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[2007] WASC 209
Supreme Court of WA
2007-08-31
Dixon J, Blaxell J
Original judgment source is linked above.
The applicant's response to this last question was 'most likely, yes' (ts 29).
34 Not long afterwards the applicant was asked the question 'did she seem older than she was?' and he responded with a very emphatic 'don't know'. In answer to further questions he also indicated that he did nor recall what the girl looked like and did not know whether she was Asian in appearance. He was asked if he agreed with a particular description of her school uniform and his answer was 'not coming back to me at all' (ts 30).
35 It was at about this point in the interview that the following exchange occurred (ts 31):
36 Not long afterwards the applicant said that he had 'just remembered' that he had had an argument with his mother the previous day and that he had 'stormed out of the house and drove off'. This resulted in further questions including the following (ts 31 - 32):
37 From that point on the interview continued to deteriorate to the extent that the applicant became almost totally unresponsive to the questions that were asked (ts 34 onwards). He was repeatedly asked for his 'version of events' and also told that 'your mum and dad need to know and especially this little girl's parents need to know'; 'her brother saw you coming out'; 'there is no denying you have walked in there with that girl'; and 'You have strangled her to death and you have caused her death. So now its time for you to be a big enough man and tell us what you have done'. On the few occasions that the applicant did respond he essentially said that he did not know what had happened. There was then the following exchange (ts 38):
38 For only a short period, the applicant became more responsive when he was asked questions 'about after the event' (from ts 39 onwards). One of the detectives then stated that there was 'only a window of half an hour here where you can't account for' (ts 41). When pressed why he wouldn't talk about this 'window' the applicant responded (ts 42):
I don't remember specifically that window ...
I just remember opening the door and washing my hands is all.
39 However, his answers to the subsequent questions on this subject were not very comprehensible, especially when the following exchange occurred (ts 45):
40 Not long afterwards the interview deteriorated once again into the situation where the applicant was mostly unresponsive to the questions that were put to him. He had his face in his hands nearly all of the time but would occasionally nod or shake his head (sometimes almost imperceptibly) in response to questions. At one point (ts 50) a detective pulled the applicant's right arm away from his face, but it made no difference. An example of the extent to which the interview had deteriorated is revealed by the following series of questions (ts 49 - 50), none of which were answered:
41 The applicant was also told that it was 'no use holding your hands to your head mate because its not going to go away and nor are we okay' (ts 52). There was then the following exchange (ts 53 - 54):
42 It was after this exchange that I consider that the third stage of the interview commenced. The applicant was asked questions about his visit to the Big W store and he responded fairly readily. He also responded freely to questions about washing his hands in the toilet and when asked 'why do you think your shutting down there?' responded, 'because something happened and I don't want to remember it' (ts 63). He also said that 'I try to remember it - it just gets blacker and blacker' (ts 64).
43 In answer to mostly leading questions the applicant then gave a vague version of events which was very speculative in tone as if he was guessing what might have happened. For example, he said that the little girl 'may have walked in on me. Don't know' (ts 65). And further (ts 67):
44 The applicant also stated that the incident 'must have been very short' because the 'blankey bit, doesn't feel that long' (ts 68). When asked if he did what he did because of 'frustration and anger at the argument you had with mum?' his response was 'most likely' (ts 68). There were similar responses to the following questions:
45 It is unnecessary to outline the detail of the subsequent admissions that were made by the applicant but they were all of the same flavour. Towards the end of his account, there was the following exchange (ts 79):
Q. ... when you grabbed her by the throat did she struggle at all or was she trying to fight you off or was - was there any sort of struggle or?
46 It is also relevant to note the following questions and answers at the very end of the interview (ts ?):
Whether the video record of interview is admissible in evidence
47 As noted at the beginning of these reasons the applicant does not seek to have the video record of interview excluded on the grounds that his admissions were obtained in circumstances which make it unfair for them to be used in evidence against him. In this regard, I was specifically informed by his counsel that 'there will be no submission on behalf of the applicant that your Honour should entertain the fairness discretion' (ts 48).
48 Accordingly, I am not in any way concerned with the question of whether or not the applicant's admissions were unfairly obtained. Circumstances such as the applicant's (implicit) requests that he have a lawyer present are only relevant to the extent that they might show that his will was overborne. Therefore I am not being asked to determine whether it was unfair to the applicant for the interview to continue once those requests were made.
49 I am also not being asked to determine the reliability of the applicant's admissions, or whether or not they might have any probative value. Irrespective of what weight might be put on those admissions if they were to be received into evidence, the only issue for me to determine is whether or not they were voluntary.
50 The burden is on the State to establish on the balance of probabilities that the applicant's admissions were made voluntarily. In deciding whether the prosecution has discharged that burden, I must determine all of the circumstances in which the admissions were made, and carefully assess in a 'practical common sense' way the effect that those circumstances had on the applicant's mind at the time that each admission was made.
51 The circumstances relied upon as relevant to that assessment include the early morning events at the applicant's home, his lack of understanding of the caution, his requests for a lawyer, the moral exhortations by the detectives, and in general the circumstances of questioning said to amount to persistent and undue pressure.
52 In my view, the circumstances that are most critical to the question of whether or not the applicant's mind was overborne, are those that occurred during what I have termed the second stage of the interview. The limited exacts from the transcript that I have quoted do not convey the full picture of all that occurred between the interviewing detectives and the applicant. In this regard, the demeanour of the applicant, and what might be termed the 'atmospherics' of the interview, are very important factors that can only be appreciated by viewing the video.
53 In essence, the applicant by that stage of the interview had described his movements up to leaving the Big W store and after driving away in his car. The detectives were understandably anxious to ascertain what had occurred during the period in between, but the applicant's answers were to the effect that he had a blank spot in his memory.
54 The detectives did not accept this assertion by the applicant as being truthful and they repeatedly told him so. As well as the moral exhortations previously referred to, they repeatedly told the applicant what he had done, and urged him to 'be a man' and to own up to it.
55 The questioning along these lines was very repetitive, very leading and persistent. The applicant's reaction to this was to cease answering questions and to seemingly retreat within himself. In this regard there are pages of transcript which consist almost entirely of questions and in which the answers occupy only one or two lines.
56 In my view, the questioning at this stage of the interview created conditions that clearly amounted to 'persistent importunity, or sustained or undue insistence or pressure' (as per McDermott). It is also my view that the applicant ultimately appeared to succumb to this pressure and to make admissions which by their very nature suggest that they were not made in the exercise of his free choice to speak or remain silent. For these reasons, I am not satisfied that the admissions in the second and third stages of the interview were made voluntarily.
57 In my opinion, the questioning during the first part of the interview (up until page 26 of the transcript) was reasonably innocuous and can have no bearing on the question of whether or not the admissions made were voluntary. The only serious issues raised by the applicant in respect of that part of the interview are his assertion that he had previously requested that a lawyer be present, and the adequacy of the caution.
58 As to the first issue, the two interviewing detectives have testified that the applicant did not request the presence of a lawyer prior to the commencement of the interview. Nevertheless, it is submitted on behalf of the applicant that I should infer there was such a request, because when he first mentioned a lawyer during the interview (ts 31) he stated:
I am going to say this again if I've done something wrong then I'd like a lawyer. (emphasis added)
59 In my view, an alternative reasonable inference is that the applicant had overheard his parents demanding that a solicitor be present prior to him leaving the house. The two detectives impressed me as being reliable witnesses on this point, and I have no reason to disbelieve them when they say that there was no such prior request.
60 As to the second issue, the caution that was administered at the beginning of the interview was in the usual form, but when the applicant was asked to explain what it meant he said that he did not understand all of it. Detective Sergeant Rowson then went to some lengths (over two pages of transcript) to explain the caution, and I am satisfied that at the end of that explanation the applicant had a clear understanding of it.
61 In any event, I am also of the view that the issues raised as to the requests for a lawyer, and the adequacy of the caution, are matters which go to the exercise of the fairness discretion rather than to the question of whether or not the admissions were voluntary. (In this regard note Tofilau [353])
62 Furthermore, it seems to me that the applicant at all material times was willing to answer questions concerning his movements on 26 June 2006 up until leaving the Big W store and after returning to his car to drive home. It was only in relation to the period in between that he said he had no memory and showed a reluctance to answer questions. For these reasons, I am satisfied to the required standard that the admissions in the first stage of the interview were made voluntarily.
63 I accordingly rule that the video record of interview up until page 26 of the transcript should be received in evidence at trial, but that the balance of the interview is inadmissible.
8 In the decision delivered yesterday by the High Court in Tofilau v The Queen [2007] HCA 39 Gummow and Hayne JJ (at [55]) state that the reasons of Dixon J in McDermott 'have rightly been taken to be the authoritative statement of the common law of Australia on the admissibility of confessions'. The judgment in Tofilau extensively reviews the law relating to admissibility of confessions and also develops the doctrine of 'basal involuntariness'. Callinan, Heydon and Crennan JJ (at [327]) state that this doctrine is partly based upon the following passage from Dixon J's reasons in McDermott (at 512):
10 When determining whether or not an admission was voluntary, the quality of the conduct that is said to have resulted in the will of the accused being overborne is irrelevant. As was stated by Brennan J in Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257 at 307:
15 It is important to note that the reference in Oickle to 'raising a reasonable doubt' can have no application in Western Australia. In this jurisdiction, the prosecution bears the onus of establishing on the balance of probabilities that a disputed confession was made voluntarily (Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572 - 573).
(1948) 76 CLR 501
(1980) 31 ALR 257
(1963) 109 CLR 559