Criminal Investigation Act 2006 (WA), s 28, s 138, s 154, s 155

Criminal Procedure Act 2004 (WA), s 98

1 McKECHNIE J: Application was made by the applicant ('accused') to exclude the video record of interview from trial on the grounds that it is involuntary, or alternatively, that it would be unfair to admit it on grounds of public policy and should be declared inadmissible in the exercise of the court's discretion.

2 The prosecution called two witnesses, Acting Brevet Sergeant Birch who is, coincidentally, the uncle of the accused and Detective Sergeant Turner who conducted the video record of interview with Detective Sergeant Evans who was not called. The accused gave evidence on his own behalf. There is an issue as to who dealt with the accused in the first instance.

3 Birch gave evidence (ts 13) of being asked by Turner that if he came across the accused to convey him back to the Kununurra police station. He located him in Barringtonia Avenue. He spoke to the accused and said:

Sonny, the detectives want to have a word with you in regards to a matter. Can you come back to the police station with us? I said, 'You're not under arrest'. Marshall then said, 'Okay', and he jumped in the back the rear of the police vehicle. We conveyed him back to the Kununurra police station where he was introduced to Detective Sergeant Turner and left in his care.

4 In cross-examination it was clear that Birch had a very limited memory of the event indeed. He obviously required considerable assistance from Turner judging by the email traffic that passed in order to place the event at all. His evidence was punctuated by long pauses as he struggled to remember even basic details; however, he was firm that it was he who spoke with and conveyed the accused who, as I say, is his nephew.

5 Birch's police number does not appear in the custody handover summary. On the other hand, Officer Dodson's number does appear on an entry of 26 July 2007, '1350 arrival, PD08466, Kununurra detectives'. The accused's evidence was emphatic that his uncle was not one of the police officers he spoke with that day. He says that two white police officers arrived in a van outside his mum's house - in fact his aunt he calls his mum - and she called him out.

6 If it were important I would prefer the evidence of the accused over that of Birch whose memory of the event was such that I could place no reliance on his evidence; however, as it turns out it is not an important issue because in his evidence the accused agreed that whoever came and got him (ts 50) said, 'The detectives want to talk to you about a matter'. They asked him to accompany him back to the police station and told him he was not under arrest.

7 Significantly the accused answered 'Yeah', when asked:

You were happy to go with the police officers, weren't you? (ts 51)

8 In any event the accused was conveyed back to the police station in the back of the police vehicle. At the police station the vehicle was backed into the sallyport and in the words of Birch (ts 19):

The police vehicles drive into the police station where the prisoners are let out of the van and led into the police lockup. (ts 19)

9 He corrected 'prisoner' to 'the accused'. Shortly after, Turner commenced the record of interview. There is a dispute between Turner and the accused as to how the accused came to be in the room. The first time that Turner remembered seeing the accused is in the interview room. He denied seeing the accused in the reception area of the lockup and walking upstairs to the interview room saying, 'The interview room isn't even upstairs so that's certainly not right' (ts 33). He also denied a short conversation where the accused asked for various people to be contacted.

Then he's told me, 'Stand up', so I stand up. I should follow them so I follow them up the steps to the interview room. When I went over there I asked them, 'Can I ring my Auntie, Auntie Pamela Condon?' The other officer - the detective said, 'Which auntie?' so I said, 'Auntie Pamela Condon'.

What did that police officer say?---He asked me, 'Who's your auntie?' I said, 'My Auntie Pamela Condon', work at OVAHS, Kununurra.

Works at OVAHS?---Yep, OVAHS, that's the medical centre. ... They didn't respond back so I said, 'Can I ring my mum, Ruthie Ward?' They never respond and I asked, 'Can I have a lawyer?' then they didn't respond. I just kept walking. I was told I have to keep walking. (ts 47)

11 If there are no stairs in that part of the police station, this would seem to cast some doubt on the accused's version.

12 I also note that at the commencement of the interview the accused was asked:

Do you need to have anyone here with you? Do you need a friend to sit with you or are you happy just to talk to us as we're talking?---No. That's all right. I'll be right.

Are you happy to talk with us now?---Yeah. (ts 4)

13 I am in the circumstances persuaded that the accused did ask to contact people prior to the interview but was prepared to continue the interview alone.

The rights under the Criminal Investigation Act 2006 (WA)

14 It is common ground that the accused was not afforded any rights under the Criminal Investigation Act s 28 or s 137 and s 138. Birch, if it was in fact he who collected the accused, and the officer who did, if it was not Birch, obviously never even turned their minds to the requirements of s 28 as they ought to have done.

15 The accused was not under arrest and therefore the officer who requested him to accompany him must inform him and be satisfied that the person understands (a) that he not under arrest; (b) that he does not have to accompany the officer concerned and (c) that if he accompanies the officer concerned, he is free to leave at any time unless he is then under arrest.

16 At the time of this incident, the Criminal Investigation Act had been in place for nearly four weeks. Even more astonishing was the evidence of Turner on the subject. His evidence (ts 27) was that as at the date of the interview he had had a two-day course at Joondalup Police Academy in relation to the Criminal Investigation Act and he received a handout.

17 The handout, DH 5, is in fact a document entitled Criminal Investigation Act Training. This precis has been prepared as a guide for training purposes only. It sets out s 28 and warns:

Where a person voluntarily accompanies police, this section needs to be complied with. If the defence is able to demonstrate that it is not complied with, then any evidence obtained may be deemed inadmissible under section 154.

18 The Commissioner's Orders and Procedures Manual also deals with s 137 and s 138. Turner's evidence continued:

As a result of that training, did you understand that there had been a change to the extent that the law now required police officers to advise people who were being asked to come to a police station voluntarily that they weren't under arrest and they didn't have to go and so forth?---As a result of that training, it was two days where - if I might just elaborate a bit, it was just two days of where someone stood in front of an area full of people and ran through the book, so I wouldn't call it training as such, but yes I know that now, and it was something that I wasn't aware of at the time.

At what time?---At the time that I dealt with Mr Marshall.

So is it your evidence on oath that you had no knowledge whatsoever of the requirements under section 28 of the Criminal Investigation Act?---No, I'm not saying I didn't have any knowledge whatsoever, but unfortunately I hadn't had time to go through the book and become completely conversant with it.

What was your understanding? What was your understanding in relation to section 28 then of the act as at 26 July 2007?---I'll be honest - - -

I hope so?--- - - - as far as that goes, it didn't even cross my mind. I was just so used to working the other way.

You didn't think about it?---No. That's the long and short of it. (ts 28)

19 His understanding of the rights of people at the date of the interview was as follows:

As at the date of the interview, what was your understanding as to the powers the police had to detain people for the purpose of interviewing them or for the purposes of an investigation?---First you can get up and walk out at any time they please.

Is that an answer to my question?---I've answered your question.

Did you even bother to read the training manual that you were given at this training?---I actually had a bit of a flip through it from time to time.

Prior to the time of the interview, did you bother to read it?---I don't recall whether I'd read the thing thoroughly.

I didn't ask you that. I said did you bother to read it?---I don't recall.

Do you agree with the sentiments that were expressed by your other detective during the interview, that is Detective Evans, where he said to Mr Marshall, explaining the caution to him at page 63, 'Because they're your rights and we've got to look after your rights'. Do you remember him saying that?---I do actually, yes.

Is it a sentiment that you agree with?---Most certainly.

As a senior police officer you would agree that it was your duty to understand what Mr Marshall's rights were prior to and during that interview?---Yes.

At no stage during the interview did you ask Mr Marshall how it was that he came to be at the police station, did you?---No. I knew how he got there.

At no stage during the interview did you point out to Mr Marshall that he was not under arrest, did you? (ts 34)

At no stage did you ask him whether he had been told that when he was collected by the police?---No.

At no stage did you ask him whether or not he was told that he didn't have to come to the police station with a police officer?---No.

At no stage did you tell him during - at any stage, either before the interview or during the interview that he was free to leave the police station at any time that he wished?---No.

Did you?---No. Unfortunately, it was all done pre CIA.

Sorry?---Unfortunately, it was all conducted pre CIA.

Unfortunately for who? Detectives?---I don't know. We will see what the outcome of this is, unfortunately.

McKECHNIE J: Sorry. Unfortunately it was all done pre CIA?---The way that it was conducted, your Honour, the way I conducted the interview, et cetera. (ts 35)

21 By any measure, this is astounding evidence by a senior police officer that he was so derelict as to fail to properly inform himself of the most far-reaching legislative changes in criminal investigation in this state for the past 30 years.

22 This evidence led to an intriguing submission on behalf of the prosecution to the effect that because Turner did not purport to exercise any power under the Criminal Investigation Act, s 154 and s 155, that Act had no application and the issue should be dealt with on common law discretionary grounds as outlined in cases such Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and R v Swaffield [1998] HCA 1; (1998) 192 CLR 159. After some interchange with the bench, counsel did not press the submission further, but I think for future cases it would be worthwhile my dealing with it.

23 It has great significance, because if there is a contravention of the Act, the evidence becomes inadmissible and it is for the prosecution to persuade a judge that it should be admitted under s 155. If, however, evidence is admissible but subject to a discretion the burden is on the accused to justify the rejection of the evidence.

The scheme of the Criminal Investigation Act

24 The submission, although in the end not pressed, cannot be sustained. I reach that conclusion in two ways. One involves an interpretation of the Act, the other is simple logic.

25 It is illogical for the scheme of the Act with its attendant rights, powers and responsibilities, to be able to be defeated entirely by a person who professes to be totally ignorant of its terms, whereas an officer who has an incomplete, even scant knowledge of the Act, but who purports to exercise power under the Act, even in contravention of some of its provisions, results in the matter to be determined entirely under the Act. However, that is not the scheme of the Act.

26 There is no need for any special legal power to ask questions in the course of criminal investigation. Any person is at liberty to ask a question of another person. This applies, obviously, to the police officers and constables at common law. Unless it provides otherwise, the Criminal Investigation Act does not affect any power that an officer may lawfully exercise in common with any other citizen: Criminal Investigation Act s 8.

27 However, the Act does provide otherwise by s 28. A police officer must therefore inform the person of the matters under s 28 when requesting them to accompany the officer. Reference can also be made to s 7:

Common law, this Act's relationship with

(1) Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.

(2) If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.

(3) If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.

28 The explanatory memorandum accompanying the Criminal Investigation Bill 2005 in relation to s 7 provides:

Common law, this Act's relationship with:

The intention of this bill is to provide comprehensive powers for police in respect of all matters that may arise. The bill also intends to codify common law powers. This clause is intended to ensure that this legislation takes precedence over any common law.

29 There is no common law power to detain a person for the purposes of interview: Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278. The accused's status in this case is unclear. If he was not under arrest, as the evidence suggests, then he was obliged to have his rights under s 28 explained. If he was effectively under detention from the time he was placed in the cage of the police vehicle until the completion of the police interview, then he attracted the rights of an arrested person under s 137 and an arrested suspect under s 138.

30 If he can be so categorised, then the police power to hold him arises under s 139(2)(c) and this is so even if there has been a contravention of the Act. Whether or not he was arrested or accompanied the police as a result of a request, the police powers depend upon the Criminal Investigation Act and come from no other quarter. It matters not whether the officer was, as in this case, entirely ignorant of his powers and responsibilities, or whether an officer applied the Criminal Investigation Act provisions to the best of their ability.

31 Both officers derive their power from the Criminal Investigation Act, not from the common law. Therefore, any actions that are taken in the purported exercise of that power are done under the Act and consequently s 154 and s 155 applies.

32 There is one area where the common law nevertheless continues to have effect. Although the Criminal Investigation Act is intended to cover the field in relation to the powers outlined, the Act does not deal with the voluntariness of an interview. The extent of the power given to police is the power to detain for the purposes of interview. The actual power to interview, as I have said, is the power to ask questions that every citizen enjoys: see s 8.

33 The common law has developed a special rule to deal with admissions and confessions made in the course of an interview. To be admissible in court any admission must be voluntary, that is, made in the exercise of a free choice to speak or remain silent: R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149. In considering the voluntariness of a record of interview, obviously the video record of interview itself is important but so also are the preliminary and surrounding circumstances: see Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257.

34 The accused was born on 14 November 1985 and therefore at the time of the interview was 21 years of age. He was collected, as I find, from his house, certainly after he had commenced drinking, but he does not appear to have been under the influence of alcohol. He had consumed one can of vodka lemon and lime and had just opened a second can when the police arrived.

35 Had he known that he was not obliged to accompany the police, he would have continued, as he put it, charging up. The circumstances gave him no realistic opportunity to decline to accompany police and he was placed in the back of the van. On the other hand, he acknowledged that he was told he was not under arrest and was happy to go with the police officers.

36 The video record of interview indicates that he had sufficient sleep, was not hungry and declined to have someone sit with him. The caution was explained to him and he acknowledged understanding it and particularly understanding that he did not have to answer.

37 There is one portion where as part of the caution an officer asks, 'What happens in the courthouse?' and he replies, 'I don't really want to answer that'. The officer says, 'No, no, no. I'm just saying, you know - just so I know that you know we can use this in court, so who runs the court? Who's the boss of the court?' and the accused answers, 'The judge'. I have taken this apparent overruling of the 'no comment' in assessing whether the accused understood the caution but conclude that nevertheless he did.

38 Towards the end of the interview, the following exchange took place:

All those questions you've answered because you wanted to talk to us?---Yeah.

Yeah?---Oh, well, you asked me so I answer it.

Yeah, that's right, and if you knew - did you know that at any time if we asked you a question what you were going to say if you didn't want to answer it?---Um, I don't want to answer that.

So you knew that's - - -?---What? Yeah.

39 During the course of the interview in answer to questions asked of him the accused, in broad terms, advanced a version of events by which he admitted having sex with the complainant in circumstances where it was essentially her idea, she having been humbugging him and playing, it would appear, an active role.

40 Later in the interview this account is challenged quite strongly by the interviewing officers and as a result the accused recants, to a degree, and accepts, to a degree, a version advanced by the police which had him playing a more dominant role in the affair.

41 Counsel for the accused, in written submissions upon which he relies, points to various sentences and phrases used in the interview which he submits bear the character of inducements to speak. One such is the use of the word 'chat'. He also points to what is described as improper cross-examination and the introduction of personal opinions. The police interviewing at times was robust and on occasions bore hallmarks of cross-examination but considering the whole of the interview, I do not consider that it was relevantly improper or importantly, oppressive and threatening.

42 I have taken account of counsel's submissions. The video record of interview largely speaks for itself and is available for others to assess if necessary. An interview is an evolutionary process and one of many advantages of videotaping an interview is the ability to have a record not only of the questions asked and answers given but also of the demeanour of the participants, especially the accused, and the tone of the interview.

43 At the conclusion of my examination of the interview and of the evidence, I am satisfied on the balance of probabilities that the interview was voluntary. Although the accused if given a choice may well have chosen not to accompany the police officers, he was nevertheless happy to do so in the circumstances and demonstrated a sufficient understanding of his right to silence to leave me satisfied on the balance of probabilities that the interview was voluntary.

The Criminal Investigation Act

44 I find the Act was contravened in a significant way. As he was not placed under formal arrest, the police were required to but did not advise the accused of the matters contained under s 28. If he was under de facto arrest, he was not advised of nor given the opportunity to exercise his rights under s 137 and s 138. The egregious failure to record these basic rights would in almost all cases be fatal to the subsequent admission of evidence. It is generally undesirable to admit evidence which has been obtained in reckless disregard of the provisions of the Act on public policy grounds. There is a significant public interest in requiring police officers to firstly know and secondly apply the law relating to their powers and responsibilities.

45 Inadvertence is one thing but reckless indifference to responsibilities, as here, is quite another and it would be very seldom, I suspect, that a court could overlook such conduct. In this case, however, I have determined, albeit by a narrow margin, but nevertheless definitely, that balancing the factors in s 155 satisfies me that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence and I shall explain why. In making a decision, the court must take into account various factors.

Section 155(3)(a) - any objection to the evidence being admitted by the person against whom the evidence may be given.

46 As is patently obvious, the evidence is objected to.

Section 155(3)(b) - the seriousness of the offence in respect of which the evidence is relevant.

47 The circumstances of the offence are serious. There is a maximum penalty of 20 years and 14 years for the alternative, and the allegations involve sex with a girl some nearly eight years his junior.

Section 155(3)(c) - the seriousness of any contravention of this Act in obtaining the evidence.

48 The contravention was serious, resulting in the accused effectively being unable to exercise any right to decline to cooperate with police at all.

Section 155(3)(d) - whether any contravention of this Act in obtaining the evidence was (i) intentional or reckless; or (ii) arose from an honest and reasonable mistake of fact.

49 There was no mistake of fact. I do not find that the contravention was intentional but reckless hardly begins to describe the contravention.

50 This is yet another case where the validity of evidence relating to serious allegations of sexual relations with young girls is put in jeopardy due to the ignorance by senior police officers of the basic provisions of the Criminal Investigation Act. It frankly beggars belief that despite training, training material and the COPS Manual so few officers, including the two officers who gave evidence in this case, had any appreciation of the change of law brought about by the Criminal Investigation Act.

Section 155(3)(e) - the probative value of the evidence

51 In this voluntary confession, the accused provided significant detail of the offence which appears to be reliable. The video record of interview is highly probative.

Section 155(3)(f) - any other matter the court thinks fit

52 There are two matters to be considered under this heading. One relates to the desirability of admitting the evidence and one relates to the undesirability of admitting the evidence. As to the undesirability, it is best summed up in the submission of counsel for the accused:

A decision of admissibility would send a message, a very inappropriate message, to senior police officers that they could ignore, as this officer did, his duty to such a blatant degree. This court in my respectful submission should and could not countenance that blatant disregard of the law. (ts 61)

53 This submission is essentially contained in the principles set out in Pearse v Pearse [1846] EngR 1195; (1846) 63 ER 950 (Bruce LJ) where he says, dealing with legal professional privilege:

The discovery and vindication and establishment of truth are the main purposes certainly of the existence of the Courts of Justice; still for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination.

54 He then proceeds to matters in relation to that case before continuing:

Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much.

55 The reliability or indeed truth of a confession is not relevant to the issue of voluntariness of that confession. Where the only issue is voluntariness, a question in cross-examination at a directions hearing about the truthfulness of the record of interview would not be allowed. Where, however, the discretion to reject a voluntary confession is, because unfairness, enlivened, the issue of the reliability and of the truth of the confession is a relevant factor and a question in cross-examination going to the truth of the statements in the interview might in the exercise of discretion be permitted.

56 When considering s 155(3)(f) similar considerations arise. In not all circumstances will questions of the truth of confession necessarily be permitted, but in the present case I consider the question was proper and I have regard to the answer. The answer is the factor weighing in favour of admitting the video record of interview on public interest grounds.

57 The accused has admitted on oath that what he said in the record of interview was in fact true:

I think at the start of the interview some of it wasn't the truth but later on in the interview, you came clean and told the truth, didn't you?---Yes.

Then you were charged. Is that right?---Yes. (ts 51)

58 The answer on oath attesting to the truth of the latter part of the confession is such a powerful factor in the public interest in favour of the desirability of admitting the video record of interview that it, in the unusual circumstances of this case, in combination with the seriousness of the offence and the probative value of the evidence, outweighs the undesirability of admitting the evidence because of the seriousness of the reckless contravention of the Act and the obvious public interest as outlined by counsel for the accused which I have quoted.

59 In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Deane J set out five matters relevant to abuse of process. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of a crime. While of course convictions may be obtained at too high a price, in all the circumstances here I am satisfied that there is no unfairness in acting upon the sworn testimony of the accused which is independent of the unfairness occasioned by the police. There is a strong public interest making it desirable to admit the evidence.