Supreme Court of WA|2009-09-23|Before: Blaxell J

JWRL (a child) -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 285 (23 September 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : JWRL (a child) -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 285

Criminal law and procedure - Evidence - Admissions by juvenile - Admissions in two separate interviews - Failure of police to notify accused of rights under s 28 of Criminal Investigation Act 2006 (WA) - Failure of police to notify 'responsible adult' before first interview - Arrest at end of first interview -Whether a failure to provide a reasonable opportunity to communicate with a legal practitioner prior to second interview - Whether admissions were voluntary - Whether evidence of admissions should be excluded in the exercise of discretion - Whether admissions inadmissible under s 154 of Criminal Investigation Act 2006 (WA)

Admissions excluded in exercise of unfairness discretion

Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257

Malgil v The State of Western Australia [2008] WASC 290

Martin v The State of Western Australia [2008] WASC 105

McDermott v The Queen (1948) 76 CLR 501

R v Beere [1965] Qd R 370

R v Williams (1992) 8 WAR 265

Vandermeer v The Queen [1988] HCA 56; (1988) 82 ALR 10

1 BLAXELL J: I am required to rule on the admissibility of two video records of interview with the accused, (JWRL), who is a juvenile aged 17 years. On 5 October 2009 he will stand trial on an indictment alleging the following offences:

(1) On 5 November 2008 at Woodvale [JWRL] murdered Steven John Rowe.

(2) In the alternative to count (1), on 31 October 2008 at Woodvale [JWRL], with intent to maim, disfigure, disable, or do some grievous bodily harm to Steven John Rowe, unlawfully did grievous bodily harm to Steven John Rowe.

2 The police first spoke to the accused about these matters at the Joondalup Police Station on 1 November 2008. The accused then participated in two video records of interview, during which he made admissions which the prosecution seek to tender in evidence against him.

3 On behalf of the accused, it is contended that those admissions were obtained in breach of s 20 of the Young Offenders Act 1994 (WA) and of s 28 and s 138 of the Criminal Investigation Act 2006 (WA). It is also said that the admissions were involuntary, and that in any event I should exercise my discretion to exclude the evidence on unfairness and public policy grounds.

4 On 31 October 2008, the accused was living with his mother (Mrs L) and his 25-year-old brother (Alex) at a house in Kingsley. He had a girlfriend who lived nearby in Woodvale. On the evening of 31 October it was Halloween night, and the accused and his girlfriend were with other friends 'trick or treating' in the Woodvale area.

5 Some time later that evening, the accused left his girlfriend's house and started walking home alone. He passed through the car park of the Woodvale Primary School where he spoke to some friends. At that time he was carrying a length of timber approximately 40 mm thick and 700 mm long which he told his friends he was carrying 'for protection'.

6 One of the friends that the accused met at the car park was Ashley Long. While he was with Long, the latter received a telephone call from Jake McEwan, who told Long that he had been assaulted and was in hiding. Long and the accused then walked towards the location where McEwan had said he was hiding. While walking there Long picked up a bottle and the accused continued to carry the length of timber.

7 While passing along a dimly lit pathway which ran beside Timberlane Park they came across Steven Rowe and Richard Corson. Although all four were wearing Halloween costumes, the accused and Long recognised Steven Rowe because they had gone to school with him. After a short conversation, Rowe grabbed Long by the shirt and accused him of hitting one of his friends with a brick earlier in the year. Long denied this, grabbed hold of Rowe's shirt, and they both started pushing and shoving each other. Corson and the accused did not become involved in the pushing and shoving. However, while this was happening, the accused came up behind Rowe and struck him forcefully to the right rear of the head with the length of timber. Long and the accused then ran away.

8 Rowe was taken to hospital, but did not recover from his injuries, and was pronounced dead on 5 November 2008. The post-mortem examination established that the death had been caused by blunt force trauma to the head.

9 On 1 November 2008, the accused was interviewed by Detective Senior Constable Andrew Reeder and Detective First Class Constable James Merritt at Joondalup Police Station. There were two interviews, and during the first of these, the accused admitted that he had been at the scene of the incident near Timberlane Park, and that he had hit Steven Rowe to the back of the head with a 'stick' or 'bit of wood'. He also demonstrated on video the forceful nature of the blow with the stick. During the second interview he identified the stick from a forensic photograph, and also identified the clothes that he had been wearing the previous night.

The circumstances surrounding the interviews

10 At approximately 10.15 am on 1 November 2008, detectives Reeder and Merritt went to the accused's home for the purpose of arranging a video record of interview. The accused was not there, and they spoke to his older brother Alex. Before departing they asked Alex to telephone them when the accused returned home.

11 The detectives then went to other locations looking for the accused. Not long afterwards they received a telephone call from Alex to say that the accused had arrived home. The detectives then went back to his house arriving at about 11.04 am.

12 It is not in issue that Mrs L was not home at any time that morning, and that the accused was having a shower when the detectives arrived the second time. While the detectives were waiting for the accused to finish his shower they had a conversation with Alex in the course of which the latter asked 'Is [the accused] going to be arrested'? Detective Merritt responded by outlining to Alex 'the Section 28 rights', namely that the accused was not being arrested, that he was being asked to accompany the detectives back to the police station, that he did not have to come, and that he would be free to leave at any time (ts 117). (It is not clear from the evidence whether Detective Merritt also told Alex that the accused would only be free to leave if not under arrest.)

13 The detectives have testified that they were aware at that time that the accused was a juvenile aged 17, and that they needed to contact a 'responsible adult' (as defined by the Young Offenders Act). They were also aware that the 'COPS' manual issued by the Commissioner of Police required that an 'interview friend' be present at the proposed interview. When Detective Reeder asked if it was possible to contact the accused's mother, Alex said 'Look, I don't want to worry mum' and offered to take her place at the interview and act as his brother's legal guardian. Detective Merritt then made the following note in his 'day book', which Alex signed:

I, [Alex], give permission for the police to interview [the accused]. Advised he is not under arrest, but we are free to leave at any time. I am 25 years old and have instructed police not to call my mother at this stage.

14 Detective Reeder is uncertain whether the accused was in the room at the time that Alex signed this note in the day book, but Detective Merritt's evidence makes it clear that he was not there (ts 117, 175). When the accused did appear, there was a discussion in the course of which he readily agreed to go to the police station and said words to the effect:

I want to tell you my version of what happened (ts 102, 118).

15 There is an issue whether Detective Reeder said during that discussion words to the effect:

It's better if you come to the station with us and talk to us.

16 Detective Reeder denies saying this whereas Detective Merritt agrees that it was said (ts 161, 175 - 176).

17 The two detectives then left the room and went outside onto a patio to give the accused and his brother some privacy. According to the two detectives, Alex came out onto the patio shortly afterwards holding a mobile or portable phone which he handed to Detective Reeder. It is Detective Reeder's evidence that he then spoke to Mrs L who was on the other end of the line. He explained to her what was happening and she said that she would not be available for a couple of hours. Detective Reeder then asked:

Do you mind us interviewing your son in the presence of Alex?

and she indicated that she did not have a problem with that (ts 33, - 34).

18 Mrs L was the only witness called by the defence on the present voir dire. It is her evidence that on Saturday morning 1 November 2008 she was working in her regular employment at a jewellery store. She did not have a telephone conversation with any detective that morning, and had no contact of any kind with Detective Reeder before meeting him at Joondalup Police Station after 2.00 pm that afternoon.

19 The detectives departed from the accused's house at 11.15 am. Before leaving there was a discussion with the accused and Alex as to whether they would come in the detectives' car or would travel separately. It was agreed that they would follow in their own car and then meet the two detectives at the police station. The two vehicles did not travel in convoy, but the accused and Alex arrived at the police station very shortly after the detectives.

20 Soon after their arrival at the police station, the accused and Alex were taken by Detective Merritt to an interview room. The detectives then conducted the first interview with the accused (in the presence of Alex) between 11.36 am and 12.08 pm. At the commencement of the interview Detective Reeder confirmed that the accused and his brother had voluntarily attended the police station and proceeded to refer to some of the rights contained in s 137 and s 138 of the Criminal Investigation Act (even though the accused was not then under arrest). Detective Reeder also administered a proper caution to the accused and took care to ensure that he understood that caution.

21 Throughout the interview the detectives were very polite towards the accused who appeared to be very much at ease. There were no leading questions of any significance and all questions were readily answered by the accused. It is relevant to note that at an early stage of the interview Alex (on three occasions) tried to prompt the accused's answers to particular questions (in an effort to have him answer them more fully). He ceased doing this when Detective Reeder asked him to desist.

22 At the end of the first interview the accused was told that he was being arrested on a charge of assault. From that point on he was in custody but he was not taken to a cell. He was instead placed in another room where he was kept under observation by Detective Reeder through an open doorway. He remained there until the commencement of the second interview, and during this period appropriate steps were taken to provide him with food and drink.

23 Alex did not remain at the police station, but left with Detective Merritt and assisted him to locate the Halloween clothes that the accused had worn the previous night. These clothes were located at the house of a friend of the accused, and Alex then returned home.

24 It is Detective Reeder's evidence that after Detective Merritt and Alex departed the police station he had a telephone conversation with Mrs L. He is not certain who made the telephone call, but believes it was Mrs L (ts 80). During that telephone conversation he 'outlined what had happened so far'. Mrs L told him that 'she wasn't that far away' and would be at the police station in about half an hour or 40 minutes. Detective Reeder then said words to the effect that 'my partner and Alex aren't here currently but I'm happy to wait here for you' (ts 40).

25 It is Mrs L's evidence that she did not have any telephone conversation at all with Detective Reeder that day. According to Mrs L she first became aware of the accused's situation when she received a telephone call from Alex while at work. It was after her lunch break while she was serving a customer and she had to excuse herself when she was handed a phone by a fellow employee and told that it was an urgent call. When she took the phone Alex told her 'not to panic' but that she 'had to get to Joondalup Police Station straightaway'. Alex then informed her as to the accused's situation and also said that he had 'been with [the accused] at the station as his legal guardian'. Mrs L's evidence is to the effect that she was angry and upset with Alex when he told her this (ts 183 - 184, 202).

26 Mrs L was on duty at the jewellery shop until 5.15 pm, but she immediately went to her employer and said that she had to leave because of a family crisis. It took her approximately 15 minutes to drive to the Joondalup Police Station. Upon arrival she did not know who to ask for, but simply told the reception that she was '[the acused's] mum' (ts 185).

27 Detective Reeder then came down from the upper level of the station to meet Mrs L. He introduced himself and explained 'where the inquiry was' at that stage (ts 42). He then took her upstairs to the room where the accused was sitting and left her alone with her son.

28 At some stage (either before or after leaving Mrs L in the room) Detective Reeder indicated that he wished to interview the accused once again. The witnesses differ as to how Mrs L responded to this request. According to Mrs L:

I said I didn't want [the accused] to answer any more questions and I thought he needed a lawyer (ts 188).

I said at least three times while I was there that I didn't want [the accused] to answer questions (ts 210).

29 However, it is Detective Reeder's evidence that:

She didn't have any negativity towards a second interview or talk to me about a lawyer (ts 83).

At no time did I understand or interpret in any way anything that she said to indicate that she did not want [the accused] to answer any questions before it got on video (ts 92).

30 Detective Merritt (who by that time had returned to the police station) also denies that Mrs L said that she did not want her son to be further questioned. It is his evidence that she agreed to the second interview (ts 138, 171).

31 It is not in issue that at approximately 2.40 pm, Detective Merritt provided Mrs L with a Yellow Pages telephone book (open at the page listing 'Legal Practitioners') and said that she could contact a lawyer if she wanted to. Mrs L was then taken to another room which had a telephone and was left on her own for approximately 15 minutes. She did not know any lawyers but looked in the book and picked out three names. When she called these numbers she was only able to receive recorded messages (it being a Saturday afternoon). Mrs L then left the room, and it is not an issue that there was a conversation along the following lines:

DETECTIVE REEDER: Any luck?

[MRS L]: No I couldn't get hold of anybody and I don't know what to do next.

DETECTIVE REEDER: You would be lucky to get a lawyer on a weekend unless you're a drug dealer with a thousand dollars (ts 208, 85, 136, 171).

32 It is Detective Merritt's evidence that Mrs L 'was a bit upset about not finding a lawyer' (ts 171).

33 Mrs L was present during the second interview which commenced at 3.42 pm and concluded at 3.51 pm. Soon after the interview commenced, Detective Reeder advised the accused of his rights under the Criminal Investigation Act including that 'you can make a phone call to the lawyer, or attempt to make a phone call to the lawyer'. Detective Reeder also cautioned the accused again and ensured that he understood that caution. Later in the interview, immediately after the accused had identified the photograph of the stick, his mother said:

How do you know? I don't know, I don't really want you to say anything.

34 Detective Reeder then asked the accused to identify a photograph of the footpath in the vicinity of where the incident had occurred. As the accused was answering that question his mother said:

I don't want you to say anything else about that.

35 In the exchange that followed, Detective Reeder said words to the effect that Mrs L had been invited into the interview 'to make sure that we don't do anything untoward to him' and that the detectives were 'burdened with the responsibility' of pursuing the questions. Not long afterwards, when the accused was asked to identify a photograph of the area where the incident had occurred, Mrs L said to him:

36 The interview then ceased, and Detective Reeder stated that the accused would be photographed and have his DNA taken. He invited Mrs L to make any comments or to ask any questions that she wished, but she declined to do so. Detective Reeder also asked:

You've got no problems with the way you've been treated?---

37 It is relevant to note that the accused has had no contact with his father since the age of 8. Accordingly, Mrs L is the only 'responsible adult' in his family. The accused completed Year 11 and then ceased attending school in early 2008. At the date of the interviews he was employed as an assistant at a fast-food outlet. He had turned 17 years of age two days prior to being interviewed by the police.

38 The evidence on the voir dire has come from only three witnesses, namely Detective Reeder, Detective Merritt and Mrs L. The substantial issues on which these witnesses differ are the following:

- whether or not Detective Reeder said to the accused (while at the accused's house) words to the effect that it would be 'better' for him to come to the police station;

- whether there was a telephone conversation between Mrs L and Detective Reeder while the latter was still at the house;

- whether there was a further telephone conversation between Mrs L and Detective Reeder before she visited the police station;

- whether Mrs L said to the detectives after arriving at the police station that she did not want the accused to be further questioned and that she thought he needed a lawyer.

39 The detectives were extensively cross-examined as to the circumstances in which they came to prepare the signed statements of the evidence to be given in the hearing before me. In this regard, it is highly relevant that Detective Merritt was transferred from Joondalup Police Station to another unit (only five days after the interviews with the accused) and left behind his 'day book' containing contemporaneous notes of the events involving the accused. Approximately one month later the day book went missing as a result of a fire at the Joondalup Police Station, and it was not found again until 21 August 2009 (only five days before the hearing). In the meantime the detectives had prepared their statements without the benefit of the information in the day book. Detective Merritt had the further impediment that as a result of his transfer (and because of police protocols) he was not permitted to have access to the running sheet of the investigation while preparing his statement.

40 It was against this background that there were email and telephone exchanges between the two detectives in the course of which they mutually agreed on the contents of their statements. These exchanges were initiated by Detective Reeder when he sent to Detective Merritt a draft statement containing his 'initial thoughts' (ts 62). Detective Merritt relied upon this draft to refresh his memory of the relevant events (which had occurred some nine months beforehand). Detective Merritt then prepared a draft of his own statement and sent it to Detective Reeder as an attachment to the following email:

Just sending a draft of my statement.

Can you look at line 17 and line 19 for me.

I believe I gave him his rights and I would like to ask you to look at my journal to reflect this, please.

If I did not record this I am sure I gave him his rights.

And please check line 19 what did you tell him at the end of the vid.

41 On 30 July 2009, Detective Reeder responded to Detective Merritt with the following email:

I reviewed the Video interview which I should have done before I wrote my statement. Guess what he attended the station with his brother voluntarily after been told we wanted to talk to him about an assault. They both agreed to attend and at the beginning of the interview I supplied the CIA rights twice and the caution on Video.

So I suggest that we say in paragraph 16 we called his mother she stated she was happy for them to attend.

After the phone call it was agreed that [the accused] and his brother Alex attend the station in Alex's car.

Once they attended we went to the Video Interview room started Video Alex and [the accused] stated they voluntarily attended station to provide his version of an assault.

So them stating they are there voluntarily do we need to say we issued them rights at the house, I know we did, and you recorded stuff in your work journal which I cannot locate at this point.

What do you think.

42 It should be noted that the draft statements referred to in these emails have not been produced. In light of the issues to be determined, the second paragraph of Detective Reeder's email is quite startling. However, it was not specifically put to the detective, and I do not find that his suggestion to Detective Merritt was an attempt to fabricate the evidence. Nevertheless it does show that the detectives were having considerable trouble in remembering what occurred.

43 It is Detective Merritt's evidence that at the time of these emails he was uncertain who had given the accused his 'section 28 rights' (ts 147, 154). He also had some uncertainties as to the circumstances of Detective Reeder's first telephone conversation with Mrs L (ts 148 - 149, 154 - 155). Notwithstanding these uncertainties, Detective Merritt's final statement included the following paragraph:

As a result of a conversation Detective Senior Constable Reeder and I had with Alex, we called the mother of the accused, [Mrs L]. I clearly heard Detective Reeder explain on the phone at this stage of the investigation the accused, was not under arrest but was requested at this stage to assist with the investigation.

44 Detective Merritt has conceded during cross-examination that the contents of this paragraph were wrong, and that it was an 'incorrect entry' in his statement (ts 177). In this regard, the evidence-in-chief of both detectives is that they did not call Mrs L, but that she was already on the end of the line when Alex handed Detective Reeder a mobile phone. It is also Detective Merritt's evidence that he did not overhear the telephone conversation between Detective Reeder and Mrs L. His explanation for these errors is that he included the paragraph in his statement 'because it was in Detective Reeder's statement' (ts 164).

45 It is self-evident from the emails exchanged between the detectives that at that time they did not have reliable recollections of some of the relevant circumstances. It is also clear from Detective Reeder's email of 30 July 2009 and what followed that there was a considerable element of reconstruction in their statements. Furthermore, when Detective Merritt's day book came to light, it contained no reference to any telephone conversations with Mrs L. Obviously, these are significant factors affecting the reliability of the detectives' evidence.

46 Mrs L impressed me as an honest witness who may nevertheless be mistaken about some details as a result of the stress she was under on the afternoon on 1 November 2008. However, she could not be mistaken about whether or not she had telephone conversations with Detective Reeder prior to meeting him at the police station, and whether or not she said that she did not want her son further questioned. Accordingly, I accept the truth and accuracy of her evidence as to these matters.

47 It is a fundamental principle of our criminal justice system that a self-incriminatory statement or admission by an accused is only admissible in evidence if it is made voluntary. In R v Lee [1950] HCA 25; (1950) 82 CLR 133, 144, the High Court held that the 'two imperative rules of the common law regarding confessional statements' (as stated by Dixon J in McDermott v The Queen (1948) 76 CLR 501, 511) were:

(1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and

(2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.

48 The underlying rationale for these rules is not that an involuntary statement is presumed to be untrue, but that there is a danger it might be unreliable (R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [74]).

49 For a confessional statement to be admissible, the prosecution must prove on the balance of probabilities that it was made voluntarily (Lee (144); Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572 - 573). If there is nothing to suggest that a confession was involuntary, it is presumed to have been made voluntarily, and the prosecution's onus is discharged (Hough v Ah Sam (1912) 15 CLR 452, 457; R v Williams (1992) 8 WAR 265, 271).

50 Whenever the voluntariness of a confession is an issue, the ultimate question is whether the will of the accused was overborne, in the sense that it was not made in the exercise of his or her own free choice. In Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257, Brennan J held (at 307):

[T]he admissibility of the confessions as a matter of law (as distinct from discretion ... is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focusing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused ...

An assessment must be made of the effect of the verbal and non-verbal conduct of the police officer (or other person in authority) upon the will of the confessionalist in the circumstances in which the confession is made. If the evidence does not show that the confession was made in the exercise of a free choice by the confessionalist to make it, the confession is inadmissible. As the means by which a confessionalist's will can be overborne are various, one cannot postulate in advance of particular cases the extrinsic circumstances which will necessarily result in the exclusion of a confession as involuntary, or which will inevitably prove insufficient to found a challenge to its voluntary character. When all the facts are ascertained then 'in a common sense way' the court must find whether or not the will of the particular confessionalist was overborne.

51 Once the prosecution establishes that a confession was made voluntarily, it is prima facie admissible as a matter of law. The onus is then on the accused to show on the balance of probabilities that there is a 'substantial reason' why the confession should be excluded in the exercise of the court's discretion (Lee (152 - 154)).

52 There are three possible bases on which a court may exercise its discretion to reject a voluntary confession. These are that it is unfair to the accused to admit the statement, that there are considerations of public policy which make such admission unacceptable, or that the prejudicial effect of the statement outweighs its probative value (Swaffield [51] - [52]). Depending upon the circumstances of a particular case, these discretions may well overlap (Swaffield [54], [74]; R v Pollard [1992] HCA 69; (1992) 176 CLR 177, 201).

53 The issue on which the exercise of the unfairness discretion turns is not whether the police have acted unfairly, but whether it would be unfair to the accused to use his statement against him. Unfairness, in this sense, concerns the accused's right to a fair trial, a right which may be jeopardised if the statement was obtained in circumstances which could affect the reliability of the statement (Lee (154); Vandermeer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26).

54 The issue of reliability is an important aspect of the unfairness discretion, but it is not determinative, and there can be cases where an otherwise reliable account will be excluded because of other factors. As the discretion exists to protect the rights and privileges of the accused, it may be exercised whenever there is some procedural or substantive unfairness which might jeopardise the right of the accused to a fair trial (Swaffield [77]; Williams (273 - 274)). However, if a confession is found to be reliable, the accused bears a high onus of establishing that there is unfairness which justifies the exercise of the discretion (Williams (274)).

55 Relevant to the circumstances of the present case, unfairness can arise from the fact that the confession might never have been made, or might have been made in a different form, if the police investigation had been conducted properly (Vandermeer (20); Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508, 513; Swaffield [54], [71]).

56 The discretion to exclude a confessional statement on public policy grounds takes into account additional factors, and is a particular application of a wider and more general discretion in respect of unlawfully obtained evidence (Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75; Pollard (201).

57 In R v Ireland [1970] HCA 21; (1970) 126 CLR 321, Barwick CJ held (at 334 - 335):

Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

58 Accordingly, unfairness to an individual accused is but one factor in the exercise of the discretion to exclude a confession on public policy grounds (Bunning v Cross (74- 75)). As was stated by Deane J in Pollard (at 202):

[T]he principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence.

59 Deane J further observed (Pollard (203)) that in the process of balancing the conflicting public policy considerations:

The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an 'isolated and merely accidental non-compliance' (Bunning v Cross (1978) 141 CLR, at p 78; 19 ALR at 661) with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice.

(See also Swaffield [91].)

60 In the present case, a number of statutory provisions are relevant to the exercise of either discretion (whether on unfairness or public policy grounds). Firstly there are the special requirements that apply to police investigations involving juveniles under the Young Offenders Act 1994 (WA). One of the 'main objectives' (in s 6) of that Act is to ensure that the legal rights of young persons involved with the criminal justice system are observed. Section 7 sets out general principles that 'are to be observed in performing functions under the Act'. One of those principles is that:

(a) there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences.

61 Consistent with that general principle, s 20 provides that:

(1) Before a member of the Police Force asks a young person who has been apprehended for the commission of an offence questions about -

(a) that offence; or

(b) any other offence that has been, or is suspected to have been committed,

the member of the Police Force is to ensure that a responsible adult has received notice of the intention to question the young person.

...

(3) When a member of the Police Force charges a young person who has been apprehended for the commission of an offence with the commission of that or any other offence, if a responsible adult has not already been given notice of the intention to lay the charge the member of the Police Force is to ensure that a responsible adult is given notice of the charge as soon as is reasonably practicable.

...

(5) The notice is not required to be given if -

(a) after reasonable enquiry, neither the whereabouts nor the address of a responsible adult can be ascertained.

62 The term 'responsible adult' is defined in s 3 to mean 'a parent, guardian, or other person having responsibility for the day to day care of the young person ... '.

63 In respect of criminal investigations generally the Criminal Investigation Act 2006 imposes further obligations on police officers. In this regard s 28 provides that:

(1) An officer who requests a person who is not in lawful custody to accompany the officer or another officer for the purposes of assisting in the investigation of an offence must inform the person and be satisfied that the person understands -

(a) that he or she is not under arrest;

(b) that he or she does not have to accompany the officer concerned; and

(c) that if he or she accompanies the officer concerned, he or she is free to leave at any time unless he or she is then under arrest.

64 In the present case it is common ground that when the accused was arrested at the end of the first interview, he became an 'arrested suspect' within the meaning of s 137 of the Criminal Investigation Act. Accordingly the following provisions then applied:

...

(3) The arrested person is entitled -

(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 ...

...

(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; ...

(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).

65 The Criminal Investigation Act also provides for the exclusion of evidence that is improperly obtained in certain circumstances (subject however to a statutory discretion to allow the evidence to be received). The relevant provisions are as follows:

...

(2) If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -

(a) a thing relevant to an offence is seized or obtained; and

(b) a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,

any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -

(c) the person does not object to the admission of the evidence; or

(d) the court decides otherwise under section 155; ...

Inadmissible evidence, court may allow admission

...

(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.

66 The defence submits that s 154 applies to the second video record of interview and that I should refuse to exercise the statutory discretion under s 155 to allow its admission into evidence. Authority for these propositions can be found in Martin v The State of Western Australia [2008] WASC 105, where McKechnie J refused admission of a video record of interview after taking into account the matters in s 155(3). However, in Malgil v The State of Western Australia [2008] WASC 290, Murray J (at [20]) declined to enter into a similar exercise under s 155 because of his Honour's view that 'these sections have nothing to do with the admission into evidence of a confessional statement'.

67 This difference of opinion is understandable given the awkward language in s 154, and in the extended definition of 'thing relevant to an offence' in s 5. That definition includes the following provisions:

(1) For the purposes of this Act, a thing is a thing relevant to an offence if it is reasonably suspected that -

...

(d) the thing is or may afford -

(i) evidence relevant to proving the commission of an offence or who committed an offence;

...

(2) For the purposes of this Act, a thing relevant to an offence may be material or non material, animate (other than human) or inanimate.

Example: the distance between 2 things or the visibility from a window are non material things.

68 Quite obviously, the video record of interview of the accused (in the form of a DVD disc) is a 'thing' which in terms of s 154 was 'obtained' by the detectives in the purported exercise of a power conferred by the Act. In this regard, s 139(2) provides that a police officer may detain an 'arrested suspect' for the purposes of interview.

69 It follows that s 154 and s 155 will apply to the present case if at the time of the police obtaining the video record of interview it was 'reasonably suspected' that it may afford evidence relevant to proving the commission of an offence. Self-evidently the contents of the video did afford evidence that was relevant in that respect and any suspicion that it did so was well and truly reasonable.

70 To the extent that there is difficulty in construing these provisions, it is important to note that the Act conferred significant new powers on police officers including the power to interview 'arrested suspects'. This being so, it seems unlikely that Parliament intended that s 154 would have such a restricted operation that it would not apply to all of the concurrent obligations enacted along with those new powers. For all of these reasons, I consider that s 154 and s 155 apply in the circumstances of the present case.

Whether the video interviews were voluntary

71 This is not a case where there is any suggestion that the accused's will was overborne by duress, intimidation, persistent importunity or sustained or undue insistence or pressure. As I have already observed, the detectives were very polite towards the accused, and within the confines of each interview, their behaviour can be fairly described as exemplary.

72 Nevertheless, it is not only the conduct of the detectives in the course of the interviews that is relevant. I am also required to examine their conduct prior to each interview to determine whether or not this may have impacted upon the will of the accused.

73 In the period prior to the first interview, the relevant conduct was the giving of 'section 28 rights' to the accused's brother (rather than to the accused), Detective Reeder allegedly telling the accused it would be 'better' that he go to the police station, and the failure to give notice to a 'responsible adult' prior to interviewing the accused.

74 In respect of the first issue, the detectives were only obliged to inform the accused of the matters specified in s 28 if they requested him to 'accompany' them to the police station. The evidence establishes that Detective Reeder did in fact request the accused to accompany him to the police station, and it was only as a result of a subsequent discussion that a decision was made to travel in two cars. Accordingly the detectives were obliged at the time of that request to inform the accused in terms of s 28.

75 In any event, I consider that the accused and his brother did in fact 'accompany' the detectives to the police station. It matters not that the two vehicles did not travel in convoy, because there was a common understanding that all involved would depart the house and arrive at the police station at more or less the same time. The obligation on Detective Reeder was to inform the accused and be satisfied that he understood the matters specified in s 28. As neither of these things occurred, there was a failure to comply with the provision.

76 As to the second issue, I accept Detective Merritt's evidence that he heard Detective Reeder say to the accused that it would be 'better' if the latter went to the police station. The defence contends that this amounted to an inducement and that on the authority of R v Beere [1965] Qd R 370, the prosecution has failed to prove that the first interview was voluntary.

77 However, the circumstances in Beere were very different to those in the present case. There, the detective had said to the accused that it would be 'better' that she tell the truth, because that way she 'probably would not get into very much trouble'. This amounted to an implication that some benefit would flow to the accused if she did what the detective said, and obviously was a very real inducement. In the present case no indication given to the accused that some benefit would accrue to him if he went to the police station. In my opinion, what Detective Reeder said did not constitute an inducement.

78 With regard to the last issue, I find that there were no telephone conversations between Detective Reeder and Mrs L prior to her arrival at the police station at approximately 2.00 pm on 1 November 2008. I further find that the detectives decided not to contact Mrs L because they were asked not to do so by her oldest son Alex. Alex offered to take her place as a responsible adult during the interview and the detectives accepted that offer. As Alex was not a 'responsible adult' there was a failure to comply with the requirements of s 20 of the Young Offenders Act.

79 In my view, if the detectives had complied with s 20 and notified Mrs L of their intention to question the accused, it is probable that events would have taken a very different course. Nevertheless, it is also my view that this failure did not have any direct impact on the will of the accused. The fact that he was a willing participant was demonstrated in the second interview when he continued to answer questions despite being asked not to do so by his mother.

80 With regard to the conduct of the detectives between the interviews, I accept Mrs L's evidence that she told them that she 'didn't want [the accused] to answer any more questions and I thought he needed a lawyer'. The detectives did not pay heed to this request other than to offer Mrs L the Yellow Pages telephone directory along with the use of a telephone to contact a lawyer. When she indicated that she had been unable to contact a lawyer they proceeded with the second interview regardless of her wishes.

81 In taking this course, the detectives also failed to comply with s 138(2)(c) of the Criminal Investigation Act, which required that they provide the accused with a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. The detectives were required to comply with this obligation from the time of the accused's arrest at approximately 12.08 pm, and they had been obliged to do so 'as soon as practicable'. The evidence shows that Detective Reeder was aware that there were difficulties in contacting a lawyer on a Saturday afternoon, and in my opinion the opportunity that he provided to the accused via his mother cannot be described as a 'reasonable' one. Nevertheless, I do not consider that this failure had any direct impact on the will of the accused.

82 At the commencement of each interview the accused was appropriately cautioned, and Detective Reeder took care to ensure that he understood that caution. I am satisfied that the accused understood that he had a free choice to speak or remain silent, and that he chose to voluntarily answer all of the questions that were put to him. The accused appeared to be fresh and alert throughout each interview, and he was very willing (if not eager) to answer all of the questions put to him. I am satisfied that he participated in each interview voluntarily.

Whether the confessional evidence should be excluded in the exercise of the court's discretion

83 Although the conduct of the detectives did not affect the reliability of the admissions, it had a significant impact on the course of events including the interviews. If the detectives had complied with s 20 of the Young Offenders Act, Mrs L would have been notified at approximately 11.30 am that they intended to question the accused. The evidence shows that she is a caring mother, and I am satisfied that she would have immediately ceased work and come to the aid of her son.

84 It is also probable that Mrs L would have taken the same view that she in fact expressed later in the day, namely that her son should not answer any questions until he had spoken to a lawyer. In these circumstances, the detectives would only have been able to proceed with the interview if they effected an arrest under s 128, and informed the accused of his rights under s 138 of the Criminal Investigation Act.

85 The likely course of subsequent events is a matter of speculation. However, it may well be that Mrs L would have had better prospects of contacting a lawyer on the Saturday morning. She also would have had more time with her son and a greater opportunity to impress on him her view that he should not answer any questions until he had seen a lawyer.

86 Accordingly, it is reasonable to conclude that if the detectives had complied with s 20, the accused might not have made any admissions at all, or he might not have made them in the way he did in the first interview. The fact that the detectives also failed to inform the accused and to be satisfied that he understood his rights under s 28 of the Criminal Investigation Act, adds weight to that conclusion.

87 In these circumstances, the accused did not receive the 'fair treatment' mandated by s 7 of the Young Offenders Act. Although he was 17 years old (having reached that age two days previously) he did not have the maturity and knowledge of an adult. The only 'responsible adult' in his life was his mother, and he was entitled to her guidance and advice before agreeing to answer questions in the interview. The conduct of the detectives deprived the accused of the opportunity of receiving that advice and guidance, and resulted in manifest unfairness.

88 As I have already observed, the detectives also failed to comply with s 138(3)(c) of the Criminal Investigation Act. Detective Reeder was aware that Mrs L would have difficulty in contacting a lawyer on the weekend, and it was not enough to provide her with the Yellow Pages along with the opportunity of making fruitless calls on the telephone. There was no urgency in proceeding with the second interview, and it could easily have been deferred until the Monday morning when a lawyer would have been readily available. In these circumstances, the accused was not afforded a reasonable opportunity to communicate with a legal practitioner, which also caused manifest unfairness.

89 With regard to the characterisation of the detectives' conduct, it was never put to them in cross-examination, and I do not find that they deliberately set out to deprive the accused of his rights. I find that their conduct was the result of an insufficient regard to their statutory obligations, and a 'near enough is good enough' approach to the rights of the accused.

90 The accused faces a serious charge, and in my opinion the factors governing the public policy discretion are fairly evenly balanced. However, for all of the above reasons I consider that the accused will not receive a fair trial if the video records of interview are admitted into evidence. There is ample basis for the exercise of the unfairness discretion, and I rule that they should be excluded. The second video record of interview is also inadmissible pursuant to s 154 of the Criminal Investigation Act, but in the present circumstances there is no point in undertaking the exercise contemplated by s 155.

Investigation Act 2006

JWRL (a child) -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 285 (23 September 2009)

At a glance

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Judgment (167 paragraphs)

JWRL (a child) -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 285 (23 September 2009)

Legislation Cited (2)

Cases Cited (12)