R v Britton[2021] QSCPR 13

SUPREME COURT OF QUEENSLAND

1. [1]
   NORTH J:  The defendant is charged with the murder of his mother on or about 6 March 1996.  That is 25 years ago. 
2. [2]
   He has pleaded not guilty. 
3. [3]
   He applies for rulings that certain parts of three records of interview are inadmissible. 
4. [4]
   The interviews took place on, respectively:

14 March 1996,

21 May 2018, and

21 June 2018.

Some Miscellaneous Matters and Background

5. [5]
   The transcript of the recordings of the interviews comprise exhibit 5 before me. 
6. [6]
   I was informed, and it was common ground before me, that the respective transcripts are accurate and reliably repeat what was said and recorded at the interviews.^[1] 
7. [7]
   The transcripts of the Records of Interview^[2] have highlighting. 
8. [8]
   All these have some passages with RED highlighting.  They are admitted or agreed excisions.  They are not the subject of this application.
9. [9]
   The first transcript, the recorded interview of 14 March 1996, has some passages highlighted in green.  They are not the subject of this application, and, for present purposes, can be ignored.
10. [10]
    The passages of the respective Records of Interview as transcribed, that are the subject of this application are: 

    1. The transcript of 14 March 1996
    2. The transcript of 21 May 2018

the passages highlighted in BLUE;

3. The transcript of 21 June 2018

the passages highlighted in GREEN. 

11. [11]
    The applicant/defendant was born on 31 January 1967, so he is now 54 years of age.  At the time of the first interview, he was 29 years, and in 2018, was 51 years.
12. [12]
    On each occasion, his participation in the recorded interviews was voluntary, and in respect of the interviews 2 and 3, being a suspect, he was warned as required by the law, and, in particular, the Police Powers and Responsibilities Act. 
13. [13]
    Almost immediately after the third interview, on 21 June 2018, he was charged with the murder of his mother.
14. [14]
    His trial is set to commence at Mackay on 24 May 2021, and is estimated to take at least 10 sitting days.
15. [15]
    The prosecution case is that the deceased died as a result of injuries sustained, as a result of the discharge of a shotgun.  The particular type of round used to inflict the wound(s), was capable of being discharged by a shotgun stored in a shed at the deceased’s home.  The shotgun is missing. 
16. [16]
    The narrative of matters relevant or those concerning the prosecution case, is set out in paragraph 5 to paragraph 31 and paragraph 34 of the submissions by counsel for the applicant/defendant.^[3]
17. [17]
    Save for, when on 6 March 1996 the deceased was, on the prosecution case, last seen alive, the summary of the prosecution case by defence counsel is accepted by the prosecution.^[4]
18. [18]
    I will not repeat it. 
19. [19]
    The present case is, in part, circumstantial, but not entirely.  It also relies upon the evidence of some (two or three) witnesses to whom, it is alleged the defendant made confessional statements.^[5]
20. [20]
    The issues agitated on behalf of the defendant are, or concern in substance, in the case of the first two interviews, 14 March 1996 and 21 May 2018, the same and can be considered together.  In the case of interview number 3, 21 June 2018, it raises a different discreet issue and should be considered separately.  

Interviews 1 and 2

21. [21]
    The matter in issue concerns the questioning of the defendant about the content of a statement given to police by a prospective witness, Tracey LAMPARD. 
22. [22]
    She made a sworn statement to police on 9 March 1996.^[6] Ms Lampard knew the defendant and had for a time, up until December 1995, been in what she described as a sexual relationship with the defendant.  According to her statement, the two remained on intimate terms after December 1995. 
23. [23]
    In her statement^[7] Ms Lampard mentions three occasions when the defendant spoke of an animus towards his mother, and a desire to kill her. 
24. [24]
    On behalf of the defendant, Mr Robson, in his submissions, contended that on occasions the defendant’s response to the questions asked of him when interviewed were:

    1. Equivocal, and examples include;
       1. (a)
          See transcript 1 page 103 at line 11;
       2. (b)
          Transcript 1 page 101 at line 12;
       3. (c)
          Transcript 1 page 104 at line 43;
       4. (d)
          Transcript 1 page 104 at line 60 through to page 105 at line 20;
       5. (e)
          Transcript 1 page 106 at line 40; and
       6. (f)
          Transcript 2 page 67 at line 35.
    2. Denials, and examples include;
       1. (a)
          See transcript 2 page 62 at line 50;
       2. (b)
          Transcript 2 page 63 at line 23; and
       3. (c)
          Transcript 2 page 63 line 47.
25. [25]
    Mr Robson also pointed to the occasions when the defendant was confronted with the phrase, “Do you recall?” Relying upon passages from the judgment of the Full Court of South Australia in R v Wills^[8], and a dicta by Deane J in R v Van Der Meer^[9] at page 36, criticising questioning of a suspect, by reference to statements others have made.
26. [26]
    He also, in his submissions, relied upon by analogy the criticisms by the Court of Appeal in R v Foley^[10] at page 297, of the questioning of a witness by reference to comments on the truthfulness of another’s statements. 
27. [27]
    Pointing to the sworn evidence by Ms Lampard, on 5 March 2020, at the committal hearing,^[11] that she had no recollection of at least two of the three conversations, he developed his submissions that it would be unfair to the defendant to place the relevant parts of the Records of Interview into evidence before the jury.
28. [28]
    Mr Bain, for the prosecution, submitted that the statements made by the defendant were capable of amounting to an admission (pointing to the “unequivocal” admissions recorded in Ex 5 Transcript 1 14 March 1996 at Pages 102 and 103).
29. [29]
    He submitted that the answers were relevant and admissible, as admissions against interest going to issues such as: 

    1. An animus held by the defendant towards his mother,
    2. A desire to kill her, and
    3. A motive for a killing.  
30. [30]
    Mr Bain also developed submissions distinguishing each of the cases or statements of dicta in each of the cases relied upon by Mr Robson.  He rejected the submission that the tender of the statements would be unfair, relying upon a passage from the judgment of Nettle J in Dunstall^[12] at [62].
31. [31]
    The passages impugned by the application in both transcripts, 14 March 1996 and 21 May 2018, are littered with examples of equivocal answers of uncertain meaning or intent, there are also denials of propositions and, in some circumstances, there are what appear to be affirmative acceptances of questions or propositions.
32. [32]
    Disentangling them would be a difficult task, and nigh impossible to maintain the comprehendible integrity of what might remain.
33. [33]
    It is of concern that the witness, Ms Lampard, no longer has any recollection of at least two of these events.^[13]
34. [34]
    This situation appears to apply in respect to at least two of the three events that she had spoken of in her statement many years ago.  Judging from her sworn evidence at the committal hearing in 5 March 2020, the intervening 25 years have substantially degraded her memory or recollection.
35. [35]
    There is every prospect that at any trial, she would be unable to reliably give evidence of any statement by the defendant. 
36. [36]
    To place before the jury the Records of Interview upon this topic, littered as they are with equivocal statements and denials, when it’s doubtful that any reliable evidence of statements by the defendant will be available creates an unfairness. One that threatens to lead a jury into “incorrect reasoning”, that is to uncritically accept that the defendant made statements, in the distant past, about propositions unsupported by evidence. Here, in many instances, as I have said, the answers are equivocal and there are denials.  To place evidence before a jury of unsupported hearsay assertions made by police in an interview invites error and is “unfair”.^[14]
37. [37]
    I rule that those parts of both Records of Interview, dated 14 March 1996 and 21 May 2018, highlighted in BLUE, are inadmissible.

Interview 3

38. [38]
    On Thursday 21 June 2018, a coercive investigation hearing was conducted, by the Crime and Corruption Commission, into the death of the defendant’s mother, at which the defendant was questioned (see: the Crime and Corruption Act 2001 and for example, section 197). 
39. [39]
    Among those present observing that proceeding were two Queensland officers from the homicide section of the Queensland Police Service, who had carriage of the murder investigation; Detective Sergeant Mills and Officer Hering.
40. [40]
    At the conclusion of that hearing, the defendant agreed to accompany the officers Mills and Hering to their office for further questioning. 
41. [41]
    The challenged evidence is a substantial part of the Record of Interview conducted afterwards on 21 June 2018.^[15]
42. [42]
    The passages in that interview, highlighted in green, concern the defendant’s explanation or account of what is admitted to be a delusion.   
43. [43]
    The essence of the delusional belief is that he is incapable of discharging a loaded firearm and hurting anyone. 
44. [44]
    I infer that the first occasion when the defendant revealed to authorities that he held that delusion was during the coercive examination at the Crime and Corruption Commission on 21 June 2018. 
45. [45]
    It is convenient, at this stage to quote from the admitted psychiatric report.  That of Dr Jillian Spencer, of 13 November 2020.^[16] The report from Dr Spencer was tendered into evidence without any challenge. The following appears in pages 17 and 18:

At some point, Mr Britton appears to have developed a grandiose delusion that guns will not fire to harm people in his presence.  This delusion has not preoccupied him and is possibly of comfort to him as it supports his claim that he is not guilty of the alleged offence.  Mr Britton does not appear to suffer any other delusions or psychotic symptoms.  He does not appear to have deteriorated in his functioning.  He remains cognitively intact.

46. [46]
    Further: 

Mr Britton meets the diagnostic criteria of a diagnosis of Delusional Disorder - Grandiose type - Continuous.  His delusion appears to have been present for at least ten years.  He appears to have not experienced other psychotic symptoms.  His functioning is not markedly impaired and his behaviour is not obviously bizarre or odd.  His delusion has continued despite his reported abstinence from illicit drugs in custody over this year.  Mr Britton’s Delusional Disorder is mild and it is not preoccupying or impacting on his behaviour.  Longstanding Delusional Disorders are often unresponsive to medication treatment.  This condition is likely to remain stable and be ongoing….

47. [47]
    And further:

There is no evidence to suggest that he was suffering a mental illness at the time the alleged offence occurred, particularly not one sufficiently severe as to deprive him of the capacity to understand his actions, control his actions, or know the wrongfulness of his actions.  Mr Britton did not demonstrate any symptoms of mental illness during his police interview in 1996.  Mr Britton’s delusional disorder appears to have emerged subsequent to the death of his mother.

48. [48]
    And further:

Mr Britton is able to recall events from the past with accuracy.  He has a sound understanding of the roles of the members of the court and the function of the court.  His communication skills are sufficient to provide a narrative of events.  He has the cognitive capacity to follow the course of proceedings.  His delusional disorder does not interfere with his ability to consider and challenge any evidence against him.  His mental wellbeing will not be significantly adversely affected by the court process

49. [49]
    Several matters emerge from the foregoing:

    1. (a)
       The defendant’s delusion is true, in that it meets diagnostic criteria;
    2. (b)
       The defendant is otherwise cognitively intact and the active delusion does not disorder or affect his mind;
    3. (c)
       He believes the delusion to be true, he is not lying when he speaks of it.
50. [50]
    It is apparent from Detective Sergeant Mills’ evidence that the revelation of the delusion on 21 June 2018 was news to him.  It appears it was the subject of some discussion between the defendant and him during the journey from the premises of the examination, before the Crime and Corruption Commission, to the police premises where the record of interview was conducted.^[17] 
51. [51]
    It was submitted that the examination upon that subject at the interview was impermissible, being derivative evidence obtained by being privy to a coercive examination, giving the prosecution an impermissible forensic advantage. 
52. [52]
    Whether the account of the delusion that at the Record of Interview was obtained unfairly may be doubted.  The defendant voluntarily participated in the Record of Interview and was warned. 
53. [53]
    In a large part, the defendant’s account of the delusion was volunteered independent of questions by the police officers.
54. [54]
    But there is another threshold issue:  how is the evidence of the delusion admissible.
55. [55]
    Further the potential prejudicial effect, having an unfair result upon the defendant’s case, must be considered.^[18]
56. [56]
    When I inquired, I was told that that although the delusion was not a lie affecting the defendant’s credit but that the evidence of the delusion went to the reliability of the defendant’s evidence concerning his denials of killing his mother.  In other words, because his delusion renders his insight unreliable, the weight to be given to his evidence and his denials is adversely affected, and his evidence or account on those issues is unreliable.
57. [57]
    But it seems to me, the unchallenged evidence of Dr Spencer,^[19] forecloses the prosecution’s submissions. The evidence is the defendant’s delusion does not affect his abilities to consider and challenge evidence against him, and he is cognitively intact. It is a discreet and confined delusion not affecting his mind.
58. [58]
    To reason in the face of this evidence, that because of his confirmed delusion, the reliability of his denial of killing is reduced because of a deranged or disordered mind flies in the face of unchallenged evidence. Moreover, it invites error, that is, that because he is delusional, he cannot, or should not, be believed
59. [59]
    Thus the delusion, which on the unchallenged evidence, is not relevant to any issue the jury may have to consider.  For relevant purposes, the defendant can understand and challenge evidence and is cognitively intact.
60. [60]
    Further, it would be easy for a jury, even one properly instructed,^[20] to impermissibly reason that because the defendant harbours the delusion, other things he says about his involvement, in particular, his denials of involvement, should not be believed. 
61. [61]
    So there is prejudice to the defendant’s fair trial which in my view cannot easily be cured by direction.^[21]
62. [62]
    For these reasons, I rule that those parts of the third Record of Interview, dated 21 June 2018, highlighted in green, are inadmissible.