Criminal Investigation Act 2006 (WA), s 118(3), s 138(2)(a)

Held that the video records of interview are both relevant and admissible

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1

Collins v The Queen(1980) [1980] FCA 72; 31 ALR 257

MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512

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

McDermott v The King (1948) 76 CLR 501

Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196

Norton v The Queen [2001] WASCA 207

Plevac (1995) 84 A Crim R 570

R v Anunga (1976) 11 ALR 412

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

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

Webb v The Queen (1994) 13 WAR 257

Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559

1 The accused, Cameron Shane Slater, has been charged pursuant to an indictment dated 8 April 2008 that on 19 June 2008 at Joondalup he stole from a male complainant I will call G, with threats of violence, $70 cash, and that he was armed with an offensive instrument, namely, a piece of wood and was in company with another contrary to s 392 of the Criminal Code (WA).

2 It was common ground at the hearing before me that the accused is a young man of 18 years of age, having been born in 1990, and is of Aboriginal descent.

3 It appears from the prosecution brief that the prosecution will allege that at about 3.30 am on Saturday, 19 June 2008 the accused, in company with another male, was at the taxi rank near the Joondalup train station. The complainant G and a female companion were sitting at the taxi rank when they were approached by the accused and his friend. The accused asked the complainant for a cigarette and this led eventually to some angry exchanges. On the prosecution case the complainant G was then threatened with a length of wood and in response to a demand for money, handed over $70 that he had kept in his wallet. The two males walked to a dark blue or dark green Holden sedan parked approximately 40 to 50 metres away and drove off.

4 The prosecution brief indicates that on the following day, Sunday, 20 July 2008, police attended at an address in Hamersley and located the accused. He was then conveyed to the Joondalup Police Station where he participated in a video record of interview conducted by Detectives Reeder and Flanagan.

5 By consent I have been provided with a transcript of the interview. The first phase of the interview deals principally with certain unrelated incidents on 19 June 2008, albeit with some reference to events at a train station near a shopping centre, and it was brought to a close at 5.31 pm with the interviewer saying 'at this point we are not going to charge'.

6 The second phase of the interview commenced 14 minutes later at 5.45 pm and is directed essentially to events at the train station. It is clear from the transcript and from what was put to me at the hearing that the prosecution will contend that both phases of the interview are relevant and admissible in that statements made by the accused were made voluntarily subject perhaps to some excision of unrelated matters that are presently being attended to by counsel.

7 Statements made in the first phase arguably place the accused at the train station at the relevant time. However, it is in the second phase of the interview that more specific confessional statements or admissions are said to have been made by the accused to the effect that while in the vicinity of the train station he got upset by verbal exchanges with a male person, so he grabbed a stick off the ground to scare him, and this led to the man throwing over a $10 and a $5 note which was picked up by the accused or his friend, Gerry.

8 I note in passing that the police officers cautioned the accused in the usual form at the commencement of the first phase of the interview. At the commencement of the second phase of the interview one of the police officers noted that the interview was being resumed because during the break the accused had said 'Listen I wanna talk to you about that other thing near the train station'. The accused was then cautioned again before the accused allegedly made the more specific confessional statements mentioned earlier. It was common ground that the accused was not in the company of a lawyer or any other supporter at the time of the interviews.

9 Defence counsel applied to have the record of interview excluded upon the basis that it would be unfair to admit the same. It was said that it included unreliable admissions because a comparison between the events described by the complainant G and his female companion, according to their proposed evidence in the prosecution brief, did not match the events the accused allegedly admitted being involved in.

10 Defence counsel submitted at par 10 of her written submissions delivered before the hearing that either the accused was in fact involved in a different incident in the general vicinity at a different time or, in the alternative, he had made up a story having been provided with the details of the subject complaint in the first phase of the interview.

11 It was said that the interview had little probative value since the description of events by the complainants did not correlate with the detail of events described by the accused and thus the record of interview would be unfairly prejudicial.

12 Reference was made to the fact that the applicant was young, of Aboriginal descent and did not have the benefit of legal counsel. It was said further, and in any event, that references in the record of interview to the unrelated events were irrelevant to the charge, the subject of the indictment, and should be deleted.

13 There is a prospect, as I indicated earlier, that various excisions in that regard can be or have been agreed. Both counsel accepted that the two phases of the interview process should be characterised as the first interview (or VRO1), and the second interview (VRO2). I will proceed accordingly and use the same language.

14 Before attempting to resolve these issues it will be useful to review the legal principles bearing upon issues of the kind raised by the present application.

15 The starting point was formerly s 570D of the Criminal Code which provided that on the trial of an accused for a serious offence evidence of any admission shall not be admissible unless the evidence is a video tape on which is recorded an interview.

16 The term 'interview' refers to the whole process of questioning a suspect, even though there may be breaks in that process: Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196.

17 The statutory provisions have now been changed. Chapter LXA of the Criminal Code, including s 570D, was repealed by the Criminal Investigation (Consequential Provisions) Act 2006 (WA). It was replaced by pt 2 of the Criminal Investigation Act 2006 which took effect on 1 July 2007.

18 I note in passing that the new legislation was reviewed at some length by Murray J in Malgil v The State of Western Australia [2008] WASC 290. It represents a balance between the needs of law enforcement officers to effectively investigate crime and the rights of individuals.

19 Section 118(3) of the Criminal Investigation Act provides that on the trial of a suspect for an offence, evidence of any admission by the suspect is not admissible unless the evidence is an audio visual recording or the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence of such a recording or the court decides otherwise under s 155 of the new Act.

20 It is apparent from MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 and related cases that at common law when an objection is taken to the admission of a confessional statement on the ground that it was not made voluntarily, the proper course is for the judge to hear evidence on voir dire in the absence of the jury as to the circumstances in which the confession was made. The issue to be determined is essentially whether the confession was made voluntarily or in circumstances of unfairness, although an enquiry of this kind may give rise to questions concerning the reliability of the confession.

21 On this occasion by agreement, the directions hearing or voir dire hearing commenced with the prosecution adducing evidence from Detective Reeder as to events preceding and relevant to the subject interview at Joondalup police station on Sunday, 20 July 2008. The DVD containing the audio-visual recording was viewed and received as exhibit 1. Detective Reeder was then cross-examined by defence counsel with questions being directed to his deposition dated 16 October 2008.

22 I will not traverse his evidence in its entirety, however importantly for present purposes, he confirmed an assertion in his deposition that he and his colleague complied with the requirements of s 138 of the Criminal Investigation Act. More specifically he said that before taking the accused to the police station for interview he told the accused he was to be questioned about an assault on the night in question and, 'an incident at the train station when someone was robbed'.

23 I note in passing that during the course of the interview, as appears from the transcript, the offence being inquired into was not precisely described to begin with but at page 57 Detective Flanagan asked the accused about being, 'At the robbery', and it was said at the end of the interview that the accused would be charged with robbery. This lends credence to the witness's assertion that the robbery as a matter of inquiry was mentioned at the outset.

24 Defence counsel made it clear that she did not intend to adduce evidence from the accused or otherwise, but would rely on the materials mentioned above. She made it clear that she was relying on the unfairness discretion only in seeking to exclude the interview. I note in passing that the defence position is reflected in the written submissions I mentioned a moment ago delivered prior to the hearing, now dated 6 May 2009, and further or supplementary submissions handed in before the hearing on 8 May 2009.

25 The supplementary submissions suggested in addition to the matters mentioned previously that the interview evidence should be excluded pursuant to the unfairness discretion, having regard to an alleged lack of compliance with s 138 of the Criminal Investigation Act and public policy considerations.

26 The relevant principles bearing upon matters of this kind were summed up by Gibbs CJ in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 5 in this way:

A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.

27 The prosecution bears the burden 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. However, if there is nothing to suggest that the confession was involuntary, the presumption is that it was voluntary and the onus is discharged. An accused person who asserts that the confession was improperly or unfairly obtained bears the burden of proving facts that would justify the exercise of the discretion concerning unfairness in his favour.

28 It emerges from R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 that voluntary confessions are thought to be trustworthy due to the unlikelihood of a person falsely stating what tends to expose him to a penal liability. There are four basis for the rejection of a confessional statement by an accused person.

29 First, a confessional statement that is not voluntary must be excluded. It cannot be voluntary if it is the result of duress or preceded by an inducement held out by a person in authority: McDermott v The King (1948) 76 CLR 501 per Dixon J at 511. Put shortly, the ultimate question is whether the will of the statement-maker has been overborne, or whether he has confessed in the exercise of his free choice: Collins v The Queen[1980] FCA 72; (1980) 31 ALR 257 at 307.

30 The three other bases for rejection proceed on the footing that the statement was made voluntarily, but should be excluded in the exercise of a judicial discretion.

31 The second basis is that it would be unfair to the accused to admit the statements. Unreliability is an important aspect of the unfairness discretion, but it is not the sole factor. 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; 35 A Crim R 232.

32 The third basis focuses not on unfairness to the accused but on considerations of public policy which are aimed at protecting the individual from unlawful and unfair treatment.

33 The fourth basis of rejection is pursuant to the general rule that evidence may be excluded where its prejudicial effect exceeds its probative value. The purpose of the discretion in this context is to guard against a miscarriage of justice.

34 The court said in Plevac (1995) 84 A Crim R 570 at 579, in the course of setting out a number of basic rules, that the police may, in the course of investigation, interrogate a suspect who is willing to answer their questions. This may include putting the facts as the police believe them to be in order to ascertain what, if anything, the suspect will say about them. The questioning is not to be regarded as unfair merely because it is persistent. Overly persistent cross-examination of a subject can sometimes amount to unfairness. However, as Murray J observed in Malgil at [45], there is no impropriety if the questioning police officer indicates 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.

35 In Van der Meer, being a case relied upon by defence counsel, Mason CJ made these observations:

It follows that the police will be acting improperly if they attempt to use the occasion as an excuse for attempting to break down a prior voluntary account given by the suspect of his relationship with the critical events in relation to the crime. The injunction, expressed in the Judge's Rules and elsewhere, that a person arrested or in custody must not be cross-examined means no more than that. As Williams J observed in McDermott at 517:

The mere asking by the police of a question which would only be asked in cross-examination at the trial does not, in my opinion, amount to cross-examination ... A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies. (661)

36 In R v Anunga (1976) 11 ALR 412 guidelines were laid down for the interrogation of Aboriginal suspects on the assumption that breach of the guidelines would lead to the probable exclusion of admissions obtained.

37 The guidelines included that an interpreter should be present unless the suspect was as fluent in English as an average white man of English descent; a prisoner's friend should be present; the caution should be explained in simple terms and the suspect asked to say, phrase by phrase, what it means; leading questions should not be employed; if legal assistance is sought, reasonable steps should be taken to obtain it. If the suspect says he does not wish to answer questions the interrogation should cease.

38 In Western Australia the rules stated in the Northern Territory do not have the force of law, but operate as guidelines indicating what is required by way of fairness when a person of Aboriginal descent is being questioned by police: Webb v The Queen (1994) 13 WAR 257 at 259.

39 It was said in Norton v The Queen [2001] WASCA 207 in respect of police guidelines, that the failure to comply does not result in a confessional statement necessarily being prima facie inadmissible because they are guidelines only and do not have binding legislative effect.

40 Let me now return to the circumstances of the present case.

41 It is apparent from the audio visual recording and related transcript that the accused, albeit young, was comparatively well educated, having proceeded to Year 10. He appeared to be fluent in the English language. He was familiar with suburban ways. He did not complain of any inability to understand the questions being put to him or the circumstances in which he found himself and it does not seem from what took place that he was obviously disadvantaged or discomforted. Cautions were put to him in the usual form and he appeared to understand them. Further, it cannot be said that there was any evidence before me or indications of any threats or inducements and no complaint of that kind was made at the time or at the hearing concerning admissibility of the confessional statements.

42 I am of the view, notwithstanding the submissions of defence counsel to the contrary, that there was no element of impropriety or infringement of the Act arising out of the break between the interviews.

43 I accept what was said by Detective Reeder in evidence that any exchanges between the parties were inconsequential while the accused was being provided with water. When the accused spontaneously initiated a more significant exchange concerning the train station incident, the detectives immediately proceeded to comply with the Act by reactivating the recording equipment and the interview proceeded.

44 Accordingly, the confessional statements do appear to have been made voluntarily and without infringement of the guidelines applicable to the circumstances of the present case. As I have indicated, the application to exclude is based essentially upon the unfairness discretion.

45 It emerges from the decided cases, including Van der Meer, that the issue is whether there is unfairness in the sense that the accused's right to a fair trial might be jeopardised if a statement was obtained in circumstances that affected its reliability. However, in considering the discretion to exclude confessional statements because their prejudicial effect substantially outweighs their probative value, it needs to be borne in mind, as appears from Malgil at [4], that the weight to be accorded to a statement as proof of an accused's guilt is a matter for the jury.

46 This brings me to the ground principally relied upon. The second interview was said to have no probative value because in that interview the accused appears to be describing a different incident than the one giving rise to the present charge. Defence counsel submitted that there was such a divergence between the version of events provided by the complainant G and his female companion in the prosecution brief and the confessional statements by the accused that an issue arises as to whether the statements have any real probative force. Counsel submitted that the proposed evidence should be excluded pursuant to the unfairness discretion because of its inherent unreliability.

47 There could be some force in this line of argument in a case of complete divergence. However, in my view, there is a sufficient nexus in the two accounts to rebut the line of argument relied upon by the accused. Both accounts concerned events close to a train station in the northern suburbs and both accounts refer to verbal exchanges over cigarettes followed by a threat of sorts involving the use of a piece of wood or stick. On both accounts two young Aboriginal men were involved, a request for a cigarette was made by one of the Aboriginal men, money was delivered to one of the Aboriginal men by handing or throwing after the use of a piece of wood or stick.

48 It is true that as to various matters of detail there are divergences between the two accounts but these are matters that can be explored at trial in the course of cross-examination.

49 It sometimes happens of course that confessional statements are only partially true but they can nonetheless be still relevant and admissible. Ultimately these are matters of weight which in the usual course will be resolved by the jury as the arbiters of fact.

50 I must now return to the defence counsel's supplementary submissions that I mentioned a moment ago. As I briefly indicated, it is said that there had been a failure to comply with s 138 of the Criminal Investigation Act. More specifically, it was said that the failure consisted of failing to inform the accused as an arrested suspect at that stage of the interview of the offence for which he had been arrested and to which the interviewing process was to be directed, or of any other offence that he is suspected of having committed.

51 It is said further that the interview was irrelevant because of obvious confusion by the accused, which demonstrated the deleterious effect and impact of non-compliance with s 138. Reference was also made to conversations which occurred during the break and the fact that video-recording facilities were not used in respect of some degree of conversational exchanges that occurred during the 14 minute break.

52 It was said in summary that having regard to public policy considerations, the whole interview ought to be excluded by reason of unfairness, this being by reason of police failing to adhere to basic legislative and investigative standards and requirements. It was said that any probative value of the interview was outweighed by significant prejudice to the accused which could not be adequately remedied by judicial direction.

53 Dealing with these matters, I commence by observing that in my view there is nothing in the second interview to suggest that pressure had been brought to bear upon the accused in the short break between the two interviews. The prosecution does not seek to rely upon admissions made in that break. It seeks to rely on confessional statements which were made and recorded in the course of the second interview in the manner provided for by the Act.

54 I am not persuaded that there was an infringement in that regard and as cautions were administered and apparently understood, I am not persuaded that there was an unfairness or impropriety requiring exclusion for public policy considerations.

55 In that regard I find, having regard to the evidence given at the voir dire hearing before me of Detective Reeder, that shortly after arresting the accused at 13 Glenorchy Crescent, Hamersley he informed the accused that they were inquiring into an assault and an incident at the train station when someone was robbed.

56 This evidence was not contradicted by evidence to the contrary from the accused or otherwise. To my mind, this amounted to sufficient compliance with s 138(2)(a) of the Act. I note in passing that the obligation to inform in that regard is as soon as practicable after the arrest, as happened in the present case. The conveyance of information is not necessarily to be regarded as part of an interview, for an interview is essentially aimed at eliciting information.

57 It is certainly true of course that often in the course of an interview the nature of the offence being investigated will be clearly stated. However, in the present case for the reasons I have given I do consider there was sufficient compliance with the provision mentioned a moment ago.

58 I noted in earlier discussion that the interviews appear to have been conducted fairly, after the usual cautions had been given. I am not persuaded that the questioning was overly persistent or amounted to cross-examination designed to overbear the will of the accused or to break down his story. To my mind, it cannot be inferred from the answers given in the second interview that he had made up a story having regard to what was put to him in the first interview.

59 To my mind, there is a sufficient nexus between the interviewers' understanding of what occurred on the night in question, namely a robbery near the Joondalup train station, and the accused's version to render the confessional statements potentially meaningful and relevant to the charge laid and having probative force.

60 It will properly be a matter of weight for the jury as to whether the degree of divergence between the versions means that the accused's statements have no or little probative force.

61 In the end, I am not persuaded by the accused's submission that the proposed evidence lacks probative force or is otherwise unreliable due to unfairness or impropriety or ought not to be admitted due to public policy considerations. The accused has not discharged the burden of proving facts to justify an exercise of any discretion to exclude the second interview. Accordingly, I will rule that the contents of the video record of interview are relevant and admissible, subject only to further discussion as to the excision of certain passages concerning unrelated matters.

62 I understand these excisions have been or are close to being agreed. If not, a further ruling in that regard can be made if necessary.