HOLMES -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 26 (10 February 2023)

Admission in serious case inadmissible unless recorded

(1) In this section -

admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;

adult means a person who has reached 18 years of age;

child means a person who is under 18 years of age;

reasonable excuse, for the absence of an audio-visual recording of an admission, includes-

(a) the admission was made when it was not practicable to make an audio-visual recording of it;

(b) equipment to make an audio-visual recording of the admission could not be obtained while it was reasonable to detain the suspect;

(c) the suspect did not consent to an audio-visual recording being made of the admission;

(d) the equipment used to make an audio-visual recording of the admission malfunctioned.

(2) This section applies in respect of a suspect who is -

(a) a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or

(b) an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.

(3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -

(a) the evidence is an audio-visual recording of the admission; or

(b) in the absence of an audio-visual recording of the admission -

(i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or

(ii) the court decides otherwise under section 155.

(4) Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.

Inadmissible evidence, court may allow admission

(1) This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.

(2) The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

(3) In making a decision under subsection (2) the court must 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.

(4) The probative value of the evidence does not by itself justify its admission.

1. As can be seen, under s 118(3)(b) of the CI Act, unrecorded admissions are not admissible unless (i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence of an audio-visual recording or (ii) the court decides otherwise under s 155 of the CI Act. Before the directions hearing judge, it was accepted by both parties that the admissions made to the first responders and the other admissions the subject of the prosecution application were not audio-visually recorded and were therefore prima facie inadmissible.
2. Section 155(2) of the CI Act, read with s 118(3)(b)(ii), provides that the court may, notwithstanding the absence of an audio-visual recording and the absence of a reasonable excuse, admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, taking into account the factors listed in s 155(3). The prosecution contended that, to the extent that there was not a reasonable excuse for the absence of an audio-visual recording, the evidence should be admitted pursuant to s 155(2).
3. Under the common law, admissions are inadmissible if they were made involuntarily. As explained later in these reasons, intoxication is relevant to the issue of voluntariness. Before the directions hearing judge, the appellant contended, and the prosecution denied, that her admissions were involuntary.
4. Even if there was a reasonable excuse, or if s 155 was satisfied, and the admissions were voluntary, the circumstances may mean that the admissions should be ruled inadmissible in the exercise of the common law discretion to exclude otherwise admissible confessional evidence on the ground of unfairness. Again, we will say more as to these principles later in these reasons. The appellant invoked this discretion in opposing the prosecution's application.
5. So, in summary, at the directions hearing, it was accepted that the admissions would only be admissible if:

(1) (a) there was a reasonable excuse for them being unrecorded, or (b) the desirability of admitting them outweighed the undesirability of admitting them for the purposes of s 155(2);

(3) the judge's discretion to exclude them on the basis of unfairness should not be exercised.

Each of these steps was in issue before the directions hearing judge and each is in issue on appeal.

1. It is convenient to begin by focusing on the question of whether there was a reasonable excuse for not audio-visually recording the admissions.

Evidence the subject of the successful application

1. It is not necessary to detail the evidence the subject of the State's application on which the State was unsuccessful.
2. The State sought to adduce, and the directions hearing judge permitted to be led, the following passages of the evidence proposed to be given by the first responders:

(a) From First Class Constable Rodolfo Avellino's statement made 30 July 2018: > > 1. The accused began talking about what had happened. > 2. It was apparent that the accused had been drinking alcohol. I could smell alcohol on her breath and she had a slight slur in her speech, which would come and go. > 3. I commenced to caution the accused at 8.20 pm. > 4. S/C TAYLOR also made attempts to caution the accused. > 5. She understood that she did not need to speak to police, but said that she did not care and wanted to tell us what happened. > 6. While the accused was talking, I continued to interrupt her to tell her not to talk to us without speaking to a lawyer. Each time she would just tell us that she wanted us to know. > 7. The accused said that she had been drinking with the victim in the shed, when the victim began arguing about the footy. > 8. The accused said that she did not know why, but he just got angry, grabbed her by the back of the hair and dragged her down to the ground. > 9. The accused said that she left the shed and went into the house. > 10. She came back and the shed was locked. > 11. She said she wanted to scare him and told the victim to open up and let her in. > 12. The victim told her to 'get fucked' so she left and came back with the keys to the shed. > 13. The accused opened the shed and shot him. > >
>
> (b) From Constable David Ngari's statement made 3 August 2018:[3] > > 1. At 8.20 pm 1/C AVELLINO cautioned the accused. > 2. I observed SC TAYLOR cover the accused hands with disposable coverall and seal them with evidence tape. > 3. The accused did not heed the caution and instead stated she did not care as she wanted us to know the truth. > 4. The accused stated that the victim and she had an argument and the victim got angry out of nowhere. > 5. The victim then started hitting the accused and dragged her out of the shed by her hair. > 6. Victim asked the accused why he was being so mean and horrible but the accused told her to fuck off. > 7. Victim then went and got the rifle, took a set of keys, opened the shed and shot the victim. > >
>
> (c) From Senior Constable Gregory Taylor's statement made 23 July 2018:[4] > > 1. As I did this the accused started making comments about what had happened. > 2. I attempted to caution the accused but she stated it was ok and she just wanted us to know what had happened. > 3. 1/C AVELLINO and I made several further attempts to ensure she understood the caution. > 4. I eventually managed to advise her of the full caution saying 'You are not obliged to say anything unless you wish to do so but anything you say can be taken down and may be given in evidence.' > 5. 1/C PC AVELLINO broke it down for her further however she said something similar to 'He got angry about a footy team he doesn't even support. He was shouting at me and he even dragged me around the ground by my hair. I had enough and went inside and grabbed the gun from under my bed. I went back outside to the shed. I was only going to scare him but when he opened up the door he started shouting abuse at me again and I shot him. I 'shouldn't have.'

3. At the appellant's trial, each of the first responders gave evidence to substantially the same effect as set out at [[21 [h]e was angry. He was angry about a team he didn't even support. He was shouting at me. He even dragged me around the ground by my hair. I'd had enough. I went inside, grabbed the gun from under the bed, under my bed. I went back outside to the shed. I was only going to scare him but when he opened the door, he started shouting abuse at me again and I shot him. I shouldn't have.

1. Constable Taylor recorded some of this contemporaneously in his notebook;[18] the rest he recorded over the following eight days.[19]
2. After covering the appellant's hands, Constable Taylor went back outside and advised Senior Sergeant Heath Soutar, who had just arrived, of what had happened.[20] Then Constable Taylor looked for, and found, a firearm safe; taped off the area with police tape; and sat outside the taped area in a police vehicle where he started writing a statement.[21] He did not go back inside the house that night.[22]
3. Constable Taylor said that the statements made by the appellant were not recorded on video because:[23]

as far as I was aware I wasn't sure if we had a video. I wasn't - it wasn't something that we were doing. We weren't doing an interview or anything. I was just taping up her hands and that was my main focus in the initial parts. Yeah. I just wasn't even thinking about recording it to be perfectly honest.

1. Constable Taylor said that, at the time that the appellant 'said those words', he was, initially, covering her hands. He said that he spent about 20 to 30 minutes in the presence of the appellant that night.
2. He said that the appellant appeared intoxicated; she was 'continually talking about various things, just random sort of things until she started talking about the incident and then she sort of became focused on that'.[24]
3. In cross-examination, Constable Taylor confirmed that it was about 9.00 pm when he took up his 'position on the outer cordon'. Constable Taylor's shift was likely from 4.00 pm to midnight. Constable Taylor was the officer‑in‑charge of the shift that evening. He had had 27 or 28 years of police experience.[25]
4. The only information that the police received from the initial radio call to the police station was that shots had been fired, that someone had possibly shot their husband, and that someone might have been deceased or seriously injured, although the police were not sure of the status of the victim.[26] They had been told that a woman had rung emergency and said that she had shot her husband in the stomach and that he was lying unmoving in the shed.[27]
5. Constable Taylor confirmed that Constables Avellino and Ngari were sent to the scene as 'priority 1', which meant that they could drive at a maximum speed of 140 km/h, with lights and sirens.[28] Because it was a gun incident, they wore ballistic vests. They took firearms.[29]
6. Constable Taylor agreed that the police station had video-recording equipment, which was available the night of the incident. Constable Taylor agreed that he is aware that unrecorded admissions are prima facie inadmissible.[30]
7. Constable Taylor said that he did not get the priority 1 officers to take video-recording equipment, but he said that they put that sort of equipment in the vehicle generally. Constable Taylor agreed that he overlooked the video equipment in the emergency of the situation.[31]
8. Constable Taylor recalled contacting other police stations and personnel about the incident. He agreed that it was 'so significant' that the wider police hierarchy would have become aware of it.[32]
9. Constable Taylor left the police station for the scene about 5 minutes after the priority 1 officers had left. Constable Taylor agreed that he was in a position to take the video-recording equipment, but that he did not do so. He said that he was 'not even thinking about the video camera at that time'. Constable Taylor confirmed that he had his smart phone with him that night.[33]
10. Constable Taylor said that the police and ambulance vehicles were about 100 metres away from the house and shed, except for Constable Taylor's vehicle which 'moved forward towards the shed'.[34]
11. Prior to going inside the house, Constable Taylor tried to speak with the appellant and asked her to put the gun outside. The appellant said that she would not come outside until she saw Sergeant Soutar.[35] Constable Taylor contacted Sergeant Soutar and the Tactical Response Group. He saw Constable Ngari coming out from the house gate carrying something and heard over the radio that the firearm had been secured.[36]
12. Then Constable Taylor again contacted the Tactical Response Group, before going inside the house, clearing the house, going back outside, and contacting the Bunbury detectives who told him to declare a protected forensic area and to cover the appellant's hands.[37] He declared the protected forensic area and obtained coveralls and evidence tape from the vehicle.[38]
13. Constable Taylor agreed that the appellant showed signs of intoxication. Constable Taylor had noticed bottles of bourbon inside the shed, where he had gone before he went into the house. There was a 700 ml bottle of bourbon which was empty and a litre bottle of bourbon which was about one quarter empty. There was also a one litre bottle of wine in the kitchen.[39]
14. Constable Taylor heard the appellant ask for a glass of wine, which she was refused.[40] The appellant was moving around the kitchen in a small area, was talking quite consistently, and sometimes made sense but sometimes did not.[41]
15. When Constable Taylor tried to give the appellant the police caution, she talked over him and moved around. Constable Taylor said that she was paying attention, although he wasn't sure how much attention she was paying because she responded by saying, '[d]on't worry about it ... I just want you to know ... what had happened'.[42] Both Constables Taylor and Avellino made several attempts to give the appellant the police caution. He said that it seemed like the appellant did not want to listen because she just wanted to say what she wanted to say.[43]
16. It was 9.00 pm, give or take five or ten minutes, when Constable Taylor went outside to stay behind the cordon.[44] Once he put the tape up, Constable Taylor controlled where and when people came in and out of the cordoned area.[45]
17. Constable Taylor agreed that he wrote what the appellant had said in his notebook because 'that might amount to an admission'.[46] Constable Taylor agreed that what he wrote in his notebook was, '[s]he says, 'I shot him. I really shouldn't have done'.[47] He agreed that he had not written down other details that he was recounting in court, such as the appellant saying that she went and got the gun from under her bed.[48]
18. Constable Taylor denied that all he had heard the appellant say was what he had written in his notebook; he said that he had 'heard her say the other bits as well'.[49]
19. Constable Taylor agreed that it was a very significant admission and that it was unrecorded.[50] Constable Taylor agreed that he was a very experienced police officer and had a smart phone with him at the scene. When asked why he didn't record the appellant, Constable Taylor said that 'I don't even think to use my phone in that manner'.[51] Constable Taylor said that he had already tried to caution the appellant when she made the admissions.[52]
20. Constable Taylor was with the appellant in the kitchen for about 20 to 30 minutes; the appellant spoke the whole time, stopping only briefly and intermittently. He could not have been wrong about the time that he set up the protected forensic area because it was in his notebook.[53] Constable Taylor declared the protected forensic area at 8.10 pm.[54]
21. Constable Taylor confirmed that the appellant was in the house with her deceased partner's body outside from the time when Constable Taylor arrived at the scene until 'hours later'. The police did not take her to the police station sooner because they were waiting for detectives to attend.[55]
22. Constable Taylor confirmed that he never said to the officers and detectives that arrived later to bring video equipment.[56]
23. Constable Taylor said that, while he was in the house, he was not aware of the appellant eating anything. He didn't know if she was given a cup of tea.[57] Constable Taylor agreed that some of the appellant's behaviour was bizarre; he agreed that she said things like 'he always called me fat ... I'm not fat though, am I' and that she 'sort of pranced around'.[58]
24. In re-examination, Constable Taylor said that it was not his job to interview the appellant and that he never tried to interview her at the scene.[59]

1. At about 7.35 pm on 15 July 2018, Constable Ngari received a request to urgently attend a job at 393 Hebb Road. The information he received was that a female had shot her husband with a .22 calibre rifle. After putting on ballistic vests, he and Constable Avellino drove, on a priority 1 status, to the scene, which was about 25 km from the police station.[60]
2. Constables Ngari and Avellino arrived at the scene at about 7.50 pm. Constable Ngari parked the car about 100 metres away from the house.[61] First Constable Avellino went into the house, and then Constable Ngari followed shortly afterwards. Constable Avellino handed Constable Ngari a rifle, which Constable Ngari secured in the car.[62]
3. Constable Ngari went to the shed where the deceased was, met with Constable Taylor, and commenced the running sheet. Constable Taylor declared a protected forensic area at about 8.10 pm and then handed Constable Ngari his notebook.[63] Sergeant Soutar had earlier told Constable Ngari to keep a running sheet of 'everything'. Constable Ngari used the notebook to keep a running sheet.[64]
4. Constable Ngari then went inside the house where Constable Avellino was with the appellant. Constable Ngari took notes during the course of the night.[65] The entry for 8.20 pm stated that the appellant had been cautioned and had indicated that she understood the caution, but had said, 'I don't care'.[66]
5. After the appellant was cautioned and said that she did not care, the appellant started telling the police what had happened. Constable Ngari could not write everything she said because he was handwriting and she was speaking quickly, but he wrote:[67]

The accused stated that they were arguing about a footy team that he doesn't even support. He then got angry out of nowhere. I don't know where it came from. He wanted his water feature. He started hitting me and dragged me by the hair. I asked him why he's being so horrible and mean. I went to the shed and I asked him to open up as I wanted to scare him. He told me to, 'Fuck off.' I went and got a key and opened the shed and I shot him. I shouldn't have. I did not aim for any major organs.

1. The next entry for 8.35 pm said that Constable Avellino arrested the appellant and she was read her rights, and she mentioned the name of her lawyer.[68]
2. An entry at 8.55 pm said that the appellant stated that:[69]

He has been so mean to me for so long. I've tried everything but he's always so critical. I've always kept one .22 rifle in the house because the world is crazy. He has a few firearms outside. I don't know how many or where the safe key is, sorry.

1. A later entry said that the appellant stated that:[70]

He should not be dead because I only shot once at the groin.

1. Constable Ngari read out other entries made later that night, including that the appellant was given a cup of tea at 9.31 pm, that the appellant made further admissions throughout the night, and that she was conveyed to the Bunbury police station at midnight.[71]
2. Constable Ngari said that the appellant was not being asked questions by police at the scene when she made the admissions.[72]
3. When asked why he did not video record the appellant's admissions, Constable Ngari said:[73]

[b]ecause it was not an electronic record of interview. It was not an interview. It was just my running sheet of the events as they happened at the time.

...

Because they were not an interview of the accused. The accused was just cautioned and given her rights and she just kept talking despite being asked several times to stop talking. At first we wanted her to wait for the detectives. And when the detectives came they also cautioned her and gave her rights again and advised her she didn't have to talk but she kept talking. We couldn't stop her.

1. Constable Ngari said that he tried more than once to stop the appellant from talking, that he did not want to interview the appellant at the scene, and that it was not his job to do so. He was just the initial attending officer and the person keeping the running sheet. [74]
2. Over a period of about four hours, Constable Ngari was in and out of the appellant's presence. He said that she had slurred speech, kept asking for more wine and that the police had to stop her from getting more wine, but that he could understand what she was saying.[75]
3. Constable Ngari said that the appellant was cautioned before she started speaking and that she appeared to understand the caution, but that her response to the caution was to say, 'I don't care' and to tell the police what had happened.[76]
4. In cross-examination, Constable Ngari said that he had attended one gun incident prior to this incident.[77] Constable Ngari said that, by the time he left Collie police station that night, he knew that a woman had shot her husband and he believed that the husband was dead. He ultimately said, after some inconsistent evidence, that he did not at that time know that the woman had said that she had shot her husband.[78]
5. Constable Ngari confirmed that the Collie police station had three mobile video recorders. Constable Ngari believed that a video recorder would have been in the vehicle that he drove to the scene, as on-patrol vehicles usually contained a box with a video recorder and camera.[79] Officers would put video recorders into the vehicle. Constable Ngari could not remember if a video recorder was put in his vehicle on the night of the incident because he did not look for it and did not attempt to use it.[80]
6. When Constables Ngari and Avellino first arrived at the scene, they could see a female figure at the front door of the house holding a gun. They asked her several times to put the gun down before she put the gun down.[81]
7. Constable Ngari initially followed the ambulance personnel, and then Constable Ngari saw Constable Avellino go into the house and Constable Ngari followed him. Constable Ngari then secured the gun in his vehicle and went to where the deceased was.[82]
8. Constable Ngari said that he 'could tell [the appellant] had consumed alcohol', but she was not intoxicated to the extent that she could not walk, talk or understand what was happening.[83] When Sergeant Soutar arrived, the appellant sort of ran up and wanted to hug him.[84]
9. Constable Ngari agreed that the appellant was sort of pacing around the kitchen area and, at one point, wanted to get out of the house. Constable Ngari said that the appellant's behaviour did not show that she was affected by alcohol much more than it showed that she was distressed; she was crying and getting emotional.[85]
10. Constable Ngari agreed that Constables Taylor and Avellino had to repeat the caution because the appellant was not paying attention. She seemed like she did not care what the caution meant.[86]
11. Constable Ngari said that the appellant might have been asking if her husband was alright after being told that he was dead, but that he could not recall. The appellant said that she wanted to speak to her lawyer and to some of her friends.[87]
12. When asked whether at any stage he thought to record the appellant's admissions, Constable Ngari said that he thought that they needed to stop the appellant talking, which they kept telling her. He said that to record would be to start an interview, and he did not think it was necessary to interview the appellant. He agreed that she was making significant admissions against her interest. [88]
13. Constable Ngari did not think to record the admissions on his smart phone. He did not check whether the video camera was in his car. He said that, according to their policy, police were not required to record on video things noted in the running sheet.[89]
14. Constable Ngari said that they were not meant to use their mobile phones while on duty. After being shown the police policy on the use of personal recording devices, Constable Ngari agreed that police could use personal mobile phones in exceptional circumstances to record evidentiary material.[90] Constable Ngari agreed that he could have used his smart phone to record the appellant's admissions, but he said that they 'just kept telling her to stop talking'.[91]
15. Constable Ngari said that the appellant's behaviour was not bizarre, but was odd and that she kept repeating that the deceased called her fat.[92] The appellant tried to get the bottle of wine a couple of times.[93]
16. In re-examination, Constable Ngari said that he did not put a video camera in the police vehicle and that he did not see Constable Avellino do so.[94] He said that, putting aside the policy he was shown in court, his understanding of police policy was that police could not use their personal mobile phones to record evidence and that, if they did so, their phones could be seized.[95]

1. At about 7.35 pm on 15 July 2018, Constable Avellino received information via radio that a female had shot her husband in the abdomen with a .22 calibre gun and that he was not breathing.[96] He and Constable Ngari put on ballistic vests and left as priority 1 to attend the scene. They arrived at the scene at 7.50 pm.[97]
2. Constables Avellino and Ngari stopped their car about 100 metres from the house. Constable Avellino could see a female standing out the front of the house holding a rifle.[98] Constable Avellino was the first police officer to go inside the house. He picked up the gun, which was on the floor, and passed it to Constable Ngari, who took it away.[99]
3. Constable Avellino followed the appellant into the kitchen and asked her how she was. The appellant asked whether the deceased was okay and Constable Avellino said that he did not know. The appellant said that she was okay and then said that she was not a bad person. She put her head in her hand and was 'a bit emotional'.[100]
4. On the bench near the kitchen sink there was an empty bottle of white wine and a wine glass that was about three-quarters full.[101]
5. Officers Taylor and Ngari came into the house; Constable Taylor cleared the rest of the house and Constable Ngari stayed with Constable Avellino.[102] When Constable Taylor returned, he covered the appellant's hands. While that was happening, the appellant started telling police what had happened.[103]
6. Constable Avellino said that '[w]e could tell that she'd been drinking'. The appellant would slur some of her words, but the slurring would 'come and go'. Constable Avellino began cautioning the appellant when she started talking, at about 8.20 pm. Constable Taylor was also attempting to caution her. The appellant kept talking. The appellant said, 'I know I don't have to speak to you but I don't care. I just want to tell you what - what happened'.[104]
7. After these exchanges, the appellant said that:[105]

she was in the shed with the victim. They were drinking alcohol, said that the footy was on, the victim became angry for some reason, grabbed her by the back of the hair and pushed her down to the ground. After that she said she left the shed. When she came back, the shed door was locked. She said that she just wanted to scare him but - so she asked the victim to open up the door. He told her to 'get fucked' so then she left again. She said she came back with a key, opened the door and shot him.

1. Constable Avellino said that they were not trying to get the appellant to talk and were not asking questions to elicit information. They kept trying to press the point given the gravity of the situation and that she needed to speak to a lawyer before saying anything to police, but she kept talking.[106]
2. After Constable Taylor covered the appellant's hands, Constable Taylor left. When Constable Taylor left, Sergeant Soutar came in, at about 8.35 pm, and advised Constable Avellino that the deceased was dead.[107] Constable Avellino advised the appellant that she was under arrest. The appellant, Sergeant Soutar and Constable Avellino sat at the table so that the appellant would be more comfortable. The alternative would have been putting the appellant in the back of the police van.[108]
3. Constable Avellino wrote some of his police statement that night.[109] He continued to 'chip away' at it until signing it on 30 July 2018.[110] His statement was from his memory of what the appellant said, not from any notes.[111]
4. Constable Avellino said that the appellant talked 'many times' that night about what had happened. When she did so, Constable Avellino and the other officers would say, '[w]e don't want to know. Don't talk to us about it until you speak to a lawyer'.[112]
5. When asked why the appellant's admissions were not recorded, Constable Avellino said:[113]

[w]ell, we weren't interviewing her so we didn't need to record it, and it's not our practice to record it if we're not interviewing her, so - - -

...

[Asked to flesh out what not interviewing her means]: Well, she hasn't spoken to a lawyer. It's a serious offence. We - if we're not asking her any questions, we're not interviewing, so we wouldn't record it. If we were asking her questions, then, yes, we would - we would record it, because you have to.

1. When he gave the appellant her rights, Constable Avellino asked if she wanted to speak to a lawyer. She said that, when the time came, she wanted to speak to a union lawyer called Tim Kucera. She said that she did not have his number but wanted to call him later.[114]
2. Constable Avellino's role at the scene that night was to preserve the scene and make sure the appellant was okay, before waiting for the detectives to arrive to take over.[115]
3. In cross-examination, Constable Avellino confirmed that he knew immediately, when the radio call came through to the police station, that a woman had said that she had shot her husband and that he might not be breathing. Before leaving, Constables Avellino and Ngari got ballistic vests because a firearm had been used and was still on the property.[116]
4. Constable Avellino had his smart phone with him. The police station had two video cameras and one still camera. Constable Avellino did not remember putting one of the cameras into the police vehicle. He did not know whether Constable Ngari put a camera in the vehicle.[117]
5. When Constables Avellino and Ngari first arrived, they were trying to get the appellant to put the gun down.[118] She eventually put it down. She said that she would not come out until Sergeant Soutar arrived. The appellant went from the porch to the inside of the house and Constable Avellino went into the house, where he saw the gun on the floor and handed it to Constable Ngari.[119]
6. Constable Avellino said that, when he first went into the kitchen with the appellant, the noise from his police radio seemed to make the appellant angry and agitated. The appellant started to get emotional and was crying.[120]
7. When Constable Avellino first went up to the door, the appellant said, '[c]ome in for a cup of tea'.[121] Constable Avellino said that it was possible that the appellant inviting him in for tea, then getting angry at the police radio, and then sobbing, all happened within the space of about five minutes.[122]
8. Constable Avellino agreed that there were a few times where the appellant tried to get the glass of wine and was told that she could not drink it.[123] Sergeant Soutar told the appellant that her husband was dead.[124] He came into the house about 10 minutes after Constables Ngari and Taylor came in. Constable Avellino said that it sounded like the appellant was not accepting that her husband was dead; she kept asking '[o]h, is he really dead?'[125]
9. Constable Avellino recalled the appellant telling him that the deceased called her fat every day and asking the officers, 'do you think I'm fat?'[126]
10. Constable Avellino was not with the appellant the whole time. At one point, he left for a meal and then did not go back in the house.[127] Constable Avellino said that the appellant was talking most of the time when he was with her. When asked whether the appellant was not listening to the caution, Constable Avellino said that it was not that she was not listening, rather she just wanted to talk and tried to talk over the officers. Both Constable Avellino and Constable Taylor tried to caution her.[128]
11. When Sergeant Soutar arrived, the first thing the appellant did was to try and hug him.[129] After Sergeant Soutar had told the appellant that her husband was dead, she was asking him if her husband was okay.[130] It was only after Sergeant Soutar arrived, and the appellant was arrested and given her rights, that she talked about a lawyer. She said, '[w]hen the time comes I want to speak to Tim Kucera [a lawyer]'.[131]
12. Constable Avellino knew that the appellant said that she had been pulled by the hair and pushed to the ground. He asked her if she wanted to see an ambulance officer and she said no.[132] Constable Avellino said that they only needed to require her to be examined if they felt that she needed to be.[133]
13. When asked whether he was aware of a policy permitting police to use personal mobile phones to record things at a crime scene when there was no other way of recording them, Constable Avellino said, 'we don't use them'. When shown the policy, Constable Avellino agreed that the policy allowed the use of mobile phones '[t]o some degree'. He said that police could use their phones in 'exceptional circumstances'. Constable Avellino said that he knew at the time of the incident that unrecorded admissions could be used as evidence, but were prima facie inadmissible, subject to reasonable excuse and the court's discretion.[134]
14. Constable Avellino agreed that this was the first gun homicide he was involved with and that it was an exceptional situation.[135] He agreed that the appellant was making admissions, that he had a mobile phone with video capacity, that other officers present had mobile phones, and that he could have video recorded the appellant. Constable Avellino said that he did not do so because 'we weren't interviewing her' and because they did not want her to say anything prior to speaking to a lawyer.[136]
15. Constable Avellino said that the appellant appeared to be affected by alcohol and was slurring her speech at times, but he did not know if she was 'overly intoxicated'.[137] Her eyes were 'a bit red'.[138]
16. Constable Avellino said that, potentially, one of the police vehicles could have taken the appellant to Collie police station or to Bunbury, but that they did not want to move her from the house if possible and that their role was to preserve the scene.[139] Constable Avellino agreed that she was close to her deceased husband's body for several hours and that there was the option of taking her to a police station. It 'could have been' the case that the appellant did not leave the scene until around midnight.[140]
17. Constable Avellino agreed that the appellant was 'up and down a bit' while in the kitchen and that she tried to grab the bottle of wine a couple of times.[141]
18. In re-examination, Constable Avellino described the urgency of the situation when he was leaving the police station and said that he did not put a video camera in the police vehicle. He also said that he did not take the appellant to the police station because his instructions were to wait for detectives. Until detectives arrived, Constable Avellino's role was to make sure that the appellant was okay and to preserve the crime scene.[142]

Reasonable excuse: the directions hearing judge's reasons Factual findings

1. Because the timing of various events is germane to the directions hearing judge's reasoning, and to its correctness, we will outline his Honour's findings in that regard in detail. The following outline also includes some uncontroversial matters, not expressly referred to by the judge, to provide additional context.
2. At 7.28 pm, the appellant called 000 from her home. On duty at the Collie police station were Senior Constable Taylor and Constables Avellino and Ngari.[143] Senior Constable Taylor, who was in charge, requested the other two officers to attend the scene, designating that they would attend as priority 1. After making some phone calls, Constable Taylor followed shortly after the other two, designated as priority 2.
3. At 7.35 pm, the officers at Collie police station were advised over the radio that a female had shot her husband in the abdomen with a .22 calibre gun and that he was in the shed, not breathing.[144]
4. At 7.50 pm, Constables Avellino and Ngari arrived at the property. At 7.59 pm, Constable Taylor arrived at the property. Upon their arrival, the appellant presented to them, holding a firearm. The appellant released the firearm and the officers then entered the premises.
5. At 8.10 pm, the three officers secured the crime scene and Constable Taylor declared a protected forensic area.[145]
6. The judge's findings as to the timing of the appellant's admissions and other statements to the first responders are not entirely consistent. At [40] of the reasons, his Honour said that, at approximately 8.20 pm, the appellant commenced making utterances in the presence of the three first responders; namely the unrecorded admissions ultimately found by his Honour to be admissible.[146] However, at [47], his Honour found that (i) between 8.10 pm and 8.18 pm, the appellant made admissions to Constable Taylor while he was securing her hands with polypropylene coveralls, and (ii) at 8.20 pm, after she was cautioned by Officers Taylor and Avellino, the appellant said that she wanted the officers to know what had happened and made further admissions.[147]
7. His Honour found that Constable Ngari made contemporaneous notes of the admissions at approximately 8.20 pm.[148]
8. Constable Ngari's notes record an entry, located between the entries written at 8.20 pm and 8.35 pm, setting out the appellant's statement as to what had happened.[149]
9. Sergeant Soutar arrived at the property between 8.20 pm and 8.30 pm.[150] His Honour also found that, on the evidence, Sergeant Soutar could not be said to have been present when the initial admissions were made by the appellant to the three first responders.[151]
10. As will be seen, the manner in which the judge's findings are to be understood is at issue in the appeal.

1. The directions hearing judge's reasons for finding that the first responders had a reasonable excuse for not audio-visually recording the admissions were as follows:[152]

The admissions to the first responders were not audio-visually recorded. However, I am of the view that the officers had a reasonable excuse for not audio-visually recording the admissions. Officers Taylor, Ngari and Avellino were responding to reports of a person being shot. The officers diligently apprehended the accused and were securing the crime scene when the utterances were made by the accused. Constable Taylor gave testimony that he was unaware whether they had a video camera and that he was focussed on securing the accused and the forensic area. Constable Taylor stated that whilst he had a mobile, he did not consider using it to record the accused's admissions. Officers Avellino and Ngari gave similar evidence as to why the admissions made at approximately 8.20 pm were not recorded. Constable Ngari stated that there may have been a video recorder in the police vehicle but he did not check. In fairness, Constable Ngari was a first responder whose responsibility was to apprehend the accused who held a firearm. Constable Avellino was the first officer to enter the residence. Constable Avellino did not consider recording the utterances. He considered that he was not interviewing the accused. His role was to preserve the scene and look after the accused awaiting the arrival of the detectives.

1. In summary, his Honour found that the first responders had a reasonable excuse by reason of the following:
   1. The first responders were responding to reports of a person being shot and, in doing so, they diligently apprehended the appellant and were securing the crime scene when the appellant made the admissions.
   2. Constable Taylor's evidence was that he (i) was unaware whether they had a video camera, (ii) was focused on securing the appellant and the forensic area, and (iii) did not consider using his mobile phone to record the admissions.
   3. Constables Ngari and Avellino gave similar evidence as to why the admissions were not recorded.
   4. Constable Ngari said that there might have been a video camera in the police vehicle but he did not check; his responsibility was to apprehend the appellant who held a firearm.
   5. Constable Avellino was the first officer to enter the residence. His evidence was that he did not consider recording the admissions and that he considered his role to be to preserve the scene and to look after the appellant while awaiting the arrival of the detectives, not to interview the appellant.
2. Consequently, his Honour concluded, the initial admissions made to the three first responders at 8.20 pm were not inadmissible by reason of not being audio-visually recorded.[153]

Reasonable excuse: parties' submissions Appellant's submissions

1. The appellant submits that the matters relied on by the directions hearing judge do not amount to a reasonable excuse for the failure to record the admissions, having regard to the following matters:
   1. While Constable Taylor was securing the appellant's hands, either of the other two first responders, who were standing nearby, could have recorded the admissions.
   2. All three of the first responders had a functioning smartphone capable of video‑recording at the time the admissions were made. Police policy at the time permitted them to use their personal mobile phones in an exceptional case, which the present case was. The fact that the officers simply did not think to use their phones was unreasonable in circumstances where (i) the appellant had already been cautioned twice and told of her right to a lawyer, and (ii) Constable Ngari was making notes when he should have been video‑recording the admissions.
   3. The fact that the officers were unaware of whether they had a video‑recording device in the police car is not an excuse, as any one of them could have checked the car and they knew that the appellant would not stop talking. Given that there were three first responders, one of them could have left to check the car.
   4. At the time the appellant made the admissions, Constable Ngari was not securing her; he was only making notes to form a running sheet. If he was able to write down what the appellant said, he was reasonably able to video‑record it.
   5. Although, as the officers emphasised, the appellant was not being interviewed, it was plain, and they were aware, that she would not stop talking. It was clear that she might make admissions; hence the repeated cautions and informing of her right to a lawyer.
   6. Constable Avellino's role in preserving the scene and looking after the appellant did not reasonably affect his ability to record what she said.
   7. The fact that the officers were all responding to reports of a person being shot did not absolve them of the requirement to record the appellant's admissions. To the contrary, it put them on notice of the seriousness of the matter. In any event, by the time the admissions were made, the appellant was secured.
   8. The fact that the appellant had twice been cautioned demonstrates the officers' awareness of the likely prospect of the appellant making admissions. That underlines the unreasonableness of their failure to record the admissions.
2. In oral argument, the appellant submits, by reference to [47] of his Honour's reasons, that the directions hearing judge found that there were, relevantly, two sets of admissions made to the first responders: (i) admissions to Senior Constable Taylor between 8.10 pm and 8.18 pm; and then (ii) further admissions after 8.20 pm to Constables Ngari and Avellino.[154]
3. As to admissibility under s 155 of the CI Act, the appellant submits that the undesirability of admitting the admissions did not outweigh the desirability of admitting them.

1. The respondent submits that, reading the admissibility decision as a whole, the directions hearing judge evidently concluded that there was a reasonable excuse for the absence of an audio-visual recording because the admissions were made at a time when it was not practicable to make a recording.[155]
2. The respondent points to the fact that the first responders were dealing with a dynamic situation in which they were primarily required to secure the appellant and the scene. It submits that it was not unreasonable that none of the officers left the house to search the police vehicles for audio-visual equipment and that they cannot have been expected to have carried audio-visual equipment when they entered the house. In that regard, the respondent emphasises that, when the appellant started making admissions, the officers cautioned her and tried to get her to stop talking.
3. The respondent also points to his Honour's different approach in relation to the admissions made after the arrival of the other police officers. In summary, the respondent submits that the directions hearing judge adopted an appropriately pragmatic approach to the situation which confronted the first responders.
4. The respondent further submits that, having regard to the judge's findings, his Honour would have admitted the evidence pursuant to s 155 of the CI Act if resort to that provision had been necessary.[156] The respondent submits that the judge's findings that the admissions were voluntary and should not be excluded on common law discretionary grounds, together with the seriousness of the offence and the probative value of the evidence, point overwhelmingly to the desirability of admitting the admissions. The respondent submits that the circumstances suggest inadvertence on the part of the officers rather than a deliberate choice to disregard the law.[157]
5. In oral submissions, the respondent properly conceded that, in relying on s 155, it was thereby invoking the proviso.[158] It also accepted that, in doing so, it was incumbent on the respondent to demonstrate that the only reasonable exercise of power under s 155 would have been to admit the evidence.[159]

1. The relevant legal principles were not in dispute before the directions hearing judge and were not in dispute on appeal.
2. Under s 118(3)(b)(i) of the CI Act, the onus is on the prosecution to prove, on the balance of probabilities, that there is a reasonable excuse for the absence of an audio-visual recording of the admission in question. The definition of reasonable excuse in s 118(1) is not, in terms or effect, exhaustive. In other words, there may be a reasonable excuse that does not fall within any of the paragraphs of the definition.[160]
3. Whether there is a reasonable excuse requires an examination of all the circumstances relevant to the omission.[161]
4. The first paragraph of the inclusive definition of reasonable excuse in s 118(1) provides that reasonable excuse includes that when the admission was made it was not practicable to make an audio-visual recording of it. In Wright v The State of Western Australia, Blaxell J made the following observations as to that limb of the definition:[162]
   1. The issue of whether a given task is practicable involves an inquiry as to the means and resources available to accomplish it. Consequently, the question of whether it was 'practicable' to record an admission will always involve a consideration of what resources (in terms of personnel and equipment) were available.
   2. Other relevant factors may include the time that was available to organise those resources, the degree of expectation that an admission might be made, and whether the time and degree of expectation justified the effort and cost involved in utilising the resources.
   3. The determination as to practicability must be made in hindsight, based upon the investigating officer's knowledge of the relevant circumstances prior to the admission being made. The essential question is whether it would have been reasonable for the investigating officer to have had audio-visual equipment and personnel on hand ready to record the admission, at the time, and in all the circumstances in which, the admission was in fact made.
5. In Wright, McLure P, with whom Buss JA agreed, found that the trial judge was correct to conclude that it was not practicable to make an audio-visual recording of the accused person's admission. In so finding, her Honour pointed to the fact that the admission was made at a private home where the police secured entry for the purpose of locating and arresting the accused person for a very serious offence, with the possibility that the accused may seek to avoid or resist arrest and with no intention of questioning the accused.[163] Blaxell J came to a similar conclusion, finding that it was open to the trial judge to so find.[164]
6. In Wright, the impugned admission was a single statement made by the accused person.
7. Similarly, in Blum [No 2], the issue relating to s 118 of the CI Act concerned a single admission made by the accused person immediately after the detective told him that he wished to speak with him regarding a burglary. Mazza JA, with whom McLure P agreed, observed that the detective's purpose was to ascertain whether the accused person would answer questions and had no intention to question the appellant other than on video.[165]
8. Buss JA also found that there was a reasonable excuse for the absence of an audio-visual recording, having regard to the following. The accused blurted out the admission, without warning, following a request that he participate in a video‑recorded interview. The admission could not have been reasonably anticipated. The detective did not intend to question the appellant other than in the course of a video‑recorded interview. It is not practicable nor feasible to produce an audio-visual recording of every interaction between a police officer and a suspect.[166]

1. It is necessary to begin by identifying the admissions the subject of the judge's ruling. In particular, did the judge find, as the appellant contends, that there were two sets of admissions to the first responders - the first to Senior Constable Taylor while he was securing the appellant's hands and the second to Constables Ngari and Avellino after they had cautioned the appellant? Or was there a single set of admissions made to, or in the presence of, all three of the first responders, of which each officer gave evidence? In our view, the latter is the case.
2. We have already noted the apparent inconsistencies or tensions in some aspects of the judge's findings about the admissions to the first responders. See [122] above. Given those inconsistencies or tensions, the directions hearing judge's reasons should be construed in the context of the evidence given and submissions advanced at the voir dire.
3. No witness gave evidence of the appellant making two sets of admissions to the first responders. Rather, the evidence of both Senior Constable Taylor and Constable Avellino was that the appellant made the statements the subject of the prosecution application while her hands were being secured by Senior Constable Taylor.[167] Indeed, Constable Avellino's evidence was that once Senior Constable Taylor completed the process of securing the appellant's hands, he left the house.[168]
4. In the context of this evidence, it should be noted that the directions hearing judge found that the utterances made to Senior Constable Taylor were made while he was securing the appellant's hands.[169]
5. Moreover, the substance of the evidence of each of the first responders was so similar in its effect as to reinforce the conclusion that all witnesses were describing the same single set of admissions. The relevant extracts of the first responders' statements are set out in [21] above and the outlines of the relevant aspects of their evidence at the voir dire are set out in [32], [64] and [93] above. The following summary identifies the substantial common ground between the admissions described by each witness and the aspects of detail on which their accounts vary. In substance, their evidence was that the appellant said, in effect:
   1. While drinking in the shed, the deceased became angry. According to Constables Taylor and Ngari, that was for a reason related to the football game that the deceased and the appellant were watching at the time.
   2. The deceased manhandled the appellant to the ground, grabbing her by the hair and pushing or hitting her.
   3. The appellant then left the shed.
   4. According to Senior Constable Taylor's account, the appellant went inside and grabbed the gun from under her bed.
   5. The appellant went back to the shed, intending only to scare the deceased.

6. (a) According to Constables Avellino and Ngari, the appellant then asked the deceased to open the door and he told her to, 'fuck off' or 'get fucked'. She left and returned with the key, opened the door and then shot him.

(b) According to Senior Constable Taylor, when the appellant went back to the shed, the deceased opened the door and started abusing her again, following which she shot the deceased.

1. According to both Constables Taylor and Ngari, after the appellant said that she shot the deceased she added, 'I shouldn't've'.

151 Further, neither in the application for leave to adduce the evidence nor in detailed oral submissions did the prosecution suggest that more than one set of admissions were made to the first responders. To the contrary, at the voir dire, the prosecutor's detailed oral submissions referred to and dealt with the admissions to the first responders as a single exchange.[170] Unsurprisingly, defence counsel at the voir dire did not suggest otherwise.

1. In this context, any tension or inconsistency in the directions hearing judge's reasons as to whether there were one or two sets of admissions to the first responders should be resolved as follows. In both [40] and [50] of the admissibility decision, his Honour referred to the relevant utterances compendiously as a single set of admissions. The evidence before his Honour could only be so understood and neither counsel in the voir dire had suggested otherwise.
2. There was thus a single set of admissions. As the appellant accepts, the statements constituting the relevant admissions, to the effect summarised in [150] above, would have occupied only a very short space of time, of the order of about 30&#1[171]seconds.171 In our view, that is significant for the question of whether there was a reasonable excuse for the absence of audio‑visual recording of the admissions.
3. The appellant rightly accepts that when the first responders initially arrived at the appellant's home, it could not be expected that they would ensure they had audio‑visual recording facilities on their person.[172] The first two police officers left the station, designated as priority 1, wearing ballistic vests and armed with firearms. When the first responders arrived, the appellant presented to the officers holding a firearm.[173] Their focus was, as it had to be, on safely apprehending the appellant, removing her weapon and securing the scene until the detectives arrived.
4. In oral argument, the appellant emphasises that a period of some minutes passed between when the officers obtained the rifle from the appellant and when she made the relevant admissions. The appellant submits that this period provided ample opportunity for an officer to go to the police car with a view to obtaining audio‑visual recording equipment (for example, a mobile video recorder).[174]
5. These submissions assume that, in the circumstances, it was incumbent on the first responders to have audio‑visual recording equipment in their police car. We are not persuaded that this is so given the urgency of the situation at the time the officers left the Collie police station. They were going to the appellant's house to disarm her and to secure the scene. They were not going with any intention of interviewing her. In any event, we do not consider it reasonable to expect, at a time before the appellant had begun making her admissions, one of the officers to have left the house and walked 100 metres or so back to the car to look for audio‑visual recording equipment. The officers' focus was on securing the appellant and the scene, while waiting for detectives to arrive. In the prevailing circumstances, they could not be expected to have had one of them leaving the immediate scene to go to the car to look for audio‑visual equipment to guard against the possibility that the appellant might start making admissions before the detectives arrived.
6. Once the appellant began making her admissions, it was not practicable for an officer to go back to the car in order to record them. There was no reason to suppose, once the appellant began making admissions, that she would continue to do so for long enough to make a trip to the car worthwhile. Moreover, as the events transpired, the appellant's admissions, occupying approximately 30 seconds, would have been completed long before an officer could have returned from the car.
7. For these reasons, it was not practicable for the appellant's admissions to the first responders to have been recorded by audio‑visual recording equipment in the form of a mobile video recorder.
8. That leaves the question of whether it was practicable to have audio‑visually recorded the admissions by using the video facility on the camera of one of the first responders' personal mobile phones.
9. It may be said at the outset that to have done so would have required very quick thinking and very quick action.
10. The appellant's submissions focus on Constable Ngari, submitting that, as he was able to make contemporaneous notes of the admissions, he could equally have, and reasonably should have, videoed them on his personal mobile phone. While this submission is not without some superficial attraction, when regard is had to the realities of the circumstances at the time the admissions were made, we are not persuaded by it for the following reasons.
11. The first responders were uniformed officers - a senior constable and two constables - whose task was to secure the appellant and the scene until the detectives arrived. The first responders had no intention of interviewing the appellant - that was a task for the detectives - and they did not ask her any questions about the incident. The task allocated to Constable Ngari was to keep a running sheet of everything by making notes in Senior Constable Taylor's notebook. While, contrary to Constable Ngari's understanding, using a personal mobile phone was permitted under the relevant police policy, that was so only in exceptional circumstances. We do not think that a reasonable police officer in Constable Ngari's position, having been told by a superior officer to make a running sheet of everything, should have been expected, in the course of the 30 seconds or so that the appellant was making her admissions, to have thought of the possibility of using the video function of his mobile phone, recalled that police policy permitted him to do so in exceptional circumstances, made an assessment that the circumstances were exceptional and then activated the video function of his phone.
12. Moreover, in reality, a reasonable police officer in Constable Ngari's position is likely to have had considerably less than 30 seconds to take the necessary steps to audio-visually record the appellant's admissions on a mobile phone. As already noted, the whole of the appellant's statements containing her admissions would have occupied about 30 seconds. However, significantly for present purposes, the early parts of those statements did not, in substance, contain any admissions. While they were concerned with events that night, they were assertions primarily about the conduct and state of mind of the deceased. Consequently, they would not naturally have triggered in the mind of a reasonable officer in the position of Constable Ngari recognition of a need to audio-visually record what the appellant was saying in the way that an express admission was liable to do. By way of illustration, in taking notes of what the appellant said, Constable Ngari said that he had written that:[175]

[t]he accused stated that they were arguing about a footy team that he doesn't even support. He then got angry out of nowhere. I don't know where it came from. He wanted his water feature. He started hitting me and dragged me by the hair. I asked him why he's being so horrible and mean. I went to the shed and I asked him to open up as I wanted to scare him. He told me to, 'Fuck off.' I went and got a key and opened the shed and I shot him. I shouldn't have. I did not aim for any major organs.

Only in about the last third of this passage is it clear that the appellant's statements have potential evidentiary significance as an admission that is liable to trigger a need for recording what she was saying. Thus, a reasonable police officer in the position of Constable Ngari would likely have had closer to 10 seconds to have thought of the possibility of using the video function of their mobile phone, recalled and applied the police policy, and then recorded the admissions.

1. For these reasons, in the circumstances prevailing at the time that the appellant made the relevant admissions, and in the very limited time available, we do not consider it to have been practicable for Constable Ngari to have used the video function on his personal mobile phone to audio‑visually record the admissions.
2. For corresponding reasons, the same is true of Senior Constable Taylor and Constable Avellino. Indeed, given that Senior Constable Taylor was occupied in applying the coverall to the appellant's hands, it was all the more so not practicable for him to have used his personal mobile phone to record the admissions.
3. Thus, we conclude that the directions hearing judge was correct to find that there was a reasonable excuse for the absence of audio‑visual recording of the admissions.
4. We turn to the questions of voluntariness and the unfairness discretion.

Voluntariness and the unfairness discretion: the directions hearing judge's reasons

1. The judge identified the critical issue concerning voluntariness as being whether the appellant, when making the admissions to the first responders, was, despite her intoxication, capable of (i) appreciating that she had a choice to speak and of exercising sufficient volition to give effect to what she knew was her right to make that choice, and (ii) understanding what was being said to her and what she was saying (and thus admitting).[176]
2. The judge observed that, as the effects of alcohol vary from person to person, questions of fact and degree will arise in determining whether a confession made by an accused person who is intoxicated is voluntary.
3. The judge found that the appellant's blood sample, which returned a blood alcohol level of 0.099%, was taken 10 hours 37 minutes after the approximate time of the incident. On a back calculation, that meant that the appellant's blood alcohol level at the time of the incident was 0.204%. According to expert evidence outlined by his Honour, a blood alcohol level of 0.204% would be expected to produce significant intoxication, even in a heavy habitual drinker, with effects that include impairment to cognitive capacity, judgment, emotional control and behavioural control.[177]
4. The judge said that, in her record of interview, the appellant said that, after the incident, she was a 'drunken blithering mess' and that she could not remember saying anything.[178]
5. The judge outlined the evidence given by the police officers about the appellant's level of sobriety in the following terms:[179]

The police officers at the property gave evidence at the directions hearing concerning the accused's level of sobriety. Officer Bradley gave evidence that prior to obtaining a non-intimate forensic sample from the accused, his assessment was that the accused was affected by alcohol and appeared to not have an understanding of her situation and, as such, seemed unable to consent to the procedure.

Constable Taylor, in cross-examination, stated that he assessed the accused as being intoxicated, referring to the accused 'continually talking about various things, just random sort of things until she started talking about the incident and then she sort of became focused on that'. Constable Ngari gave evidence that he assessed the accused as being intoxicated with slurred speech but that she 'wasn't intoxicated to a level that she could not walk or talk or understand what [had] happened' and that she appeared to understand the caution. Further, the accused's behaviour did not show that she was affected by alcohol, but rather, she appeared to be distressed.

Constable Avellino stated that the accused was slurring on occasions and appeared to be affected by alcohol. Sergeant Soutar stated that the accused spoke with some slurred speech. Sergeant Soutar gave evidence concerning his assessment of the accused's level of intoxication. Sergeant Soutar stated that he had 'very coherent conversations' with the accused about a range of subjects. Officer Bradley, in assessing the accused's level of intoxication, stated that the accused's eyes appeared glazed and she appeared a bit restless. Further, the accused spoke with a clear but raised voice and was 'very easy to understand'. Officer Henderson confirmed that the accused's speech was slurred and slightly delayed. Officer Henderson stated that the accused appeared incoherent and restless and did not appear to understand the caution given by him. Officer Morgan gave evidence that whilst the accused appeared to be intoxicated, her speech was not slurred and when she stood up she was steady on her feet.

Officer Simpson stated that the accused 'seemed fully aware [of] what was going on, her speech wasn't slurred' and that she was 'steady on her feet' and not prone to any outburst that 'he'd associate with a higher level of intoxication'. (footnotes omitted)

1. The judge was satisfied that the appellant's admissions were voluntary. His Honour explained that conclusion by reference to the following four matters:[180]
   1. The 000 call demonstrated that the appellant was able to converse in a 'very clear and methodical manner'. In the call, the appellant's speech did not appear to be slurred. The appellant engaged in the conversation with the operator, providing complete answers in a responsive manner. During the 20‑minute call, the appellant was able to give coherent answers and details concerning the incident and to articulate her ongoing fear concerning the deceased.
   2. The evidence of the police officers supported the finding that the appellant, although intoxicated, was able to converse clearly and coherently.
   3. After some apprehension, the appellant exercised judgement and free will in her response to the invitation to submit to a preliminary breath test.
   4. After her arrest, and after becoming aware of her rights as a suspect, the appellant requested to speak to a lawyer and provided officers the name of her preferred lawyer.
2. After carefully considering the appellant's submissions that she was emotional at the time she made the admissions and affected by the deceased's assault against her, the judge found that the appellant's admissions to the first responders were reliable and voluntary.
3. Finally, the judge was satisfied that the admissions to the first responders should not be excluded on the basis of unfairness, nor on the basis that public policy considerations made the admissions inadmissible, nor on the basis that the prejudicial effect of the evidence outweighed its probative value.[181]

Voluntariness and the unfairness discretion: the appellant's submissions Voluntariness

1. The appellant submits that none of the factors relied on by the judge proved, on the balance of probabilities, that the admissions were made voluntarily.[182] The appellant submits that the entirety of the evidence clearly established that the appellant was not capable of exercising a free choice to make the admissions.[183] In oral submissions, she submits that she was 'too drunk to know what she was doing'.[184]
2. The appellant submits that the following evidence revealed that she did not understand what was happening and that she was likely in a state of shock: the appellant would not stop talking, even when told not to talk; some of her behaviour was bizarre; she spoke too quickly for Constable Ngari to write what she said; she would not sit still in her chair and tried to grab the bottle of wine several times; and she asked if the deceased was okay after being informed that he was deceased.[185]
3. The appellant submits that the appellant's blood alcohol content was high and that the evidence confirmed that it would have resulted in a 'reasonable to significant level of intoxication'. The officers confirmed that the appellant appeared intoxicated, with slurred speech, and was repeatedly asking for more alcohol. A considerable amount of bourbon in the shed appeared to have been consumed.[186]
4. The appellant points to the fact that the appellant had just been assaulted, involved in an incident where her partner was fatally wounded, and apprehended by multiple police officers.[187]
5. The appellant submits that, contrary to the judge's interpretation of the 000 call, the contents of that call revealed the appellant's unsound and intoxicated mental state. Specifically, the appellant points to the childlike phrase 'mean to me' repeatedly said by the appellant, her concern that the deceased would hurt her despite also thinking that he was dead, her asking the 000 operator to 'testify for' her, her threatening to kill herself and shoot police, and her offering a cup of tea to police when they arrived.[188]
6. The appellant submits that, although she exercised a choice to refuse a breath test, she did so at 10.52 pm, at which point the appellant had likely sobered up to some extent.[189]
7. The appellant submits that she was not given the opportunity to speak to a lawyer prior to making the admissions, despite having requested to speak to a lawyer.[190]
8. The appellant points to the fact that detectives noted, in relation to their request that the appellant undertake a non-intimate forensic procedure, that she 'appears not to have an understanding of the situation and as such seems unable to consent to this procedure' as clear evidence that the appellant did not comprehend the situation.[191] In oral submissions, the appellant asserts that this overwhelms all the contrary evidence on which the judge relied.[192]

1. The appellant submits that the circumstances in which the admissions were made rendered it unfair to use them against the appellant.[193] She repeats her submissions that she was intoxicated and in an incoherent mental state.
2. Further, the appellant submits that the records made of her admissions are 'wholly inconsistent'; that inconsistency rendering it unfair to the appellant to lead evidence of her admissions.[194]
3. The appellant further submits that the admissions are 'wholly inconsistent with' what the appellant said in the 000 call and in her electronic record of interview with police (EROI). She points to the fact that, in those accounts, she did not mention going back into the house to retrieve the rifle, nor getting the keys to the shed. She submits that her account of getting the keys and unlocking the shed was not supported by other evidence led at the trial in that none of the attending police officers found keys to the shed at the house.
4. The appellant submits that these inconsistencies raise significant doubts about the veracity of the admissions.[195]

Voluntariness and the unfairness discretion: legal principles Voluntariness

1. It is a fundamental requirement of the common law that, in order to be admissible, a confessional statement must be voluntary.[196] Once the issue of voluntariness is raised, the prosecution has the onus of establishing, on the balance of probabilities, that the confession was voluntary.[197]
2. It has sometimes been said that a confession is voluntary if it has been made in the exercise of a free choice to speak or be silent.[198] As this court explained in Luo v The Queen,[199] the position is better expressed by reference to the absence of compulsion or inducement. Generally, a confession is voluntary if it is (i) not made under compulsion, or duress, (sometimes referred to as 'basal voluntariness') and (ii) not made out of fear, prejudice or in hope of advantage as a result of statements made by a person in authority.[200]
3. Thus, an accused person does not need to have understood that they have a choice as to whether or not to speak before a statement is taken to be voluntary. Consistently with this, a failure by police to give a caution or a failure by an accused to understand the caution, although relevant to the exercise of the residual discretion, do not of themselves render the confessional statement involuntary.[201]
4. In Tofilau, Callinan, Heydon and Crennan JJ surveyed cases concerned with the first of the categories referred to in [189] above - basal involuntariness - concluding that instances of its successful invocation in cases concerned with a person's mental state or extreme fatigue were a narrowly confined exception to the general rule that what renders a confessional statement involuntary must be a factor external to t[202]accused.202
5. The relationship between intoxication and involuntariness was discussed in The State of Western Australia v Silich.[203] Many authorities in this court have stated that a confession made by an intoxicated person is admissible against them unless 'the degree of intoxication is so great as to deprive [the person] of understanding what [the person] was confessing'.[204]
6. Because the effects of alcohol vary significantly from person to person, questions of fact and degree will arise in determining whether a confession made by a person who is, to some extent, intoxicated, was voluntary.[205]
7. In Silich, Martin CJ, with whom Hall J agreed, considered that the question of voluntariness is to be determined by asking whether, on the balance of probabilities, the person making the confession was so intoxicated at the time of speaking to the police that they were incapable of choosing whether or not to participate in the interview, or to understand the questions being asked and to provide reasonable responses to them.[206]
8. Buss JA in Silich,[207] consistently with several other authorities in this jurisdiction,[208] framed the question as being whether, on the balance of probabilities, the accused was capable of appreciating that they had a free choice as to whether to speak or remain silent and was capable of exercising sufficient volition to give effect to what they knew was their right, quoting Sholl J in R v Buchanan.[209]
9. It can be seen from [168] above that the directions hearing judge applied these tests.
10. Thus, the test is one of incapacity; reduced capacity by reason of intoxication (or other cause) will not give rise to involuntariness.[210]
11. In some appellate decisions in other States, a question has been raised as to whether a somewhat different approach should be taken. It has been said that there is room for the view that a person's mental state, such as their mental impairment or intoxication, is not relevant to voluntariness, which is concerned only with exogenous circumstances. Rather, a person's mental state is relevant only to (i) whether the person was, at the time of making the admission, incompetent to be a witness and (ii) the fairness discretion.[211]
12. In this appeal, the parties' submissions were framed on the basis of the principles set out above at [191] ‑ [195], emerging from the authorities in this State. Adoption of the different approach in [198] above could assist only the respondent. As explained below, adopting the principles set out in [191] ‑ [195] above, we would dismiss the appeal. In the circumstances, it is appropriate to resolve the appeal by reference to those principles.
13. It has been observed that it is not always possible to treat issues of voluntariness, reliability, unfairness to the accused, and public policy considerations as discrete issues.[212]

1. Relevantly, there are three possible bases for discretionary exclusion of admissions found to be voluntary: unfairness to the accused; public policy reasons to exclude the admissions; or the prejudicial effect of the evidence outweighing its probative value.[213]
2. The onus was and is on the appellant to establish, on the balance of probabilities, that the admission should be excluded in the exercise of the court's discretion.[214]
3. The nature and fundamentals of each basis of discretionary exclusion were explained by this court in Kelly.[215] The third basis, which is not relied on by the appellant in this case, has the purpose of avoiding miscarriages of justice. The focus of the unfairness discretion is on the rights of the accused, whereas the public policy discretion is concerned with matters of public interest. The unfairness discretion does not focus on whether the police acted unfairly, but on whether it would be unfair to the accused to use their confession against them.[216] The prime, but not only, concern of the unfairness discretion is the potential unreliability of the confession. In some cases, there may be unfairness to the accused because the confession might not have been made at all or might have been made in a different form if the interrogation had been conducted properly.[217]
4. Where the confessional statement is both voluntary and reliable, an accused person bears a high onus to establish that the unfairness discretion should be invoked.[218]
5. In an appeal against the exercise of the residual discretion, the principles applicable to the review of discretionary decisions stated in House v The King[219] have been said to be applicable.[220] However, there have been suggestions that this proposition requires some qualification.[221]

Voluntariness and the unfairness discretion: disposition Voluntariness

1. On our review of the evidence at the voir dire, we are comfortably satisfied that the appellant's admissions were voluntary. More specifically, the appellant's admissions were not rendered involuntary by her intoxication, her emotional state, or by a combination of those things.
2. The starting point is the demanding test reflected in the principles set out in [191] ‑ [195] above governing when intoxication or other aspects of a person's mental state will render their admissions involuntary. The admissions will not be involuntary unless the court is satisfied that the intoxication (or other aspect of the person's mental state) renders the person incapable in one of the respects referred to in [191] ‑ [195]. The evidence in this case falls well short of reaching that high hurdle.
3. Like the directions hearing judge, we consider the 000 call to tell powerfully in favour of the conclusion that the appellant's admissions to the first responders, made shortly after the 000 call, were voluntary. We endorse his Honour's observations explaining that conclusion, as summarised at [173(1)] above. The appellant was evidently alert in time and space. She knew where she was and what she was doing. On numerous occasions, she responded coherently to questions on a range of matters, including matters about objective facts. The appellant recounted that she had shot her husband and explained why she had done so; saying, in effect, that she was sick and tired of his ill treatment of her. She also expressed her conflicting emotions. For example, the appellant said:
   1. 'He was so mean. He was just so angry ... And I just got the gun and I just went I can't put up with this any more'.[222]
   2. 'He's so mean to me. ... He's so ... [n]asty and I, I just came in and he was just so nasty and I got the gun and I'm so sorry. But I just shot him because I've had so many years he's been mean to me'.[223]
   3. 'I actually thought I'd rather be in jail than ... be with him ... He's so nasty ... Now he's ... [l]aying on the shed floor, dying ... And I didn't want that ... 'Cause I love him as well. And he's so nasty but I love him'.[224]

The appellant continued to make similar statements.[225] It was clear, from what the appellant told the 000 call operator, that the appellant understood the seriousness of what she had done. She said several times words to the effect of, 'I'm going to jail and I won't see my grandchildren grow up'.[226]

1. It is also relevant that, in the course of the 000 call, the appellant requested that the operator arrange for Senior Sergeant Heath Soutar to be in attendance. The appellant mentioned Senior Sergeant Soutar by name and identified him as the police sergeant at Collie.[227] The appellant showed awareness of her situation, and an ability to engage in rational thought and discourse, by requesting the attendance of a police officer who was known to her.
2. All of this is apparent from a review of the transcript of the 000 call. It amply demonstrates the appellant's capacity to understand what was being said to her and what she was saying. The appellant's capacity in these respects is reinforced by listening to the audio‑recording of the 000 call. The timing and flow of her speech, and her intonation, all firmly point to her capacity in the relevant respects.
3. The 000 call commenced just before 7.30 pm and continued until the first responders arrived. Thus, it began less than an hour before the appellant's admissions and continued until about half an hour before the appellant made her admissions to the first responders. Being so close in time to the admissions, the 000 call is compelling evidence of the voluntariness of the admissions. Another reason why the 000 call is compelling evidence is that it was aurally recorded, and the Court can listen (and has listened) to the recording.
4. Contrary to the appellant's submission, the view reached by Detective Adam Bradley at about 2.18 am - that the appellant did not have sufficient understanding to consent to the taking of a sample - does not overwhelm this and all the evidence tending to suggest voluntariness. What overwhelms the other evidence is the contents and tone of the 000 call. Because the call was recorded, the court has the benefit of being able to hear and read the contents of lengthy exchanges between the appellant and the call operator. That is evidence of a fundamentally different - and superior - character and quality, carrying significantly more weight, than evidence of an opinion formed many hours later on the basis of facts about the appellant's conduct, statement and appearance that were not identified in detail.
5. For corresponding reasons, the other matters to which the appellant points at [177] above carry little weight when weighed against the evidence of the 000 call.
6. Because the effects of alcohol vary markedly from person to person, the expert opinion as to what may be expected from a blood alcohol level of 0.204 is of limited weight. It is decisively outweighed by the 000 call, which provides cogent evidence as to how the appellant's alcohol consumption affected her as an individual.
7. It may readily be accepted that the appellant's intoxication, and her emotional state, made her more inclined to speak about what had occurred. But being uninhibited falls a long way short of involuntariness.[228]
8. For these reasons, in our view, the judge was correct to find that the appellant's admissions were voluntary.

1. Whether the evidence should have been excluded in the exercise of the court's discretion must be considered in the framework of the findings that there was a reasonable excuse for the absence of audio-visual recording and that the admissions were voluntary. For the reasons already given, the appellant's intoxication and emotional state did not render the admission in evidence of what she told the first responders unfair. See, in particular, [208] and [210] above.
2. Otherwise, the appellant relies essentially on asserted inconsistencies: first, inconsistency in the records made of her admissions; and, secondly, inconsistency between her alleged admissions and what the appellant said in the 000 call and in the EROI.
3. As to the first asserted inconsistency, to the extent there was inconsistency in the various records made by people of the appellant's admissions, and in the evidence given by each of the first responders as to the admissions, such inconsistency was a matter for the jury to consider in coming to its factual findings. Any such inconsistencies do not render the admission of the evidence unfair.
4. In our view, there is no relevant inconsistency between what the appellant said in the 000 call and what she said in the course of making the admissions. Rather, what the appellant said to the first responders contained additional detail beyond what she had said in the 000 call. During the 000 call, the appellant said that she had shot the deceased and explained why. She referred to getting the gun, to the deceased opening the door of the shed, and then to shooting him. Her admissions to the first responders flesh out some additional detail but are essentially consistent with this.[229]
5. We accept that there is material inconsistency between what the appellant said the following day in the course of the EROI and the admissions made to the first responders. In particular, in the EROI, the appellant said that the gun was in the shed and, when asked, denied that the gun was under the bed. Also, when an interviewing officer said to the appellant that, the day before, she had said that she went and got the gun, shot the deceased in the 'guts' and did not think it would kill him, the appellant said that this was 'probably just drunken ramblings' and that she could not even remember the officer being there. Later in the interview, she said, in relation to whatever she had said the night before, that she had been a 'drunken blithering mess' and could have said anything.
6. However, there may be a range of reasons for an inconsistency between a statement made shortly after the incident in question and a statement made in the course of a police interview a day later. Whether such an inconsistency renders the evidence of the admission unreliable, or provides a reason for discounting what was said in the course of the subsequent police interview, is a matter for evaluation by the jury. In invoking the court's discretion, the appellant bears the onus of establishing unreliability or other grounds for excluding the admissions. The appellant has not discharged that onus. The existence of some inconsistencies between the evidence of what was said in the course of the admissions and what was subsequently said in the police interview does not sufficiently demonstrate the unreliability of the admissions so as to mean that the evidence should have been excluded.
7. For these reasons, no error has been demonstrated in the judge's decision to not exclude the admissions in the exercise of discretion.

1. For the above reasons, the sole ground of appeal is not established. While we would grant an extension of time and leave to appeal, the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] There were a series of 000 calls. However, the parties and the directions hearing judge referred to the calls as a single call. It is convenient to take the same approach, as it is apparent that the calls were interrupted from time to time but a further 000 call then recommenced.

[2] The State of Western Australia v Holmes [2019] WASC 413 [84] - [85] (Admissibility decision).

[149] BGAB 112; see also ts 21 ‑ 22, 62, 98.

[150] Admissibility decision [53], but compare admissibility decision [41], where that is said to have occurred at approximately 8.20 pm.

[155] Respondent's submissions [15].

[156] Respondent's submissions [22].

[157] Respondent's submissions [21].

[159] See, by analogy, JMY v The State of Western Australia [2022] WASCA 60 [102].

[160] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [55], [145] ‑ [147].

[161] Blum v The State of Western Australia [No 2] [2012] WASCA 40 [63].

[167] Statement of Senior Constable Taylor [85]; ts 21; statement of Constable Avellino [76], [90]; ts 98 ‑ 99.

[168] Statement of Constable Avellino [90]; ts 99.

[170] ts 273 - 275. Although, if read in isolation, the State's Supplementary Submissions were ambiguous in this respect, understood in light of the oral submissions the supplementary submissions did not alter the State's position in this respect.

[177] Admissibility decision [66] - [67].

[178] Admissibility decision [69], referring to exhibit 1; State's brief of evidence 276, 285.

[179] Admissibility decision [70] ‑ [73].

[180] Admissibility decision [75] ‑ [78].

[182] Appellant's submissions [31] - [32].

[188] Appellant's submissions [36] - [37].

[189] Appellant's submissions [39], citing ts 894 - 895.

[195] Appellant's submissions [46] - [47].

[196] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50]; Kelly v The State of Western Australia [2017] WASCA 221 [34].

[197] Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572 - 573; Kelly [35].

[198] See, for example, Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 5.

[199] Luo v The Queen [2020] WASCA 184.

[200] McDermott v The King (1948) 76 CLR 501, 511 ‑ 512; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [22], [55] ‑ [64], [339] ‑ [340], [362] ‑ [364]; Luo [71] - [74].

[203] The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285.

[204] Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, 336; Tofilau [337]; WP v The State of Western Australia [2011] WASCA 198 [54]; Silich [51], [154].

[209] R v Buchanan [1966] VicRp 3; [1966] VR 9, 15.

[211] See, for example, R v Pfitzner [1996] SASC 5462; (1996) 66 SASR 161; R v Arnott [2009] VSCA 299; (2009) 26 VR 490 [15] ‑ [24].

[213] Swaffield [52]; Wright [115]; Kelly [39].

[214] Wright [44], [115]; Kelly [38]; Luo [90].

[216] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 154.

[218] EYO v The State of Western Australia [2019] WASCA 129 [52]; R v Williams (1992) 8 WAR 265, 273 ‑ 274.

[219] House v The King (1936) 55 CLR 499.

[221] EYO [63]; Luo [79] - [83].

[225] See, for example, 000 call ts 7, 15.

[228] See, for example, Arnott [29].

[229] As noted in [150] above, there was a divergence between the evidence of the first responders as to who (on the appellant's account) opened the shed door. Constable Taylor's evidence was that the deceased did so.