Where a trial judge makes a positive finding that an accused's answers in an ERISP are mere hypothesis due to cognitive impairment from alcohol (not actual recollection), and the accused indicated that lack of memory during the interview, it is a proper exercise of the s 90 discretion to exclude those answers as unfair to use as admissions. However, the exclusion must be applied consistently — if only portions of an ERISP are excluded on this basis, the entirety of a related walkthrough interview cannot be excluded without evidence supporting a finding that the whole walkthrough involved reconstruction rather than recollection. The standard of appellate review for s 90 rulings (correctness vs House v The King) remains unresolved.
The full text is available to signed-in members, including the 6 later cases that cite this judgment.
2 of the 6 citing cases carry a classified treatment. How each court treated it is available to signed-in members.