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[2010] WASC 211
Supreme Court of WA
2010-08-11
Blaxell J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : COCKRAM -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 211
Criminal law and procedure - Confessions and admissions - Unrecorded admissions made to police officer - Suspect willing to make recorded admissions but not while in interview room - No 'reasonable excuse' for absence of recording - Whether admissions admissible under s 155 of Criminal Investigation Act 2006 (WA)
Criminal law - Arrested suspects - Right to reasonable opportunity to communicate with legal practitioner - Duties of police officers in respect of that right
Criminal law - Confessions and admissions - Admissions during interview by police at prison after accused was charged - Police aware that accused advised by his solicitor not to answer their questions - Whether any unfairness or impropriety requiring exclusion of admissions on common law grounds
Criminal Investigation Act 2006 (WA), s 118, s 138, s 154, s 155
First applicant's unrecorded admissions ruled inadmissible
Second applicant's recorded admissions ruled admissible
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517
JWRL (a child) v The State of Western Australia [2009] WASC 285
Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
1 BLAXELL J: The two applicants are to stand trial next week on an indictment alleging that on 3 May 2009 at Greenfields they murdered Timothy Everington (the deceased). The prosecution case against the applicants includes evidence of recorded admissions made by each of them on 5 May 2009. On the same date the first applicant (Cockram) also made some unrecorded admissions. On 10 June 2009 the second applicant (Green) made further admissions during a recorded interview with police at Hakea Prison after he had been charged.
2 I am required to rule on the admissibility of various of the admissions made by each applicant. In this regard, Cockram contends that his unrecorded admissions should not be received into evidence because there is no 'reasonable excuse' for the absence of a recording within the meaning of s 118 of the Criminal Investigation Act 2006 (WA) (the Act).
3 Green objects to evidence of admissions made during his first recorded interview as an arrested suspect on the ground that he was not afforded a reasonable opportunity to communicate with a legal practitioner (contrary to s 138 of the Act). He also objects to the evidence of his admissions made in prison on 10 June 2009 on the grounds of a breach of s 138, as well as unfairness and/or impropriety on the part of the interviewing police officers.
4 For the purpose of determining these objections I have conducted a voir dire during which I have heard oral evidence from the interviewing police officers, and also from Green. The following are my reasons for coming to the various determinations that I now make.
5 The State will seek to prove the following facts at trial.
6 At the time of the alleged offence Cockram was living at Pinjarra and Green was living at Eacott Street, Mandurah. They were close friends, and on the weekend of 1 and 2 May 2009 they were socialising with other acquaintances in the Mandurah area.
7 On the afternoon of Saturday, 1 May 2009 the two applicants met the deceased for the first time. Like them, he was visiting the house of a mutual acquaintance in Wanjeep Road, Coodanup. After spending some time in the company of the deceased and other people, the two applicants then left the house and walked into Mandurah where they wandered the streets until the early hours of the following morning.
8 The two applicants returned to the house in Wanjeep Road at about 5.00 am on Sunday, 2 May 2009. When they walked into the house, Cockram went towards the bedroom of a woman with whom he was having an intermittent sexual relationship. The woman was asleep in the bedroom with her young child. Cockram later claimed to the police that as he approached the bedroom he could see from the reflection in a mirror through the open door that the deceased was also in the bedroom. According to Cockram, he saw that the deceased was committing an act of sexual abuse on the child.
9 Cockram did not enter the bedroom but was angry and upset by what he had seen. He then asked Green to accompany him in a car to the end of Wanjeep Road. While in the vehicle the two of them discussed what Cockram claimed to have seen, and formed a plan to kill the deceased. Their plan was to lure the deceased to a secluded area near a boat ramp on the Serpentine River on the pretext that Cockram was meeting a drug dealer to acquire some drugs. The deceased was to be asked to drive the two applicants to that location in return for a share of the drugs.
10 After returning to the house they implemented their plan, and the deceased drove the two applicants to the boat ramp in his vehicle. Cockram was seated in the front passenger side of the vehicle, and Green was in the rear seat behind the deceased.
11 After the deceased parked his vehicle in the car park at the boat ramp Cockram pretended to make a call to the fictitious drug dealer on his mobile telephone. While he was doing this, Green stabbed the deceased from behind with a large knife, striking him in the neck. The deceased then got out of the vehicle and ran in the direction of the river.
12 Cockram had already armed himself with another knife and he ran after the deceased. When he caught up to the deceased he stabbed the latter in the head with the knife. The knife became stuck in the deceased's skull and could not be removed. Meanwhile Green had also got out of the vehicle and he stabbed the deceased in the torso with his knife several times. While the deceased was on the ground he was rolled over and one of the applicants caused a large laceration to his throat. The deceased died as a result of these injuries.
13 The two applicants then ran off into nearby bushland. At a number of locations they disposed of various items of their clothing, a bag, and the knife used by Green.
14 The deceased's body was found near the boat ramp by some passersby at about 7.20 am the same morning. The Mandurah police were contacted, and they in turn notified the Major Crime Squad in Perth. The officer in charge of the Major Crime Squad assigned a team of detectives to travel to Mandurah to conduct the investigation.
15 It is relevant to note that because the Major Crime Squad had numerous major investigations that morning, the team assigned to the present case had to be recalled to duty shortly after completing their shift from the night before. Consequently, the detectives who ultimately interviewed Cockram had had only two or three hours sleep.
16 At about 5.00 pm on Monday, 4 May 2009 the detectives conducted a search of the house at Wanjeep Road, Coodanup. While there they spoke to Cockram and he agreed to accompany them to Mandurah Police Station to provide a statement (as a witness). In accordance with s 28 of the Act, Cockram was informed that he was not under arrest, that he did not have to accompany the police officers, and that he would be free to leave at any time unless he was then under arrest. Cockram was duly interviewed on video (between 6.41 pm and 8.02 pm) and he denied any involvement in the death of the deceased.
17 At the time of searching the house in Coodanup, the police had seized a pair of shoes which Cockram identified as being his. Sometime after the first interview with Cockram, the forensic investigators at the boat ramp found some footwear impressions which matched Cockram's shoes. Consequently, Cockram (who was still at the police station) was advised that he had become an arrested suspected and was also informed of his rights under s 137(3)(c) and s 138(2)(c) of the Act. (He chose not to exercise those rights).
18 Cockram then participated in a second recorded interview on 5 May 2009 between 2.39 am and 3.15 am. In the course of that interview the detectives told Cockram that they had forensic evidence connecting him to the scene, and he told them that 'I know something'. The detectives appealed to Cockram to divulge whatever it was that he knew, but he equivocated and indicated considerable reluctance to do so. At one stage he also said 'Can I have a smoke first please?'.
19 Not long afterwards the recorded interview came to an end, and Detectives Moore and Williams then accompanied Cockram to a patio area outside the police station where he was provided with some cigarettes. While smoking the cigarettes Cockram continued to answer questions from the detectives and he made significant admissions which were substantially in accordance with the present prosecution case against him.
20 In the course of that conversation Cockram also implicated Green in the crime but said that he was not prepared to name Green on video. He also said that he was not prepared to go back into the interview room. In that regard I accept Detective Moore's evidence during cross-examination that Cockram:
Had no difficulty with talking about what had happened on video as long as it was not in that room, being the audio visual room (ts 295).
21 It is relevant to note that at some time prior to the second recorded interview the police had seized the clothing and footwear that Cockram was then wearing. He was provided with a replacement body suit which was made of relatively thin material, as well as a blanket to wrap around his shoulders. He was not provided with any replacement footwear.
22 During the unrecorded conversation Cockram agreed that he would accompany the detectives on a videoed 'walk through' of the scene of the crime to demonstrate what had happened and where various items had been disposed of. That videoed 'walk through' took place approximately half an hour later between 4.08 am and 5.46 am. Cockram accompanied the detectives to the crime scene and to some of the locations where he admitted that items had been disposed of by Green and himself.
23 While conducting the 'walk through' the detectives sought to have Cockram repeat the unrecorded admissions he had previously made at the police station. They believed at the time that they had been successful in this endeavour, and that the recorded admissions were 'almost word perfect' for what had been said off video (ts 249, 211). Cockram himself also confirmed on video that what he had described during the 'walk through' was 'pretty much ... word for word' what he had said back at the police station.
24 However, when making the unrecorded admissions Cockram had referred to Green directly by name, whereas during the 'walk through' he referred to him only as the 'other person'. Furthermore, Cockram did not say on video that there had been a 'plan to kill' between him and Green, whereas it is Detective Williams' evidence (on the voir dire) that there had been an unrecorded admission to that effect.
25 Detective Williams is entirely reliant upon his handwritten notes of the unrecorded admissions in testifying that they varied to some extent from the admissions later made on video. However, those notes were not made until some time on the following day (6 May 2009) and after Detective Williams had been working for approximately 40 hours with only two or three hours sleep. Furthermore, it is uncertain when the corroborating detective (Detective Moore) checked those notes for accuracy because he did not sign them when he did so. (It was not until 14 August 2009 that Detective Moore signed Detective Williams' handwritten notes as being an accurate record of the unrecorded admissions by Cockram).
26 Although Cockram was fully cooperative with the police at the time of the recorded 'walk through' it was too dark to visit some of the relevant locations, including the site on the riverbank where Green had allegedly thrown his knife into the river. Accordingly, Cockram agreed to visit those remaining scenes during daylight. For this reason, Cockram cooperated in a second recorded 'walk through' from 10.06 am on 5 May 2009.
27 At 11.30 pm on 5 May 2009 detectives visited Green at his home at Eacott Street, Mandurah. They asked him to voluntarily attend at the Mandurah Police Station to make a witness statement, and he agreed. Before leaving for the police station the detectives gave Green the information that he was required to be given under s 28 of the Act.
28 Green and the detectives arrived at the police station shortly after midnight and he was placed in an interview room for a few minutes. At 12.10 am he was informed by Detective Marshall that he was under arrest on suspicion of committing grievous bodily harm to the deceased. Although Green cannot recall being informed of his rights under s 137(3)(c) and s 138(2)(c) I find that Detective Marshall did comply with that requirement of the Act. In this regard Green confirmed that Detective Marshall had done so when the recorded interview commenced approximately ten minutes later. I also find (as effectively confirmed on video) that when informed of those rights Green did not seek to exercise either of them.
29 Notwithstanding these facts as corroborated by the recorded interview, it is Green's evidence that soon after arriving at the police station he had a conversation with one of the detectives (whom he believes was Detective Sergeant Coulson). In the course of that conversation Green 'did mention about having a lawyer present, it would be a good idea to have a lawyer present'. The detective responded: 'We don't really need one. We're just going to ask you some questions. You're not under arrest so you don't really need a lawyer' (ts 310 - 302).
30 According to Green, during that early conversation with the detective there was also a 'brief minor argument about being under arrest and not under arrest' (ts 302). Furthermore, it is his evidence that after the commencement of the recorded interview, he was the 'first one to mention that it would be a good idea to have a lawyer present' (ts 302).
31 As can be seen from the transcript, set out below, Green's version of what occurred prior to the recorded interview partially replicates what in fact occurred on video. His evidence is also largely inconsistent with the contents of the video. Having regard to the way in which Green testified I consider that there is room for him to be confused to some extent. (It is relevant in this regard that the DVD of the recorded interview was not played back during the voir dire). For these reasons I do not accept that there was a conversation with Detective Sergeant Coulson (or some other detective) along the lines as claimed by Green.
32 Detectives Marshall and Williams commenced the recorded interview with Green at 12.21 am. At a very early stage of the interview Green was asked, and he confirmed, that he had been advised of his rights to contact a lawyer and to contact a friend. The interview then continued:
Q. So those rights that I have given you, do you wish to exercise any of those rights at this point [in] time?
A. Well, if I'm being charged with whatever you fellows charge me with then, yeah, I probably wouldn't mind seeing a lawyer.
Q. You have the choice. You can contact a lawyer if you wish - - -
A. Well - - -
Q. You're not being charged at this point in time.
A. Well, you just said I was being charged.
Q. No, I advised you that you're under arrest, under suspicion. There, there is a huge - - -
A. Well - - -
Q. - - - distinction so - and it's important that you understand.
A. Yeah. Well, what, what's it mean 'under arrest'? What am I under arrest for?
Q. With the new Criminal Investigation Act it, it advises that if, if we want to speak to someone and we have suspicion they have been involved in a particular offence in some way we are to advise them that they are under arrest under suspicion - - -
A. Well, then why - - -
Q. It's what - - -
A. - - - why did I get told I wasn't under arrest when I left my house and then get told I'm under arrest when I'm here?
Q. There is a reason - the reason for that. When we spoke to you at the house, um, there were some things that we were not aware of and we have brought you here to clarify those and you were advised then that you were free to leave at any time. Do you remember that at the house?
A. Mm.
Q. That you were not under arrest and you could leave at any time.
A. No, I was advised that I wasn't under arrest.
Q. All right.
A. Right.
Q. And you freely accompanied us to the Mandurah police station?
A. Well, yeah.
Q. Is that right? All right. And - - -
A. Well, then if I was gunna be placed under arrest, which you obviously knew I was, why wasn't I placed under arrest before - - -
Q. Well, in between that time - - -
A. - - - I left me house?
Q. In between that time and now we discovered other information that, um, has given us suspicion that you may have been involved in that particular offence. Right? And hence that's why you have now been advised that you're under arrest under suspicion of committing that offence. You're not being charged and because of that you have those rights that I have given to you and that's why I have asked you whether or not you wish to exercise any of those rights. Do you understand that?
A. Yeah.
33 Green was then cautioned, and there was no further reference to his right to a reasonable opportunity to communicate with a legal practitioner. In the course of what followed he admitted to meeting the deceased at the house in Wanjeep Road, Coodanup. He gave a fairly detailed account as to what the deceased and others in the house were doing at various times. He claimed that the deceased had left the house alone at about 8.00 am on 2 May 2009.
34 At the conclusion of that first interview Green agreed to accompany the detectives back to his home. The police then seized the clothing that Green claimed to have been wearing on 2 May 2009. Before leaving, the detectives also advised him that he was 'unarrested' and that he was free to stay at home.
35 As a result of the information later obtained from Cockram, the detectives returned to Green's home at 6.50 am on 5 May 2009. He once again became an arrested suspect and was conveyed back to Mandurah Police Station.
36 Upon arrival at the police station Green was again advised of his right to a reasonable opportunity to communicate with a legal practitioner. Green indicated that he wished to exercise that right but he was unwilling to nominate any particular lawyer. The detectives then themselves attempted to telephone various lawyers on Green's behalf, but because of the time of day they had difficulty in doing so. Ultimately, a local lawyer in the Mandurah area (Mr Malcolm Ayoub) was contacted at home. The telephone was then handed to Green who obtained advice from Mr Ayoub.
37 The detectives conducted a second recorded interview with Green between 8.12 am and 8.20 am. In the course of that interview Green declined to answer any questions and told the detectives that he had been advised by his lawyer not to do so. At the conclusion of the second interview Green was informed that he was under arrest on a charge of murder.
38 Green appeared in the Magistrates Court on that charge on two occasions over the following weeks (on 6 and 20 May 2009) and was represented each time by Mr Ayoub. At all material times between appearances Green was remanded in custody at Hakea Prison.
39 On 10 June 2009 Green was visited at Hakea Prison by Detective Sergeants Jeremy Coulson and Carlos Correia (neither of whom had participated in the previous two interviews of Green). The detectives did not contact either Green or his lawyer prior to this visit, and he had no notice that they would be seeing him.
40 When the detectives arrived at Hakea Prison Green was working in the prison garden. He was told by a prison officer that he had an 'official visit' which in prison parlance meant that either police officers or his lawyer were waiting to see him. When Green asked who the official visit was from, the prison officer said 'I don't know'.
41 Green was then taken to the 'official visit centre'. I find that as he approached the centre he saw Detective Sergeants Coulson and Correia standing in the doorway of the interview room. He recognised Detective Sergeant Coulson as one of the detectives he had met on 5 May 2009.
42 The two detectives then introduced themselves to Green and told him (words to the effect) that they had Cockram's version of what had occurred and would like to give him an opportunity to tell his 'side of the story'. (According to Green he was told that it was his 'last opportunity' to do so). There are two versions of the conversations that then took place between Green and the detectives prior to the video being turned on. According to Green after he was told that 'this is your last opportunity', he asked the question of the detectives: 'Should I have a lawyer present?'. One of the detectives responded:
You don't really need a lawyer mate. We just want to ask you some questions. Do you want to know what Jeremy said? (ts 309).
43 It is Green's evidence that he then said: 'Of course I want to know what Jeremy said'. The detectives then proceeded to tell Green some of the particular things that Cockram had said which made him angry and 'pissed off'. As a result, Green 'started retaliating' and one of the detectives said: 'Before we go any further we'll start the video'.
44 The two detective sergeants deny that there was any conversation along these lines (or that Green became angry and 'wound up') and their version is consistent with Green's calm relaxed demeanour at the commencement of the video. Very soon after the start of the video there was the following exchange which, in my view, also corroborates the detectives' evidence of the unrecorded conversation:
Q. Mate, will you agree that, only a short time ago, only five minutes or so, we - we've come here and introduced ourselves and - and explained to you that we're gonna give you an opportunity, and let you know, some of the things we've learnt through the inquiry, into the death of Timothy Everington, and we'll - we said we wanted to just have a chat to you about that?
A. Yep.
Q. Have we spoke about any specifics or anything like that about the inquiry, at this stage?
A. Nah (ts 2,3).
45 For these reasons I do not accept Green's version of the conversation that occurred prior to the recorded interview.
46 Green was properly cautioned on video, and he clearly understood that caution. At an early stage of the interview there was also the following exchange, concerning the fact that Green was legally represented:
Q. Okay. Um, the other thing that we should be aware of, too, is that you've got legal representation, for the, for this particular matter, have you not?
A. Yep.
Q. Okay. That person, do you know who that is?
A. Malcolm Ayoub.
Q. Okay. Um, now, obviously we've got a lot of things there to tell you about (indistinct) Jeremy, has, um, but you also, another right you have is to have someone present with you while you're being interviewed. Say a legal friend, or seek legal advice, because uh, I suppose that's important in the scheme of things that we tell you that, even though you might not want to exercise that right. But that you do know if you wanta answer things - - -
A. Well, I mean, it's probably a wise idea to have, a lawyer or whatever present, yeah?
Q. Look, it's purely up to you, it's a right that we have to tell you. Certainly Jeremy's going down the track of saying, mate you can answer things, you don't have to answer things, we're gonna tell you, pretty much what you want, as far as you wanta know, the allegations, I would imagine, of what - - -
A. Well I do, I wanta know what Jeremy said, yeah.
DETECTIVE SERGEANT COULSON: Mate, that's what I'm gonna - that's what I'm gonna say to you, I'm gonna give you those, and you're gonna have an opportunity just to - just to say yeah, that's how it happened, or no - - -
A. All right.
Q. - - - it's not, I mean - like Carlos said, as long as you're aware of your rights, you know, that's the main thing, Greenie.
A. Yep.
Q. Um, and - and that you're happy to talk to us, mate. We - we're not gonna - we're not gonna lie to you, we're not gonna trick you - - -
A. Yeah.
Q. Mate, whatever we say to you is - is facts as we know 'em, we're not gonna make stuff up to try and get you to say anything, okay, that's not what we're about. It's really, we'll tell you the facts as we know them, and you can - you can comment one way or the other.
A. Yep.
Q. All right, or you can say that's not how it happened, this is why it happened, or that - what. So you happy to talk?
A. Yep.
Q. Yep.
A. Yep.
DETECTIVE SERGEANT [CORREIA]: And it's a question of fairness, mate, um, is it Ray you like to be called, or Greenie - - -
A. Uh, Greenie preferably, yeah.
Q. Greenie, it's - it's a question of fairness, mate. We have to be seen to be fair, and this interview that we're doing here now, uh, needs to be voluntary, and you participate in it, or else we don't get anywhere.
A. Yeah.
Q. You know, we got a lot of facts and figures that we want to put to you and all that, and I'd be thinkin' you'd wanna know, um - - -
A. For sure.
Q. And at the end of the day, if all rights are explained to you, and you know all of what's going on, it's seen to be fair at the end of the day. Uh, and fairness means, that you have an opportunity to talk to us, but as explained, you also have certain rights which you need to know, and it seems, I think we've - we've explained it all now - - -
A. Yep.
Q. But you know all of that, and if you want to exercise that, if you wanta say, hey boys I've had enough I don't wanta talk any more, whatever the case may be, you choose to do that, mate, we'll go along with the (indistinct).
A. Yep.
DETECTIVE SERGEANT COULSON: Yep?
A. Absolutely (ts 6,7)
(It should be noted that it was clear from Green's demeanour and tone of voice when giving the italicised answer above that he was in fact asking Detective Sergeant Correia a question).
47 In the course of the interview Green made significant admissions as to his involvement in the crime. Throughout the interview the detectives were very polite towards Green and he readily answered their questions. It is Green's evidence on the voir dire that his admissions during the interview were truthful (ts 350). It is also his evidence that while participating in the third interview he 'hadn't forgotten' the advice from his solicitor which had resulted in him not answering the questions during the second interview (ts 346). In this regard he was prepared to talk to the detectives without his lawyer present because he felt it was his last opportunity to 'get my version across' (ts 351).
48 At the commencement of the voir dire Cockram sought to exclude (on various grounds) the evidence of the admissions he had made in the course of the first and second recorded 'walk throughs'. However, by the end of the hearing he had abandoned these two applications. His only remaining application is to exclude evidence of his unrecorded admissions on the ground that there is no 'reasonable excuse' for the absence of a recording pursuant to s 118(3)(a) of the Act.
49 Green has made the following three applications:
1.1 the police were entitled to detain the accused for the purpose of interviewing him (s 139(2)(c) of the Act);
1.2 the first vroi is to be relied upon by the prosecution at the accused's trial ('the thing') (s 154(2)(a) and s 5(1)(d)(i));
1.3 the accused was, as soon as practicable after his arrest, entitled to the rights contained in sub-pars (a) & (b) of s 138(3) of the Act;
1.4 he was not adequately/or at all afforded either of those rights as soon as practicable after his arrest;
1.5 accordingly, the thing should be excluded pursuant to Sections 154(2)(c) & (d) of the Act;
1.6 given the non-compliance by the investigating officer with the Act, the thing should not be admitted pursuant to s 155(2) of the Act.
2.1 the police were entitled to detain the accused for the purpose of interviewing him whilst he was remanded in Hakea Prison (s 139(2)(c) of the Act);
2.2 the third vroi is to be relied upon by the prosecution at the accused's trial ('the thing') (s 154(2)(a) & s 5(1)(d)(i));
2.3 the accused was, at the time of the third vroi, entitled to the rights contained in sub-pars (a) & (b) of s 138(3) of the Act;
2.4 he was not adequately/or at all afforded either of those rights at the time of the third vroi;
2.5 accordingly, the thing should be excluded pursuant to Sections 154(2)(c) & (d) of the Act;
2.6 given the non-compliance of the investigating officer with the Act, the thing should not be admitted pursuant to s 155(2) of the Act.
3.1 The Accused's solicitor was not notified of the interview prior to it commencing;
3.2 The Accused indicated to police he wished to speak to his solicitor prior to the interview commencing;
3.3 Once the interview had commenced, the Accused indicated he wanted to speak to his solicitor before continuing.
50 At all material times Cockram was a 'suspect' (within the meaning of s 115 of the Act) for the indictable offence with which he is now charged. Accordingly, s 118 governs the admissibility of all of the admissions that he made. In this regard, s 118(3) provides that:
(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 audiovisual recording of the admission; or
(b) in the absence of an audiovisual 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.
51 Section 118(1) defines a 'reasonable excuse' for the absence of an audiovisual recording of an admission. The definition is not exhaustive and it includes four specified examples of reasonable excuse, one of which is:
(c) the suspect did not consent to an audiovisual recording being made of the admission.
52 In the present case, the State submits that when Cockram made the unrecorded admissions in the patio area of the police station, he did not consent to an audiovisual recording being made of those admissions. However, the evidence on the voir dire establishes the contrary.
53 In that regard, it is clear that the only admission that Cockram was unwilling to have recorded was his identification of Green as the other person he was with at the time of the alleged offence. In respect of all remaining admissions, Cockram expressed a willingness for them to be recorded provided that the recording did not occur in 'that room' (ie the interview room in the police station). Approximately half an hour later Cockram in fact cooperated in recording the admissions he had made, and he answered all questions that were put to him by the detectives on video.
54 It follows that item (c) in the definition of 'reasonable excuse' in s 118 only applies to the unrecorded admission by Cockram that he was with Green at the material time. Item (c) cannot apply to the other unrecorded admissions, and in my view the evidence does not disclose any other circumstances that might amount to a 'reasonable excuse' for the absence of an audiovisual recording of those other admissions. It follows that the bulk of the unrecorded admissions are inadmissible unless I decide otherwise under s 155.
55 Under s 155(2) I have a discretion to admit the unrecorded admissions if I am satisfied that the 'desirability' of admitting them outweighs the 'undesirability' of doing so. In making that decision I am required to have regard to the factors specified in s 155(3). It is readily apparent that in many (if not most) cases the factors in s 155(3) will be contradictory in their effect. Some factors would support a decision to admit the evidence, whereas others would make it undesirable to do so.
56 Accordingly, I am required to undertake a balancing exercise which in my view should be approached in a similar fashion to the exercise of the common law discretions to exclude admissions on grounds of unfairness and/or public policy (Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 74 - 75; Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, Deane J at 203 - 204). However, under s 155 the discretion is to receive evidence which is otherwise inadmissible, whereas at common law the discretion is to exclude evidence.
57 In the particular circumstances of the present case I make the following comments on the relevance and weight to be given to each of the statutory factors that I must take into account:
(a) There is an objection to the unrecorded admissions being received into evidence on the grounds of unfairness. This unfairness is said to arise from the fact that at the time that the admissions were made Cockram was out in the open on a very cold night and had not been provided with any footwear or substitute clothing which would keep him warm. These facts may well have been relevant to the application to exclude the evidence of the first 'walk through' if that application had been proceeded with. However, there is no evidence to indicate that Cockram was in any way suffering from the effects of the chill air while still at the police station, or that his lack of warm clothing affected the reliability of his admissions. In my view, no weight should be given to this objection.
(b) The offence in respect of which the evidence is relevant is very serious and considerable weight should be given to this factor.
(c),(d) The failure to record the admissions did not involve any contravention of the Act. (In this regard, police officers are not under any statutory duty to record admissions. Section 118 simply provides that in the absence of a recording the evidence is prima facie inadmissible).
(e) The express admission by Cockram that he and Green had a 'plan' to kill has considerable probative value. Nevertheless, it will be open to the jury to infer from his recorded admissions and from all of the circumstances of the case that there was such a plan.
(f) There are a number of 'other matters' that are relevant to the exercise of the statutory discretion. Firstly, the failure of the detectives to record the admissions did not involve any recklessness or deliberate intent. They were expecting Cockram to make the same admissions in the course of the videoed 'walk through', and by the end of that walk through they believed that he had done so. To the extent that there was any variation between the unrecorded admissions and the recorded admissions, it was due to oversight and the failure of the detectives to ask further questions.
A second (and, in my view, very significant) matter to be taken into account concerns the reliability of Detective Williams' handwritten notes of the unrecorded admissions. These notes were not made contemporaneously but approximately a day and a half afterwards. Even assuming that Detective Moore checked the notes shortly after they were made, both detectives were extremely tired and had been on duty for perhaps 40 hours. At the time the notes were made they believed that the unrecorded admissions were the same as those on video. In all of the circumstances, it is difficult to conclude that the notes were reliable and accurate.
58 In my view, this last factor overwhelms those factors which favour the admission of the evidence. I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of doing so. Accordingly, Cockram's application to exclude the evidence should be granted, subject to the exception that the detectives may testify that during the unrecorded conversation he named Green as the person he was with at the material times.
59 At the time of Green's first recorded interview he was both an 'arrested person' within the meaning of s 137, and an 'arrested suspect' within the meaning of s 138 of the Act. Accordingly, he was entitled to the following rights under those two sections:
(a) to any necessary medical treatment;
(b) to a reasonable degree of privacy from the mass media;
(c) to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
(d) if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
(2) In addition to the rights in section 137 an arrested suspect is entitled -
(a) to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b) to be cautioned before being interviewed as a suspect;
(c) to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d) if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
(3) The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect -
(a) inform the suspect of his or her rights under section 137(3)(c) and subsection (2)(c); and
(b) afford the suspect his or her other rights under section 137 and subsection (2).
(4) An officer may refuse an arrested suspect his or her right to communicate or to attempt to communicate with a person if the officer reasonably suspects that the communication would result in -
(a) an accomplice taking steps to avoid being charged;
(b) evidence being concealed, disturbed or fabricated; or
(c) a person's safety being endangered.
60 In the present instance Detective Marshall informed Green of his rights under s 137(3)(c) and s 138(2)(c) prior to commencement of the first interview, and I find that this was done 'as soon as practicable'. Green was once again informed of those rights at the commencement of the recorded interview, and asked whether he wished to exercise either of those rights at that point in time. Green's answer to that question was:
Well, if I'm being charged with whatever you fellows charge me with then, yeah, I probably wouldn't mind seeing a lawyer (ts 4).
61 Detective Marshall then told Green that he had the choice of contacting a lawyer if he wished. However, he was not being 'charged at this point in time' but was merely 'under arrest, under suspicion'.
62 It is submitted on behalf of Green that once he said he 'probably wouldn't mind seeing a lawyer' it was a requirement of s 138 (when properly construed) that he be afforded the means of doing so. It is also submitted that this obligation on the officer in charge of the investigation would have been met if Detective Marshall had supplied Green with a telephone and a telephone book or directory of lawyers.
63 The State, on the other hand, submits that Detective Marshall fully complied with the requirements of s 138 by simply informing Green of the existence of his right to a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. In this regard, s 138(3) did not require the officer in charge to 'afford' Green that right, because that duty only applied to the rights 'other' than those referred to in s 137(3)(c) and s 138(3)(a). The State accordingly contends that s 138(3) should be given a strict literal construction.
64 In my view, neither of these proposed constructions is correct. I consider that the key to the proper construction of s 138 can be found in the underlying reason for the differentiation in the duties imposed on the officer in charge under s 138(3).
65 When the particular nature of each of the relevant rights is examined, it is clear that the officer in charge is required to 'afford' to the suspect only those rights which are completely within his or her power to fulfil. In respect of the two rights where there is a duty to 'inform' the officer alone cannot ensure that they are ultimately fulfilled.
66 In this regard, although the entitlement to a reasonable opportunity to communicate (or to attempt to communicate) exists from the time of arrest, that opportunity can only be provided if and when the suspect desires to exercise the right. Therefore, it is necessary that the suspect express the wish to communicate (with a friend or relative, and/or with a legal practitioner) before any reasonable opportunity can be afforded.
67 It is quite sensible and logical that s 138 does not explicitly require the officer in charge to 'afford' those rights at a time when he or she is not necessarily in a position to do so. It is also logical that the officer is required to provide information on the existence of the rights which otherwise might not be known to the suspect. Without that knowledge the suspect would not be in a position to exercise the rights.
68 Although s 138 is silent as to the duty of an officer when a suspect expresses the wish to exercise one of the rights of communication, the Act clearly requires that there be a reasonable opportunity for the suspect to do so. Given that s 139(3) provides that an arrested suspect is to be detained in the company of an officer, any reasonable opportunity to communicate can only occur with the cooperation of that officer (eg by the provision of a telephone and telephone book).
69 In my view, it is significant that s 138(4) refers to a 'right to communicate or to attempt to communicate' as distinct from a 'reasonable opportunity' to do so. This conversion in the nature of the rights conferred by s 137(3)(c) and s 138(2)(c) occurs in the context of the circumstances in which an officer may 'refuse' an arrested suspect that right. Clearly a refusal can only occur in response to a request by an arrested suspect to be able to exercise the right.
70 In light of these considerations it is my opinion that when the Act (and particularly s 137, s 138 and s 139) is construed as a whole, an arrested suspect's right to communicate arises as soon as he or she expresses the wish to exercise that right. In the absence of any reasonable suspicion under s 138(4) the officer then detaining the arrested suspect is obliged to facilitate the exercise of that right.
71 In the present case, Green did not at any time (prior to or in the course of the first interview) express or indicate any desire to exercise his right to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner. At most, he simply ruminated as to whether or not he should do so. In response to what Green said in that respect, Detective Marshall offered him the choice and stated that he could contact a lawyer if he wished. However, Green did not express any such wish.
72 It follows that there was no breach of s 138(3), and that there is no basis for excluding Green's first interview under s 154 of the Act. It also follows that the first interview should be received into evidence.
73 Green's second and third applications both relate to the admissibility of his third recorded interview which took place while he was in prison. The second application relies upon the provisions of the Act, whereas the third application raises common law grounds for exclusion of the evidence.
74 The second application cannot succeed because the provisions of the Act did not apply once Green was charged with the offence and remanded in custody by the court. This is because s 125 provides that:
(2) For the purposes of this Part, a person who is under arrest ceases to be under arrest -
(a) if the person was arrested under an arrest warrant - when the person is delivered into the custody of the relevant court;
(b) if the person is arrested under section 128 -
(i) when the person is released, whether on bail or unconditionally; or
(ii) if the person is not released, when the person is delivered into the custody of a court;
75 Mr Green's third application seeks the exercise of my discretion (or discretions) to exclude the third recorded interview on grounds of public policy and unfairness. The principles governing the exercise of these common law discretions are well established and it is unnecessary that I repeat them. For present purposes I simply adopt the summary of those principles as set out in my decision in JWRL (a child) v The State of Western Australia [2009] WASC 285, [51] - [59] inclusive.
76 The facts (or alleged facts) said to support the exercise of the common law discretions are that Green's solicitor was not notified of the interview beforehand, and that Green indicated to the police both before and during the interview that he wished to speak to his solicitor prior to it commencing or continuing.
77 However, it is only the first of these facts which has been established. The detectives did not notify either Green or his solicitor that they would be attending at the prison to interview him, and I am satisfied that this was a deliberate strategy on their part. As to the other alleged facts I am not satisfied that there was a conversation prior to commencement of the interview as claimed by Green. In the course of the interview he did ask the detectives a question to the effect whether it would be wise for him to have a lawyer present. The detectives responded to the effect that it was 'purely up to' him whether or not he had a lawyer present, and reiterated that he did not have to talk to them.
78 In the end, the only facts capable of supporting the application for exclusion of the third interview on common law grounds are that the detectives knew that Green had received legal advice not to answer their questions, but arranged for the interview to take place without prior notice to Green or his solicitor. Beyond that, there was nothing in the circumstances of the interview which can support the submission that there was unfairness and/or impropriety. Green chose to participate in the interview after being fully informed of his rights. He was not subjected to any improper pressure and he answered the detectives' questions voluntarily.
79 It is also relevant that Green was 38 years of age, had previously served sentences of imprisonment, and because of his moderately long record of convictions had experience in dealing with the police. He was calm and relaxed throughout the interview and gave the impression of being fully capable of looking after his own interests. In my view, there was nothing in the circumstances of the interview which can enable it to be characterised a situation of unfair disadvantage. Furthermore, on Green's own evidence, the admissions that he made were completely reliable.
80 It is also my view that the detectives went beyond what was required of them in advising Green of his rights. They were not obliged to inform him that he was entitled to have a lawyer present. In that regard there is no common law principle which requires police officers to advise a suspect that he or she is entitled to communicate with a legal practitioner before being interrogated (Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [390]).
81 The position might well have been different if Green had requested that his lawyer be present. In Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 540 Gibbs J (with whom Mason and Jacobs JJ agreed) held that a failure to allow a solicitor to be present at an interview in such circumstances 'might be a ground for the judge to reject the confession in the exercise of his discretion if he regarded it as unfair to allow it to be used'. In Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451 Wheeler J (with whom McLure J agreed) commented on Driscoll as follows:
Since the decision in Driscoll (supra), a confession obtained after a suspect was refused access to a lawyer has been excluded in a number of cases, including R v White (1976) 13 SASR 276; R v Stafford (1976) 13 SASR 392; R v Allan [1977] Crim LR 163; R v Borsellino [1978] Qd R 507; and R v Hart [1979] Qd R 8. It is only where a person clearly exercises his legal right to refuse to answer questions, whether until he sees a lawyer or not, that the questioning should not continue and any answers to subsequent questions should generally be held inadmissible in the exercise of discretion: R v Ragen (1964) 81 WN(Pt 1) (NSW) 572 at 579; R v Ireland (No 1) [1970] SASR 416; Harris v Samuels (1973) 5 SASR 439 and R v Collins (1976) 12 SASR 501, [7].
83 The above common law principles have equal application to an interview of an accused after he is charged as they do to an interview when he is merely a suspect. In the present case there is simply no basis for the exercise of the discretion to exclude the third recorded interview on grounds of public policy or unfairness. I rule that it should be received into evidence.
84 For the purposes of preserving the integrity of the trial process, there will be an order suppressing publication of these reasons for decision until the jury has delivered its verdict in respect of each accused.
(1978) 141 CLR 54
(2007) 232 CLR 138
(1977) 137 CLR 517
(1992) 176 CLR 177
(1976) 13 SASR 276
(1976) 13 SASR 392
(1973) 5 SASR 439
(1976) 12 SASR 501