Court of Appeal (WA)|2004-07-02|Before: Malcolm CJ

Mackenzie v The Queen [2004] WASCA 146 (2 July 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MACKENZIE -v- THE QUEEN [2004] WASCA 146

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Evidence - Confessions - Arrest and questioning - Whether detention unlawful - Discretion to exclude

Evidence - Confessions - Request for a lawyer - Unfairness - Voluntariness

Evidence - Confessions - Persistent importunity - Discretion to exclude

Hoy & Ors v The Queen [2002] WASCA 275

Kenneally v The Queen, unreported; SCt of WA; Library No 980284; 27 May 1998

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

1 MALCOLM CJ: This was an appeal against conviction and an application for leave to appeal against sentence. As to the appeal against conviction, I agree generally with the reasons for judgment to be published by Wheeler J. In particular, I am in agreement with the conclusion reached by her Honour in respect of the joint trial of the three counts on the indictment.

2 I also agree with her Honour regarding the admissibility of the video record of interview and the refusal by the learned trial Judge to sever counts (1) and (2) from count (3) of the indictment so that there be separate trials. I only wish to add some comments of my own with respect to ground 1 in relation to the admissibility of the video record of interview.

3 In Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, Gibbs, Mason, Murphy and Jacobs JJ held that evidence that a police officer had refused to allow a solicitor to be present at an interview with a suspect was relevant to the question whether admissions had been made, as alleged, and was admissible. In R v Ireland [1970] HCA 21; (1970) 126 CLR 321, evidence objected to by counsel for the accused was admitted at the trial of questions and answers made at the end of a long investigation by police officers, after the accused had refused to answer further questions because he was tired.

4 The background of that case was that the female licensee of a hotel had been killed in the kitchen of the hotel having been stabbed by one or more knives. Footprints of a man's shoes were found near the body of the deceased. One print was found in relation to the body where an assailant might have stood to stab the deceased in the back where, according to medical evidence, the first stabbing of the victim's body had occurred. As Barwick CJ (with whom McTiernan, Windeyer, Owen and Walsh JJ agreed) said at 325:

"Both by clear and conclusive evidence of identification by a police officer and by admission of the respondent the footprints were made by his shoes when worn by him that evening. Also there was found near the body a partly consumed cigarette of a kind which the respondent usually smoked."

5 When questioned by the police, the respondent denied being at the hotel on the relevant night. He was interrogated for some time. At a point during the interrogation, he was given the customary warning that he need not answer any questions. Towards midnight and after the warning had been given, the questioning reached a stage when the accused said he did not wish to answer any more questions because he was tired. The police officer, however, persisted with a series of questions to which the accused responded, "I don't wish to answer". Finally, the officer put to the accused his opinion regarding the facts, stating that he would be arrested and charged with the murder of the victim and asked him whether he had anything to say in answer to the charge. The accused said, "No comment".

6 In R v Ireland (supra) at 333, Barwick CJ referred to R v Evans [1962] SASR 303; Lenthall v Curran [1933] SASR 248 and R v Bailey [1958] SASR 301 in which it had been decided that it was improper for police to persist in questioning a suspect after an indication that the suspect did not wish to answer any more questions. Those cases were ones in which police persisted with their questioning, but had not obtained any statement or admission. Evidence of the questioning had been excluded in the exercise of discretion. As Barwick CJ said in R v Ireland at 333:

"... in the exercise of what is now a clearly established judicial discretion to exclude evidence otherwise admissible because of the unlawfulness or unfairness of the manner of its discovery or creation."

7 It was in the exercise of this discretion that it was concluded by Barwick CJ at 335 that there was sufficient ground in the admission of the evidence of the questioning, and the failure to exercise the discretion whether or not to exclude the evidence of the photographs of the respondent's hands and the medical evidence, to warrant an order for a new trial. 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.

8 In the present case, as Wheeler J has made clear, the only submission made on behalf of the appellant at the trial was to exclude the evidence of

the video-recorded interview in the exercise of discretion. As Wheeler J has pointed out, the appellant did not give evidence on the voir dire, but only gave evidence at the trial proper. His evidence has been detailed by Wheeler J.

9 Suffice it to say that I am in complete agreement with the reasons of Wheeler J in relation to the request by the appellant for a lawyer, the issue of unlawful detention, the issue of arrest and the requirement to take the appellant before a Justice as soon as practicable as well as the fact that the police did not do so in the circumstances of this case. While the detention of the appellant was unlawful, so far as some portion of the second part of the interview was concerned, I do not consider that this required the exclusion from the evidence of the whole or any part of the video-recorded interview as a matter of discretion.

10 I agree with the reasons and conclusions expressed by Wheeler J in respect of the requests made about seeing a lawyer, the issue of voluntariness and the exercise of discretion not to exclude the relevant evidence. For these reasons, I agree that the appeal against conviction should be dismissed.

Application for leave to appeal against sentence

11 In my opinion, the appellant should be granted leave to appeal against the sentence of imprisonment for 25 years imposed in respect of count 3, but that the appeal should be dismissed for the reasons to be published by Wheeler J.

12 On 22 October 2001 Mackenzie was charged with one count of deprivation of liberty (count 1) and with an unlawful and indecent assault (count 2) upon a Ms Dennehy which occurred in December 1984 and with the wilful murder (count 3) of Ms Watson which occurred on 29 January 1986. On 25 March 2003, after trial by jury at Perth, he was convicted of all counts.

13 One of the many unsatisfactory aspects of this matter is that the notice of appeal upon which the Court is asked to proceed does not indicate which convictions Mackenzie wishes to appeal against. The notice contained simply the notation "see original application", which

original application does not, so far as I can ascertain, exist. Nor does the document indicate whether Mackenzie claims to appeal as of right pursuant to s 688(1)(a) or seeks leave to appeal pursuant to s 688(1)(b). In relation to the latter question, as I understand the way in which argument proceeded, it appears to be common ground that the issues debated in this matter were of such significance that, even if leave were required, it should be granted. I therefore refer to Mackenzie as the "appellant" hereafter. Looking at the grounds of appeal, one of which complains of a misjoinder of the counts in the indictment, it seems likely that the intention is to appeal against conviction in respect of all counts. I proceed on that assumption.

14 As alleged by the State at trial, the facts of the events in question were alleged to be as follows. In respect of counts 1 and 2, the chain of events began when on a Tuesday night in December 1984 a Gosnells escort agency took a telephone booking for a "house call" and directed one of the prostitutes, Ms Dennehy, to meet a male customer at a workplace in Fremantle. At the doorway to the premises in Fremantle she was met by a man who ushered her inside and showed her to an office area, where she telephoned the escort agency to confirm her arrival. After she had put the telephone down he asked her to ring back and extend the time to an extra three or four hours but she declined to do so as she did not like the look of the place.

15 Suddenly the man grabbed her from behind and put his hand over her mouth. She started to scream. He produced a knife and threatened to stab her if she didn't stop screaming. He then tied her hands behind her back, tied her ankles together with a thin rope which he got from under the bench, and put a gag in her mouth before pulling down her underpants and digitally penetrating her. He then carried her to his car which was parked inside the workshop, and placed her, still bound and gagged, into the open boot. When he went to shut the boot she began screaming through the gag and he threatened to kill her if she didn't stop.

16 She continued screaming through the gag until he removed her from the boot, untied her, and removed the gag. Then, during the course of conversation, she convinced him to let her go.

17 The evidence was that the appellant had an association with the premises in Fremantle since he had previously worked there in the engine repair shop. He gained entry to it through an unlocked sliding back door. Having worked there, he knew the telephone number and address of those premises. During the course of an interview with police, he said that he had intended to have sex with Ms Dennehy without payment.

18 In relation to the wilful murder, the events in question began when on Wednesday 29 January 1986 a different escort agency in Gosnells took a telephone booking from a male customer for the services of a prostitute for a three hour house call at a house in Leederville. That was a house to which the appellant had been about a month before, for the purpose of inspecting a motor vehicle which the female occupants of that house were offering for sale. A palm print of the appellant's was found on the outside of a window of that house, which the prosecution submitted could found an inference that the appellant had gained entry through the window. The appellant knew the telephone number and address of that house because of his having taken the details in order to go there in relation to the motor vehicle.

19 The escort agency directed Ms Watson to attend at Leederville. She telephoned in order to confirm her arrival at the house and that everything was okay. She went on to tell the agency that the customer was searching for his wallet and she would call back when he paid her. Later that morning she was found dead, naked, and lying on the lounge room floor with her hands tied behind her back. Her hands were tied with a leather thong. There were blood smears on her inside legs in the area of her genital region capable of founding an inference that there had been digital penetration or an attempt at it. She had been stabbed at least seven times with two different implements, one being a serrated edged bread knife and the other a screwdriver like instrument.

20 Between 1984 and 1986, the appellant had been interviewed by police about counts 1 and 2. He had admitted, in a written statement which he signed at the time, that he was the person responsible for the events at the premises in question. At the time, he was not charged with those offences, since Ms Dennehy did not wish to give evidence. In relation to count 3, police had spoken to him and searched his caravan in 1986, and he had denied involvement. It appears that at some time during 2001, the palm print from the Leederville premises was fed into a database which indicated that the appellant's palm print matched with it. As it was explained to us, the technology for comparing palm prints (rather than prints from individual fingers) against the database was a relatively recent development.

21 The fact of the matching palm print being obtained led to a decision to arrest the appellant in relation to count 3. It appears that Ms Dennehy had by that time been persuaded to give evidence against the appellant in respect of counts 1 and 2.

22 This ground complains that his Honour was in error in refusing to sever count 3 from the other counts in the indictment. Although there are a number of particulars in relation to this ground, they all come down to the same proposition, that being that the events the subject of counts 1 and 2, and the events the subject of count 3, did not have that "striking similarity" which would have rendered the evidence in relation to the first two counts admissible in respect of count 3. In the absence of that striking similarity, the risk of impermissible prejudice arising from trying all matters together was such that count 3 should have been severed: De Jesus v The Queen (1986) [1986] HCA 65; 68 ALR 1, Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528.

23 It was common ground both before the learned trial Judge and before us that the evidence relating to counts 1 and 2 could only be admissible in respect of count 3 if it answered the description of similar fact evidence to be found in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 which reads:

"The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged." (at 294 per Mason CJ, Wilson and Gaudron JJ)

24 It was the State's submission that the incident in Fremantle in 1984 and that in Leederville in 1986 bore such remarkable similarities that, despite there being some dissimilarities also, the inference arose that the same person must have been the perpetrator.

25 The two most striking dissimilarities between the incidents were that Ms Dennehy survived while Ms Watson did not, and that Ms Dennehy was tied around the ankles as well as the wrists. His Honour noted those facts. His Honour also noted that a number of the alleged similarities were likely to be commonplace occurrences and for that reason could not of themselves give rise to a striking similarity in the circumstances. Those matters included, in his Honour's view, the calling of a prostitute, the calling to a place other than the customer's home, and the use of a telephone by the prostitute to ring the escort agency. His Honour noted that certain of the alleged similarities could be proved only if the videotaped record of interview was admissible, and that the admissibility of that interview was disputed, so that his Honour did not have regard to those similarities.

26 However, the learned trial Judge formed the view that, even omitting the matters to which I have referred, there were sufficient unusual features common to the two incidents to found a conclusion that a "striking similarity" existed which would make evidence in respect of one event admissible in respect of the other, in order to prove the identity of the perpetrator. I would respectfully agree with his Honour's reasoning in relation to that matter. The similarities to which his Honour particularly pointed were that, although the appellant had some association with each set of premises, he had entered each of them unlawfully; that immediately after each woman telephoned the escort agency confirming her arrival she was violently attacked; that a knife was used in each attack; that in each case the victim's hands were tied behind her back; and that each woman was sexually molested, apparently by digital penetration, immediately after having been terrorised. I would therefore reject the appellant's submissions in respect of ground 2.

27 Omitting a particular which was abandoned at the hearing of the appeal, this ground reads as follows:

"The learned trial judge erred in permitting into evidence the video record of interview of the Applicant.

PARTICULARS

(a) The learned trial judge erred in the exercise of his discretion in permitting the video record of interview into evidence when the circumstances of the taking of the video record of interview exhibited the involuntary nature of the video and the unfairness to the Applicant;

(b) The Applicant requested a legal representative to be present on a number of occasions;

(c) The investigating officers conduct in the taking of the interview was in the form of cross-examination;

(d) The investigating officers had arrested the Applicant prior to the video record of interview taking place and had taken the Applicant to the police station in order to take the video after they had arrested him and prior to taking him before a Justice of the Peace to be bailed and processed."

28 It can be seen at once that the ground runs together a number of concepts. In particular, it fails to distinguish between the "imperative rule" that a confession must be rejected unless it is voluntary (the onus of showing voluntariness lying upon the State) and the discretion to reject a confession unfairly or improperly obtained. That distinction is long established: McDermott v The King (1948) 76 CLR 501 per Dixon J at 511. Although "it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues" (R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 196 [74] per Toohey, Gaudron and Gummow JJ), since questions of trickery, pressure and the like may be relevant to each of those considerations, the important distinction between the requirement that a non-voluntary confession must be rejected (so that there is no discretion) and the discretion to exclude, remains: Swaffield at 188 [50]. I propose to deal in more detail with the submissions advanced on behalf of the appellant, both at trial and on this appeal, in relation to the video record of interview. First, however, it is convenient to explain the circumstances and content of that interview.

29 At 8.09 am on 22 October 2001 the appellant was located by police in North Fremantle and was advised that he was being arrested for murder. The purpose of the arrest was to charge him with wilful murder.

30 At 9.00 am the appellant arrived at Curtin House in Northbridge in police custody. He was aware that he was under arrest. He had been handcuffed. Police interviewed him in relation to the offences the subject of the indictment. The interview commenced at 9.15 am and terminated at 2.07 pm.

31 Following the interview, the appellant spoke with his de facto wife when he requested to do so, and was taken to his work premises so that he could make certain arrangements. What was referred to as "the paperwork" was completed, the appellant was photographed, fingerprinted and was lodged at the lockup at 8.00 pm. At 10.00 am on 23 October 2001, the next day, he appeared in the Court of Petty Sessions and was remanded in custody by a Magistrate who, in accordance with the Bail Act 1982, directed that he be taken as soon as practicable before a Judge of the Supreme Court for consideration of his bail.

32 The first portion of the interview was conducted by Detective Sergeant Higgins and Detective Senior Constable Rowson. The appellant was cautioned and appeared to understand the caution. He denied all knowledge of Ms Watson's murder. When asked if he had ever been questioned about it, he replied that he seemed to remember something a long time ago, but couldn't remember what it related to. He said that at the time he was "on the grog a lot". In relation to the incident in Fremantle, he said, "Obviously I did something wrong" but maintained that he could not recall the details. He denied using a knife but agreed that it was "possible" that he had pulled a woman's underpants down, and inserted his fingers into her vagina, while she was gagged. When told that there was a statement taken from him in 1986 in which he admitted being the person who assaulted Ms Dennehy, he said that it didn't ring a bell but that his memory would have been clearer back then.

33 After a suspension of the interview for about 10 minutes, there was some further discussion of the incident in Fremantle. In relation to the Leederville incident, he then said that he could not recall going to the house in Leederville in order to purchase a vehicle and talking to two young women at the house. The circumstances of the killing of Ms Watson were very briefly put to him, and he said "Not me". He was asked whether he was emphatic about that because his memory was not good about those times, and he replied "I know it's not that good but I can't imagine myself doing anything like that". Asked shortly thereafter whether he was saying that he didn't remember or that the events didn't happen, he replied, "It didn't happen as far as I am concerned. I don't think I had anything to do with it. I didn't have anything to do with it". There was then some further questioning about the occasion on which it was alleged that the appellant had gone to purchase the car from the house in Leederville, and he claimed not to remember the occasion at all. The interview was then suspended shortly before 11.00 am.

34 Leaving aside, for the moment, the question of whether the appellant was unlawfully detained for the purpose of questioning, it is not contended that there is anything else about the questioning up to this time which would render the answers given by the appellant inadmissible. It is also, as I understand it, conceded that where it is put to an accused person that he has been involved in such strikingly unusual events as those the subject of the Fremantle and Leederville incidents, and his answers are to the effect that (in relation to the 1984 incident) it was "possible" that he had been involved or (in relation to the 1986 events) that he "didn't think" that he had been involved, those answers would have been admissible against him, on the basis that they were responses markedly different both from the silence which it was his right to maintain, and from the denial which might have been expected if an innocent man had chosen to speak. Leaving aside the question of the allegedly unlawful nature of his detention at this time, the challenge to the admissibility of the videotaped interview arises only in relation to the portion commencing at approximately 11.00 am.

35 This second portion of the interview was conducted by Detective Superintendent Caporn and Detective Inspector Looby. When the interview recommenced, Superintendent Caporn told the appellant, "You've been arrested. You're not just here for an interview". He then again cautioned the appellant. He told the appellant that police knew he had committed the crime and were trying to provide him with an opportunity to tell his side of the story. The appellant was informed that a search of his premises was commencing and that Carol (his de facto spouse) was "going to be brought on board with this". That last comment appears to have been made in response to the appellant's reaction to the information that there was a search of his premises commencing.

36 The flavour of this part of the interview is perhaps best conveyed by quoting from approximately two and a half pages of the transcript of that interview, commencing immediately after the reference to the search. It reads:

"Q. Let's not blow the whole lot.

A. ...(indistinct)...

Q. Absolutely, absolutely. So let's get this sorted, Alex. We're not your enemy, mate. All right? People - - look, people in the general public - - could - - you've got your arms folded and you're - - you know, you're on the defensive.

A. That's the way I normally sit, sorry.

Q. Well, you know.

A. ...(indistinct)...

Q. Okay.

A. Yeah, okay.

Q. All the time things go wrong. Okay?

A. Yeah.

Q. Look, when you're doing this work - - I mean, you know what you've been through. When you're doing this work for 15 years, we come across people all the time that - - they set out to do one thing and another thing happens. Now, I don't agree with what happened, Alex, but it happened, all right, and you can't get over that and you have done for all these years but now the world's come crashing down a - - about you with it but that's not the end of it there. All right? It's not over yet. Let's work through this together and we will help you. I give you my word about that but don't just sit there and say, 'I don't know.' You know we're past that, otherwise we wouldn't have arrested you on the way and it would have been just an interview. Now, what went wrong - - Alex?

A. I don't remember. I'm serious.

Q. Alex - -

A. Yeah?

Q. - - in all my time in dealing with these situations - and remember what I told you, we know what - - we know you did it, okay, it's just a matter of what happened. Now, in all my time in dealing with this, I have never ever - - and I've been all over the world doing bits and pieces with this, right, not just in Australia. Okay?

A. Yeah.

Q. Learning and understanding and training and working in relation to things that go wrong like this - -

A. Yeah.

Q. - - and in all of that time we've never found anyone anywhere who's got a complete memory blank. I can understand why you're trying to block it out and I can understand why you want to think you can walk away from this but you can't walk away from this. All right? Now, I'm not suggesting that you can remember every darned thing that happened but don't sit there and give me disrespect. At least show us the respect - -

A. I'm not saying - -

Q. - - that we've been to you.

A. I'm not trying to say that I disrespect you. I don't remember it. I'm serious.

Q. Yeah. You may not remember a lot of things, Alex, but you remember some things. It just doesn't happen that way that you can forget everything, Alex. It's just - - you know, don't put yourself in a position - - don't put yourself in a position, Alex, that I think you're going to put yourself into, that you are at the moment. Okay?

A. What's that?

Q. If you - - in basically letting the jury decide your intention here. Okay? If things went well, you need to tell us that. We understand. Do we agree with what happened? No, we don't, Alex, but what are you going to do? Are you going to - - you've got some things going on in your life now. How long have you been with Carol for?"

A. 3, 4 ... (indistinct) ...

Q. And how's that going?

A. Fantastic.

Q. All right. Where do you think that's going to go after this?"

37 A little later, asked whether it was his intention to "let the crime scene speak for itself" the appellant answered "Nuh". There was then some (one sided) discussion of the need for the police to "determine what level of culpability" the appellant had. He was told that if it was not his intention that the incident with Ms Watson end in her death, then it was important for the police to know that.

38 The appellant then said, "I think I'd like to speak to a lawyer before I go on". Superintendent Caporn's response was, "All right. You know that's an option that you've got, Alex".

39 The appellant then became somewhat emotional and the Superintendent told him, "I know it's hard ... and you know right from the start you don't have to tell us anything but I think you know we are genuine in what we're saying ...". He was then asked what went wrong and replied, "... here goes the rest of my fucking life". He was told he would be surprised how different it would be for himself "inside" once this matter was off his chest and that "we're here to see you through this, mate." He was told, "You know you've got to get some credibility up ... in relation to it. I mean, tell us".

40 The appellant then replied that, "I'd just really like to speak to a lawyer". Again, he was advised that that was an option. There was then a brief pause while the appellant appeared to be considering what had been said to him. Superintendent Caporn then said, "It's an option, Alex, but there are things happening as we speak and we're not getting anywhere".

41 The appellant then was asked, "Prepared to help us? What - - what - - how do you think Carol's going to take all this? What do you want us to do there?" The appellant advised that he wanted Carol "left out of it". He asked what forensic evidence the police had and was in effect simply advised that the police had been working "day and night" on the case. There was some further discussion about Carol, and Superintendent Caporn said that he wanted to make quite clear that "the issue of Carol is not an inducement" and that Superintendent Caporn couldn't deal with the appellant on that, but the Superintendent observed that he saw no reason why Carol "has to be in the paper". When the appellant asked why the house was being searched Superintendent Caporn advised, "Because of you ..." and went on to say "... the sooner we clear the matter up, the sooner we can sort that out".

42 At about 11.15 am, Superintendent Caporn again asked, "Why did you go to the house?" The appellant said "Oh, shit" followed by a lengthy pause. He then began to explain why he had originally gone to the house in Leederville, in effect to act as a "peeping tom" on the two women in the house. He went on to explain how he had entered the house and called for a prostitute. He gave an explanation of what had occurred, although claiming not to remember a number of details. At about 12.45 pm there was a further suspension of the interview for approximately 15 minutes and it then resumed with the two original detectives conducting it.

43 At the conclusion of the interview, the appellant was asked the usual questions about promises and so on, and said that no promises, threats or inducements were made to him. He then said that he wanted to keep Carol's name "out of it", and was told that the police could see no reason for bring her into the "media aspect of things", although they would like to speak to her. He said that there was nothing else which he wished to say.

44 When one views the video, it is apparent that there are a number of features of the interview which do not adequately appear from the transcript. In relation to the first portion of the interview, the demeanour of the interviewing officers is mild and neutral; that is, they sit well back from the appellant and ask their questions in what appears to be an ordinary conversational tone. In that context however, his claims not to remember certain events, and his apparent inability to be completely certain about whether or not he killed Ms Watson, appear somewhat more damning than they do on the printed page.

45 Superintendent Caporn's manner is different. He appears to speak quite loudly to the appellant. That may be due, at least in part, to the way in which he positions himself; since the interview room is apparently the usual type of interview room with a microphone centrally located in the table, the volume of the speaker's voice depends considerably upon proximity to that microphone. Superintendent Caporn leans forward over the table and frequently appears on the videotape to be leaning into what the appellant might be expected to regard as his "personal space"; the question of whether this is the reality of his position, or an appearance created by the camera angle, cannot be determined. The Superintendent's tone is at times almost hectoring. On the other hand, he also at times allows a pause to develop between his comments, during which it appears that the appellant is considering what is said to him, and during which the appellant frequently rubs his face or sighs or fidgets. These occur with some frequency at around the time at which the references to a lawyer occur.

46 The only application made at the voir dire was that his Honour exclude the video interview in the exercise of his discretion. The onus of establishing that it should be excluded was, of course, on the appellant. His Honour invited the prosecutor to begin. The prosecutor called Detective Sergeant Higgins and Superintendent Caporn and each of them was cross-examined by counsel for the appellant. The other interviewing officers were present at the Court but were not required by the appellant's counsel for cross-examination. It is fair to characterise the cross-examination of the Sergeant as directed primarily to his understanding of the need to take the appellant before a Justice at the first opportunity, and to the practicalities of taking the appellant before a Court on the day on which he was arrested. Superintendent Caporn was cross-examined only about his understanding of the appellant's requests in relation to seeing a lawyer.

47 The submissions then made to his Honour were that the "strong point" was that the appellant was unlawfully detained for the purpose of questioning. Counsel expressly observed that, "I by implication am not saying anything about involuntariness", although counsel observed somewhat cryptically "... it's one of the things that it will be for your Honour to take into account". Counsel also submitted that there was a request for a lawyer which was not acted upon, and his Honour was also asked to consider "the circumstances in which [the appellant] found himself at the time ... in the sense that he had been arrested, handcuffed and obviously was concerned about his de facto wife coming to know where he was ...". Those were said to be "the only four factors" that were identified for his Honour as being relevant to his Honour's discretion.

48 His Honour found that the appellant was not being detained solely for the purpose of being questioned, but that he was arrested with the intention of taking him before the Court as soon as reasonably practicable. In the meantime, his Honour found, he was questioned, a course which was not impermissible. In relation to the alleged requests to speak to a lawyer, his Honour found in effect that there was some ambivalence in the requests and that the appellant did not insist upon speaking to a lawyer and was not denied the opportunity to do so. Otherwise, in brief reasons, his Honour found that there was no unfairness in the circumstances of the video interview.

49 The appellant had not given evidence on the voir dire. During the trial he gave evidence. He admitted stabbing Ms Watson. He said he had only stabbed her once, but that during the course of the videotaped interview he had told the police that he had stabbed her a number of times; his reasoning, he said, was that since to his knowledge Ms Watson had been stabbed only once, the reference to stabbing her a number of times would have had the effect of indicating to police that he had not been the perpetrator of the offence, since what he was saying was inconsistent with what he understood to be the true facts. He said, in relation to the interview, that he was at times lying when he said to police that he did not remember what had occurred.

50 He said also that he was confused during the course of the interview and was a "total mess". He said that he had had "a lot of pressure" from the police. Asked whether the pressure was observable in the video, he said "... not really. It was just the way they were questioning and the way they were - like, keep on asking the same question a number of times. It's basically the same as what my father used to do many years ago".

51 The written submissions on behalf of the appellant refer to a number of aspects of the interview, without attempting to distinguish between any which might lead to a conclusion that it was not voluntary and those going to aspects of the discretion, and without distinguishing between those raised at trial and those sought to be raised for the first time on appeal. It is asserted variously that the interview: was unduly lengthy; was aggressive; amounted to cross-examination; disregarded the requests for a lawyer; was inadequate in omitting to re-caution the appellant after every break (in all a total of four cautions seemed to have been given); gave the appellant no option; "pressed" the appellant to answer; and induced him to answer.

52 In oral submissions, it was put to us that the "major issue" was the request for a lawyer. A substantial amount of argument was also directed to the question of arrest. It was also, however, submitted that the interview involved a "mind game", the "constant berating and bashing" (presumably metaphorically as to the latter) of the appellant and that the references to Carol were such as to constitute an inducement.

53 As I have noted, it is only if the interview should be excluded on the basis that the appellant was unlawfully detained during the whole of it, that the entirety of the videotaped record of interview (as opposed to that part which follows the intervention of Superintendent Caporn) should have been excluded.

54 It is accepted on all sides that arrest or detention is not permissible merely for the purpose of asking questions. The power to arrest involves taking the arrested person before a Justice without unreasonable delay and by the most direct route: Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 per Gibbs CJ at 284, 285; Salihos v The Queen (1987) 78 ALR 509 per Burt CJ at 513, Kennedy J at 521; Norton v The Queen (2001) 24 WAR 488 at [90] per Roberts-Smith J.

55 So far as the purpose of the arrest was concerned, the learned trial Judge, having heard evidence on the voir dire, concluded that at the time of arresting the appellant those officers arresting him had the intention of bringing him before a Justice as soon as was practicable. It was somewhat faintly suggested that we should take a different view, but I see no reason to do so, having regard to the evidence which was before his Honour.

56 His Honour also accepted the evidence of Detective Sergeant Higgins that, having regard to the time of arrest, it would not have been possible to get the appellant before the Court at 10 o'clock that morning and that the very earliest possibility would have been the 2.00 pm list of that day. His Honour expressed some reservations about whether that was really practical but was prepared to assume that it could have been done "as a matter of urgency". There was also evidence from Detective Sergeant Higgins as to why, in the end, no attempt was made to take the appellant before the Court at 2.00 pm. In answer to the question on the voir dire about the interviewing at about 2.00 pm, which was, "Was there any reason why the interview wasn't stopped ... so that he could meet the afternoon Court of Petty Sessions?", the Sergeant replied "Well, we still had questions to put to him and he was still answering questions. There was still questions we hadn't had answered". That answer reveals a misconception as to the law, and a detention for the purpose of questioning. It was the duty of the police officers to suspend the investigation for the purpose of ensuring that the appellant could be taken before the Court, rather than to defer the performance of that duty until they had completed all the questioning which they wished to carry out.

57 At some point a little prior to 2.00 pm, then, if it is assumed, as the learned trial Judge was prepared to assume, that it would have been possible to take the appellant before the 2.00 pm Court, the detention of the appellant became unlawful. It is not clear, given the lack of precision in the evidence and the lack of any finding from his Honour, as to exactly what time should be fixed upon as the point at which the detention became unlawful. However, in my view, it is not necessary to attempt to fix such a time, since that last portion of the interview should in any event not have been excluded, notwithstanding the finding of unlawfulness which I have made.

58 In my view, the situation here is somewhat similar to that of Salihos v The Queen (supra). In that case too there was an initial intention to take the arrested person before the Court at the earliest practicable time, but at some time during the course of questioning that intention changed and the person was unlawfully detained for some period. One significant difference between that case and this is that in Salihos additional information came to light after the arrest of that appellant which suggested that he had committed a different, and a much more serious, offence from the offence originally suspected.

59 The relevant similarities, however, are that the original intention was to take the person before the Court as soon as practicable; that a substantial portion of the questioning was carried out at a time at which there was no unlawful detention; that the offence investigated was a serious one; and, importantly in my view, that the unlawfulness of the detention was not causally significant. By this last observation I mean that it was not the case that the confession would not have come into existence but for the unlawful detention; rather, there was already a confession by the appellant, which was merely being clarified and concluded at the time of the unlawful detention. The majority of the confessional material was obtained whilst the appellant was in lawful custody and the questioning at that point was not unlawful (see Salihos at 513 per Burt CJ, 519 per Kennedy J). Finally, I should observe that there does not appear to have been any deliberate or reckless disregard of the obligation to take the appellant before the Court. What seems to have occurred is that the officers were distracted from their original intention by a desire to complete what had been a somewhat protracted and difficult interview.

60 It is my view, therefore, that the unlawfulness of the detention of the appellant, which I have found to have occurred for some portion of the second half of the interview, should not have resulted in the exclusion of either the entirety of the interview, or of any portion of it.

61 The appellant's submission in relation to this aspect of the appeal had as its first strand an invitation to this Court to legislate to bring the common law of Western Australia into line with legislation such as s 464C of the Crimes Act 1958 of Victoria, by declaring that there exists a right to have a lawyer present during a police interview and to have the interview suspended unless and until a lawyer is present. Alternatively, it was submitted that there was such a common law right, which this Court should recognise. The only authority advanced for that latter proposition was an obiter dictum of McHugh J in Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 230. His Honour there said, discussing s 464C of the Crimes Act 1958 (Victoria):

"Neither s 464C nor any other provision of the Act confers an express right to communicate with a lawyer .... Nevertheless, ... the enactment of such rights must have been intended ....

Independently of the effect of any relevant legislation, the courts appear to have recognised a common law right for a solicitor to be present while a client is being questioned by police officers. However, even if a person in custody has a common law right to have his solicitor present ...."

62 In support of the observation as to the common law right, his Honour cited R v Dugan (1970) 92 WN (NSW) 767 at 767, Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 539, and R v Hart [1979] Qd R 8 at 13.

63 The reasons of Gibbs J in Driscoll, with whom Mason and Jacobs JJ agreed (at 540, 543), make it clear that police officers should allow a legal practitioner to be present at an interview with a suspect when there is a request made for a lawyer, and that a failure to do so will be regarded, at least in some circumstances, as "reprehensible". However, his Honour also held that a failure to allow a legal practitioner to be present will not in itself render the record of the interview inadmissible, although it might be a reason for excluding it in the exercise of the Court's discretion. Barwick CJ made similar observations at 522. The two State cases cited by McHugh J are to like effect. None of these cases justifies the contention for which, as I understand it, the appellant contends, that there is a "right" to a lawyer, the violation of which will render any subsequent interview inadmissible.

64 In my view, the Court should decline the invitation to legislate to create such a right. There are obvious practical difficulties involved in the operation of any right to have a lawyer present during an interview. Experience with such interviews over a long period of time has revealed that many - perhaps most - accused persons do not know which lawyer they would wish to contact, and police, of course, cannot advise them in that respect. Even where they do know of a lawyer whom they would wish to attend, the hour at which the interview is conducted may make contact impracticable, or the lawyer may be otherwise engaged, or a lawyer may be unwilling to attend unless some arrangement as to fees has been concluded. It would be necessary, in establishing such a right, to deal with some care with what course should be taken where these practical difficulties presented themselves. That is a task which should be undertaken by the legislature, rather than by the Court.

65 However, as the authorities referred to make clear, a request for a lawyer is not irrelevant. The disregarding of such a request will often mean that it will be unfair to an accused person to admit in evidence an interview which has taken place in the absence of a legal practitioner. In the present case, the respondent recognised that the way in which the appellant's references to a lawyer had been dealt with was one of the considerations which would govern the exercise of the Court's discretion to exclude the videotaped interview.

66 I should add that at one point during the course of argument I was inclined to the view that because of the way in which the first request was phrased - that the appellant would like to speak to a lawyer "before I go on" - a question as to the exercise of his right to silence might have arisen.

67 However, having viewed the video, it appears to me that on both occasions on which the appellant refers to a lawyer, there was good reason for Superintendent Caporn to form the view, which he said during the course of the voir dire was the view he had formed, that the appellant was ambivalent about whether he wished to proceed and whether he wished to speak to a lawyer, and that the references to a lawyer were in effect musings aloud by the appellant about his options. When he first referred to a lawyer, the Superintendent reinforced that that was indeed "an option" that was open to the appellant, and reminded the appellant that he did not have to speak to the police. The appellant became quite emotional at that point.

68 In relation to the second reference to a lawyer, when Superintendent Caporn again said that that was "an option" there was a brief pause during which the appellant appeared to be considering whether to proceed. In my view, it would have been most desirable for the Superintendent to have asked at that point whether the appellant wished to exercise his "option" to speak to a lawyer or whether he wished to proceed. He may have intended to do so shortly thereafter when he asked the appellant, "All right? Prepared to help us?"

69 In any event, knowing as he apparently did that a lawyer was "an option", the appellant spoke about the offences. In all of the circumstances, I do not accept the submission that this was a case in which the appellant had unambiguously expressed the view that he was not prepared to proceed until he had spoken to a lawyer, nor was it a case in which the Superintendent set out to deny him legal advice or to distract him from taking that course. I would not therefore regard those "requests", and the way in which they were treated, as going either to voluntariness or to the fairness of the interview. For reasons with which I will shortly deal, much of the first portion of the interview conducted by Superintendent Caporn was unsatisfactory, but not for the reason that there was a request for legal assistance which was either denied or overborne.

70 In considering this issue, the starting point is the observation by Dixon J in McDermott v The King (supra) at 511 that if a statement "is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary".

71 There are many features of this interview, from the time at which Superintendent Caporn's participation began, which point, if not to intimidation, to persistent importunity and undue insistence or pressure.

72 I have already referred to the apparent loudness of the Superintendent's voice, and the way in which he leaned across the table towards the appellant. He somewhat aggressively commenced by informing the appellant that his posture was "defensive", causing the appellant to sit in a different way. He flatly refused to accept that the appellant had a loss of memory and suggested that the appellant's persistence in that story showed "disrespect" for the police. He persistently informed the appellant that there was "no way" that the appellant would "walk away" from what had happened. At one point, in my view, he went very close to suggesting to the appellant that if he did admit causing the death, he would then be in a position to maintain that it was not his intention to do so. Although the Superintendent advised the appellant that "the issue of Carol" was not an "inducement", there was more than one reference to the search of his premises and, obliquely, to the potential effect of the investigation upon Carol, which tended to suggest that a prompt confession by the appellant might avoid some of that difficulty, (at least if the confession was seen as a "credible" one). There were also numerous emphatic suggestions that the police would "help" the appellant; although it was never explained how this would be done, and I find it difficult to imagine what could have been intended, it seems clear that the offer of "help", whatever it was, was conditional upon the appellant departing from his original story that he did not remember any events surrounding the killing of Ms Watson.

73 The difficulty, however, with making at this time the submission that the appellant's confession was not voluntary, is that the appellant's counsel expressly refrained from making any submission directed to involuntariness at trial. As has often been pointed out, the right of an accused person to decide how to conduct his defence and what issues will be contested is fundamental to the conception of a fair trial under our system of criminal justice. As the Supreme Court of Victoria observed in Sarek v The Queen [1982] VicRp 99; [1982] VR 971 (at 982 - 983):

"Where an accused person has at his trial been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial ... In most cases the appellate tribunal will not seek to go behind a deliberate decision taken at the trial by a solicitor or counsel for the accused ...."

74 The Court, of course, pointed out that the fundamental question must always be whether the conviction involves, or has brought about, a miscarriage of justice. In assessing that question, the starting point in this case is that there was plainly a deliberate forensic decision not to raise the issue of voluntariness. That is not the end of the enquiry, but it is very significant. While the onus of proving a confession is voluntary is on the prosecution, a trial Judge is not required to consider the question of voluntariness unless it is put in issue in some way, either by some fact appearing which may suggest a lack of voluntariness (often arising on the depositions) or by counsel for the accused indicating that there is evidence which he wishes to call on that issue: see Hough v Ah Sam (1912) 15 CLR 452 at 457; R v Bradshaw (1978) 18 SASR 83 at 86, 100-101.

75 In the present case, as I have noted, there are a number of aspects of the videotape which might have suggested a lack of voluntariness but counsel for the appellant expressly advised his Honour that he was refraining from raising that issue. In that context, it is important to recall that the issue of voluntariness is one of fact and is ultimately one which involves an accused person's state of mind, a factor peculiarly within the accused's knowledge. The facts bearing upon that issue which are known to the accused's legal practitioner are unlikely to be known to the Court; in particular, how the accused himself perceived the interview process, and whether any particular considerations operated on him so as to induce him to make a confession, would be a matter of instruction given by him to his legal practitioner and not known to the Court. It is my view, therefore that, notwithstanding the presence of some factors which might suggest that an enquiry into voluntariness was necessary, an indication by counsel for an accused person that counsel is deliberately refraining from raising that issue amounts to a concession, upon which the Court can act, that the confession was relevantly voluntary.

76 In the present case, not only was voluntariness not raised by counsel, but the appellant gave no evidence on the voir dire. He did, however, make a comment about the interview process during the course of his trial. That was only to the effect that he had been "under pressure". However, his evidence was that the "pressure" did not appear from anything visible on the videotape. His evidence was that the pressure arose simply from a pattern of repetitive questioning which reminded him of his father.

77 The question then arises as to what this Court should do when the issue of voluntariness is raised for the first time on appeal. In the absence of any explanation for why the issue was deliberately not raised at trial, it is, in my view, inappropriate for this Court to revisit, based on the video alone, the question of whether the appellant was induced to confess, when that was a matter peculiarly within the appellant's own knowledge and the subject of a concession to the trial Judge. Obviously, if there had been any evidence of a failure to act on instructions, or an apparent failure by counsel to understand instructions which were given, the position would be different. Similarly, the position might well be different if there was a clear inducement or threat or matter of that kind rather than, as in this case, an accumulation of a number of matters, none of which on its own would necessarily suggest that the confession was involuntary, and some of which (such as the apparent loudness of the Superintendent's voice) might have been the subject of evidence if any issue in respect of them had been raised.

Discretionary exclusion - other considerations

78 Because of the matters to which I have referred under the heading of "Voluntariness", this interview could, in my view, be described as one which contained a substantial element of "insistence upon questions or an attempt to break down or qualify the effect of an accused person's statement so far as it may be exculpatory", which, as Dixon J observed in McDermott (at 513) may be treated as impropriety justifying the exclusion of the evidence. These were matters which were referred to by the appellant's counsel at the hearing of this appeal, although they did not form the primary basis of his submission. They were not matters referred to by the appellant's counsel in submissions to his Honour on the voir dire, and did not form the subject of any cross-examination of the police officers on the voir dire. Since the appellant gave no evidence on the voir dire, there is, of course, no material before us, as there was no material before the trial Judge, to suggest what effect, if any, this manner of questioning had upon him.

79 In effect, this Court is being asked to find, based upon the videotape alone, that his Honour erred in the exercise of his discretion, when none of these factors were ever put to his Honour as factors which could be relevant to the exercise of that discretion, and no evidence was directed to them. Given that other matters were suggested to his Honour as being relevant, it seems clear that the omission to deal with the sorts of matters to which I have referred was a deliberate forensic decision, I would not therefore be prepared to find that his Honour erred in the exercise of his discretion in failing to make findings in relation to matters which he was not asked to address.

80 For the reasons which I have given, it is my view that the appeals against conviction should be dismissed.

81 The appellant abandoned at the hearing of the appeal an application to appeal in respect of the sentences imposed on counts 1 and 2. However, he maintained that the sentence of 25 years in respect of count 3 was manifestly excessive, having regard to "the totality principle", the fact that the offence was not the "worst type" of offence in the category of related offences and because, it was submitted, that the circumstances of the case did not warrant a term of strict security life imprisonment. The "totality principle" does not appear to have any relevance in relation to a single term of imprisonment, for one offence, which is not to be served cumulatively on any other term. I therefore deal only with the other matters raised.

82 In determining whether to impose a term of strict security life imprisonment or a term of life imprisonment, the sentencing Judge is obliged to consider the circumstances of the offence and the gravity of the crime, the antecedents of the offender, and the risk to the community posed by the likelihood of the offender committing serious offences of violence in the future. No one factor has primacy over the others, so that a sentencing Judge may be persuaded by one factor alone, or by a combination of them: Williams v The Queen (1996) 17 WAR 17 at 26 per Owen J.

83 Turning to the circumstances of the offence, the appellant's original intention on the night in question appears to have been at least to commit some offence involving a sexual motivation. His confession referred to a wish to act as a "peeping tom". In using the bread knife, the learned sentencing Judge found, in my respectful view correctly, that the appellant had armed himself with a lethal and terrifying weapon. The absence of defensive wounds indicates that at least the majority of the stab wounds were inflicted at a time when Ms Watson had already had her wrists tied behind her back and so was wholly defenceless. The appellant stabbed her at least seven times. The circumstances justified his Honour's finding that the attack on Ms Watson was "accompanied by an element of torture". They also justified his view that there was at least some element of premeditation in the sense that at some time prior to stabbing Ms Watson the appellant had formed the view that "if things went wrong [he] would kill her if necessary". For all of those reasons, while worse cases can be imagined, it is my view that his Honour was justified in placing the offence high in the scale of crimes of wilful murder.

84 So far as the appellant's personal circumstances were concerned, the appellant had a history of offending behaviour in New South Wales, Victoria and Western Australia for matters of dishonesty, traffic offences and aggravated assault. A pre-sentence report suggested that alcohol dependence and sexual deviance were significant contributing factors in his offending history. He had had an unhappy childhood in a household in which alcohol abuse, domestic violence and child sexual abuse were features. He had had an unhappy marriage at the time of his offending. However, an indication of his lack of insight into the enormity of his behaviour is to be found in the fact that he apparently tended to blame his former wife as bearing some responsibility for his offending. The pre-sentence report suggested that he was "avoidant and poorly motivated to take responsibility for his behaviour".

85 There were, then, some mitigating factors in the appellant's history, in the sense that there were factors which might tend to explain in part why he might offend, although they did not really go to explain the very

serious offending in question here. There was, however, an apparent lack of remorse and a lack of insight.

86 So far as danger to the community was concerned, the appellant's counsel submitted that he had remained free of serious offending for a considerable time. That apparently was the case, although it is to be noted that some months after Ms Watson's murder he had stopped to help a female motorist who had broken down on the road, by offering to take her to a roster station for brake fluid. However, on the way there he took her to a gravel pit, threatened her with a screwdriver and asked her for sex. When she became upset he desisted and drove her to the roster station. There were features of his offending (including his apparent hatred of prostitutes, of which evidence was given at trial) which suggested he might pose a continuing danger, and a psychological report referred in some detail to his avoidance of responsibility and to his "significant and serious personality and behavioural problems".

87 In summary, the appellant was convicted of a brutal killing which was high on the scale of wilful murders. There was little in his personal circumstances by way of mitigation. There was material which suggested that he would be difficult to treat and might well pose a risk to the community upon his eventual release. All of those circumstances, in my view, justified the sentence which was imposed. I would grant leave to appeal, but dismiss the appeal.

88 MCLURE J: I have had the advantage of reading in draft form the reasons to be published by Wheeler J. I agree with the proposed orders for the reasons given by Wheeler J.

Mackenzie v The Queen [2004] WASCA 146

At a glance

Court

Decision date

Before

Catchwords

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Judgment (115 paragraphs)

Mackenzie v The Queen [2004] WASCA 146 (2 July 2004)

Application for leave to appeal against sentence

Discretionary exclusion - other considerations

Parties

Cases Cited (19)