SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v Rappel
Citation: / [2016] ACTSC 295
Hearing Dates: / 18, 19 July, 5-8 September 2016
Decision Date: / 7 October 2016
Before: / Burns J
Decision: / See [43].
Catchwords: / CRIMINAL LAW – Particular Offences – offences against the person – murder.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – s 90 of the Evidence Act 2011 (ACT) – disputed facts hearing – objection to evidence of conversations – conversations between accused and case manager at gaol – where admissions were made – evidence not excluded.
Legislation Cited: / Crimes Act 1900 (ACT) s 315
Evidence Act 1995 (Cth) ss 85, 90
Evidence Act 1995 (NSW) s 90
Evidence Act 2011 (ACT) ss 85, 90, 126B
Cases Cited: / EM v The Queen [2007] HCA 46; 232 CLR
R v Jarrett [2012] NSWCCA 81
R v Medcalfe [2002] ACTSC 83
R v Roberts [1999] NSWCCA 95; 106 A Crim 67
Parties: / The Queen (Crown)
Marcus Rappel (Offender)
Representation: / Counsel
Mr S Drumgold (Crown)
Mr S Whybrow (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Ben Aulich & Associates (Offender)
File Number: / SCC 204 of 2015

BURNS J:

1.  The accused has pleaded guilty to murdering Tara Costigan on 28 February 2015. The accused has disputed some of the facts alleged by the Crown and evidence has been led both by the Crown and on behalf of the accused. One of the witnesses called by the Crown was Gary Monahan. The accused objected to the admission of the evidence of Mr Monahan concerning conversations said to have taken place between the accused and MrMonahan while the accused was on remand at the Alexander Maconochie Centre (the AMC) with respect to the present charges.

2.  One of the original grounds of the objection, that the contents of the conversations were protected confidences for the purposes of s 126B of the Evidence Act 2011 (ACT) (the Evidence Act) has been abandoned by the accused. The remaining ground of objection is that the evidence should be excluded in the exercise of the Court’s discretion under s 90 of the Evidence Act, which provides:

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is presented by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

The evidence of Mr Monahan

3.  Mr Monahan gave evidence that he is employed as a case manager at the AMC. He gave the following evidence concerning his role as a case manager:

What does being a case manager involve?---Our primary role is one of rehabilitation. We identify criminogenic risk factors through risk assessments, interviews, documents, historical stuff. We then devise a case plan for the duration of a prisoner's sentence, and that can include programs, employment, education. We also - also appreciate that the centre doesn't provide a welfare officer perse. So we undertake a lot of the welfare stuff as well, which includes an induction, making sure that new detainees have everything sort of - they're aware of the procedures. If there's any housing issues, any Centrelink issues, we look into that, and we give them a rundown on the centre operations.

Does that involve applications for Legal Aid and that type of stuff?---Yes, it does.

4.  All new detainees at the AMC are allocated a case manager. Mr Monahan was allocated the role of the accused’s case manger upon him being remanded in custody. On 3 March 2015, Mr Monahan conducted an induction interview with the accused in the Crisis Support Unit (CSU) at the AMC. He said that he made notes of the conversation in a notebook, which he later used to create an official case note on an electronic database. The notebook in which Mr Monahan made the handwritten notes of the conversation was also used by him to make notes in relation to conversations that he had with other detainees during their induction into the AMC. It was the practice of Mr Monahan to dispose of these notebooks because of “the Privacy Act” after the electronic case note was created although it appears that the timing of the destruction of individual notebooks was variable. Mr Monahan searched his papers at the AMC during a break in his evidence in these proceedings and was unable to locate the original notebook with his handwritten notes, so that it appears that the handwritten notes were destroyed.

5.  Mr Monahan said that at the commencement of his interview with the accused he told the accused he should not talk about the offence with which he was charged, as if he were to make “certain admissions”, he, Mr Monahan, was obliged to record them in case notes. He said that the accused replied “That’s like them wanting to say I was insane. Fuck that. I wanted to hurt the bitch”. Mr Monahan went on to say that the accused complained that the victim (Tara Costigan) had “lied on an AVO application” and that she was “the second partner who had lied to get an AVO”. The accused is then said to have said “You have no hope if you are a male”.

6.  Mr Monahan said that he then discussed a Legal Aid application with the accused. The application form asked what plea the detainee wanted to enter, and when that question was put to the accused it is alleged he replied “Guilty. I wanted to hurt the bitch, and I knew what I was doing. So I can only plead guilty”.

7.  While discussing a question about “dependant children” on the Legal Aid application, the accused made comments suggesting that he doubted whether Ayla, the daughter of Tara Costigan, was his child, and said ‘I only signed the birth certificate of Ayla to keep the peace’.

8.  After further discussions about mundane issues such as the accussed’s assets, employment opportunities in the AMC, and banking arrangements, Mr Monahan said that the accused commented “This is not too bad. I don’t have to worry about anything in here and I haven’t felt this relaxed in a long time”.

9.  Mr Monahan testified to a further conversation with the accused in the CSU on 13March 2015. MrMonahan again made handwritten notes of the conversation, and later used those notes to create a case note on the electronic database. Those handwritten notes were also later destroyed. Mr Monahan said that he had a conversation with the accused about Legal Aid after which the accused asked him what “temporary insanity” meant. MrMonahan asked the accused whether he meant temporary insanity or diminished responsibility, to which the accused replied “The one where you have used drugs and you don’t know what you are doing for a period of time”. Mr Monahan advised the accused to discuss it with his solicitor, and reminded him not to discuss the offence with anyone until he had obtained legal advice, to which the accused is said to have replied “I don’t want to deny I did anything as I have taken the life of someone”.

10.  In cross-examination Mr Monahan agreed that the CSU was commonly used to house detainees at high risk of self harm or harm to others, but did not accept that those detained in the CSU were necessarily there because they were suffering from a mental illness or “other mental condition”. He did agree, however, that people may be housed in the CSU because they were suffering from a serious mental illness.

11.  Mr Monahan agreed that he made a statement to police on 23 March 2015 about the events of 3 and 13 March 2015. He was aware at that time that he was asserting in that statement that the accused had made admissions to him concerning the death of TaraCostigan in the conversations recorded in the statement. He appreciated that those admissions may become important in any prosecution of the accused. MrMonahan also agreed that when the accused became aware of the contents of MrMonahan’s police statement, the accused told him that he was not happy that MrMonahan had made the statement, and disputed a number of the comments attributed to him by Mr Monahan in the statement. Mr Monahan accepted that the handwritten notes may have assisted in corroborating his testimony concerning the disputed conversations, but said that he only became aware in mid-2015 that the accused was challenging portions of the conversation recorded in his police statement, and he did not know whether the handwritten notes were destroyed before or after he became aware of that fact.

12.  Mr Monahan agreed that he did not give the accused an opportunity to read his handwritten notes so that he could agree or disagree with their accuracy. He also did not tell the accused that he may report anything the accused said to the police.

13.  Mr Monahan said he was aware that Marie Costigan, the aunt of Tara Costigan, is “an officer” at the AMC. He had, he said, only had limited professional contact with MarieCostigan, and brief social conversation. When asked about his contact with Marie Costigan, Mr Monahan said that he had contacted her “on Friday” (presumably the Friday before he gave his evidence) to find out when she had started at the AMC and to confirm his recollection that they had not had any conversations concerning the accused. He said that he contacted Marie Costigan because he deals with “officers” at the AMC “hundreds of time a day”, and he wanted to get his facts right before he gave evidence. Mr Monahan said that he was confident that he had not discussed the accused with Marie Costigan. Mr Monahan also testified that he had not seen any assessment of the accused by a psychologist or psychiatrist at the time he spoke to the accused on 3 and 13 March 2015.

Evidence of the accused

14.  In his evidence at the sentence hearing, the accused only touched briefly on his conversations with Mr Monahan. He said that he “vaguely remembered” being assessed in terms of his “mental health and suicidal concerns” on his induction into the AMC. He agreed that he was then housed in the CSU “for some weeks”. He denied saying to MrMonahan on 3 March 2015 “That’s like them wanting to say that I was insane. Fuck that, I wanted to hurt the bitch”. He also denied saying, in the context of completing the application for Legal Aid, “Guilty. I wanted to hurt the bitch. I knew what I was doing so I can only plead guilty”.

15.  With regards to his conversation with Mr Monahan on 13 March 2015, the accused was asked whether he recalled a conversation where he asked about diminished responsibility or temporary insanity, to which he replied “I don’t recall. I don’t think I did”. He also said that he did not think he said to Mr Monahan “The one where you have used drugs and you’re not sure what you’ve done for a specific amount of time”.

The evidence of Dr Martin Sellbom

16.  Dr Sellbom is a psychologist who was retained by the accused’s lawyers to provide expert reports on the accused’s mental state. He provided reports dated 31January2016 and 8 August 2016. In his first report, Dr Sellbom provided a mental health history of the accused. The accused told Dr Sellbom that he had struggled with depression and social anxiety for most of his life. He said that he had often contemplated suicide, but had only attempted it once. This was a reference to an attempt at suicide by taking an overdose of painkillers when the accused was 18yearsold. As the accused was born in 1974, this incident would have occurred in 1992 or 1993. He also described an event just prior to Christmas in 2014 when he set out to commit suicide by attaching a hose to the exhaust pipe of his car, presumably with a view to killing himself by carbon monoxide poisoning, which was interrupted by police. The accused described himself as suicidal on the day that he killed TaraCostigan.

17.  Dr Sellbom noted that the accused had been seen by a number of psychiatrists and psychologists in the past. He had been prescribed antidepressants and Valium, an anxiolytic. The accused’s mother informed Dr Sellbom that the accused had been diagnosed with “manic depression” in Brisbane when he was 32, which would have been around 2006 or 2007. He was, at that time, prescribed an antidepressant (Mirtazapine), but he ceased taking this medication because he could not tolerate the side-effects.

18.  Dr Sellbom noted that records indicated that the accused saw Eryn Davies, a psychologist, in 2009. In a referral letter to another psychologist, Dr Bruce Stevens, she reported that the accused presented with “bipolar symptoms” but he did not want to take medication due to the effect it had on his sex drive. She noted that he used Valium as required. Ms Davies noted that the accused reported difficulty controlling anger when not taking Avanza, an antidepressant, and that he would like support with anger management.

19.  Mental health records further indicated that the accused was prescribed Valium for panic disorder in 2009. He reported depressed mood, and described himself as a “social retard”, that he had a “fucked personality”, was anxious and had no friends.

20.  The accused’s mother told Dr Sellbom that the accused was emotionally traumatised after the breakdown of his relationship with a previous partner, KH, in mid-2013. He became increasingly depressed and frequently talked about suicide. The accused’s mother took him to a psychiatrist in Sydney, who concluded that the accused was traumatised and not coping well. Mental health records also showed that the accused saw another psychologist in April 2013, and in November 2013. He sought out counselling due to his relationship breakdown with KH and associated criminal charges. According to psychological test results, he scored in the severe range on depression, anxiety and stress, although his symptoms appeared to alleviate somewhat over the course of the year. He told the psychologist that he was feeling suicidal.