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[2011] WASCA 30
Court of Appeal (WA)
2011-02-16
Mr P, Pullin JA, Lure P, Mazza J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : COX -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 30
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Objection to admission of video record of interview - Whether appellant arrested before he was interviewed - Appellant not informed of charge before he was interviewed - Whether video record of interview should be admitted in exercise of court's discretion
Trial judge's direction - Whether erroneous direction
State appeal against sentence - Whether sentence manifestly excessive - Whether express errors
Alderson v Booth [1969] 2 QB 216
Bennett v Commissioner of Police (1997) 10 Admin LR 245
Christie v Leachinsky [1947] UKHL 2; [1947] AC 573
Cooper v The State of Western Australia [2010] WASCA 190
Hatzinikolaou v Snape (1989) 97 FLR 86
Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488
R v Conley (1982) 30 SASR 226
R v Inwood [1973] 2 All ER 645
R v O'Donoghue (1988) 34 A Crim R 397
Tahche v Abboud [2002] VSC 42
The State of Western Australia v Cox [2008] WASC 287
Wright v The State of Western Australia [2010] WASCA 199
1 McLURE P: I agree with the reasons of Pullin JA.
2 PULLIN JA: This is an appeal against conviction and an appeal by the State against sentence.
3 The appellant is an Aboriginal man who lives in a remote Aboriginal community and who speaks using a form of English sometimes described as 'Aboriginal-English'. He was charged on an indictment which read:
(1) On a date unknown between 1 January 2007 and 31 December 2007 ... David Cox sexually penetrated [the complainant], who he then knew or ought to have known was an incapable person, by penetrating her anus with his penis.
(3) On the same unknown date at the same place David Cox again sexually penetrated [the complainant], who he then knew or ought to have known was an incapable person, by penetrating her vagina with his penis.
(3) On another unknown date between 15 February 2008 and 29 February 2008 ... David Cox sexually penetrated [the complainant], who he then knew or ought to have known was an incapable person, by penetrating her vagina with his penis.
4 The appellant was found not guilty on count 1 and convicted on counts 2 and 3.
5 The prosecution case included evidence of a video-recorded interview of the appellant conducted by two police officers on 20 March 2008. There was an objection by the appellant to the admissibility of the video record of interview. Without that evidence, the appellant could not have been convicted. The objection was dealt with by the Chief Justice at a voir dire before the trial pursuant to s 98 of the Criminal Procedure Act 2004 (WA).
6 The Chief Justice had to make a finding about whether the appellant had been arrested or not. The Chief Justice found that the appellant had not been arrested and was not in lawful custody, but that information which s 28 of the Criminal Investigation Act 2006 (WA) required the police to give to the appellant as a person voluntarily assisting them was not given to the appellant. In the exercise of discretion, the Chief Justice admitted the record of interview and thereby overruled the objection. That aspect of the decision is not the subject of any challenge on this appeal.
7 If the finding had been that the appellant had been arrested, then he was not informed of the offence for which he was arrested, which is information the Act states an arrested suspect must be given. The Act states, in effect, that if that information is not given to an arrested person, then the record of interview will be inadmissible unless the court otherwise decides.
8 The finding that the appellant was not arrested was made despite evidence from a detective that he had arrested the appellant before the interview. The finding is challenged in this appeal. If this court agrees that finding was in error, it will be necessary to consider whether the record of interview should have been admitted in the exercise of the court's discretion. Neither party contended that it would be necessary to refer the question back to the Chief Justice. If the court refused to exercise its discretion to admit the evidence, then the appeal should be allowed and the conviction set aside.
9 Section 28 of the Act provides that an officer who requests a person who is not in lawful custody to accompany the officer for the purpose of assisting in the investigation of an offence must inform the person and be satisfied that the person understands:
(b) that he or she does not have to accompany the officer concerned; and
(c) that if he or she accompanies the officer concerned, he or she is free to leave at any time unless he or she is then under arrest.
10 Section 128(2) of the Act authorises a police officer to arrest a person for a serious offence if the officer reasonably suspects that the person has committed the offence.
11 Section 138 of the Act sets out the rights of an arrested suspect and s 138(2)(a) provides that those rights include an entitlement to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed.
12 Section 138(3) states that the officer in charge of the investigation must 'as soon as practicable' after the arrest of the suspect inform the suspect of their statutory rights, including the right in s 138(2)(a).
13 Section 139(2)(c) of the Act provides that an arrested suspect may be detained by a police officer for the purposes of interviewing the suspect in relation to any offence that the suspect is suspected to have committed.
14 Section 154(2) of the Act provides that if in the purported exercise of a power conferred by the Act, a 'thing' relevant to an offence is obtained and a requirement of the Act in relation to exercising the power is contravened, then any evidence derived from the 'thing' or from the exercise of the power is not admissible in any criminal proceedings against a person in court unless the person does not object to the admission of the evidence or the court decides otherwise under s 155.
15 An interview by police of an arrested person and the record of that interview are 'things' obtained in the purported exercise of the power under s 139(2)(c): Wright v The State of Western Australia [2010] WASCA 199 [20] (McLure P, Buss JA agreeing). As a result, if the appellant was arrested and detained for the purposes referred to in s 139(2)(c) and there was the breach of s 138(2)(a), then a record of interview subsequently conducted will be improperly obtained and inadmissible unless the court otherwise decided under s 155 of the Act: Wright v The State of Western Australia [23].
16 Although pt 12 of the Act specifies when a person may be arrested, the Act does not specify how an arrest is to be effected. At common law, an arrest occurs whenever it is made plain by what is said or done by the police officer that the suspect is no longer a free person: R v O'Donoghue (1988) 34 A Crim R 397, 401. No seizing or touching is required: Alderson v Booth [1969] 2 QB 216, 220; Hatzinikolaou v Snape (1989) 97 FLR 86. No formal words of arrest are required: R v Conley (1982) 30 SASR 226, 239; R v Inwood [1973] 2 All ER 645, 649. See also Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488 [100].
17 Although touching is not necessary and words alone can be used to effect an arrest, the fact is that physical force must often be applied when doing so. This happens whenever the suspect attempts to flee or resists arrest. However, the police must not apply excessive physical force because they will then be liable for assault: Bennett v Commissioner of Police (1997) 10 Admin LR 245, 264; Tahche v Abboud [2002] VSC 42 [117].
18 Detective Sergeant Flatman and Detective Sergeant Bell were attached to the Child Protection Squad. On 18 March 2008, they went to the community where the appellant lived. They met up with the appellant on the street near his house. DS Flatman introduced himself and said that he was of the belief that the appellant had some information the appellant wanted to provide. The appellant said that he did want to speak to the police and that he was in the police station earlier that day, which was how the police came to be in possession of the information about him. He was not placed under arrest. An interview friend, Mr Taylor, was contacted. He was the director of an art gallery in the community. The appellant was left with his interview friend and the two of them later drove down to the police station and met the detectives. A formal interview was then conducted which was recorded on video-tape. At the commencement of the interview, the police informed the appellant that he did not have to answer questions if he did not wish to do so. DS Flatman then informed the appellant that the reason he had been asked to come to the police station was because there were two children who he needed to speak to the appellant about. DS Flatman asked the appellant if he wanted to speak to a solicitor. He said that he did and arrangements were made for him to speak to a lawyer at the Kununurra Aboriginal Legal Service.
19 After speaking to the lawyer, the interview continued but only for the purpose of recording that the ALS lawyer had advised the appellant not to talk to the policemen and DS Flatman said that, as a result, 'we won't bother asking you any questions' and that that was the appellant's 'legal right' but then he added:
[W]hat we are doing at the moment, is we're conducting some further inquiries in relation to a young girl in town.
The reference to 'a young girl' was a reference to the complainant, referred to in the counts in the indictment. The name of the complainant was not disclosed to the appellant. DS Flatman then asked the appellant whether he would wait around for 'a little while' while they spoke to the girl and that 'if need be we'll turn the video back on ... and ask you ... some questions'. DS Flatman then said that rather than give the details of the 'girl', he needed to make some more inquiries and then 'come back' to the appellant and speak to him about it. DS Flatman said 'if we come, and, get you tomorrow, or, whatever, we can ring' the ALS solicitor. The interview friend said 'I think we should go' and, as a result, the interview was terminated with the interview friend saying that if the detective 'wants you - come, and, get you' and the appellant added '[a]nd, you can bring me back ... maybe tomorrow sometime'. The interview then concluded at 2.55 pm on 18 March.
20 Two days later on 20 March 2008, the two detectives returned to the appellant's residence. The evidence of what was said by the police to the appellant bearing on whether he was or was not arrested will be referred to below, but the result was that the appellant was conveyed to the police station by the detectives. Inquiries were made to locate Mr Taylor and soon after he attended at the police station. The appellant was interviewed by DS Flatman and DS Bell and the interview was recorded on video.
21 The video reveals that the appellant was cautioned. It reveals DS Flatman referring to the fact that they met 'a couple of days ago' and referring to the fact that the appellant obtained some legal advice and that the advice was that the appellant did not have to talk to the police if he did not want to. The appellant said he understood that. Then DS Flatman said 'shall we get started?' The appellant was not informed of any offence he was alleged to have committed.
22 DS Flatman then explained to the appellant that he had been doing 'a lot of talking' to people in the town and that one of the people they had spoken to was the complainant who he then named. The appellant was asked whether he knew the complainant and he said that he did. He was asked various questions about how old she was, what nickname she had, and whether she was 'a bit different to normal girls in town'. It was then put to the appellant that he had sex with the complainant. The appellant admitted that the complainant was 'born a bit mad'. The appellant made various admissions which the prosecutor relied on to prove the charges.
23 At the end of the interview, the following questions and answers appear. The questions were put by DS Flatman and the answers are the answers of the appellant. They read:
Q, Okay. Did me or Sean force you to get in the car?
24 The voir dire was conducted eight months after the interview. It was conducted on 7 November 2008 before the Chief Justice. The two VRIs were tendered and DS Flatman and DS Bell were called to give evidence. DS Flatman referred to the interview on 18 March 2008. He testified in examination-in-chief about his attendance at the appellant's residence on 3 pm on 20 March 2008. He testified that he had a conversation with the appellant (DS Bell in his testimony said he did not hear this conversation); that he conveyed the appellant to the police station; and that inquiries were made which resulted in Mr Taylor coming to the station. The transcript reveals the following questions by the prosecutor and the answers by DS Flatman:
Before he was conveyed to the police station, what was his formal status in relation to the - - -?---Going to the - sorry?
What was his formal status?---Prior to going to the police station?
Yes?---Yes. He was an arrested suspect in relation to matters we were investigating.
Perhaps I should clarify, when you say the matters you were investigating, was that a matter in relation to allegations as against [the complainant]?---That's correct, sorry, yes.
And perhaps I should also ask you at that point, in relation to the earlier interview on 18 March were you then at that time, on 18 March, investigating the [the complainant] allegations or not?---No (ts 11, 7 November 2008).
25 In cross-examination, DS Flatman testified that in relation to the first interview, the appellant was not arrested. Later, in cross-examination, the following questions and answers appear:
The 19th, the next day, you and some of your colleagues obtained information from another person, [the complainant]. Correct?---Yes. Yes.
She was first involved in a video statement. Correct?---Yes.
Where nothing is said or no allegations are made, right?---Yes.
Shortly after that some written statements were taken from her which made an allegation in relation to David Cox?---Correct.
And so you go and find him again the next day, correct?---Yes.
And it's pretty much a repeat, isn't it, of the two days before. You pick him up, you say to him 'We want to talk to you again,' you then pick up Mr Taylor and it's effectively the same process as the first interview. Correct?---Yes.
All right. In your evidence you just gave you said he was wanted for questioning. You said that to him?---Yes.
And you requested that he accompany you back to the police station?---Correct.
And you viewed him as an arrested suspect?---That's right.
You didn't say to him, 'You're under arrest,' though, at that stage?---No. As an arrested suspect he had - you know, it was explained to him that he had no choice but to accompany us to the police station.
All right. You didn't say the words, though, 'You're under arrest'?---No. I said to him, 'David, you are an arrested suspect in relation to some matters that we are investigating,' continued with his rights along the lines of his interview friend, advising family and ensuring his medical treatment.
None of that conversation is outlined in your original statement which was to be the original statement in relation to this trial. Correct?---That's right. That's right.
It's the case, isn't it, that you just picked him up and said, 'We want to talk to you further about - like we did the other day'?---No, not at all.
In your view did he understand that he was going in as an arrested suspect? Is that your evidence today?---Yes. Yes, he did.
26 Further, in cross-examination, the following appears:
Thank you. Try and grapple with the question now. Do you think section 138(2) requires you to put to a suspect exactly what they are there for before you caution them?---No.
You don't? So when they are offered their right to speak to a friend, to speak to a lawyer, they know why. They know what it's about. You don't think - - -?---Yes.
- - - that's necessary?---No. Of course I think it's necessary. I think you have to look at the circumstances of that which are I first did not want to give the accused the opportunity to start formulating a story for what I was about to question him about. Also to process and to ensure that it is a fair video being conducted with the accused that he is informed of his rights, cautioned and then explain to him the nature of the allegations.
Here you do have a serious allegation, you don't put that to him, and so when he is given a caution as to what to do to proceed in relation to these allegations he has no idea what it's going to be about, does he?---He was advised when I spoke to him at the house that I needed to speak to him about some sexual-related matters. I was not specific in who the allegations referred to.
28 Later, in cross-examination, DS Flatman confirmed that at the time of the second interview, the police had two written statements from the complainant which ultimately resulted in the three charges being laid.
29 DS Flatman was then re-examined and, after that was completed, the Chief Justice asked DS Flatman some questions. Those questions and answers are set out below:
Thank you. I would like to move now to 20 March and to the conversations you had with the accused person, Mr Cox, prior to the commencement of the interview and I would like to deal with that if possible in three segments. The first is at the house where you went to see Mr Cox. What I would like you to do is tell us as best as you can now recall everything that was said between you and him at the house before you got into the car to return to the police station?---Okay. We arrived. Again there were people sitting out the front of the premises. I asked for Mr Cox. He walked out and I advised him, I said, 'Remember that I would come back and see you?' He said that he did and I said, 'Well, I now have some further matters that I need to speak to you about, I need to interview you about. Would you like to come with us?' He said, 'Yes.' It was along the same lines again: 'Do you want to tell any of your family members where you are going to be?' I believe that he was a little bit embarrassed as to the manner of him being taken away from the house so he declined that. I said, 'Would you like Roger as your interview friend again?' - to which he said that he did, and I inquired again as to his medical condition, but at that point I advised him that he was an arrested suspect and through some formality as best I could, given the nature of the accused, I did that in a manner that he would understand which was, 'You understand your rights, your medical, your family. We're going back to the interview room. We're going to interview you again and provide legal aid should you require it.'
What exactly did you say on the subject of his status as an arrested suspect? What exactly did you say to him?---Sorry, your Honour. It was - - -
What exactly did you say to him about his status as an arrested suspect?---Yes. It was along the lines of, which is the standard answer that I would give in these circumstances, 'Mr Cox, you are under arrest in relation to matters that we are investigating. I would like you now to accompany us to the police station in order to conduct an interview in relation to those matters.'
All right. Let's go then now to the car in which you moved from the house to the police station. Was anything said between you and he in the car?---No. I specifically don't entertain conversations until we get back to the police station other than social matters, nothing to do with matters we are investigating or formalities.
...
All right. Have you now told us everything you can recall that was said to Mr Cox before the second interview commenced?---Yes, to the best of my knowledge, your Honour. Beside that it would have been conversations along the lines of, 'You remember the video's got to go on? Did you want a drink? Would you like something to eat? Have you slept?' ensuring his wellbeing was of such a nature that he could be interviewed, but nothing to do with the interview. I would have saved that strictly for the interview, other than social matters to try and build some rapport with the accused.
All right. Have you seen the video record of interview recently or looked at the transcript of those video records of interview?---The video I have seen some time ago, not recently.
At the end of the second video, that is, on 20 March, it concludes with you saying, and I will read to you from the transcript and if you want me to repeat it, please tell me, - and for counsel's benefit I'm reading from the bottom of page 37. The question was that you asked Mr Cox:
Have you been - when we picked you up today from your house I said, 'Would you like to come back to the office and finish off that talk that we had the other day,' and I may have mentioned earlier we had a talk?---Mm.
Did you do that because you wanted to?---Yeah.
Do you recall asking those questions of Mr Cox?---Very vaguely, your Honour, but if it's on video, that's the account that has occurred.
Those questions, I must say, it seems to me, are somewhat inconsistent with your evidence that you told him he was an arrested suspect and was obliged to accompany you to the police station?---Yes.
Have you any comment to offer on that?---Only that I can account that the manner in which he was arrested was as I normally do as a process, the same as I introduce myself to somebody. The only reason I can account for it being recorded or spoken to him along those words was trying to put it in a context that he would understand. I'm very aware of the issues that we have in relation to providing the rights to suspects in these matters and I can give the evidence that it occurred because, as I say, that's the normal process that I go through. I can't answer as to why that has come out the way that it has on that video other than an attempt to try and put it in a manner that he would understand as opposed to what the court would take.
I will just put two more questions and answers to you that follow on directly after the bits I have put to you and for counsel's benefit I am reading from the top of page 38. The next question is:
Did me or Sean force you to get in the car?---Well, I going through, but I don't - I don't want to be left behind, you know.
Did me or Sean or any policeman force you to come to the police station?---No.
If he was under arrest and in lawful custody, you were in fact forcing him to go to the police station, weren't you?---Yes, most correct, but the context of that is along the lines of forced, handcuffed, put in the back of the car, he is forced to get into the vehicle. The nature of that question is along the lines of, 'There was no physical activity to get you there. Yes, you're an arrested suspect, but you came along willingly.'
All right. You are aware presumably of the obligations imposed by section 138 of the Criminal Investigation Act once a person has been arrested?---Yes, your Honour.
One of those obligations is to inform the person of the offence for which he or she has been arrested?---Yes.
As I understand your evidence, the closest you got to fulfilling that obligation was to tell Mr Cox that you wanted to talk to him about sexual matters that you were investigating. Is that right?---That's right. That's right.
Do you regard that as compliance with the obligation to tell a person of the offence for which they have been arrested?---No, your Honour, if you ask me that question. I had my reasons for not directly saying the person that he was to be interviewed in relation to. It was the nature of his arrest as was my previous evidence, but not specifically as to who it was about.
All right, so I take it from that answer that you turned your mind to the question of whether you should comply with that requirement of the Criminal Investigation Act and then decided not to. Is that right?---No. I would say that is a slide on my part as to not being specific in relation to who the complaint referred to. It was an error.
You said in the previous answer that you had a reason for not doing it?---Sorry, yes, and that was that at that time I wanted to, to use some slang, get the jump on the accused and get some first-hand account as to what occurred as opposed to allowing him some time to perhaps concoct a story as to the allegations that were going to be put to him.
That's why you didn't tell him of the particular offence that you were arresting him for. Is that right?---Yes, that's right (ts 36 - 40, 7 November 2008).
The Chief Justice's reasons for ruling that the VRI of 20 March 2008 was admissible
30 The Chief Justice, in his reasons (The State of Western Australia v Cox [2008] WASC 287), stated that he was dealing with the hearing pursuant to s 98 of the Criminal Procedure Act and recorded the fact that he was dealing with an application by the appellant for a ruling as to the admissibility of the video record of interview conducted on 20 March 2008.
31 After relating the events concerning the first interview, and the further investigations conducted on 19 March 2008, the Chief Justice's reasons then read:
To that end, Detective Flatman and Detective Bell travelled to Mr Cox's house on 20 March 2008. They made contact with Mr Cox and there was then a discussion between Detective Flatman and Mr Cox. Detective Bell was apparently not close enough to that discussion to hear what was said. Detective Flatman invited Mr Cox to accompany him to the police station for a further interview. Detective Flatman's evidence is to the effect that he also said to Mr Cox that he was an arrested suspect at that stage, before taking him to the police station.
For reasons that I will give, I do not accept that evidence. I think the best guide to what was said at the house is to be found in the video record of interview itself and I will refer to that in due course [25] - [26].
32 The Chief Justice related the fact that the appellant was taken to the police station, and the reasons then continue :
Before the video-recording commenced at the police station there was a discussion between the group of four who had assembled, that is, Detective Flatman, Detective Bell, Mr Cox and Mr Taylor. In the course of that discussion Detective Flatman renewed the invitation to Mr Cox to obtain legal advice. There was then a discussion between Mr Cox and Mr Taylor, after which Mr Cox advised that he was content to proceed without receiving further advice, he having been content with the advice that he had received two days earlier.
Detective Flatman also said in evidence that he had told Mr Cox that the reason he was under arrest was because of sexual matters. For the same reasons that I reject the evidence of Detective Flatman in relation to whether Detective Flatman advised Mr Cox that he was an arrested subject. I reject the evidence that Mr Cox was told why he was wanted for questioning. However, because of the aspects of the interview on 18 March to which I have referred, I find that Mr Cox would almost certainly have been aware that the reason he was required for questioning was because allegations of a sexual nature had been made against him.
...
I am satisfied that before the interview commenced Mr Cox was invited to obtain legal advice. However, at the time that invitation was given to him he was not aware of the specific matters that were being investigated, although as I have found, I consider that he would have been aware that he was under investigation as a result of an allegation of sexual impropriety [27] - [28], [33].
33 At [42] of his reasons, the Chief Justice then set out what was put to the appellant at the end of the interview and which is set out above. It is necessary to quote [42] and [43] of the Chief Justice's reasons, even though it will involve some repetition of what has been set out above. Those paragraphs read:
At the conclusion of the interview, Detective Flatman put a question to Mr Cox in these terms:
[W]hen we picked you up today at your house ... I said, 'Would you like to come back to the office and finish off that ... talk we had the other day, and I may have mentioned earlier that we had a talk?' -
to which Mr Cox responded affirmatively. The next question asked was:
Okay. Did me or Sean force you to get in the car?
Well, I goin' through but I don't - I don't want to be left behind, you know?
Yeah. What I'm getting at is, did me or Sean or any policeman force you to come to the police station?
---No.
Those questions are entirely inconsistent with the proposition that Detective Flatman had placed Mr Cox under arrest. They are only consistent with a view of the facts to the effect that Mr Cox had been invited to voluntarily participate in an interview in the same way as he had been invited to participate two days earlier. I regard the video record of interview as the most reliable evidence of what took place prior to the video commencing. I therefore reject the evidence of Detective Flatman to the effect that he placed Mr Cox under arrest at his house, and find that Mr Cox agreed to accompany Detective Flatman to the police station in response to a request to that effect. (my emphasis)
(The words 'entirely inconsistent' have had emphasis added because they are central to the appellant's submissions).
34 As to the nature of the allegations, the Chief Justice said:
The third area of complaint attracted the most significant oral argument. That is the complaint that at the time Mr Cox was given the caution at the commencement of the second interview, and at the time he was offered the opportunity to obtain legal advice, he had not been told with any specificity whatsoever, the nature of allegations that were under investigation or the identity of the complainant. It is submitted that because of that lack of information, Mr Cox was not in a position to evaluate whether he should exercise the right to remain silent or whether he should obtain legal advice.
I am satisfied that Mr Cox had a general awareness that the matters into which the police were inquiring were allegations of sexual impropriety that had been made against him. I draw that conclusion from the statements made in the first interview. I therefore conclude, contrary to the submission of counsel for Mr Cox, that even if he had been told more specifically of the nature of the allegations against him, and even if he had been told of the identity of the complainant, he would nevertheless have proceeded to participate in the interview. I make that finding based upon my observations of his demeanour in the interviews themselves and from the fact that he presented himself to the police station voluntarily on 18 March 2008 at a time when it seems clear that he had an understanding that an allegation of sexual impropriety had been made against him.
I therefore conclude that the failure of the police to give specific advice to Mr Cox with respect to the matters they were investigating did not alter the course of events that would have taken place that day, nor did they deprive the interview which followed of its voluntary character [61] - [63].
35 The Chief Justice turned to the question of compliance with the Act and noted the clear distinction between the 'legal regimes' that apply to a person who is voluntarily assisting the police with their inquiries and the legal regime that applies to a person who is an arrested suspect.
On the facts that I have found, there cannot be any doubt that one or other of s 28 or s 138 was breached in this case. If, which I think is the better view of the facts, Mr Cox was not under arrest, it is clear from the evidence of Detective Flatman that on 20 March, unlike 18 March, Mr Cox was not told that he was not under arrest, that he did not have to accompany the police and that if he did accompany the police, he would be free to leave at any time.
The evidence of Detective Flatman, that I have rejected, was to the effect that Mr Cox was under arrest. If I had accepted that evidence, it would follow that there had been a breach by Detective Flatman of the obligation imposed by s 138(2)(a) to inform the offender of the offence for which he or she had been arrested. Detective Flatman conceded that, on his evidence, his general reference to sexual matters would be insufficient compliance with that obligation.
Despite some initial prevarication, it is clear from Detective Flatman's evidence that he was advancing the proposition that he took a deliberate choice not to comply with that requirement of s 138 so that, in his words, he could 'get the jump' on Mr Cox. If I had been satisfied that that had in fact occurred, that would have been a most serious matter for me to take into account in the exercise of the discretion with respect to the exclusion of this material, particularly on the ground of public policy.
However, because I have rejected Detective Flatman's evidence to the effect that he arrested Mr Cox, I reject also his evidence as to his reasons for failing to advise Mr Cox of the offence for which he had been arrested. However, I find that there was a breach of s 28 of the Criminal Investigation Act in that Mr Cox was not advised that he was at liberty to decline to attend the interview [73] - [76].
37 The Chief Justice then set out his conclusions on the admissibility of the material. He found that the interview was voluntary and that the appellant participated in it voluntarily.
38 The Chief Justice then turned to consider discretionary matters in view of his findings that s 28 of the Act had been breached. It is not necessary to set out the Chief Justice's reasons for deciding to exercise his discretion to overrule the objection because this aspect of the decision is not the subject of the appeal. However, in addressing the factors set out in s 155(3) of the Act, his Honour said that the contravention of s 28 could not be regarded as serious in the circumstances which his Honour set out but that he would have taken 'a different view' if there had been 'a deliberate and wilful contravention of an important provision of the [Act] such as s 138'.
39 The video record of interview having been ruled admissible, the trial then took place in the District Court in April 2010. Section 330(2) of the Criminal Code (WA) reads:
A person who sexually penetrates a person who the offender knows or ought to know is an incapable person is guilty of a crime.
In this section a reference to an incapable person is a reference to a person who so mentally impaired as to be incapable -
(a) of understanding the nature of the act the subject of the charge against the accused person; or
(b) of guarding himself or herself against sexual exploitation.
41 Ground 2 of the appeal alleges that the trial judge gave an erroneous direction concerning s 330(1). The direction was in the following terms:
The third element the state must prove beyond reasonable doubt is that at the time of the offence, [the complainant] was an incapable person. You will see that expression used, 'incapable person'. What does that mean at law? At law, an incapable person is a reference to a person who is mentally impaired so as to be incapable of guarding herself against sexual exploitation.
You won't see the words 'guarding against sexual exploitation' in the wording of the charge but the definition of 'incapable person' for the purposes of these charges is a person who is mentally impaired to a level so that they are incapable of guarding themselves against sexual exploitation.
A person is said to be mentally impaired if the person is intellectually disabled, suffering from a mental illness or brain damage. It has not been disputed in this case that [the complainant] is mentally impaired. However, what the state must also prove beyond reasonable doubt is the extent of the impairment is such that she is incapable of guarding herself against sexual exploitation.
The expression 'guarding against sexual exploitation' has its ordinary, everyday meaning and Ms Burrows has read out the dictionary definitions to you. 'Exploitation' means to take advantage of someone for your own benefit. Accordingly, 'sexual exploitation' means taking advantage of someone for your own sexual gratification.
To be capable of guarding oneself against sexual exploitation means you must be capable of taking the appropriate precautions against - or being able to resist such exploitation. The fact that someone is capable of saying no to something does not necessarily mean that they're capable of guarding against sexual exploitation. Earlier in the trial I gave you an example of very young children, so you imagine children at the age of, say, two or three. They may be able to say no to something, but you wouldn't suggest that such a child was capable of resisting or guarding against sexual exploitation. This is because young children like that are generally compliant or don't understand the nature of what is being requested of them and the consequences of what is being requested of them.
The state's case in this matter is that [the complainant] was so mentally impaired that she could not guard against sexual exploitation. She was not capable of resisting to propositions or suggestions to engage in sexual activity with the accused, Mr Cox. In other words, she was incapable of resisting inducements to engage in the sexual activity; incapable of making a proper decision about the proposition that she give sex in return for food or money.
...
The fourth element that the state must prove beyond a reasonable doubt is that at the time of the offence the accused knew or ought to have known that [the complainant] was an incapable person. If you have got a - you probably don't have a pen, but make a mental note that this element is framed in the alternative. It's very significant that there is the word 'or'. The element has two aspects to it. Either the accused knew that [the complainant] was an incapable person or he ought to have known that she was an incapable person.
When you look at this wording, 'knew or ought to have known was an incapable person', you must remind yourself that an incapable person is a person who is mentally impaired so as to be incapable of sexual exploitation. Taking the first aspect of this element, the allegation that he knew she was an incapable person, the knowledge that the accused must have for this to be proven beyond reasonable doubt is not simply knowledge that [the complainant] was mentally impaired. He must have known that she was mentally impaired to such a degree that she was incapable of guarding against sexual exploitation by him.
To prove that Mr Cox had this knowledge that the extent of the mental impairment was to the level where [the complainant] was incapable of guarding against sexual exploitation involves proving what his state of mind or his knowledge was at the time. Knowledge in the absence of some admission by the accused can't be proved. You can't put a person's knowledge on the table and say, 'There it is. We have proved it.' You prove a person's knowledge, that is, their state of reasoning and understanding, from all the surrounding circumstances and then you infer that they had knowledge. You determine a person's knowledge generally from what they have said and all the surrounding circumstances.
I will have more to say about this later but the state asks you to infer from what the accused told the police and also from what you observed about the obvious signs of incapacity of [the complainant] and the fact that they lived in the same community together, that the accused must have that she was incapable to the point of not being able to guard against sexual exploitation.
Of course Mr Cox is unlikely to think in terms of the language used in the expression 'incapable of guarding against sexual exploitation'. I doubt whether he knows what the word 'exploitation' means. It is sufficient if the state proves beyond reasonable doubt that he knew that [the complainant] was mentally disabled, and (2) that because of her mental disabilities he would be able to take advantage of her in order to persuade her to give him sexual favours. There must be a knowledge on his part that she was disabled and that because of that he would be able to take advantage of her and get sexual favours that he wanted.
Alternatively - and this is where the alternative needs to be considered - if you are not satisfied beyond reasonable doubt as to whether Mr Cox had directed his mind to this issue, that is, the issue of whether [the complainant] was so incapable as to be unable to resist or guard against sexual exploitation, you can find this fourth element proved if you are satisfied beyond reasonable doubt that in all the circumstances Mr Cox ought to have known that [the complainant] was mentally impaired so as to be incapable of guarding against sexual exploitation (ts 208 - 211).
42 The first ground of appeal alleges that the Chief Justice erred in law in ruling that the VRI of 20 March 2008 was admissible. That allegation depends upon this court concluding that the Chief Justice erred in finding that the appellant had not been arrested on 20 March 2008.
43 The second ground of appeal concerns the alleged misdirection by the trial judge. This ground of appeal reads:
His Honour Judge Sleight erred when he directed the jury that it was sufficient for the State to prove that the appellant knew, or ought to have known, that the complainant was disabled, and because of that he would be able to take (sexual) advantage of her.
The first ground of appeal - the finding that the appellant had not been arrested
44 DS Bell's testimony was irrelevant because he did not hear the conversation which took place between DS Flatman and the appellant when he was collected at his home. Thus, the evidence the Chief Justice had to assess before making his finding was the testimony of DS Flatman at the voir dire and what appeared in the record of interview. DS Flatman maintained that he arrested the appellant before taking him to be interviewed. He maintained this in examination-in-chief, in cross-examination and in his answers to questions asked by the Chief Justice. He even testified as to the words that he used to effect the arrest.
45 The reason why the Chief Justice decided not to accept DS Flatman's testimony was because he found DS Flatman's evidence to be 'entirely inconsistent' with the questions put by DS Flatman at the end of the record of interview. With respect, what was said at the end of the record of interview was not inconsistent with DS Flatman's testimony that he had arrested the appellant. At no point in the series of questions put to the appellant at the end of the record of interview was the appellant asked whether or not DS Flatman had said to him at his home that he was under arrest.
46 Typically, police at the end of an interview will ask the interviewee whether there was any complaint about how the interviewee was treated, this being directed to the issue of whether the answers to questions were voluntarily given. The question asked by DS Flatman at the end of the record of interview appear to be directed in part to that subject. The appellant was asked whether he had been telling the truth. He was asked whether DS Bell or any policeman 'forced' the appellant to come to the police station and, to explain this further, DS Flatman asked the appellant whether he or DS Bell had said 'we're going to go out and have a fight' if the appellant did not talk to them. The appellant agreed that nothing like that was said. He was then asked whether he talked to the police because he 'wanted to'. He said that he did. The overall effect of the questions was to inquire whether the appellant was physically threatened if he did not talk to the police. In other words, the police were anxious to ensure that they had a record of the appellant agreeing that what he said to them had been said voluntarily rather than under threat.
47 However, DS Flatman was also anxious to demonstrate that physical force had not been used on the appellant. This latter aspect is confirmed by the answers that DS Flatman gave to the Chief Justice at the voir dire. DS Flatman said that the questions at the end of the video record of interview were to demonstrate that there was 'no physical activity' to get the appellant to the station. He said that the questions were for the purpose of recording that, although he was 'an arrested suspect', he came along 'willingly' without being 'forced, handcuffed' and put into the car. It is understandable that such questions might be asked because, if the appellant admitted that no physical force was used, then there was no risk of a later accusation that the police assaulted the appellant by the use of excessive force during the arrest.
48 At the voir dire, DS Flatman testified that he merely told the appellant he was under arrest. In other words, the appellant did not resist arrest and so physical force was not necessary. As a result, the questions at the end of the interview did not obviously relate to whether or not the appellant had been arrested by the mere use of words. Neither the questions nor answers at the end of the video record of interview were inconsistent with the firm unshaken testimony of DS Flatman that he arrested the appellant by advising him that he was an 'arrested suspect'.
49 Even if it could be inferred that DS Flatman intended by the questions and answers at the end of the video record of interview to gain agreement from the appellant that he was not arrested, the questions were ambiguous. DS Flatman was not on oath when he asked the questions. The repeated statements by DS Flatman at the voir dire that he had arrested the appellant were made under oath. His testimony that he arrested the appellant was unshaken despite repeated questioning from counsel and the Chief Justice.
50 As a result, the reason for rejecting DS Flatman's repeated testimony that he arrested the appellant is not sustainable. The finding that the appellant was not arrested by DS Flatman is not reasonably open on the evidence.
51 As a consequence of this error, the Chief Justice failed to consider whether, in the exercise of discretion under s 155, the record of interview should or should not be admitted in view of the failure to comply with s 138(2)(a). As a result, I would uphold ground 1.
52 Having upheld ground 1, it is then necessary to consider what then follows. By reason of s 154(2), the record of interview is not admissible unless the court decides otherwise under s 155.
Whether the court should exercise its discretion and admit the video record of interview
53 It is appropriate for this court to decide whether to exercise the discretion because it has all the information which bears on the decision.
54 Section 155(3) requires the court to take into account:
(a) any objection to the evidence being admitted by the person against whom the evidence may be given;
(b) the seriousness of the offence in respect of which the evidence is relevant;
(c) the seriousness of any contravention of this Act in obtaining the evidence;
(d) whether any contravention of this Act in obtaining the evidence -
(i) was intentional or reckless; or
(ii) arose from an honest and reasonable mistake of fact;
(e) the probative value of the evidence;
(f) any other matter the court thinks fit.
55 Section 155(4) states that the probative value of the evidence does not by itself justify its admission.
56 It is clear that an objection was taken to the evidence and that the offence was a serious one. The contravention of the Act was serious. Reasons of high principle relating to fundamental conceptions of individual liberty under our system of law make it understandable why Parliament legislated to confer a right on an arrested person to be told why they have been arrested. See the discussion of this subject in Christie v Leachinsky [1947] UKHL 2; [1947] AC 573, 587 - 588 by Viscount Simon. The contravention of the Act was intentional, even if it was based on a misunderstanding of what was required under the Act. This is clear from DS Flatman's evidence that he did not inform the appellant about the charge for which he was arrested because he wanted to 'get the jump' on the appellant and get a 'first-hand account as to what occurred as opposed to allowing him some time to perhaps concoct a story as to the allegations that were going to be put to him'. It is indisputable that the probative value of the evidence was significant. However, the impression gained from the video record of interview is that the appellant may not have understood that it was a criminal offence to have sexual relations with the complainant. If he had been informed as soon as practicable after he had been arrested that the arrest was in relation to an alleged offence against the complainant, the experience of the earlier interview showed that it was likely he would have sought legal advice and then not participated in the interview. Taking into account all of those matters, the court should decline to exercise its discretion to admit the evidence.
57 As stated earlier, there is no dispute between the parties that the charges could not have been sustained without the video record of interview being tendered. The result is that ground 1 should be upheld, the appeal allowed and the conviction set aside. There should be no retrial and a judgment of acquittal should be entered.
58 The appellant concedes that a direction about incapacity was correctly given by the trial judge on several occasions. The trial judge directed the jury that, 'at law', an incapable person 'is a reference to a person who is mentally impaired so as to be incapable of guarding herself against sexual exploitation' and that a person is said to be mentally impaired 'if the person is intellectually disabled, suffering from a mental illness or brain damage'. The trial judge directed the jury that it was not in dispute that the complainant was mentally impaired. The trial judge made it clear that the State had to prove beyond reasonable doubt that the extent of the impairment was such that 'she is incapable of guarding herself against sexual exploitation'.
59 The trial judge then turned to the subject of the appellant's knowledge. The trial judge correctly directed on several occasions that the jury had to be satisfied beyond reasonable doubt that the appellant knew that the complainant was incapable of guarding against sexual exploitation.
60 However, the appellant seizes upon the fact that the trial judge said on one occasion that:
It is sufficient if the State proves beyond reasonable doubt that he knew that [the complainant] was mentally disabled, and that because of her mental disabilities he would be able to take advantage of her in order to persuade her to give him sexual favours (ts 211, 30 April 2010).
61 The appellant seeks to persuade the court that this passage should be read on its own because his Honour prefaced this particular remark by the words 'it is sufficient'.
62 This ground should be dismissed. The overall effect of the directions has to be considered. One sentence should not be read on its own: Cooper v The State of Western Australia [2010] WASCA 190 [23]. The other repeated correct statements by the trial judge about the meaning of incapacity and the correct statements about the knowledge which had to be proved, could only have left the jury with the impression that those statements were to be followed.
64 Because the appeal against conviction has been upheld, it is not appropriate to deal with the State's appeal against sentence. It should be dismissed.
Conclusion - appellant's appeal (CACR 99 of 2010)
65 Leave to appeal should be granted, the appeal should be allowed, the conviction should be set aside and, in lieu, there should be a judgment of acquittal.
Conclusion - State appeal (CACR 91 of 2010)
(1982) 30 SASR 226
(1989) 97 FLR 86
(2001) 24 WAR 488