Criminal law and procedure - Evidence - Admissions - Police interview - Exercise of right to silence - Continued questioning - Whether answers should be excluded in exercise of discretion - No issue as to voluntariness or reliability - Whether police obliged to terminate interview - Whether admission of evidence unfair - Whether police conduct improper

Criminal Investigation Act 2006 (WA), s 155

Young Offenders Act 1994 (WA), s 20

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

JWRL v The State of Western Australia [2009] WASC 285

Malgil v The State of Western Australia [2008] WASC 290

Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177

R v Lee [1950] HCA 25; (1950) 82 CLR 133

R v Swaffield [1998] HCA 1; (1998) 192 CLR 159

R v Williams (1992) 8 WAR 265

Slater v The State of Western Australia [2009] WASC 144

Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232

1 HALL J: The accused, Jillian Smith, is charged with one count of unlawfully killing Brett Kevin Eades contrary to s 280 of the Criminal Code (WA). The prosecution case includes an interview with the accused conducted by police on 11 November 2009. The defence applies for part of that interview to be excluded on the grounds that it would be unfair to the accused to admit it in evidence. Alternatively, the defence submits that the part in question should be excluded on public policy grounds.

2 I heard this application on 1 October 2010. As the trial was due to commence on 6 October, I determined the matter and indicated that I would give my reasons later. On 1 October, I dismissed the application and ruled that the part of the interview in question was admissible.

3 The prosecution case is that Ms Smith unlawfully killed Mr Eades on the afternoon of 11 November 2009. She was arrested at the scene shortly thereafter and taken into police custody. Whilst in police custody, she was advised that Mr Eades had died. The interview with police took place at the Belmont police station and commenced at 8.40 pm. After a number of short breaks, it concluded at 9.50 pm. At the commencement of the interview, Ms Smith was cautioned and appeared to understand the meaning of that caution. It is accepted by the defence that Ms Smith's participation in the interview was voluntary and that she understood her right not to answer questions.

4 The defence submission is that during the course of the interview, Ms Smith attempted to exercise her right not to continue answering questions but the police ignored her wishes and continued with the interview. It is submitted that to continue the interview in these circumstances is against the general public policy that suspects ought to be given their rights and allowed to freely exercise those rights when they seek to do so. It is submitted that for the police to persist in asking questions after Ms Smith stated that she no longer wished to say anything further rendered her right to silence of no value and was unfair.

5 I have viewed a DVD of the interview. It is clear that Ms Smith is upset given her general demeanour and bearing. Throughout much of the interview, her head is down and she is physically unresponsive. However, her mood is not constant. At times she is calm, and at other times visibly upset. This is unsurprising given the subject matter that is being dealt with and the recent nature of the events in question. Her responses to questions are clear, sensible and apparently willing. Furthermore, the police interviewers were not aggressive or intimidatory but rather adopted a polite and courteous manner. Neither interviewer criticised Ms Smith or made repeated expressions of disbelief, nor were there any explicit or implicit threats, promises or inducements. All of this is accepted by the defence.

6 The relevant point in the interview appears at page 44 of the transcript. At this point Ms Smith reached a critical stage in recounting what had occurred earlier that day. She has told police about the preceding argument between her and Mr Eades. The following exchange then occurs:

A. But I didn't expect things to happen the way it did.

Q. Yeah. Okay. Are you right to keep going or do you want a quick break?

A. Oh yeah, I reckon. I don't really want do any more.

Q. You don't want to do any more?

A. Nuh.

Q. All right. Um, what if we have a quick break. We won't discuss this while we have a break. Um, obviously I, I'd like to ask you some more questions about what actually happens, um, out the front just to try and find out. All right. So we'll have a quick break. Do, do you want to go and use the ladies' room or, or anything like that?

A. No, just want to sit down. I'm right.

Q. You're right? Do you want to have a quick break or not? You just want to try and get through this?

A. Yeah, just - I just don't want to answer any more questions 'cause I'm not really in the mood. I don't feel like answering questions.

Q. No. All right. Obviously it, it's important that I understand how you are feeling through all of this. Um, and if anything's taken place then it's obviously important that we find out.

A. At end of day it was self defence.

Q. All right. Well, do you want to skip to the part and just tell me what actually took place in, in the driveway?

A. Nuh, I've already told youse.

Q. Would that make it easier? Well, I, I'm not sure what actually happened in the driveway though.

A. Yeah, I don't, I don't, I don't really remember either. I've said too much (indistinct).

Q. All right. Did he do anything else to you today?

A. Oh, just abusing me and assault me.

Q. Do you want to tell me how he assaulted you?

A. (indistinct) me.

Q. He- - -

A. I get bashed all the time. He's always done it to me.

Q. Yeah, but do you want to tell me how he's assaulted you today?

A. He punches into me

Q. Yeah.

A. That's what he does all the time.

Q. Did he - I, I- - -

A. This time I fought back.

Q. Okay. Can you tell me how you fought back, Jillian?

A. Like I said I had me weapon on him.

Q. All right. And what, what sort of weapon did you use?

A. I threw cups and plates at him.

Q. Yep.

A. And when he rushed me I happened to have a knife in my hand.

Q. Okay. Was that inside or outside?

A. Inside.

Q. Yeah, and what happened inside when he's rushed at you and you've had a knife in your hand?

A. Well, he, he - we both picked up weapons for each other in the end.

Q. Yep, yep. Did he hurt you today, Jillian?

A. Mm.

Q. Do you want to tell me how he hurt you? I'm trying to understand how you felt through this.

A. I don't want to talk about it.

Q. Okay. Can - Jillian, did you stab Brett today?

A. Yep.

Q. Do you know whereabouts you stabbed him on his body? No? Do you know how many times you stabbed him, Jillian? Do you want to tell me why you- - -

A. I didn't think my knives were sharp enough to kill somebody.

Q. Okay. Do you want to tell me why you stabbed him?

A. It was all the pressure he put on me and everything caught up.

7 Thereafter Ms Smith continued to answer questions regarding the incident and her use of the knife. It is not suggested that these answers were not voluntary. It is accepted that Ms Smith understood that she had a free choice to speak or be silent and that her will was not overborne. There is no suggestion of duress, intimidation, persistent importunity, sustained or undue insistence or pressure or an inducement held out by a person in authority: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159.

8 Where an interview is otherwise admissible it is for the defence to establish on the balance of probabilities that a voluntary confession should be excluded on the grounds of unfairness. The question is whether it would be unfair or unjust to the accused to use her statement against her: R v Lee [1950] HCA 25; (1950) 82 CLR 133, 152 - 155. The issue is not whether the accused was treated unfairly but whether reception of the statement would be unfair to the accused: Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232.

9 Unreliability is an important factor in considering whether the discretion to exclude on grounds of unfairness should be exercised, but it is not the sole factor. Another basis for the exercise of discretion is if there has been some illegality or impropriety on the part of law enforcement officers: R v Swaffield. In considering whether to exercise the discretion, the public interest in placing otherwise relevant and admissible evidence before the jury is important.

10 Questioning by police is not to be regarded as unfair merely because it is persistent nor is there any impropriety in a police officer indicating that the truth of an answer is not accepted because it does not accord with earlier answers given by the accused or with what others have said: Malgil v The State of Western Australia [2008] WASC 290, 45 (Murray J); Slater v The State of Western Australia [2009] WASC 144, 34 (Hasluck J).

11 Where a suspect during the course of an interview indicates a wish not to answer a question or to participate further in the interview, interviewing officers are entitled to ask further questions to clarify the accused's position. For an accused to say they do not wish to 'do any more' can be an expression of the emotional difficulty in dealing with the subject rather than a considered exercise of the right to silence. In the present case, the immediate response of the police was to ask the accused if she wished to take a break. Rather than being suggestive of unfairness, that shows a concern on the part of the police to ensure that Ms Smith was in a state to continue with the interview if she wished to do so.

12 Ms Smith's expressed reasons for not wishing to answer further questions were that she was not in the mood or did not feel like answering questions. In my view, the police were entitled to explore whether this was a firm resolve to exercise a right to silence or to exercise it in respect of all subjects. A person being interviewed may wish not to answer particular questions, or questions on a particular subject and yet be willing to answer other questions. There is no suggestion in this case that the police tricked Ms Smith into continuing with the interview or that she was prevailed upon, albeit that she was in an emotionally vulnerable state.

13 This is not a case where there has been any unlawful conduct on the part of the investigating police officers. Rather, what is suggested is that the police were obliged in the present circumstances to discontinue the interview after Ms Smith repeated that she did not want to answer more questions. The defence accepts that a mere statement in this regard does not oblige the police to discontinue and that continuation after a single statement of this type would not necessarily render an interview unfair. However, each case depends upon its particular circumstances and the defence says that in the circumstances of the present case the police were obliged to discontinue the interview at this point.

14 Where an interview is both voluntary and reliable, an accused bears a high onus of establishing that there is unfairness which justifies the exercise of the discretion to exclude: R v Williams (1992) 8 WAR 265, 274. In the present case, I have come to the conclusion that the police conduct in this interview was not improper. The questioning was not unduly persistent. The interviewing officers did not seek to be overbearing or to take unfair advantage of Ms Smith. They sought to give her a full opportunity to provide her version of what occurred. A clear inference can be drawn that Ms Smith decided to continue because she considered it in her best interests to do so because, after saying for the second time that she did not wish to answer any further questions, she then went on to say that what occurred was self defence. She then elaborated on this claim.

15 The defence sought to rely on the decision of Blaxell J in JWRL v The State of Western Australia [2009] WASC 285. That case involved a juvenile. That being so, the police were required by s 20 of the Young Offenders Act 1994 (WA) to contact a 'responsible person' before conducting an interview. A police operations manual also required that an 'interview friend' be present at any interview.

16 Blaxell J found that the police in that case had failed to comply with statutory requirements and to follow mandated procedures. He also found that the police failed to inform the accused of his rights or satisfy themselves that he understood them. Whilst the failures were not held to be deliberate, they were said to be the result of an insufficient regard for their statutory obligations in regard to a juvenile suspect. Those considerations do not arise in the present case, nor is it suggested that there was a failure to comply with any other statutory obligation. Thus, the present case can readily be distinguished from JWRL.

17 Even if, contrary to my view, there are grounds for concluding that the police should have terminated the interview, I am not convinced that in all of the circumstances it would be appropriate to exercise the discretion to exclude the remainder of the interview. Any impropriety involved is clearly outweighed by the public interest in admitting the evidence. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime and the reliability and unequivocalness of the alleged confessional statement: Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 203.

18 In the present case, Ms Smith is charged with unlawful killing, a particularly serious offence. There was no 'wholesale and deliberate' disregard of the accused's rights: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 77 (Stephen & Aickin JJ). The accused was cautioned properly and chose to answer questions being fully aware of her right not to do so. There is no question of the reliability of the answers given in the interview. The evidence is of significant probative value in determining the matters at issue in this trial, namely whether the killing was in self defence. The public interest, therefore, favours the admission rather than the exclusion, of this evidence (Criminal Investigation Act 2006 (WA) s 155).