Carr v The State of Western Australia [2006] WASCA 125

Carr v The State of Western Australia [2006] WASCA 125 - WASCA 2006 case summary — Zoe

[77]

" ... Okay. Michael, as I've ... advised you this interview is going to be recorded on video. There's a camera through the window there, okay, and these two dots are microphones. They'll pick up what we're going to say so when you speak I ask that you just speak up fairly - - not loud but nice clear voice for us and don't tap the table. The time by my watch is, um, 7 pm, Wednesday the 30th of July, 2003. My name's Adrian Richards. This is Dave Shillingford. We're both Detective Senior Constables from the Kensington Detectives Office. ...

...

Q. ... Michael, we're here to interview you in regards to what you know about a bank robbery. ...

...

... I need to ask you some questions in regards to a ... bank robbery that we're investigating. Before I ask you any questions in regards to that I'm going to give you a caution and it's important that you understand it, okay, so at the end of it I'm going to ask you to repeat it back to me ... In fact, I've already given you the caution before ... but we'll just go over it once more, okay - -

A. Mm hm.

Q. - - for the purpose of the video and that is you're not obliged to say anything unless you wish to do so. Anything you do say will be recorded on the video and may be used as evidence in court. Can you please explain to me what you think this means?

A. Um - - that without my lawyer present - - um - - it um - - anything that I do say or could say could jeopardise my future - - well being. Um - - I don't wish to say anything about any bank robbery because I do not do anything like that. ... I don't wish to say anything without my lawyer present anyway pretty much.

Q. No dramas. I was wondering if you'd just persist with me for a minute.

A. Yep.

Q. Um - - it sounds like you've basically got the gist of what I'm - what I'm talking about.

A. Yep.

Q. If I ask you a question do you have to answer it?

A. No.

Q. Okay. If you want to answer it can you answer it?

A. Um, if I want to I can yes.

Q. Okay. It's your choice, isn't it?

A. Yep.

Q. And if you answer it it's going to be recorded on the video. You understand that?

A. Yep.

Q. If you're charged this video may be played in court. Do you understand that?

A. Yep.

Q. And what - - what's that called?

A. (No audible response)

Q. The tape being played?

A. Um - - what's it called?

Q. Evidence?

A. Evidence, yeah.

Q. It's going to be evidence used against you.

A. Yep.

Q. Okay. So you understand that?

A. Yep.

...

Q. Okay. What I'm trying to get at is are you on - - are you with us at the moment? You can understand what we're talking about?

A. Yeah. Quite clearly.

Q. Okay. And you're quite happy just to continue on with this until I sort of explain to you what it's all about and, um - -

A. Yep.

Q. - - put a few things to you? Like - - like I said, it's up to you whether you want to answer those questions - -

A. Yep. Not a problem.

Q. - - okay, but I'm going to - - going to say a few things to you and it's up to you how you want to respond. Are you happy with that?

A. All right, mate. Yep.

...

Q. - - but have you got any knowledge in regards to a bank robbery that was committed at that bank on the 8th of April?

A. No, I don't have any knowledge.

Q. You can't tell me anything about any information in regards to that robbery?

A. No.

Q. Were you involved in it?

A. No, I wasn't.

...

... Is there any way you can provide us with an alibi as to someone else to who you might have been with on that day?

A. Um - I don't know. I'd have to speak to my lawyer about it. Um - - this is getting pretty heavy now. Um - - just leave these kind of questions as I don't have any - - I don't have an alibi at this time because I haven't thought about it or, um, anything like that. I'd have to speak to my lawyer as to any relevancies if I was to be put in place of someone that was supposed to be involved in this kind of stuff. Um - - ...

...

Q. Well, at the moment we're on video. I'm giving you the opportunity to speak. Once again, I'll tell you you're under caution. You don't have to talk - -

A. Yeah, I know.

Q. - - but I'm still going to go through with these questions.

A. Yeah, that's fair enough.

Q. If you wish to hold off and talk to your lawyer, please do.

A. Yeah, I do.

...

Q. Okay. Thanks, Michael, for your time in answering your questions.

A. All right, thank you.

...

Q. ... Is there anything you wish to add while you've got the chance while the tape's running that we've gone over or, um, we haven't gone over that you wish to talk about now while you have the opportunity?

A. No.

Q. Okay. All right. Well, if that's the case, um, we're going to finish the video. We've obviously got inquiries that still need to be completed.

A. Yes.

Q. Um - - if any charges happen further on down the track - -

A. Mm hm.

Q. - - a copy of this tape and the tape that was - - the interview that was done at the scene at the search warrant will be made available to you or your solicitor. Contact your solicitor, they'll need to contact us and we can provide one for you.

A. All right then. No worries.

Q. Okay. If that's all we've got to talk about we'll stop the video now. It's, by my watch, 7.29 pm. ..."

[89]

"... there is a strand of the submission which was put I think as firmly and put as high as it could be put by Mr Illari [counsel for the accused] which suggest that in the absence of a caution it may be that a person is speaking flippantly, repeating hearsay, perhaps mixing in elements of some other offence, or the submission in this case went so far as to suggests perhaps speaking of another offence altogether, but that seems to me to be impossible, or matters of that kind so that the reliability of what was said might be affected.

The difficulty with that submission here is that on its face the conversation is, as I have already observed, very detailed and one which tallies at very many points with the statements ... of a number of witnesses to the offence so that reliability appears to be assured when one looks at the content and compares it with the subject of other depositions. The other difficulty with that submission, allied to the first, is that it relies upon speculation as to what may have been in the mind of the accused and it seems to me that it is not proper on an application of this kind when invited to exercise a discretion in favour of an accused person, when there are a number of competing possibilities, that I should form a view, without evidence, as to what may or may not have been in Mr Carr's mind at the time.

... the discretion to exclude which is relied upon at this point is that it seems to me, to put it broadly but adequately for present purposes, one to exclude evidence which is unfair in the sense that it is obtained by force, bribery, trickery or other improper conduct. There is plainly none of that present here. There had been a very large number of cautions, there had been an entirely proper interview process and at the conclusion of that an accused person, well aware of his rights, shows [sic chose] voluntarily to explain to persons he knew to be police officers, in detail, elements or aspects of the manner in which he had committed the offences, without prompting by them.

It is true that they maintained the conversation but to maintain a conversation initiated in those circumstances does not appear to me to be capable of being characterised as in any way unfair, and for those reasons I would not exercise my discretion to exclude the evidence of that conversation, either given orally by the police officers or in its recorded form."

[92]

"The state says that you can be satisfied beyond reasonable doubt that it has proven its case. It says that your commonsense tells you that it is human nature that people do not confess to a crime unless they have in fact committed it. The state says that it is especially so that people don't confess to crimes to people in authority like police officers unless they have in fact done what they have said they have done.

The state says here you have videotaped proof that the accused has confessed to committing this crime. The state says that that is reliable and truthful evidence of his guilt and you should act on it to convict the accused.

However, the state says, acknowledging that there have been occasions where somebody has confessed to a crime that they didn't commit, it is appropriate for you to test his confession against the other proven facts to determine whether the accused's guilt is consistent with those objective facts.

In this respect, the state says that you should consider the eyewitness evidence. The state says it is substantially consistent with the confession made by the accused. The state says you should consider the photographs taken of the robber. The state says nothing in them indicates that the accused is not the robber. There's nothing in those photographs that is inconsistent with the accused's physical appearance. Rather, the state says that the physical appearance of the robber is similar to that of the accused and that is a matter which you're entitled to take into account.

Thirdly, the state says that you should consider the evidence that shoes very similar to the ones that the robber was wearing were found in the possession of the accused and a pair of tracksuit pants which appeared to be similar to ones that the robber was wearing were also found in the accused's possession.

Fourthly, the state says you should take into account the car located by Mr Cohen on the same evening - that is, I think the evening of 8 April nearby to the accused's mother's home where he says he was staying at the time. You should consider that that [sic] car, that is, Mr Cohen's car, substantially fits the description of one that was seen to be acting strangely in the vicinity of the bank earlier in the day around about the time of the robbery and the state says you should also consider the accused's demeanour in the police station lockup video. When I say "his demeanour", that is how he was acting, how he was talking.

The state says that there's nothing in there to indicate that he was making up a story or lying. On the contrary, the state says that he appears to be acting freely, voluntarily and in doing so freely and voluntarily confessing to something he had done. The state says that all these surrounding facts tend to support the accused's confession and should dispel any doubts in you [sic] minds as to whether the accused's confession is reliable and true.

The state says that the only evidence there is to the contrary is the accused's evidence. The state says that you should reject the accused's evidence because the other evidence in the trial shows it to be false.

In relation to the two questions posed by Mr Illari [counsel for the accused] as to how he was able to make that confession, the state says simply that there were too many coincidences about what the accused said and what in fact has been shown to be true by other evidence to be just pure coincidence. Those coincidences point to him being the offender. The state says that they include several matters upon which the accused himself says he wasn't told anything by the police.

As to why he would make up such a false story, the state says that his explanation is simply not believable. If freedom was his priority, then he wouldn't have made such a false confession. No one of the accused's intelligence and worldliness would make a false confession like this to the police unless it was true.

The state says that when the accused was speaking to the police in the lockup, he was speaking from his own knowledge with ego in the background. He was bragging or boasting about what he had done, believing that it could never be used against him. Basically he was speaking in an unguarded moment with the police and he was caught out being honest with them.

Also in relation to the accused's evidence the state says that in the official video record of interview the accused was prepared to lie to the police about his knowledge of South Perth, Angelo Street and the banks in that area. The state says he told these lies to protect himself, knowing that the video could be used in evidence and because he was prepared to lie to the police knowing that it could be used in a court, he is a person who should not be believed upon his oath. Members of the jury, the state says that for those reasons you should be satisfied beyond reasonable doubt of the guilt of the accused."

[94]

"... the accused says that you should have more than a reasonable doubt as to whether the state has proved its case against him. The accused says that there are many aspects of the state's case that are unreliable or in which there are holes in the state's case. For example, the accused says that Sergeant Richards' evidence that the accused had made admissions to him in the car is simply unbelievable because if he had done so, Detective Richards would no doubt have questioned the accused about those admissions during the official record of interview. It just defies commonsense to believe that he would not have done that.

Secondly, the accused says there's a lack of evidence as to where Mr Cohen's car was in fact found after it was stolen. The accused says that there is insufficient evidence to prove that Mr Cohen's car was used in the robbery. The description of his car is not consistent with the description of the getaway car given by some of the witnesses.

The accused says that there are inconsistencies in the witnesses' descriptions of the robber and that there are differences between his physical characteristics and the physical characteristics of the robber as described by the eyewitnesses. He says there are inconsistencies between what he told the police in the lockup and the known facts; for example, how much money was stolen. He says that those inconsistencies are what you might expect if he was making up a story from bits of information that he had obtained from other places, rather than telling the truth about something he knew about.

The accused says that there is a lack of physical forensic evidence to connect him with the offence and that is certainly correct. The accused says that there's an insufficiency of evidence connecting the shoes and the tracksuit pants taken from him with the robbery. He also points to the fact that there were no guns, gloves, hammer, money or top found in his possession that are consistent with him being involved in the robbery. The accused says that for all these reasons, you should have a reasonable doubt as to whether the state has proved its case against him.

In respect of the lockup video, he says there are two issues that arise here. The first is: why would he implicate himself or dob himself in to the police if he in fact hadn't done the robbery? The second is: where did he get the information from to do so?

In respect of the first issue, he acknowledges he has a belligerent attitude towards the police and he wanted to tease them or to piss them off in circumstances where he believed that what he said would not be recorded and therefore could not be used against him. That is why he did it. His explanation, along with the other holes in the state's case, should cause you to have a reasonable doubt about his guilt.

As to the second issue, as to where he got the information from, he says he got it from the police photos or, sorry, I should say the bank photos that were shown to him by the police. He also got the information from what the police told him. Clearly there was a window of opportunity for the police or at least a couple of windows of opportunity for the police to tell him information about the robbery; that is, either in the car on the way back to the police station prior to the video record of interview or between the video record of interview and the lockup video.

He asks you to take into account that there are inconsistencies between what he told the police in the lockup video and what the witnesses said occurred, not only in respect to the description of the robber but also in relation to some of the other facts and in this respect he points not only to, for example, how much money was stolen but also in respect to who it was the robber threatened. He says or it seems from the lockup video that he says he threatened a male who was on the ground and he demonstrated that, trying to press the alarm; whereas there is no evidence before you to indicate that there was any male who was on the ground in the bank trying to press the alarm.

He also points out the fact that he did not know how many customers were in the bank and that is again evidence that he simply was not there. Members of the jury, he says that since he was released from prison in 2000 he has been on methadone. He has changed his ways. He has not been committing any offences and you can rely upon his evidence of [sic] oath when he says that he was not in this bank.

That evidence, together with the holes in the state's case, should cause you to have a reasonable doubt about his guilt and you should acquit him. ..."

[136]

"The natural meaning of 'interview' in s 570D is the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a 'serious offence'. It is unlikely that the Legislature in using the term intended it to mean each separate question and answer or statement made on a particular occasion, so that each such question and answer or statement constituted an 'interview'. It seems absurd to think that the Legislature intended the occasion of Coates's interrogation to constitute at least four separate interviews, consisting of two videotaped interviews and two unrecorded interviews during the toilet breaks.

A purposive construction also supports interpreting 'interview' to mean the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a 'serious offence'. Such a construction assists in having a record of the entire discussion between the police officer and the accused on a particular day at a particular place instead of records of parts of the discussion. In accordance with the policy of the section, it also reduces - although it cannot eliminate - the occasions for disputes between accused persons and police officers as to what was said in 'interviews', particularly interviews at police stations. A purposive construction also provides an incentive to police officers to have off-camera admissions recorded or at all events referred to when recording resumes.

Hence, by interpreting 'interview' to cover all exchanges between Coates and the police while he was under caution, s 570D applies to the times when filming was suspended. Because Coates did not withhold consent to the entire series of exchanges being videotaped, his refusal to consent to some of the exchanges being videotaped (if he did) did not fall within the meaning of 'reasonable excuse' as defined in s 570D(4)(c)."

[181]

The Applicant was sentenced on 13 January 1998 for a number of offences including aggravated burglary, breach of bail and breach of ISO and CRO.

2. He was sentenced to a total of 33 months imprisonment commencing from that day and was made eligible for parole.

3. On 30 April 1998 the Applicant was sentenced for an offence of armed robbery.

4. He was sentenced to a term of 4 years imprisonment cumulative on his existing sentence and was again made eligible for parole.

5. He was first released on parole on 14 July 2000.

6. He was taken back into custody for 7 days on remand from 23 November 2000 to 29 November 2000.

7. He was required to serve a further 547 days of his sentence from 12 January 2001 to 12 July 2002, when he was again released on parole.

8. The present offence was committed on 8 April 2003. The Applicant was taken into custody on 31 July 2003 and served a further 77 days of his sentence before being granted parole again on 15 October 2003.

9. The Applicant was again taken into custody on 17 April 2004 and served a further 154 days of his sentence before being released on parole on 17 September 2004.

10. He was convicted on 23 November 2004 of the present offence and has been in custody since.

11. The Applicant is eligible for release on 22 November 2010 though he may subsequently need to serve any remaining parole days before being released.

12. The outcome of the present proceeding when viewed together with previous time spent in custody is that from 27 November 1997 (the date he was first held on remand for the 1998 offences) to 22 November 2010, the Applicant will have spent 3,937 days (approximately 130 months or slightly under 11 years) of those 13 years in custody.

13. The imposition of this term of imprisonment for an offender of the Applicant's age is effectively a crushing sentence.

14. The learned sentencing Justice erred in failing to have any, or any sufficient, regard to the total period of prison required to be served by the Applicant and whether the totality principles should have been applied.

15. The sentence of 6 years imprisonment in all the circumstances was accordingly excessive."

At a glance

Court

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Before

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Judgment (228 paragraphs)

Carr v The State of Western Australia [2006] WASCA 125 (28 June 2006)

Parties

Legislation Cited (3)

Cases Cited (21)