Criminal law and procedure - Record of interview whether voluntary - Contravention of Criminal Investigation Act 2006 (WA)

Criminal Investigation Act 2006 (WA), s 28

Criminal Procedure Act 2004 (WA), s 98

1 McKECHNIE J: The applicant ('accused') applies for orders that the video record of interview dated 10 July 2007 be excluded from evidence on the ground that it is involuntary or that it would be unfair to admit the same on grounds of public policy. The Criminal Investigation Act 2006 (WA) came into effect on 1 July 2007 and so has a direct bearing on aspects of this application. The question of the voluntariness of the interview is not, however, a matter directly the subject of the Criminal Investigation Act.

2 The accused was spoken to on 10 July 2007 when Senior Constable Day and Constable Rigoir were on a mobile patrol and stopped a four-wheel drive vehicle on Robinson Avenue, close to the police station.

3 They conducted a random breath test on the accused who returned a negative result. Radioing into the station seeking a licence confirmation, Day was advised that there was an alert for Cox who was wanted for questioning. She said that she advised the accused that detectives wanted to speak with him. He asked what about and she said, 'It might be about a female ... of a sexual nature'. He seemed friendly and amicable. She had met him previously at the Yiyili community. He was cooperative and okay.

4 She was unable to remember precisely but thought she would have placed the accused in the rear bench seat of the dual cab marked police vehicle, not in the cage. In view of her previous contact with Cox, I find this is probably what did occur. At all events, they were extremely close to the police station. When they arrived, she had some small talk with him and ensured he was comfortable and introduced him to the detective. She said he was not under arrest and did not advise him either way whether he was under arrest or not.

5 Clearly Day did not comply with the provisions of the Criminal Investigation Act, s 28. She had had some training at Halls Creek in May 2007. Although I accept that the accused accompanied her compliantly, it is the case that she did not advise him that he was free to go if he wished.

6 Detective Sergeant Evans gave evidence that after interviewing the complainant who did not identify the accused as a man with whom she had had sex, the accused was one of a number of persons of interest. He had placed the alert on the computer which led to the message to Day.

7 On 10 July at about 7.00 pm he was having dinner with other officers at the Kimberley Hotel where he had been staying for some time when he received a phone call that the accused was at the police station. He attended with Detective Birtwistle and conducted a record of interview.

8 He said that before he conducted the record of interview he asked Birtwistle if Birtwistle had advised the accused of his rights under the Criminal Investigation Act and received an affirmative response. Evans said:

I went about the police station and did some other things and then come back into the interview room and we commenced an interview. (ts 38)

I had a brief conversation with Detective Birtwistle. I asked him a question, he said yes and then we went straight into the video interview.

Did you ever hear whether Detective Birtwistle did?---Prior to the interview - excuse me. Prior to the interview I asked Gordon Birtwistle, 'Have you told Kelvin about the CIA cautions and his rights and so forth?' and Gordon said, 'Yes' and I took it for granted that that was the case. (ts 39)

Did you hear Detective Birtwistle give Mr Cox his rights under section 28 of the Criminal Investigation Act?---No. (ts 40)

12 In cross-examination he said that he believed the Act came into effect on 1 July 2007. He had no formal training in the Act until a time following the interview but when he commenced his duties at Halls Creek he was aware of his obligation to advise people of rights. He detailed those:

They could contact a friend; they could phone a person; they could phone legal representation; they could see a doctor, just basically to make sure they are treated fairly. (ts 43)

13 He said he asked Birtwistle because at that stage it was a new Act and it was not very clear. He said:

On my return, I planned on going straight into an interview and I said, 'Has that been cleared up, the CI Act - with everything he can and can't do or whatever?' or something to that effect and Gordon said yes. (ts 48)

14 He accepted when the interview formally commenced he did not go through the rights. He was asked:

Did you ask him whether Detective Birtwistle had explained those rights to him?---No.

Do you accept that those rights were very important rights for Mr Cox and any other person in custody? (ts 49)

15 Evans acknowledged that when interviewing the complainant he did put to her her rights which are the rights under s 28 of the Criminal Investigation Act. He explained that there was a preamble on witness statements:

Because of the recent introduction of that act I wasn't comfortable with doing it but I thought I had better put it in because we were writing statements with a certain spiel at the beginning of the statements and that's not longer required. (ts 54)

16 In contrast he was asked about his interview with the accused and was asked specifically:

Why didn't you say he could leave?---I don't know.

Was he able to leave then, or was he under arrest for questioning under the act?---He wasn't under arrest.

He wasn't under arrest?---He wasn't under arrest in relation to that offence. He was there as a result of

How do you know he wasn't under arrest, detective?---Because I hadn't arrested him. (ts 55)

Exactly, so you don't know whether he was under arrest or not?---No.

And you didn't care?---No. (ts 56)

I asked Gordon Birtwistle if he was aware of his rights under the CI Act and he told me yes and I accepted that.

19 Evans accepted that it was his obligation to know the relevant parts of the Criminal Investigation Act as best he could and that there was an obligation to explain to the accused what his legal rights were. He acknowledged that he did not record anywhere in the statement prepared for the proceedings words that indicate his conversation with Birtwistle.

20 Birtwistle gave evidence that they had knocked off duty for the day and were in the hotel bar area ordering a meal when Evans received a phone call and said:

Do you want some overtime?---I said yes.

He said, 'Come on then' and we returned to the Halls Creek police station where I first met Mr Cox. (ts 68)

Sorry, can you repeat that?---Formal introductions. Detective Sergeant Evans or I introduced us to Mr Cox and Detective Sergeant Evans went off to get videotapes and sort other things out but he asked me to do the CIA introductions, which I said I would, and I then spoke to Mr Cox and I told him that for the purposes of what we had to do he was now an arrested suspect and as an arrested suspect certain conditions come with that, certain rights are afforded him with that. I told him that we needed to speak to him in relation to the sexual assaults of a young female. I cautioned him. I asked him if he needed to speak to a lawyer slash solicitor. I asked him if he needed any medical attention prior to us going any further, if there was anything medical that needed to be attended to straightaway. I recall asking if he wanted to speak to a friend, and that's about it, and whilst I was speaking to him I was assessing whether he understood my English at least and I was satisfied that he did, and shortly after Detective Sergeant Evans met me again and we went straight into the video record of interview room and the video record of interview commenced.

All right. When you were advising Mr Cox of those things that you have just said into evidence, did he indicate anything to you that he was understanding what you were saying?---I was fully convinced that he understood everything I said. (ts 68)

22 While this conversation was taking place the accused indicated:

I was convinced myself that he understood everything I said. I did not believe that he needed an interpreter or anything like that.

You say that you were convinced that he was understanding you but how did he show that though? How did he convey that to you?---Nodding in a yes fashion and saying, 'What's it all about?' basically.

24 In cross-examination Birtwistle agreed that it was his practice, as an experienced, conscientious police officer, to take notes of important matters. He said that he did not have notes of his explanation to the accused of his rights under the Criminal Investigation Act, it was a conversation. After he concluded the interview he did not make a note. When he prepared a statement in the case, which was prepared in July 2007 and not for the directions hearing, he did not include in that statement the advice he gave to the accused in the hallway. He understood the statement he prepared was an important document and that it should include all important information.

25 He included in the statement that at the commencement of the interview Evans cautioned the accused but did not include that he cautioned the accused before the interview started. He insisted that this did happen. He accepted that he had not told the prosecutor about Evans' questions. He said the Criminal Investigation Act was topical in the sense that it was talked about in the crib rooms when discussing case files within, say, two or three weeks of this situation.

Was the accused arrested by Detective Senior Constable Birtwistle and were his rights explained to him?

26 Evans has sworn that he asked Birtwistle if his rights had been explained and Birtwistle has sworn that he explained the rights. The accused did not give evidence at the directions hearing.

27 I am not persuaded to accept Birtwistle's evidence. There is no corroboration for it. It is the sort of material that an officer of his experience would routinely note and include in the statement. After all, it was part of the legal basis for the detention of the accused. If Birtwistle had explained the rights to the accused it is inconceivable that he would not have included them in the statement, especially when he went to the trouble of including the caution given by Evans. Moreover, the record of interview itself does not suggest that there was an earlier explanation of rights.

28 This is more than the point made by the accused's counsel to the effect that when interviewing the complainant Evans had explained her rights, although that is a fair point. At the commencement of the interview, Evans asked whether the accused wanted a friend present.

29 In addition to being one of the Anunga Rules, this is a right under s 138 of the Criminal Investigation Act. If, as he suggests in evidence, Evans was aware of the Criminal Investigation Act and its rights, it is hardly believable that notwithstanding Birtwistle's explanation of having made inquiry in respect of one of the rights, he would not have gone on and made inquiries in respect of the others.

30 I am quite unable to accept the evidence of Evans and Birtwistle in relation to the rights given to the accused under the Criminal Investigation Act.

Conclusion on the Criminal Investigation Act

31 My conclusion is that the accused's rights under the Criminal Investigation Act were violated by police on two occasions. On the first occasion when the accused was taken by Day and Rigoir from his four-wheel drive vehicle to the police station, it is conceded by the prosecution that his rights under s 28 were not explained to him.

32 At the time of interview, I find that no explanation of his rights as an arrested suspect were ever given to him. He may well have been compliant and cooperative when asked to accompany police but he was at that time not in lawful custody. Police were therefore obliged to inform him and be satisfied that he understood he was not under arrest, that he did not have to accompany the officer and that, if he accompanied the officer, he was free to leave at any time unless he was then under arrest.

33 The Criminal Investigation Act has made significant changes to the law. It has widened police powers of investigation, detention, search and seizure considerably but balances these powers with an expanded and clear definition of the rights of persons in their interaction with police.

34 Previously there was no right of police to detain a person for the purpose of interview. There is now a process of investigative detention where police may, for a reasonable time, arrest and detain a suspect for the purpose of interview. I do not accept for a moment the explanation that this is new legislation. While I do accept that Day's ignorance of the accused's rights was unintentional and not deliberate, that only takes the matter so far.

The effect of the failure to comply with the Criminal Investigation Act

35 It is a question whether the Criminal Investigation Act gives police a power to interview suspects, a breach of which is a contravention of the Criminal Investigation Act rendering the evidence obtained improperly under s 154. I can leave that question for another day because in this case counsel agree that the power to interview is not a power under the Criminal Investigation Act and that the common law discretion to exclude evidence applies.

36 In the event, there may be little practical difference between the common law discretion and the discretion given under statute by the Criminal Investigation Act, s 155. I find that at the time of the video record of interview the accused was unlawfully in custody.

37 The parties are not in issue as to the test which is conveniently set out in R v Lee [1950] HCA 25; (1950) 82 CLR 133. Mr Richardson argues that the unlawfulness of the detention has an effect on voluntariness because it constitutes a direct or indirect threat or inducement. Mr Williams responds by reference to Tofilau v The Queen [2007] HCA 39; (2007) 238 ALR 650 and the joint judgment. Reference could also be made to Foster v The Queen [1992] HCA 63; (1992) 113 ALR 1.

38 On the facts of this case, I am not persuaded that the unlawful detention was an inducing factor operating on the accused to overbear his will in any way. The unlawful detention was of a short duration and he was aware of its reason.

39 This discloses that the accused is 25 years of age. At the time of the interview he was sober and not under the influence of any drugs. His general demeanour, as can be observed on the video, and his answers indicate that he was aware of questions and his ability to respond. He was cautioned and his understanding of the caution was tested. He was asked:

So if I ask you a question and you don't want to answer it, what would you say to me?---Well, I don't know. I don't know. What is the question?

If I ask you any question and you don't want to answer that, what would you tell me? Would you tell me 'No comment?'---Yeah.

No comment?---Yeah.

Yeah?---No.

So you know that you don't have to answer me if you don't want to?---Mm.

If I ask you a question and you don't want to answer, you tell me you don't want to answer that, all right?---Yeah.

41 He was then questioned in a way which was materially non-leading and volunteered responses freely. He denied sex with another person. At the conclusion of the interview, the interviewer returns to the issue of voluntariness and says:

If I did ask you a question that you didn't want to answer, what would you have said to me?---I just tell the truth, mate, yeah.

Yeah, but if I did ask you a question - - -?---Mm.

And you said, 'Well, I'm not talking about that', what would you say to me?---I don't know ... Yeah, and that was of your own free will?---Yeah

42 In the course of oral submissions I expressed concern about whether this passage indicated a lack of understanding in the accused. Having reviewed the videotape I am satisfied that the interviewer and the interviewee were to some extent, at cross purposes but that when resolved the accused did understand that he was not obliged to answer questions if he chose not to.

43 I accept that the accused answered questions because he wanted to tell the truth but I am also satisfied that he did so voluntarily, well knowing and understanding his right to speak or remain silent and in the exercise of a free choice.

44 I turn to the alternative basis advanced in the application, that is the discretion to exclude. The question here seems to me whether the video record of interview should be excluded on the grounds of public policy. In R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, Toohey, Gaudron and Gummow JJ identified four bases of rejection of a statement by an accused to be discerned in the decision of the court. The third basis focuses not on the unfairness to the accused but on considerations of public policy which make it unacceptable to admit the statement into evidence notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is bought to bear with that emphasis is the protection of the public interest.

45 The court dealt with the policy discretion and the concept of a discretion to exclude confessional evidence even when no unfairness to the accused has been demonstrated. At [57] it is said 'The concept of a discretion to exclude confessional evidence, even when no unfairness to the accused has been demonstrated' was recognised in R v Ireland [1970] HCA 21; (1970) 126 CLR 321, where Barwick CJ, with whom McTiernan, Windeyer, Owen and Walsh JJ agreed, said:

Evidence of relevant facts or things ascertained or procured by means of an unlawful or unfair act is not, for that reason alone admissible.

46 Whenever such unlawfulness or unfairness appears the judge has a discretion to reject the evidence. In the exercise of it the competing public requirements must be considered and weighed against each other. On the one hand, there is the public need to bring to conviction those who commit criminal offences. On the other hand, there is the public interest in the protection of the individual from an unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.

47 Toohey, Gaudron and Gummow JJ said in the joint judgment in Swaffield:

Policy discretion ... Barwick CJ spoke in terms both of unlawfulness and unfairness. It is not certain whether the Chief Justice was giving additional scope to the unfairness discretion or was recognising an independent discretion to exclude evidence. Earlier in McDermott Dixon J had spoken in broad terms when he said:

'In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.'

In Bunning v Cross this aspect was put beyond doubt when Stephen and Aickin JJ, with whom Barwick CJ agreed, spoke in terms of 'broader questions of high public policy'. They did so in explanation of Ireland where evidence had been obtained in breach of a statutory provision relating to the photographing of a suspect. Bunning v Cross was seen in Ridgeway v The Queen as supporting the exclusion of evidence of an offence, or an element of an offence, procured by unlawful or improper conduct on the part of law enforcement officers. [58], [59]

48 The court, refers then [60] - [61] to Foster and R v Ridgway [1994] HCA 33; (1995) 184 CLR 19.

49 In Tofilau Gleeson CJ accepted the principles in Swaffield [3]. Indeed Swaffield seems to have been accepted by all the judges in Tofilau.

50 I am advised that the record of interview constitutes the only evidence against the accused. This is a significant fact to be weighed in the balance. Moreover as I have found, the record of interview was obtained voluntarily. However, it was obtained in clear violation of statutory rights given to the accused. In the case of this violation of statutory rights under s 28, I am prepared to accept that the violation was unintentional, made out of ignorance and was not deliberate. That is a factor.

51 However, the violation of his rights as an arrested suspect, which I find him to be, is a different matter. Rejecting as I do the evidence that he was given his rights, I am left with no evidence to suggest that the failure to do so was accidental or inadvertent. The prosecution witnesses themselves acknowledged the importance of these rights.

52 Statutory rights are available to all citizens but it is important the courts are scrupulous in ensuring that citizens who, for whatever reasons, are at a disadvantage in their dealing with authorities by way of background, education, age or other factor, are accorded their rights under statute.

53 In this case, failure to comply with the Criminal Investigation Act meant that there was no opportunity for the accused to consider whether he required legal advice before being interviewed. On two occasions the balance between the power of police and the rights of a citizen was disturbed. Cases will differ and a decision in this case is obviously not a precedent for the exercise of discretion in another case.

54 In the present case although I am of the opinion that the failure to accord the accused his statutory rights to information is so egregious that in the exercise of discretion, on the grounds of public policy, I decline to admit the record of interview into evidence.