Impicciatore v The State of Western Australia

1. The background facts in relation to the appellant's application in the appeal are set out in this court's reasons for dismissing the appellant's appeal against conviction and his appeal against sentence. See Impicciatore v The State of Western Australia.[1] It is unnecessary to repeat them.
2. The appellant was represented by competent and experienced defence counsel at his trial before Herron DCJ alone and without a jury. The appellant was also represented by competent and experienced defence counsel at a pre‑trial hearing before Stewart DCJ pursuant to s 98(2)(a) of the Criminal Procedure Act 2004 (WA).
3. The appellant was self‑represented in his appeal to this court.

The grounds of the appellant's appeal against conviction

1. On 5 August 2019, we ordered that all of the appellant's then grounds, except for ground 1, in his appeal against conviction be struck out.
2. The appellant was granted leave to amend his grounds of appeal as follows.
3. Ground 1 as amended alleged, in essence, that Stewart DCJ erred in law and in fact in deciding that the whole of the appellant's electronically recorded interview with police was admissible. It was asserted that her Honour should have decided that the whole of the interview should be excluded because the appellant's confessional statements in the interview were involuntary.
4. Ground 2 as amended alleged, in essence, that Stewart DCJ erred in law and in fact in deciding, pursuant to s 155(2) of the Criminal Investigation Act 2006 (WA), that the whole of the electronically recorded interview should be admitted into evidence at the trial. It was asserted that her Honour should have decided that the admission of the interview into evidence at the trial was not justified.
5. The appellant also asserted in relation to ground 1 and ground 2, as amended, that the admission of the interview at his trial occasioned a miscarriage of justice.
6. This court held unanimously, in the course of dismissing the appellant's appeal against conviction, that leave to appeal on ground 1 and ground 2, as amended, should be refused.

1. The appellant sought leave to issue a subpoena to the Commissioner of Police (Western Australia) for the following documents:
   • (a) The appellant's witness statement dated 15 May 2015;
   • (b) Notes taken by the police officers of Taskforce 'RIPSTOP' between 14 May 2015 and 15 May 2015 relating to the search, arrest and interview of the appellant;
   • (c) Authorisation request and approval forms made by Detective Sergeant McTernan and Detective Senior Constable Wynen under s 140 of the Criminal Investigation Act in the period between 2006 - 2015, which relate to persons other than the appellant;
   • (d) Documents detailing the educational and legal training undertaken by Detective Sergeant McTernan and Detective Senior Constable Wynen in the period between 2006 - 2015, specifically regarding the application of the Criminal Investigation Act;
   • (e) Documents relied upon by the Police Conduct Investigation Unit regarding its investigation of the complaint made by the appellant concerning the professionalism of the relevant police officers on 14 May 2015;
   • (f) Documents purporting to authorise a search by Western Australia Police of various addresses in Scarborough, Western Australia;
   • (g) Documents recording the outgoing telephone calls made from the mobile work telephones of the relevant police officers during the period that the appellant was held in custody with the WA Police, in particular to the telephone number of Barber Legal;
   • (h) Statements and affidavits witnessed or sworn by the relevant police officers in connection with Taskforce 'RIPSTOP' containing information on the Officers':
     • (i) compliance and contravention of the Criminal Investigation Act;
     • (ii) educational and legal training undertaken on the Criminal Investigation Act;
     • (iii) previous application of s 140 of the Criminal Investigation Act in extending the detention of an arrested person; and
     • (iv) 'belief and/or working knowledge' of the relevant police officers of the Criminal Investigation Act;

including any statements and affidavits that relate to the prosecution of persons other than the appellant;

• (i) Any documents from the period between 14 ‑ 15 May 2015 which record 'the carrying out of an identifying procedure' with respect to the appellant, as defined under the Criminal Investigation (Identifying People) Act 2002 (WA);
• (j) Copies of audio-visual recordings or transcripts of:
  • (i) The appellant's electronic record of interview on 14 May 2015; and
  • (ii) The execution of the search warrant at 45 Pangbourne Street, Wembley WA on 14 May 2015;
• (k) Copies of audio-visual recordings or transcripts obtained from the police vehicles that were used by the relevant officers at the appellant's premises on 14 May 2015 between 4.20 pm and 7.50 pm; and
• (l) GPS records of the two police vehicles that attended the appellant's premises on 14 May 2015 between 4.20 pm and 7.50 pm.

The merits of the appellant's application for the grant of leave for the issue of the subpoena

1. As to the document referred to at par (a) of [15] above, the appellant's witness statement dated 15 May 2015 was not relied on by the State at the appellant's trial and was not adduced in evidence at his trial. However, a copy of that witness statement was included in the combined blue and green appeal book for the hearing of the appeal. It was unnecessary for the appellant to subpoena a copy of the document from the Commissioner.
2. As to the documents referred to at par (b) of [15] above, defence counsel cross‑examined the relevant police officers (namely Detective Sergeant McTernan and Detective Senior Constable Wynen) at the pre‑trial hearing before Stewart DCJ in relation to the search, arrest and interview of the appellant on 14 and 15 May 2015. The cross‑examination included questions relating to the police officers' recollection relating to the appellant's search, arrest and interview and questions on documents relating to those events. The material before this court did not establish that there were any notes of the police officers that were relevant to either of the grounds of appeal and that may not have been disclosed by the prosecution in accordance with its obligations under the Criminal Procedure Act or otherwise.
3. As to the documents referred to at pars (c), (d), (e) and (f) of [15] above, the material before this court did not establish that documents of that description were relevant to either of the grounds of appeal. Also, the breadth of the category of persons specified in par (c) and the period specified in pars (c) and (d) were unreasonable, unnecessary and oppressive. Further, as to the documents referred to at par (e), copies of correspondence between the appellant, on the one hand, and the Corruption and Crime Commission, the Police Conduct Investigation Unit, the Attorney General and the Ombudsman Western Australia were annexed to the appellant's affidavits sworn 13 July 2018 and 6 January 2019 and were included in the combined white appeal book for the hearing of the appeal. In addition, as to the documents referred to at par (f), the appellant was arrested at his home in Wembley. He was not arrested at Scarborough. The material before this court did not establish any basis for suspecting that any searches carried out by the police at various addresses in Scarborough were not lawful. The appellant's application for leave to issue a subpoena in relation to the documents referred to at pars (c), (d), (e) and (f) was speculative. It was an attempt to discover whether any evidence existed in the hope that there might be documentary support for some of his arguments in the conviction appeal.
4. As to the documents referred to at par (g) of [15] above, the appellant asserted, as part of his case in the conviction appeal, that while he was under arrest at a police complex a police officer gave him the telephone number of a lawyer. The appellant dialled the number and spoke to a person who identified himself as a lawyer, Neville Barber. The person gave the appellant some legal advice. The person told the appellant that it was a matter for the appellant to decide whether he wanted to make a statement to the police or to participate in an electronically recorded interview. At all material times, Neville Barber has been a certificated legal practitioner in Western Australia. In the appeal the appellant asserted that he was deceived by the police into the false belief that the person to whom he spoke was Dr Barber. The material before this court indicated that the appellant's assertion that he was deceived into the false belief that the person was Dr Barber was fanciful and not supported by any evidence. The appellant's application for leave to issue a subpoena in relation to those documents was speculative. It was an attempt to discover whether any evidence existed in the hope that there might be documentary support for his fanciful assertion.
5. As to the documents referred to at par (h) of [15] above, as we have mentioned, defence counsel cross‑examined the relevant police officers at the pre-trial hearing before Stewart DCJ in relation to the search, arrest and interview of the appellant on 14 and 15 May 2015. The cross‑examination included questions relating to the police officers' knowledge of, compliance with and contravention of relevant provisions of the Criminal Investigation Act. The breadth of the categories of persons and documents specified in par (h) was unreasonable, unnecessary and oppressive. Also, the appellant's application for leave to issue a subpoena in relation to those documents was speculative. It was an attempt to discover whether any evidence existed in the hope that there might be documentary support for some of the complaints he made in the conviction appeal.
6. As to the documents referred to at par (i) of [15] above, the material before this court did not establish that documents of that description were relevant to either of the grounds of appeal.
7. As to the recordings and transcripts referred to at pars (j) and (k) of [15] above, an audio‑visual recording and a transcript of the appellant's record of interview on 14 May 2015 were disclosed and copies given to the appellant or his lawyers prior to his trial. The material before this court did not establish that any recordings or transcripts which may exist of the execution of the search warrant at the appellant's home in Wembley on 14 May 2015 were relevant to either of the grounds of appeal. Also, the appellant's application for leave to issue a subpoena in relation to any recordings and transcripts of the execution of the search warrant at his Wembley home and from the police vehicles used by the police officers was speculative. It was an attempt to discover whether there were any recordings or transcripts of that event in the hope that there might be support for some of his arguments in the conviction appeal.
8. As to the documents referred to at par (l) of [15] above, the material before this court did not establish that documents of that description were relevant to either of the grounds of appeal. The appellant's application for leave to issue a subpoena in relation to those documents was speculative. It was an attempt to discover whether any evidence existed in the hope that there might be documentary support for some of his arguments in the conviction appeal.
9. In the circumstances, the appellant's application for, amongst other things, a grant of leave for the issue of a subpoena duces tecum did not serve a legitimate forensic purpose.

1. For these reasons, on 5 August 2019 we made the order that leave to issue the subpoena be refused and that the appellant's application in the appeal in relation to the subpoena be dismissed.

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

[1] Impicciatore v The State of Western Australia [2020] WASCA 33.