Cleland v The Queen [1983] HCA 32; (1982) 152 CLR 1

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

Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235

Cox v The Queen [2002] WASCA 358

Em v The Queen [2007] HCA 46; (2007) 232 CLR 67

Ibrahim v The King [1914] AC 599

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

McDermott v The King (1948) 76 CLR 501;

R v Christie [1914] AC 545

R v Jeffries (1946) 47 SR (NSW) 284

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

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

Seymour v Attorney General (Commonwealth) [1984] FCA 122; (1984) 53 ALR 513

Sinclair v The Queen [1946] HCA 55; (1947) 73 CLR 316

Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396

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

1 This is an application to have a video record of interview with an accused in an upcoming trial ruled inadmissible.

2 The trial is listed for four days, from 27 - 30 July 2009. There is one charge, of aggravated armed robbery. It is alleged that the accused in the early evening of Friday, 12 September 2008, assaulted the complainant, Mr Robert Jones, in the accused's unit in West Perth, occasioning the complainant bodily harm, and stole from him a sum of money.

3 The prosecution case is as follows. After the complainant had visited the toilet in the unit, the accused, holding a tomahawk over his head, had told the complainant to get down on a plastic sheet on the floor of the unit and hit the complainant's knees several times with the blunt end of the tomahawk. After the complainant lay down on the plastic sheet on his back, the accused stood over him with the tomahawk raised over his head and took a knife the complainant had in his pocket and put it in a pocket of the accused's. The accused asked the complainant who had it in for the accused. The complainant, seeking to appease the accused, gave him a name of a friend of the accused. The complainant tried to get up and the accused hit him over the head with the tomahawk, told the complainant if he moved he was going to slit his throat and, after taking the complainant's knife out of the accused's pocket, held the knife against the complainant's throat and repeated the threat. The complainant tried to get up but the accused hit him a number of times in the knees and the head. The accused told the complainant that if he shed any tears or screamed the accused would kill him.

4 The accused then asked the complainant for his wallet, which the complainant gave him and the accused removed the money from it, being $8. The accused left the unit holding the knife and tomahawk in his hands, and the complainant ran back to his unit.

5 The video record is of an interview with the accused conducted very early on Sunday, 14 September 2008 and lasting just under one hour. The interview was at the Perth City Detectives Office, and was conducted by Detective Eddie Tighe with occasional remarks and questions from Detective Brenda McConachie who was also present throughout.

6 The interview commenced at 12.18 am on 14 September 2008. Early in the interview the accused said that during daylight hours the previous day he had consumed six 'longnecks' as well as a middy, and he had also consumed a 'cone' of cannabis about two hours earlier. He said he had not been drinking for some time but had resumed in the previous week, while he had been 'off pot' for four months, with that night being the first time he had consumed cannabis for four months. However, when asked by Detective Tighe whether he was affected by cannabis, he replied 'I'll say no'; and, while he failed to respond directly to questions asked of him several times as to whether he was affected by alcohol, he did indicate at the conclusion of that questioning 'I think everything's fine, okay?'

7 During the early stages of the interview the accused also indicated he was 'tired' and he wanted to 'get this over and done with'. There were signs when a caution was administered to him not long afterwards that he was having some difficulty concentrating on the matters being put to him. At a number of points later in the interview there were signs, in the time he took to answer questions and other aspects of his demeanour, that he was indeed tired.

8 There were also a number of points early in the interview where the accused indicated he thought he was to be interviewed about bullet holes at his unit and matters to do with the unit's door. After Detective Tighe said 'no, it's not mate, as I said to you earlier on in the night', adding, after the accused referred to his door being 'kicked in', that 'no, it's not in relation to that, I spoke to you earlier on what it was about', the accused asked if it was something from his 'past', referring to a 'beating' for which he had been 'done... years ago'. Detective Tighe responded it was not that, but something 'recently', adding a short time later that the allegation was of an 'assault occasioning bodily harm and ---', to which the accused responded 'I have been done for that once --- ... years ago'. Detective Tighe then responded that 'the matter occurred on the 12/9/2008'. It was shortly after this exchange that a caution was administered to the accused.

9 The accused's answers to questions as the interview proceeded are frequently of a rambling character. Those answers are also sometimes at a tangent to the questions that most closely preceded them and difficult to follow.

10 At the same time, the accused also provides an account of what happened that night which he repeats, in whole or major part, in substantially the same terms at a number of later points in the interview, including points at which the detectives indicate they do not need to be reminded of that account. The account is a complicated one, in which the accused recounts a history of friendship with Mr Jones in the context of their drug use, the grievance of Mr Jones that the accused had caused Mr Jones to lose money, the accused's provision of money to Mr Jones on the night of 12 September to enable Mr Jones to acquire drugs for the accused, what Mr Jones said to the accused which led to the accused angrily seeking out another friend living nearby ('Dom'), and the failure of Mr Jones to return thereafter with either drugs or the accused's money.

11 On the day after the interview, on 15 September 2008, the accused was admitted to a psychiatric facility. There is a report in a letter dated 27 February 2009 from a consultant psychiatrist, Dr Victoria Pascu, in which she states (page 3) that on his admission he was

described as clearly psychotic, distracted by unseen stimuli and agitated. His mood was irritable and hostile and he described mainly visual hallucinations, seeing demons and 'lepricorns' [sic] and hearing voices telling him not to talk to the staff. He was treated with antipsychotic medications and his mental state improved fairly quickly.

12 I also note from the report the following, under 'Opinion' (page 6):

With the history of Mr Duncan's significant polysubstance use the possibility of a drug induced psychosis needs consideration

13 Counsel for both prosecution and defence indicated to me there was no objection to my taking account of that letter in my consideration of the objection to the receipt into evidence of the video record of interview.

14 The grounds for the objection to receipt into evidence of any of the video record of interview put forward by counsel for the accused are three.

15 One ground is the involuntariness of the accused's participation in the video recorded interview.

16 Another ground is that the court should exercise its discretion to exclude the video record of interview because its use at the trial would be unfair to the accused. The unfairness is said to lie in the same matters as those from which the involuntariness is said to derive.

17 The third ground is that the court should exercise its general discretion to exclude evidence (being the video record of interview as a whole) the prejudicial impact of which is greater than its probative value. This ground was put forward on the basis that the probative value of the video record of interview is slight at most and its prejudicial impact on a jury would be considerable.

18 I now briefly describe the evidence presented at the hearing before me, before reviewing the principles of law applicable to the grounds of objection, and then considering each of those grounds.

19 At the hearing before me on 17 June 2009 the video record of interview was played, with Detectives Tighe and McConachie present. Neither had previously seen the video.

20 The two detectives then testified. Both testified that they met with the accused at the Perth City Detectives Office shortly before the video recorded interview. In that meeting Detective Tighe conducted a procedure involving the use of a 'DNA form' and confirmed with the accused that he was an arrested suspect. The accused was informed of his rights as required by the Criminal Investigation Act 2006 (WA) (see s 138). As part of the procedure Detective Tighe had an exchange with the accused as to why he had been brought to the Perth Detectives Office.

21 Detective Tighe testified that he told the accused what the 'allegation' was, which was 'also' that on the DNA form 'that has to be read out' (17 June 2009, ts 18 - 19). That form was signed by the accused and referred to the allegation of 'AOBH and threats to kill' (17 June 2009, ts 18). When the accused in response to being told what 'the allegation' was asked 'was that six months ago?', Detective Tighe testified he said 'no, it's an allegation of assault by a Robert Jones' (17 June 2009, ts 18). Detective McConachie testified that Detective Tighe told the accused that 'the taking of the DNA was in relation to the threats to kill and an assault occasioning bodily harm on the day prior', and that the accused replied, but she did not recall the reply (17 June 2009, ts 36). In examination-in-chief she testified she could not recall if a name was mentioned, although in cross-examination she testified that she believed a name was mentioned.

22 Detective Tighe also testified as to events after the video recorded interview, in the early morning hours of 14 September 2008. In that testimony he referred to erratic and emotional behaviour of the accused in a video recorded search of premises conducted during that period, as well as to hallucinations the accused appeared at one point to be having in which he called Detective Tighe the devil. Detective Tighe testified that the accused was taken to Royal Perth Hospital to be assessed. Detective Tighe testified that when the accused was returned to the detective's custody the accused continued his hallucinations and demanded anti-psychotic medication, but, when he was told that those who had examined him at the hospital had said none was needed, he became calm. Detective McConachie gave no evidence as to the behaviour of the accused after the video recorded interview.

23 For my purposes a useful review of the principles of law applicable to the bases for objections of the sorts made in this case is in Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, [245] - [248] (Callinan, Heydon and Crennan JJ) (footnotes omitted), referring to, among other authorities, R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; Ibrahim v The King [1914] AC 599; Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235; McDermott v The King (1948) 76 CLR 501; R v Lee [1950] HCA 25; (1950) 82 CLR 133; Cleland v The Queen [1983] HCA 32; (1982) 152 CLR 1; R v Jeffries (1946) 47 SR (NSW) 284; and R v Christie [1914] AC 545:

In order to appreciate the significance of the appellants' arguments, it is desirable to place them in the context of the law relating to the admissibility of confessions as a whole. An admission by an accused person 'must be voluntary in order to be admissible' ... It is common to divide involuntary statements into two categories. One concerns the 'inducement rule': an admission by an accused person 'is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed' ... The other category concerns those caught by the 'basal involuntariness' rule, to be discussed below ... But even if an admission is voluntary, it may be excluded on 'discretionary' grounds. In R v Swaffield ... Toohey, Gaudron and Gummow JJ grouped these 'discretionary' grounds under three heads.

The first in time to emerge was that which was stated in the cases summarised by Lord Sumner delivering the advice of their Lordships in Ibrahim v The King ... about impropriety in police questioning. The correctness of excluding evidence on this ground in Victoria was left open in Cornelius v The King ... but was approved for New South Wales by Dixon J in McDermott v The King. Dixon J said of it [at 513]: 'there has arisen almost in our own time a practice in England of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner'. In R v Lee ... Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ declined to interfere with the Victorian Full Court's recognition of the discretion in that State. The application of this head was given fresh life from 1982, for in Cleland v The Queen ... the discretion to exclude illegally or improperly obtained real evidence enunciated in Bunning v Cross ... was applied to confessions. It has since been common to refer to this as a 'policy' discretion.

The second 'discretionary' head to emerge arose where it could be said of a voluntary confession that 'in all the circumstances it would be unfair to use it in evidence against' the accused. The words are those of Latham CJ in McDermott v The King ... summarising R v Jeffries ... but they were approved by Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ in R v Lee ... This is commonly called a 'fairness' discretion.

The third 'discretionary' head to emerge was the application to confessions of the 'discretion' to exclude evidence the prejudicial impact of which is greater than its probative value, which had begun to be recognised in R v Christie ... and continued to develop in various fields of the law of evidence throughout the 20th century. The application of that principle to confessions, but not its description as a 'discretion', was accepted as legitimate by Toohey, Gaudron and Gummow JJ in R v Swaffield ...

24 As the quotation from Tofilau indicates, voluntariness subsumes more than the absence of any threat, inducement or promise. It also includes other conduct by which the will of the accused is overborne (the 'basal involuntariness' rule). A commonly cited description of the conduct caught is in Tofilau, [327] (Callinan, Heydon and Crennan JJ):

In R v Lee [at 144] Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said, adopting the words of Dixon J in McDermott v The King [at 511], that an admission by an accused person is not admissible:

'unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure'.

25 Whether or not the latter part of that statement exhausts the situations where the will of the accused has been made in the exercise of free choice and not because the will of the accused has been overborne may not be altogether clear from this quotation. It would appear that in at least some cases of trickery or deception there may be scope for a conclusion that the will of a person being interviewed by the police was overborne: see [359] [360] (Callinan, Heydon and Crennan JJ); [19] (Gleeson CJ).

26 I further note in relation to voluntariness for the purposes of this case the following from Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257, 307 (Brennan J):

A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon J in McDermott's case, upon the will which determines admissibility. 'Voluntary' does not mean 'volunteered', but 'made in the exercise of a free choice to speak or be silent' (Lee ... at 149).

So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.

27 As to the content of the fairness discretion I was referred to Seymour v Attorney General (Commonwealth) [1984] FCA 122; (1984) 53 ALR 513, 527 (Fitzgerald J), where the following appears:

Fairness is an indefinable concept which depends upon all the circumstances of each particular case. Although the question raised by the special discretion to exclude confessional evidence is whether the reception of the confession would be unfair to the accused, the fairness with which he was treated when the confession was obtained will be of relevance on that question. Considerations personal to the accused, including age, race, intellect, education, and literacy will bear upon whether he has been fairly treated. The lawfulness and propriety of the conduct of those by whom the confession was obtained may similarly affect whether it is fair to use the confession against the accused; that consideration is associated with the second of the general discretions referred to above, but it also is material to the special discretion to exclude confessional evidence on the ground of unfairness. It is not presently necessary to consider whether Lee ... at 150-1 is authority for the proposition that a consideration of fairness is confined to the means by which the confession was obtained or other circumstances surrounding the making of the confession. However, there is no obvious justification for an attempt to catalogue exhaustively or to limit what matters are or may be relevant to the special discretion to exclude confessional evidence as unfair. For example, considerations personal to the accused may be of significance to the reliability of the confession, even if the accused was not treated unfairly, improperly, or illegally. Further, there seems no reason why the factor with which the first of the general discretions referred to above is concerned, namely the balance between the prejudicial effect and the inculpatory value of evidence, may not also be relevant to the fairness of admitting confessional evidence: see Cleland, supra, per Murphy J (43 ALR) at 629-30; (57 ALJR) at 21. As Deane J pointed out in that case at 632/22, 'the question is not whether the accused was treated unfairly; it is whether the reception of the confession would be unfair to him'. It seems unrealistic to attempt to compartmentalize the various considerations which may bear upon unfairness and to permit some only to be considered in relation to each different area of discretion.

28 The grounds of objection to the admissibility of the video record of interview relied upon here are the involuntariness of the interview and the second and third 'discretionary' grounds identified in Tofilau, quoted above. Counsel for the accused confirmed at the hearing that there is no objection in this case on the first discretionary ground, the policy ground. However, I note in relation to the second discretionary ground that the court in considering whether it would be unfair to an accused to use their statements against them should have regard to 'the conduct of the police and all the circumstances of the case': Lee 154 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).

29 It is trite law that the burden of proof on the ground of voluntariness rests with the prosecution (Lee, 135), and that the standard of proof is the balance of probabilities (MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 522). However, if there is nothing to suggest the statements made were involuntary the presumption is they were voluntary (Hough v Ah Sam (1912) 15 CLR 452, 457). If voluntariness is not shown the confessional material must be excluded: see LexisNexis, Criminal Law Western Australia (at 24 June 2009) [99,085.7].

30 It is further trite law that the burden of persuasion of the court that the discretion to exclude for unfairness should be exercised lies on the defence: see Lee 152 - 153; Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 565; and Criminal Law Western Australia [99,085.9]. That is of course also the position in respect of the exercise of the discretion to exclude evidence because the prejudicial impact of that evidence is greater than its probative value.

31 I proceed then to consider the grounds for exclusion contended for by the defence.

32 I did not understand it to be contended by the defence that any inducement had been used by the police in or in relation to the interview to procure the confessional material the video record contained. Nor did I find any such police conduct in the interview on my viewing of the video recording of it and of the transcript of it.

33 I turn then to consider whether or not the accused's participation in the video record of interview has been shown to have been voluntary in the sense that it was in the exercise of free choice and not because the will of the accused had been overborne.

34 I accept that there were in the accused's references to his intoxication, the signs of tiredness, some of his responses to the caution, and the report from Dr Pascu some matters to suggest the participation was involuntary, and so the presumption of voluntariness does not arise.

35 However, on my review of the interview as a whole I consider that the burden of proving on the balance of probabilities that the accused's answers in the interview were voluntary has been discharged.

36 I particularly note the indications of a willingness by the accused to describe events on the night in question, in their historical context, at elaborate length, in the complicated account I earlier described. He repeated that account in whole or major part even after the interviewers had told him he had already addressed those matters (ts 31, 33 and 41), which repetition I took to be the accused's form of emphasis of the significance of that account from his point of view.

37 As to the accused's consumption of alcohol, the accused had said, after being asked whether he was affected by alcohol (ts 6), and after at first not responding and being returned to the question, that he knew where he was, he was 'coherent', and 'I aren't deaf' (ts 7).

38 As to the accused's use of a 'cone' of cannabis, he confirmed that use was, or 'could've been', 'a couple of hours ago'; but when he was asked whether he was affected by that use, he replied 'I'll say no' (ts 8).

39 I should also note that the accused shortly thereafter, in response to Detective Tighe's inquiries as to whether he was suffering from any injuries the detectives needed to know about, referred to himself as being a chronic asthmatic and recovering from a broken foot. When asked whether there was 'anything else' the accused replied 'no' (ts 9). Detective Tighe then told him that if at any time during the interview the accused felt like he wanted to stop 'because of your asthma, your broken foot, or, you're in a bit of pain - just let us know and we'll stop it, okay?'. To this the accused responded 'That's mighty nice of you, thanks.' (ts 9).

40 His responses after those questions as to his alcohol consumption, drug use and physical condition, while often rambling and sometimes tangential and hard to follow, were indeed coherent, in my view of them. He appeared to be able to provide his responses despite being tired, as he indicated he was at a number of points (ts 14, 16). His account of events that night, given repeatedly (ts 26 - 27; 30 - 33), did not change in any significant way. Those matters are in my view strong indications of the accused's voluntary participation in the interview.

41 The accused undoubtedly showed some signs of agitation at various points throughout the interview and also showed signs of confusion in relation to whether he had to answer any questions and why he was being interviewed (both returned to below); he also showed some signs of confusion when in providing some of his lengthy accounts he said he had lost sight of what point he was 'up to' (ts 22, 28). However, I do not consider those signs sufficient, in the face of those strong indications of voluntariness, to cause me to come to a different conclusion as to voluntariness.

42 I have noted the matter drawn to my attention by counsel for the accused representing, counsel said, indications by the accused that he was anxious to dispel the suggestion he was intoxicated because of his concern he might be 'in trouble' for earlier drink driving (interview ts 6) and so underplayed the impact on him of what he had drunk the day before the interview.

43 However, I am not convinced any underplaying by the accused of the impact of his intoxication should cause me to reach a different conclusion on voluntariness. That is because of the strong indications of voluntariness I have referred to.

44 I have also considered the submissions of counsel for the accused that his participation in the interview was not made in the exercise of a free choice in the sense of one not distorted by a lack of understanding or misunderstanding of the context in which the interview was conducted. Counsel referred to what he said were three forms of lack of understanding or misunderstandings. The first, and 'overarching' form was that the accused did not know why he was being interviewed, in particular he did not understand he was being interviewed as a suspect in an assault of Mr Jones and threats to kill him. This prevented him understanding or properly understanding that he did not have to answer the questions in the interview, and that anything he said in the interview could be used in evidence against him.

45 I assume for the purpose of evaluating these submissions that any one of these forms of lack of understanding or misunderstanding would be sufficient to establish that participation in the interview was involuntary, without so deciding. I do not decide that matter as I consider it has been shown to me that the accused did not have any of these forms of lack of understanding or misunderstanding once the interview had passed beyond the caution stage, that stage ending at the top of page 17 of the 43 page transcript.

46 As to the submission that the accused did not understand why he was being interviewed, and in particular that he was being interviewed as a suspect in an assault on Mr Jones and threats to kill him, I consider that, while the accused showed some confusion on why he was being interviewed initially, he clearly indicated that he had been relieved of that confusion before he was cautioned. I so consider from the following (interview ts 10 - 14) (emphases added):

Q. Okay, Bradley, I'll just get you to concentrate on the interview for the moment, please.

A. Okay - Oky dokey, let's get it over and done with.

Q. Okay. You've contacted the Police today?

A. That's correct.

Q. Um, to do with a broken - a broken door - - -

A. That's correct.

Q. - - - un, the Police have arrived, um, the Police have asked you to come back here with them, is that right?

A. No. They - they've took off, I had to chase them down the road.

Q. Okay, so, after you've chased them down the road, you've, um, they've asked you to come back here, have they?

A. No, I've asked them to come back to my house, and, told them that, um, ah, don't go, because there's bullet holes coming through my windows.

Q. There's bullet holes coming through your window?

A. Yes, bullets through my frigging windows.

Q. Okay.

A. Did you not come to my house?

Q. No, I didn't, no.

A. Well, you can see why I'm upset then, can't you?

Q. Mm hmm - Mm hmm, but, the - - -

A. You can see why I've hardly been home, I sort of duck in, duck out.

Q. Yep. Okay. So, basically the - the Police have taken you here, and, then I've introduced myself to you, do you agree with that?

A. That's correct, yes.

Q. Yep, okay, and, I've asked you to sit on this interview, that's basically what brought you here, okay?

A. Yeah, for the bullet holes in my - - -

Q. Yep.

A. - - - windows, is that right?

Q. No, it's not, mate, as I said to you earlier on in the night - - -

A. Well, my door getting kicked in, I should say.

Q. No, it's not in relation to that. I spoke to you earlier on what it was about, and, I'll - I'll remind you again very shortly, okay, but, I've just gotta go through a few more questions okay? Yeah?

A. (no audible response)

Q. Okay. Do you wish to talk to anyone prior to speak to us, mate? Do you wish to contact a friend, or, family member, before you speak to us?

A. Yep.

Q. Or, do you wish to contact a lawyer?

A. What do I need a lawyer for?

Q. Oh, it's just something I have to advise you of, mate.

A. Is this my past catching up with me?

Q. It's an incident - someone made a complaint that we're gonna talk to you about. Would you rather me explain the - - -

A. No, I am a pretty good person, all right, these days, and, I haven't actually - can I like - let - let me ring my Dad.

Q. You wanna ring your Dad?

A. Yep.

Q. Did you wanna here the allegation first, and, then ring your Dad, or, did you wanna ring your Dad first - what would you prefer?

A. What's the allegation? Oh, you already said, ah - - -

Q. Oh, I'll tell you - I'll tell you again, if you (indistinct)

A. I've already been done for it, I - I've already been done for it years ago, um - - -

Q. The - - -

A. - - - beating up somebody that stabbed me twice and smashed me over the head with a cricket bat.

Q. I don't know, mate, the matter we want to talk to you today is - - -

A. Yeah, well, it was years ago, and, I was alcohol fuelled and it was - - -

Q. Okay, it's not something to do with - - -

A. They shouldn't have done it to me.

Q. - - - it's not something to do with years ago - - -

A. Okay.

Q. - - - it's something to do with recently, okay?

A. Yeah, all right.

Q. So, did you want to hear the allegation before you ring your Dad, or, do you wanna ring - - -

A. (indistinct)

Q. - - - you wanna ring your Dad first? What would you prefer?

A. I don't care, mate.

Q. It's - it's up - it's up to you, it's your choice, Bradley, I can't make a decision for you. You can ring your Dad now, or, I can give you - - -

A. I'll ring him after we finish.

...

A. The allegation that I wanna speak to you about today is an A-B-H - which is assault occasioning bodily harm, and - - -

A. I've been done for that once - - -

Q. - - - and - - -

A. - - - years ago.

Q. - - - and, threats to kill, okay?

A. I've been done for that, once, years ago.

Q. Okay, and, the matter occurred - bear with me (indistinct), the matter occurred on the 12/9/2008.

47 In my view the emphasised passages read in the context of the rest of the quotation show unequivocally that the accused was aware he was being questioned in respect of recent events in which he was a suspect in a matter involving something in the nature of a 'beating' like that 'I've been done for' some time ago. That in my view is sufficient for the purposes of the exercise of the free choice of the accused whether to participate in the interview. It was after this point that the matters as to answering questions where the answers might be used in evidence were addressed in the interview as I will indicate.

48 True it is that shortly before the passages first quoted there was the following exchange (ts 12 - 15):

Q. So, did you want to hear the allegation before you ring your Dad, or, do you wanna ring - - -

A. (indistinct)

Q. - - - you wanna ring your Dad first? What would you prefer?

A. I don't care, mate.

Q. It's - it's up - it's up to you, it's your choice, Bradley, I can't make a decision for you. You can ring your Dad now, or, I can give you - - -

A. I'll ring him after we finish.

Q. You'll ring him after - so you don't wanna ring your Dad now?

A. You're gonna give me a lift home, aren't you?

Q. Well, I'll organise a lift home for you, if - if that's the case.

A. Yeah, well, I don't have to ring him at all, I'll talk to him tomorrow or something.

Q. Okay, but, you don't - do you want to ring anyone before we speak to you? For advice or anything like that - do you wanna ring a lawyer or anything like that?

A. Tell me what this is about?

Q. Okay. To help you make a decision whether you're gonna ring someone - - -

A. Okay, I don't wanna ring anyone.

Q. All right. The matter we wanna talk to you about - - -

A. Yeah.

Q. All right. You can change you mind later on - - -

A. I might wanna ring a taxi or something.

Q. Well, you can ring anyone you want later on, okay?

A. You might be lying and not give me a lift home.

49 I do not consider this exchange goes further than to indicate the accused's confusion at the earlier time as to why he was being interviewed. As I have indicated, on my reading of the subsequent exchanges with Detective Tighe in the passages first quoted, the accused had been relieved of that confusion thereafter.

50 True it also is the detectives did not spell out the nature of the alleged assault, and that the accused might have been thinking of fisticuffs with the person he left the unit to confront that night. However, in my view it was not necessary, for voluntariness to be shown, that the full details of what was alleged to have occurred that night be spelt out where the accused had shown he had the awareness I described earlier.

51 As to the submission that the accused did not understand that he did not have to answer any of the questions in the interview, I consider, on my viewing of the all of the accused's responses to the caution administered to him, he continued in the interview with an awareness he did not have to answer any of the questions put to him, most clearly indicated in the following exchange (ts 15):

Q. You do not have to do this video, you do not have to answer any of my questions - - -

A. Right.

Q. - - - can you say that back to me in your own words please?

A. I don't have to do anything that I don't want to do.

Q. Good. Do you understand that you don't have to do this video?

A. Yes, you explained that to me.

Q. Yep. Do you understand that you don't have to answer any of my questions?

A. I do understand perfectly.

52 While I consider that there were indications that he may not have grasped the implications of what he had been told even although he had reflected back what he had been told in his own words not long afterwards, those indications are countered by the exchange that directly followed: (ts 15 - 17):

Q. If I ask you three questions, how many questions do you have to answer?

A. Three questions?

Q. Yep, if I ask you three, how many questions do you have to answer?

A. Three questions.

Q. You don't have to answer any of my questions, mate. Okay, you do not have to answer any of my questions, do you understand that?

A. Is this a trick question?

Q. No, I'm just saying, if I ask you three questions, how - - -

DETECTIVE BRENDA MCCONACHIE: That's not a trick question.

DETECTIVE EDDIE TIGHE: - - - how many - - -

A. Four questions.

Q. - - - if I ask you three questions, how many questions to you have to answer?

A. Two.

Q. You don't have to answer any of my questions. You can answer one, you can answer two, you can answer three, or, you don't have to answer any - it's up to you. You do not have to answer any - - -

A. Oh, I don't have to answer any of your questions?

Q. No.

A. Okay.

Q. So, do you understand that you do not have to answer any of my questions, Bradley, unless you want to?

A. I understand - yes, I understand, I wanna go home - - -

Q. Do you - - -

A. - - - I understand - I understand totally.

Q. Yep, do you wanna stop the video now and go home or what do you wanna do - do you wanna go ahead with it? You mentioned you're tired, are you all right to go on with the video? Speak to us?

A. Well - - -

Q. It's up to you, mate, I can't make a decision for you.

A. Are you gonna replace my door and my bullet holes in my windows?

Q. I told you mate, there's no promises. You can speak to us if you wanna speak to us, I can't say anything - so, if you wanna speak to us - - -

A. Oh, do you want me to come back tomorrow or something?

Q. I - I'd rather do it tonight, mate, but that's up to you, if you don't want to talk to us that's fine - you don't have to.

A. Well, if you want me to talk to you tomorrow?

Q. No, ah, I'd rather - if you've got anything - if you're gonna talk to us, I'd rather get it over with, mate - - -

A. All right.

Q. - - - but, that's up to you, mate - - -

A. Okay, that's fine.

53 I consider that the accused has shown by the time of his last answer in this extract that he has understood the implications of what he had reflected back in his own words as to whether he had to answer the questions in the interview or any of them.

54 As to the submission that the accused did not understand anything he said in the interview could be used in evidence against him, I consider that on my view of the exchange below, the accused indicated he had that understanding (ts 15):

Q. Okay. I'm gonna caution you now, and this is very important, you need to listen to this, okay?

A. I'm listening.

Q. You're not obliged to say anything but anything you say or do is being recorded and maybe used in evidence against you.

A. Mm, right.

55 While the accused does not reflect back in his own words what he was told as to the possible use of his answers in evidence, on the careful warning he had just received to listen carefully I conclude that his short response should be taken at face value.

56 In assessing voluntariness, it is important I take account of the possibility that the accused's mental condition, as described in the letter from Dr Pascu in the respects previously quoted, deriving some confirmation from the evidence of Detective Tighe as to events after the video recorded interview, and taken in conjunction with the accused's alcohol consumption, drug use, tiredness and signs of some confusion at the outset of the interview as why he was being interviewed, was such that the accused's will was overborne by external influences to which an ordinary person subjected to those influences would not so respond. See Collins 308 referring to Sinclair v The Queen [1946] HCA 55; (1947) 73 CLR 316, 333 (Dixon J).

57 However, the accused's responses themselves do not go to show that his will was overborne, and no other evidence, in Dr Pascu's letter or the evidence of Detective Tighe as to the accused's behaviour after the interview, shows his will was susceptible to being overborne.

58 I conclude that the prosecution has discharged its burden of proof in relation to the issue of voluntariness.

Whether the video recorded interview should be excluded in the exercise of the fairness discretion

59 I begin by considering the lawfulness and propriety of the conduct of the police who conducted the video recorded interview with the accused.

60 Detective Tighe in cross-examination agreed that there were parts in the Commissioner of Police's Manual of Operational Procedures (the COP's Manual) addressed to questioning of intoxicated and of mentally ill suspects, although he was unable to say what was in those parts.

61 It appears to be well established that a failure to follow the guidelines like those in the COP's Manual may be relevant to the exercise of the unfairness discretion: see Cox v The Queen [2002] WASCA 358 [54] (Olsson AUJ), [1] (Anderson J) and [2] (Templeman J) agreeing. However, the COP's Manual was not in evidence before me, nor was there any evidence of any non-compliance with it.

62 Nor was it put to me in this context in what other way it was improper for Detective Tighe and Detective McConachie, with what was apparent to them as to the accused's intoxication, drug use, tiredness and the character of his answers to their questions (including those questions addressed to his intoxication, drug use and tiredness), to proceed in the video recorded interview as they had done.

63 I have considered whether or not it was improper for Detectives Tighe and McConachie, with what was evident to them as to the accused's alcohol consumption, drug use, tiredness and confusion, not to have spelt out that the accused was being interviewed because someone had alleged he had assaulted and threatened to kill them. The detectives never did so.

64 I note again what appears from the video as to the accused's answers to the questions concerning his alcohol consumption, his drug use and his tiredness, and his indicated willingness to continue, as well as his indicated understanding of why he was being interviewed. In view of that material, I do not consider it has been shown it was improper for the detectives not to have spelt matters out as it was put to me they ought to have done.

65 However, the exercise of the unfairness discretion may not require unlawful or improper conduct or reason evident to them for the police to act differently: see Seymour 527, above; but compare Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 [54] (Gleeson CJ and Heydon J), where as I read their Honours' judgment the matter is left open.

66 On that basis I have considered in the present context the matters as to the condition of the accused, being his previous alcohol consumption and drug use, his tiredness and his mental condition, to which I referred above under the heading of whether voluntariness has been shown.

67 In determining whether those matters would make it unfair to the accused to use any of his statements in the video recorded interview in his trial it is, on the authorities, an 'important factor' to determine whether or not it has been shown that those matters call into question the reliability of those statements, or that, but for those matters, those statements might have been made in a different form or not at all: Swaffield [18], [19] (Brennan CJ). Further, it is also of importance to determine whether or not it has been shown that the use of any of the statements would produce a disadvantage, including a forensic disadvantage, that is not readily remedied: Em [111] (Gleeson CJ and Heydon J).

68 As to reliability, I do not consider it has been shown that those matters were of such a character as to call into question the reliability of those statements.

69 I have noted what was in the Pascu letter in the parts I quoted earlier as well as Detective Tighe's evidence of the accused's behaviour after the video recorded interview, which in my view does not speak to the reliability of what the accused might say in an interview by way of possibly reporting past events, except to the extent of reporting past hallucinations of the kind the Pascu letter and Detective Tighe's evidence describe.

70 In respect of the accused's answers in the video recorded interview, their character does not in my view point to any sufficient reason to consider the accused's condition called into question the reliability of what he was saying. True it is, as I have indicated at a number of points previously, the character of his answers was often rambling, and sometimes tangential to the questions asked and difficult to follow. However, I consider that character points to a willingness of the accused to provide a complete account of events on Friday 12 September 2008, in their larger context. Further there was no inconsistency or implausibility in the account the accused gave, and in particular nothing like the hallucinations to which the Pascu letter referred, or to which Detective Tighe referred in his testimony as to events after the interview.

71 Nor do I consider it has been shown that the matters of the accused's condition, being his previous alcohol consumption and drug use, his tiredness and his mental condition, were of such a character as to show that but for them the accused's statements in the video recorded interview might have been made in a different form or not at all. I have already referred to the accused's responses to what Detective Tighe said as to the accused not having to answer any of the questions put to him. It is not evident to me from those responses, or the accused's responses to questions asked in the other parts of the interview, that those matters of his condition might be causing him to reply at all, or to reply in the way he did. While there was some agitation he showed at a number of points in the interview, there was not in my view of his behaviour anything of the irritability or hostility referred to in the Pascu letter, nor any reference to matter of an evidently hallucinatory kind.

72 Finally, I do not consider it has been shown that the matters of the accused's condition, being his previous alcohol consumption and drug use, his tiredness and his mental condition, have produced a disadvantage for the accused which would arise if the video record of interview were played in his trial being a disadvantage that could not readily be remedied.

73 The only such disadvantage to which counsel for the accused pointed me, as I understood him, was that there were no statements in the interview which had other than slight probative value and that any use of the video recorded interview would have a prejudicial effect on a jury, an effect which could not readily be remedied even after edits of the video. This overlaps with and in my view is more appropriately dealt with under the next heading of discretion.

74 That takes me to the remaining ground of objection to the receipt into evidence of the video record of interview.

Whether the video recorded interview should be excluded on the basis its prejudicial effect is greater than its (slight) probative value

75 Counsel for the accused, as I understood his submissions, put it to me there was nothing in the video recorded interview of more than slight probative value, and the prejudicial impact of any part of the interview being received into evidence was considerable, and in any event greater than that probative value. That prejudicial effect was given as the impression of the accused that leaving any part of the video recorded interview to the jury would have on them. That impression would be of a person who from his overall demeanour, his use of language and the character of his answers was a person unwilling to face allegations.

76 However, I consider there is matter in the video recorded interview of more than slight probative value. That matter lies in the account the accused is shown to give that puts the complainant, Mr Jones, in the accused's unit on the evening in question, when the accused handled a knife of the complainant's (if not in the way alleged on the prosecution case); that includes that the accused owned a tomahawk (if not one kept at the unit); that includes that he had a blue tarpaulin kept at the unit (which might correspond to the plastic on which on the prosecution case Mr Jones was told to lie); and that includes he had been led by what Mr Jones said to him in the unit that evening angrily to leave the accused's unit to seek out the person Mr Jones had referred to.

77 In my view, the prejudicial effects of the admission of that matter do not outweigh that probative value. I consider that the matters relied upon by the defence are at least as likely to be seen by the jury as indications of the accused's willingness to provide a complete account of events on Friday, 12 September 2008, in their larger context. I do not see that impression as having anything like the prejudicial effect of the impression on which counsel for the defence relied.

78 This is not say that everything in the video record of interview has more than slight probative value which would be greater than the prejudicial effects of its admission. There is matter, as I have repeatedly said, that is tangential to the questions being asked. At least some of this matter may enliven the present head of discretion, altogether apart from whether or not some of that matter at least simply has no discernible relevance to any of the facts in issue in the trial. Such matter would it seems to me likely be eliminated from the video record as a result of the process of agreed editing between prosecution and defence, failing which it might be excluded as a result of the exercise of the present discretion or on relevancy grounds.

79 However, in my view the defence has not established that the video record of interview as a whole should be excluded under the present head of discretion.

80 It follows that I would not rule the video record of interview as a whole should not be received into evidence in the accused's trial.