.  In the 2011 interview he seemed vague and presented as being in emotional distress and depressed.  It was “hypothetically possible” that his motivation was to give a false confession to punish himself as part of a poorly formed suicide plan i.e. to be killed in jail.  He is a person who may resort to self-harming behaviour. It was not inconsistent with the theory that he made a number of confessions over some months and then changed his mind. 
[36]	In cross-examination the doctor conceded the PTSD could have been caused either by the home invasion by others or by himself setting fire to the house.  He agreed that the defendant does not deal with stress as a mature person does.  In the lead up to the fire there was a gradual build up because his wife and son were away.  The stress he was suffering may have led to a situation in which he was not coping and he set the fire as a suicide attempt.  He did not appear delusional at the time of the confession and appeared to give a reliable account. 
[37]	In re-examination the doctor thought that there was a difference between the 2007 presentation and the 2011 presentation.   
Dr Mohan
[38]	Dr Mohan in his report dated 19 May 2011 is important as this was provided very shortly after the confession. He found the defendant on 18 May 2011 was fully conscious and oriented. There were no perceptual abnormalities or delusional thoughts. There were no active signs of a major mental illness.
Defendant’s submissions
[39]	In relation to the issue of unreliability the defence submits that the defendant was mentally unwell at the time of the making of the confession.  He had hospital admissions made before and after making it and repeated the confession of mental health care workers and then recounted it once his condition improved to some degree.  
[40]	It is submitted that in all of those circumstances the confession is an unreliable one.
[41]	I provided the opportunity to the parties to provide further submissions on the effect (if any) on the consumption of medication on the defendant. In written submissions the defence submitted I should generally take this into account but at [9] submitted:
“There does not appear to be any evidence from which it would be possible to infer that the reliability of the confession was directly and substantially affected by any issue related to medication…”  
Prosecution’s submissions
[42]	The prosecution submits that Detective Goan’s voice was rather calm and soft during the interview in December.  It submits that more than three years passed between the first interview and the confession and indeed the defendant at no stage has complained of Detective Goan’s conduct despite a lengthy interview with Schramm.
[43]	It is submitted that there is no inducement or alternatively if there was an inducement that was dispelled by the time the confession occurred in May 2011.
[44]	As regards the reliability issue, the prosecution submits that the confession is corroborated by the objective evidence available. Further the mental condition of the accused is not such as to render the admission of the confession unfair.
Relevant law  
[45]	Section 130 of the Evidence Act 1977 (Q) reposes a discretion in the court to exclude evidence in the exercise of fairness discretion. 
[46]	Merely because a person suffers from a mental disability at the time a confession is made does not automatically mean the confession should be excluded.
[47]	In R v Parker Gleeson CJ said:
“The principles relevant … may be summarised as follows:

1. The fact that an accused person who has allegedly confessed to committing a crime was, at the time of the alleged confession, suffering from some form of unsoundness of mind or psychiatric disorder may, depending upon the circumstances, be of importance in considering the evidentiary value of the confession, and may in some circumstances deprive it of all evidentiary value: Jackson v The Queen (1962) 108 CLR 591. It does not, however, necessarily make evidence of the confession inadmissible: Sinclair v The King (1946) 73 CLR 316 and R v Starecki [1960] VR 141. As Dixon J observed in Sinclair, an insane person is not necessarily an incompetent witness. Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth.

2. Even if such evidence is admissible, a consideration of the quality of the evidence may, in a given case, result in a conclusion that a verdict founded upon it is unsafe and unsatisfactory: Morris v The Queen (1987) 163 CLR 454.

3. The intellectual capacity of the accused, or the existence of some disease or disorder of the mind, may go to the issue of whether the confession was voluntary and may in that respect bear upon the admissibility of the evidence. It may be relevant to the question whether the confession was made in the exercise of free choice, as for example, where an accused is incapable of making such a free choice, or of understanding his right to choose between speaking and remaining silent. Depending upon the circumstances, it may have an important bearing upon whether the statement was made as the result of duress, intimidation or undue insistence or pressure. The circumstances in which such a fact may be relevant to an issue as to the voluntariness of a confession are multifarious: cf R v Lee (1950) 82 CLR 133 and Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10.

4. Further, even if the confessional evidence is admissible, the intellectual or mental state of the accused may, in a number of possible ways, go to the exercise of a trial judge's discretion to reject the evidence: cf McDermott v The King (1948) 76 CLR 501; R v Lee. It may, for example, touch upon the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself, and the fairness involved in permitting the statement to be used against the accused.

5. A person's vocabulary and standard of comprehension may also be of relevance in determining an issue as to whether such a person in fact made or intended the admissions attributed to him: Murphy v The Queen (1989) 167 CLR 94.

6. If a Crown case is based in whole or in part upon the confession of a person suffering from some mental disability which may affect the reliability of the confession then a trial judge in his summing-up should use appropriate means to bring to the attention of the jury the possible danger of basing a conviction on such evidence unless it is confirmed by other evidence: cf Bromley v The Queen (1986) 161 CLR 315.”
[48]	In Sinclair v R the High Court was concerned with the admissible of a confession made by a person who was suffering schizophrenia at the time.  Latham CJ noted that: 
“That evidence did not go further than to show that there was a real risk, recognized by psychiatrists, that on a particular occasion such a man as Sinclair might fail to distinguish fact from fantasy and that he might construct and relate an imaginative account of something that had really never happened. … 

On the other hand, there was the character of the confessions themselves. They were not absurd or irrational, but were coherent, and all that could be said for the purpose of showing that they did not really constitute responsible and fully comprehended statements was that the language in the written confession was of a stilted and extravagant character.”
[49]	Dixon J noted: 
“A confession is not necessarily inadmissible as evidence upon a criminal trial because it appears that the prisoner making it was at the time of unsound mind and, by reason of his mental condition, exposed to the liability of confusing the products of his disordered imagination or fancy with fact.”
[50]	The New South Wales Court of Criminal Appeal in R v Gillespie found that a trial judge had acted correctly in admitting confessional evidence.  Even though the evidence established the appellant had a tendency to confabulate as an incidence of Korsakoff psychosis, this did not suggest he was not capable of accurately recounting events that happened and in which he was involved.  It was therefore held that there was no unfairness in admitting the confession.  
[51]	Turning then to the principles to be considered when exercising the fairness discretion I firstly turn to R v Swaffield.
[52]	Toohey, Gaudron and Gummow JJ said reliability of a confession may be a touchstone of unfairness, however it is not the sole touchstone. In other words it is not exclusive. It is important that a risk of a miscarriage of justice be avoided. Kirby J noted that the reliability of the confessional evidence is an important issue.
[53]	Tofilau v R was a case which primarily considered voluntariness. It was noted by Gummow and Hayne JJ that the chief focus in considering the fairness discretion is the fairness of using the person’s out of court statement.  
Determination 
[54]	I now turn to the issue of the exercise of the discretion.  The onus is on the accused here.  I do not think it can be definitively proved that there was a false confession as a result of the mental health condition of the accused.  
[55]	At the end of the day Dr Schramm only raises this as a possibility.  
[56]	Having said this, there is no doubt that the mental state of the accused gives rise to concern and the court should be vigilant when considering the exercise of this discretion.  
[57]	I have carefully considered the evidence and the medical evidence. 
[58]	I have also had regard though to the independent evidence available.
[59]	In a case such as this it seems to me that reliability is an important consideration. In this matter the defence was not able to point to anything in the confession which was clearly wrong which would raise a question as to the accuracy of the confession.
[60]	On the other hand at paragraphs [10]-[14] above I have set out those parts of the confession which are supported by the objective evidence available. 
[61]	It is true though he may have been aware of these matters regardless.
[62]	I watched the challenged interview closely. I agree that the defendant spoke in a monotone fashion and his affect was flat. He was also vague about some matters e.g. about exactly what property was destroyed and about the ignition source.
[63]	Dr Mohan’s evidence though is important. As I have noted at [38] above the Doctor concluded the day after the confession (which was repeated to him), the defendant was conscious and alert and not suffering the signs of a major mental illness.    
[64]	Also I have referred to the defence submissions concerning medication above.    
[65]	In my view, it cannot be definitively shown that this confession is unreliable. Indeed there is a real possibility the confession is true. This issue should be the subject of a determination at a trial.
[66]	I also note that the police provided the appropriate warnings to the defendant, which he appeared to understand. Additionally a support person was provided to him. The defendant said he was at the police station to tell the truth. 
[67]	In all of the circumstances the evidence is not such as to reach the conclusion that it would be unfair to use the confession against the accused at his trial. 
[68]	In the circumstances I decline to exercise the court’s discretion to exclude the confession to the police and the confessions made to medical staff in 2011.