Criminal law and procedure - Admissibility of videoed interview - Admissibility at common law - Discretionary exclusion - Whether impermissible cross­examination used - Discussion of provisions of Criminal Investigation Act 2006 (WA) - Whether breach requires discretionary exclusion of confessional evidence

Criminal Investigation Act 2006 (WA), s 4, s 5, s 6, s 7, s 28, s 137, s 138, s 139, s 154, s 155

1 The accused is before the court on an indictment charging him with the sexual penetration of a child under the age of 13 years by inserting his penis into her vagina. The offence is alleged to have taken place on some day between 1 January and 28 September 2006 at Halls Creek. The prosecution proposes to prove that the child was born on 29 September 1993. 28 September 2006 was therefore the day before her 13th birthday. The offence is one which may be committed against a child under the age of 13 years (Criminal Code (WA), s 320). Given the age of a child against whom the offence may be committed, it is unsurprising to find that there is no defence of honest and reasonable belief that the child was of, or over the age of 13 years; nor is it relevant whether the child consented, or indeed instigated the commission of the offence.

2 The proceedings before the court are a pre-trial application for a ruling in relation to the admissibility of certain confessional evidence: (Criminal Procedure Act 2004 (WA), s 98. The ground of the application, as I understand the submission, is that I should hold that the State cannot discharge the onus to prove, on the balance of probabilities, that the confessional statements were made voluntarily in the sense understood by the law. Alternatively, if held to be admissible, it is submitted that there are grounds, established on the balance of probabilities by the accused, for the discretionary exclusion of the evidence. It will be observed that in couching the submissions in that way, the accused does not rely directly upon alleged breaches of relevant provisions of the Criminal Investigation Act 2006 (WA) but, having regard to the way in which the argument was presented, it will be necessary to examine some aspects of those statutory provisions.

3 Although I have stated the issues in terms of the applicable onus and standard of proof, both in relation to admissibility and discretionary exclusion, this is not a case where the decision will turn on the onus and standard of proof. If the evidence is held to be inadmissible, it will be because it is clear on the undisputed facts that the confession was not voluntarily made in the sense in which that term is understood by the law. If the evidence, although admissible, is to be excluded in the exercise of my discretion, again it will be because the undisputed circumstances show that its admission would be unfair to the accused or that there are otherwise recognised public policy considerations which demand the exclusion of the evidence. There is no dispute about the relevant facts.

4 A good place to start is the statement of legal principle in relation to the admission in evidence of confessional statements, by which I mean statements in a form which expressly acknowledge the commission of an offence or which may be accepted as revealing a consciousness of guilt. The relevant legal principles are gathered together and discussed at length in the decision of the High Court in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159. Without referring in detail to the relevant portions of the judgements in that case or to the other cases referred to in those judgments, the principles may be summarised for present purposes as follows:

1. A confessional statement is only admissible as an exception to the rule against hearsay if voluntarily made.
2. It will be held to have been voluntarily made if established to have been made in the exercise of a free choice by the accused to speak or be silent, ie the accused's will must not have been overborne.
3. Voluntariness will not be established if the statement is produced by duress, intimidation, persistent importunity, sustained or undue insistence or pressure, or an inducement held out by a person in authority.
4. It is ultimately a question of the reliability of the confessional evidence, not in the sense of its actual reliability, but in the sense of the existence of factors which show that it may not be relied upon.
5. An admissible statement may be excluded because, in the circumstances in which it was made, it would be unfair to the accused to lead it in evidence.
6. Even if no such unfairness has been established, there may be rare cases where considerations of public policy require the exercise of a discretion to exclude the statement from evidence; ie the improper, or unlawful, or bad behaviour of the questioner may require exclusion because to admit the statement in evidence would exact too high a price in terms of the due administration of justice and the investigatory process.
7. Finally, the statement may be excluded in the exercise of discretion because its prejudicial effect substantially outweighs its probative value, bearing in mind however, that, when admitted into evidence, the question of the weight to be accorded to a statement in proof of the accused's guilt, is very much a matter for the jury.

5 Swaffield was in fact a case which concerned the discretionary exclusion of confessional statements rather than their inadmissibility on the ground of involuntariness. A recent case dealing with voluntariness is Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396. That case was followed recently by the Court of Appeal in Lauchlan v The State of Western Australia [2008] WASCA 227 per Miller JA, Buss JA and Murray AJA agreeing.

The Criminal Investigation Act

6 For the accused, considerable reliance is placed upon the guidelines which have come to be called the 'Anunga Rules' after the decision in which they were laid down: R v Anunga (1976) 11 ALR 412. While those rules may no doubt still provide guidance in relation to what is fair questioning of persons of Aboriginal descent, regard must also be had to the provisions of the Criminal Investigation Act, which came into operation generally, by proclamation, as from 1 July 2007 (Government Gazette 22 June 2007, p 2837).

7 Relative to this case, under s 28 of that Act, a police officer who asks a person who is not in lawful custody, a term not defined in the Act, to go with the officer for the purpose of assisting in the investigation of an offence, must inform the person, and be satisfied that the person understands, that he or she is not under arrest, does not have to accompany the officer and is free to leave at any time, 'unless he or she is then under arrest'. Patently, the section confers no particular power on the officer concerned, but it imposes duties which must be observed. The consequence attendant upon a breach is another matter, but a breach of s 28 will not render confessional evidence obtained following the breach, inadmissible under any provision of the Act.

8 I leave open the question whether it may be the case, depending upon the facts, that a breach of any or all aspects of s 28 may, in appropriate circumstances, cause the judge to exclude evidence in the exercise of discretion on the ground that it would be unfair to admit the confessional evidence following a breach of s 28. It may also be that, or upon more general public policy grounds, the link between the breach of s 28 and the subsequent confession may be such that it would be contrary to the public policy promoting compliance with the law by investigating officers if the confessional evidence was to be admitted. I reserve this question because it was not submitted for the accused that a mere breach of s 28 in this case should enliven the exercise of the court's discretion to exclude otherwise admissible evidence.

9 Part 11 of the Act deals with the mechanical process of recording interviews with a suspect and what must be done with the record. These sections re-enact, with some changes, the provisions formerly in Ch 60A of the Criminal Code. No provision of that Part is said to be material to the present application.

10 It is asserted by the applicant, and almost conceded by the respondent, that s 137 and s 138 apply to this case. Reliance is placed upon a decision of McKechnie J in Cox v The State of Western Australia [2008] WASC 101, particularly at [35] and [36]. I should say immediately, that I do not think that Cox is authority for the proposition that, when interviewed, the accused was an arrested person or an arrested suspect within the meaning of ss 137 and 138.

11 His Honour has been required to deliver other judgments in relation to the application of ss 137 and 138: Marshall v The State of Western Australia [2008] WASC 99; Thomas v The State of Western Australia [2008] WASC 104 and Martin v The State of Western Australia [2008] WASC 105. However, those cases, I think, turn on their own facts and are not persuasive of the application of ss 137 and 138 in the circumstances of this case.

12 The Criminal Investigation Act was enacted for the purpose set out in the long title, 'An Act to provide powers for the investigation and prevention of offences and for related matters'. It was designed to bring together powers formerly contained in a variety of statutes, to some extent to codify common law powers and to provide protective balancing requirements for the benefit of persons subjected to the exercise of those powers. It was not a complete exercise of codification. Section 6 makes it clear that unless a contrary intention appears, other statutory powers which remain will retain their full force and effect and prevail over the Criminal Investigation Act in a case of inconsistency. On the other hand, while s 7 preserves common law powers and duties available to police officers, in a case of inconsistency the provisions of the Act are to prevail.

13 Particular attention is given to powers of arrest, search and seizure, including powers of entry. Some powers may be exercised upon warrant, or without obtaining a warrant, and there are extensive provisions concerned with forensic investigations and procedures of that kind which may be carried out on persons.

14 Returning to ss 137 and 138, I found it useful as an aid to interpretation to refer to the Second Reading Speech delivered by Mr Kobelke MLA on behalf of the Attorney General on 23 November 2005 (Hansard, Legislative Assembly, p 7639 - 7643. He said:

The bill represents a balance between the needs of law enforcement officers to effectively investigate crime and the rights of individuals. This is most evident, in that the bill specifically provides rights for any person who is arrested by a police officer, a prescribed public officer or any other officer with a power of arrest. This will include persons arrested for such things as parole revocation when there is no suspected offence. Such persons will have a statutory entitlement to medical treatment, reasonable privacy from the media, communication with relatives or friends to inform them of their whereabouts and, when necessary, an interpreter. These entitlements will apply irrespective of the basis for the arrest. In addition, arrested suspects will be entitled to be informed of the offence for which he or she has been arrested, to be cautioned before being interviewed, to have a reasonable opportunity to communicate with a lawyer and to be informed of these rights.

15 That, I think, is a very fair description of s 137 and s 137(2) does make it clear that it applies to a person who has been arrested by an officer, 'no matter under what authority or written law'. The section defines post-arrest rights and in this context it seems to me that the word 'arrest' bears its natural and ordinary meaning of the apprehension of an individual, whether by a formal act or not. It has long been held that a person who is in police custody and in fact is not free to leave is to be treated as having been arrested: Smith v R [1957] HCA 3; (1957) 97 CLR 100, 129.

16 Section 138 applies to arrested suspects. As defined by s 138(1), an 'arrested suspect' is a person who is under arrest, having been arrested under an arrest warrant or a written law on suspicion of having committed an offence. There is specific reference to s 128 which provides an express power of arrest without warrant for serious offences, and under certain conditions for offences which are not deemed serious, but where arrest is otherwise justified. Again, the Act makes clear what is the meaning of an arrest, whereupon the rights provided in s 138(2) will come into play as described by the Hon Minister in his Second Reading Speech. The important point, for present purposes, is that the Act makes it clear that the statute does not afford these rights to a person who has not been arrested.

17 The point of their provision, it seems to me, is the balancing exercise to which the Minister refers, attendant upon the provision, for the first time, of a limited power to detain an arrested suspect for the investigatory purposes, and in the manner provided for in ss 139 - 142. Under s 143, persons arrested under any process or warrant are to be dealt with according to the requirements of that process or warrant. I would conclude that these sections have an application, including the provision of the rights enumerated, when a person is arrested as a suspect, which, in my view, may include an act of detention occurring when in fact, if a suspect in police custody attempted to leave and terminate the custody, he or she would not be permitted to do so.

18 I have discussed these provisions because it is necessary to make it clear that, in my view, that is not this case. No arrest, de facto or otherwise, occurred here until the accused was arrested and charged following the conclusion of the video interview.

19 The rights and entitlements of the accused are amply provided by the common law, which derives no assistance from the provisions of s 138 in particular. For example, it would be difficult for the prosecution to establish voluntariness if a suspect, when interviewed, was not cautioned, was not told of his right to silence and was not spoken to with the assistance of an interpreter, where that was required for effective communication between questioner and suspect.

20 Reference was made in argument to the operation of ss 154 and 155. By s 154, where, in the purported exercise of a power conferred by the Act, a thing is seized or obtained in contravention of the Act, (and there are many such powers), the thing may not be admitted in evidence, assuming there is no consent to its admission, unless the court decides that it may be admitted in evidence. Section 155 applies to that process. Again, it seems to me that these sections have nothing to do with the admission in evidence of a confessional statement, an admission by words or conduct (s 118(1)), made by the accused. To my mind that is hardly, 'a thing relevant to an offence [which] is seized or obtained', even having regard to the extended definition of a 'thing relevant to an offence' in ss 4 and 5. Further, no section of the Act, including s 137 and s 138, allows the court to make a decision under s 155 about the admissibility of confessional evidence obtained in breach of or outside the statutory processes.

21 I propose to deal with the matter in the context of the submissions made for the accused, which rely upon the common law rules governing the admissibility and discretionary exclusion of confessional statements, confident that in the context of the circumstances of this case the accused is not in any way disadvantaged by the operation of the common law, rather than the Act.

22 Finally, I should comment upon the process of interview which, as will be seen, occurred firstly on 24 July 2007 and then on 25 July 2007, with an overnight and morning break in between. For the prosecution it is submitted that it should be regarded as one interview of a mixed kind, by which I take them to mean that it contains both exculpatory and inculpatory statements. If it matters for present purposes, I think that is right and in my view the point is settled by the decision of the majority of the High Court in Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196.

23 That case turned on the now repealed s 570D of the Criminal Code and the meaning of the word 'interview' as defined unhelpfully in s 570. The definition has been effectively repeated in s 115 of the Criminal Investigation Act. So far as material, that definition gives to the word 'interview' the meaning 'an interview with a suspect by a police officer ... or any part of such an interview'.

24 In my opinion, in the context of the relevant legislative provisions in Pt 11 of the Criminal Investigation Act, as was the case formerly under the relevant provisions of the Criminal Code, the term 'interview' refers to the whole of the process of the questioning of a suspect by police officers or other persons in authority, even though there may be breaks in that process. In Nicholls, the breaks were of a limited kind; they were toilet breaks. Here, as I have mentioned, the break was of a more extensive kind, but the parts of the interview which occurred on 24 July 2007 and 25 July 2007 were linked. It was not as if there was a process of interview which was brought to a conclusion and then another interview was conducted later because there were other matters about which the police officers wished to question the accused.

25 On 24 July 2007, at just before 6 pm, Detective Sergeant (DS) Evans and DS Turner commenced an interview with the accused by seeking to determine whether he was in a fit state to be interviewed. He said he had had three VB beers and he thought he had too much to drink. However, he said he was okay to talk but could not understand DS Evans very well as he was speaking too fast. When asked if he could understand what Evans was saying he said 'not much' because he did not speak English. He spoke an Aboriginal language, Gidja.

26 Evans told the accused he would suspend the interview while an interpreter was arranged. Apparently that could not be done immediately and Evans drove the accused home and told him that he would return to continue the interview on the following day. It seems that the accused's assertion that he could not speak English was untrue. The evidentiary value of that statement, if it was a lie rather than a misunderstanding, does not presently arise for consideration.

27 The videoed interview recommenced at about 3 pm on the following day. Evans brought the accused back to the police station in the company of his aunt Queenie, Malgil. She was to act as the accused's interview friend and, if required, as his interpreter. I am satisfied that she was a person suitable to perform those roles and, after some initial misunderstanding, it was made clear to her, and the accused, what part Ms Malgil could play in the interview process. It appears that she had been closely involved in raising the accused when he was a small child.

28 In the early part of the interview, DS Evans asked appropriate questions to establish that the accused was fit to be interviewed. The accused said he had attended school in Halls Creek until Year 10, although he could not read or write. When the question of translation arose, Ms Malgil said that the accused knew no Aboriginal language, but spoke English. Watching and listening to the interview as recorded, shows that that is correct, but after the exchange between DS Evans and Ms Malgil occurred, Evans asked the accused if he could understand the officer and he said 'yes'.

29 But in any event, Evans explained that the accused could call on Ms Malgil for assistance if he did not understand any question. In fact, Ms Malgil was not called upon for that assistance, but it is clear that she was a watchful presence and at the end of the interview, an exchange with her showed that, although she had no complaints about the way in which the police had handled the process of the interview, she was unhappy that the accused had been spoken to and was being blamed for what he had said occurred. She was 'in his camp'.

30 It was made clear to the accused that the interview was being video recorded and at the outset he was cautioned that he did not have to answer the questions that would be asked and that his answers could be used in court. The accused said he understood the caution and he knew what a court was and that there would be a judge or a magistrate dealing with matters of law. I am satisfied that the accused understood that what he said could be told to a court dealing with him, and he clearly knew that he did not have to answer the questions because he said on a number of occasions that if a question was asked that he did not want to answer, he would simply say 'no'.

31 Evans then introduced the subject matter of the interview by saying that he had been in Halls Creek for a couple of weeks and had been told 'about some silly things with a girl'. The accused said he understood what Evans was talking about, that he would be questioned about raping the girl, but he did not know to what girl Evans was referring. The complainant was named. When asked if he wanted to tell Evans some silly things he had done with that child, he answered 'No, I haven't raped her'. He said he knew nothing about it.

32 When Evans told him he had spoken to a lot of boys and girls and to the complainant, the accused said, 'I never touched her'. When he was told that she said he had, he said 'No'. When told that Joelene Rourke also said that something had happened, the accused said, 'They're making it up. They're making up a story'. It was put to the accused that he had sex with the complainant and he denied it. He was told what house it was in and he said he had never been there, although he knew the occupant, Regina Rogers. Observing this exchange, it is clear that the accused was in no way intimidated. He understood the questions and he stoutly denied participating in any sexual activity involving the complainant.

33 Evans made it clear that he did not accept the answers given by the accused. He put to the accused, and the accused agreed, that his version was that everybody else is lying and the accused was telling the truth. Evans then told him that he thought the accused was lying and the accused disagreed. When told that the police have spoken to boys who were friends of the accused, the accused said that they were not friends, but enemies.

34 The accused has given his date of birth and said that he was 19 years old. He was asked if he knew what sex is. He said he did not. Again, the officer said that he thought the accused was lying and the accused said that he was telling the truth. There was some discussion about terminology; the words used for the sexual act and the male and female sexual organs.

35 Then Evans told the accused he was asking him 'to be honest'. Evans told the accused that he accepted what he had been told by others, including the complainant, and he knew the accused had sex with her. The accused answered, 'Okay. Yes, I did'. Evans said to the accused, that was not hard, and what he wanted to know was the accused's story about how he had sex.

36 A series of questions and answers then followed in which the accused explained that the complainant took him to the bedroom, he lay down on the bed and, 'We had sex'. She removed her clothes and she pulled his shorts down to his knees. When asked what the complainant did then, he answered, 'Oh, sex on the bed' and he explained in basic terminology that he was referring to an act of penile penetration of the complainant's vagina until he ejaculated. He said he was wearing a condom.

37 When asked how the complainant was lying on the bed, the accused answered, 'Guts up'. Evans then wrongly interpreted that as meaning that the complainant was lying on her stomach with her back towards the accused. He agreed that he penetrated her from behind, not with the complainant on her knees, but, he agreed when it was put to him, while she was 'flat on her tummy'. That is not an exchange which bears upon the question of the admissibility of the evidence or provides any relevant ground, having regard to the reliability of the evidence in the accepted sense, upon which the evidence might be held to be inadmissible or excluded in the exercise of discretion.

38 The accused said that the incident ended after the intercourse finished, when he put his shorts on and they both lay on the bed. She went to sleep. He stayed with her for about half an hour and he left. He said that it happened a long time ago, during the previous year while football was still being played. He agreed then that it happened at the house of Regina Rogers. There was a 'big mob' of young kids there and that was the only act of intercourse in which he participated.

39 The interview concluded with DS Evans confirming with the accused that if he did not want to answer a question he would have said 'no', that he wanted to answer the questions, he was not forced to answer the questions and he had been treated well. He was told then that he would be charged and he was given a rather inaccurate summary of the nature of the offence. The accused appeared to respond that he thought she was 15 and he was told that that did not matter.

40 As I have said, there is nothing in the material in the recorded interview to give any cause for concern about the reliability of the answers given, in the sense of the presence of factors which should cause me to consider that those answers may not be relied upon. Having observed the process on the video, it seems to me to be clear that the answers were given voluntarily, in that they were answers provided by the accused in the exercise of his free choice to speak. He started with denials which he abandoned when it was put to him that the story he was telling was not accepted. I make no comment, of course, about how that material might be dealt with before a jury in their consideration of the weight to be accorded to the admissions made.

41 The accused was, in my view, adequately cautioned and he understood the right to silence and that the consequence of giving answers may be that they would be put before a court to deal with him for anything revealed by the answers. He understood the nature of the allegation. It was he who used the word 'rape' and he initially denied having had sexual intercourse with the complainant.

42 It was in that context, I accept, that Evans told the accused that he was simply talking about an act of sexual intercourse, not 'bad' sex, by which was clearly meant sexual intercourse without consent. I can see nothing in that exchange which would constitute a relevant inducement to speak, given the way the accused was handling the process of interview.

43 Nor is there anything to suggest that the accused's will was overborne by persistent questioning, hectoring, importunity or any intimidatory behaviour by the police.

44 The accused complains, through counsel, that he was cross-examined and disbelieved in his denials and that the court should therefore conclude that his subsequent admissions cannot be seen to be voluntary, but might well have been the product of gratuitous agreement with propositions put by DS Evans which the accused knew would find favour with the questioning police officers. In other words, it is submitted that it cannot be established, on balance, that the admissions were not unreliably made in an effort to secure the approval of the officers. If that were to be the conclusion of the court, it would be the case that the voluntariness of the admissions is not established because the accused's will was overborne by the inducement that answers acceptable to the police would be viewed with favour by them.

45 It is of course, not importunity, persistent questioning, cross-examination in the relevant sense, or otherwise a process which involves any impropriety on the part of a questioning police officer, that he or she indicates that the truth of an answer is not accepted because it does not accord with what others to whom the police have spoken, including the complainant, have said. I can see nothing in the substance of what was said in the interview by way of questions or answers, as the interview developed, to indicate in any way that the accused's will was overborne.

46 There is nothing to indicate that the accused did not understand the significance of what he was saying, or to indicate that he was prepared to put a worse light on things to gain the approval of the investigating police. Nor is there anything in his demeanour or in the process of interview generally as it is observed on the video, to lend any support for the contentions of the defence: cf R v Amad [1962] VicRp 75; [1962] VR 545, 548; R v Pritchard [1991] VicRp 8; [1991] 1 VR 84, 93..

47 I am satisfied that, in the relevant sense, the admissions were made voluntarily and the evidence is admissible.

48 This may be dealt with shortly, having regard to what I have already said. On the basis that the admissions were voluntarily made and that the evidence of the admissions made during the videoed interview on 24 and 25 July 2007 is admissible, I can see nothing to suggest that it would be unfair to the accused to admit the material in evidence. Nor can I see any other broader public policy consideration established by the evidence which would support the conclusion that in the exercise of discretion the evidence should be excluded. There was a breach of s 28 of the Act on 24 July, but it is in no way linked to the confessional evidence.

49 The police did not act with any impropriety during, or in the process leading up to that part of the interview which occurred on the afternoon of 25 July over the short period of about half an hour. The application to have the court exclude the evidence in the exercise of discretion is also refused.