Criminal practice and procedure - Interview accused - Rights under Criminal Investigation Act 2006 (WA) - Police acting in breach of these rights - Voluntariness of interview - Meaning of 'seriousness of the offence'

Criminal Investigation Act 2006 (WA), s 137, s 138, s 139, s 154, s 155

Criminal Procedure Act 2004 (WA), s 98

1 McKECHNIE J: The applicant ('accused') applies to have the video record of interview excluded on the basis that it is involuntary or, alternatively, in the exercise of a discretion. The accused was interviewed on 10 July 2007 and therefore the provisions of the Criminal Investigation Act 2006 (WA) apply. It will be necessary, if possible, to make findings of fact particularly in relation to the circumstances of the accused's apprehension but before doing so I set out some uncontentious propositions.

2 Where a confession is challenged as involuntary, the burden is on the prosecution to establish on the balance of probabilities that the confession is voluntary. The parties' written submissions are not in material dispute as to the meaning of voluntariness. For at least 60 years in Australia the test has been that propounded in R v Lee [1950] HCA 25; (1950) 82 CLR 133:

The word 'voluntary' and the relevant connection does not mean 'volunteered'. It means 'made in the exercise of a free choice to speak or be silent'. (149)

3 The issue has since been examined many times by the High Court most recently in a series of cases in 2007. In Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257 Brennan J said:

The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. (307)

A breach of the Criminal Investigation Act 2006 (WA)

4 If there is a contravention of the Criminal Investigation Act in the purported exercise of a power by a police officer, any evidence derived by the exercise of that power is inadmissible: Criminal Investigation Act s 154. Notwithstanding the breach a judge may admit such evidence if the desirability of admitting the evidence outweighs the undesirably of admitting it.

5 It follows that the parties seeking the exercise of the judge's power to admit must carry the burden of persuading the judge to do so. If evidence is voluntary and not obtained in breach of the Criminal Investigation Act it is admissible. There is always a discretion in criminal cases to decline to admit otherwise admissible evidence. Sometimes this may be because its slight probative value is outweighed by its prejudicial value.

6 In cases such as the present, the exercise of the discretion might be exercised for reasons of fairness, reliability, probative value or public policy: Tofilau v The Queen [2007] HCA 39; (2007) 238 ALR 650; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159. Because evidence is otherwise admissible the party seeking the exercise of the judge's discretion to reject the evidence carries the burden of persuasion. From this brief outline, which is, as I say not in material contention, I turn to the facts of the case.

The apprehension of the accused on Tanami Road

7 It is common ground that on 10 July 2007 the accused and "X" (a child), another person whom the police wished to interview, were staying at a road camp on the Tanami Road more than 100 km from Halls Creek. It is also common ground that on that day police attended and took the accused and X back to Halls Creek. The accused was interviewed and charged before being admitted to bail. X was interviewed but a decision was made on public policy grounds not to charge him.

8 What is in dispute is what occurred, or more accurately what was said, at the Tanami camp and the accused's status thereafter. These matters are relevant not only to the issue of voluntariness but also to whether there has been a breach of the Criminal Investigation Act or whether the discretion to exclude evidence is enlivened.

9 There were four witnesses called to give evidence at the directions hearing in relation to the event at Tanami Road - three police officers and the accused.

I walked to the back of the truck. Detectives Johnston and Walsh remained with [X] and the young child. In the back of the truck I observed the accused lying down on a makeshift bed. I spoke with him.

He left the truck and walked to Detectives Johnston and Walsh and I joined them as well. Detective Johnston advised them the nature of our attendance and told them basically that we were heading back to Halls Creek police station; they were under arrest and would be interviewed at the Halls Creek police station in relation to child sex abuse matters.

Who was doing the talking?---Detective Sergeant Johnston.

Those remarks - who were they addressed to?---[X] and the accused person. He further went on and advised them they could have a family member present and told them there was an ALS representative in Halls Creek they could speak to. (ts 9)

I approached the rear of the truck and spoke to the accused Matthew Martin and [X], explained to them that there had been an allegation about boys having sex with girls that were too young and that's what we needed to speak to them about. I advised the accused and [X] that they were under arrest and would have to accompany us back to Halls Creek police station, explained to them that they would be able to have a family member present when we spoke to them and I said that there was an ALS officer in town if they wanted to speak to him. (ts 66)

At that point in time, Detective Doyle went over and spoke to the accused who was still in the truck. They then came back to where we were standing. Detective Johnston explained why we were there, conducting investigations into allegations of sexual abuse against children.

Who was present when he explained that?---At that time, I think we all were.

You have mentioned Matthew Martin and also [X]. Who of those was present?---Both of those had come over to where we were standing. From there, I went back to the vehicle and called back to the operational base, using the satellite phone. (ts 93 - 94)

'Are you Matthew?' What did you say?---'Yeah.'

Did he say anything else?---I went to the toilet and then I walked back.

Say again; what was that?---I went to the toilet then.

Leave what you did aside but when you were asked, 'Are you Matthew?' who else was around when that was said?---Scott, my nephew.

Anyone else?---Them two policemen.

Was anyone else staying at the camp with you?---Yeah, [X].

What's his name?---[X].

Did the policeman say anything to you about [X]?---Yes.

What did he say?---He said, 'Is [X] here?'

Sorry?---'[X] here?'

Right. What did you say?---'Yeah, somewhere.'

Did you know where he was?---No.

Did eventually [X] - did you see [X] eventually?---Yes.

Where did he come from? Did you see where he came from?---Been to the toilet.

Behind a bush?---Yeah.

When he came did any of the policemen start talking to you then when [X] came?---Yes.

Can you remember what the policeman said to you after he said, 'Are you Matthew?' What do you remember he said after that?---What he said.

Yes?---'We needs you boys to come to town.'

...

'We needs you boys to come to town', is that what you said?---Yeah, 'for interview'.

'For interview.' Okay. Did he say anything else? Did he say why he wanted you to come to town for an interview?---For silly business with some girls.

Sorry?---Silly business.

Some silly business with some girls?---Yeah.

And did he say anything else to you after he said that?---He said, 'Jump in the car.'

What was that, 'Jump in the car?'---Yes, 'Jump in the car.'

What did you do?---Get in the car.

What did [X] do?---Get in the car.

What did Scott do?---Jump in the car.

Why did you jump in the car?---They were policemen.

So? Why did you jump in the car?---They might arrest me.

You said they might arrest you. Did you hear the policeman use that word at the bush camp, 'arrest'?---No.

Okay. Did you hear it at all that day, that word 'arrest'?---Yeah.

Where did you hear it?---At the police station. (ts 122 - 123)

14 Initial statements of the police submitted for the brief were very short and do not deal with the circumstances of the apprehension at all. Although counsel for the accused tried to make something of this, I am not persuaded that there is any significance in the shortness of the statements. The statements were prepared by Walsh and concentrated on the interview. Each officer made an expanded statement dealing particularly with the circumstances of the apprehension, those statements being made in late April 2008.

15 These statements were made after difficulties had emerged in a series of cases involving police compliance with the Criminal Investigation Act. The police had no contemporaneous records to guide them. There was no note in any journal or police notebook. The Commissioner's Operations and Procedures Manual suggests that it is good practice to repeat the rights on video or have an accused acknowledge that he has received his rights in writing. This was not done. Significantly, there is no reference in the video record of interview to the circumstances of the apprehension. The same is true of the interview of X conducted by Johnston.

16 In preparing their statements, each officer spoke to the other and there was some sharing of statements. Necessarily, such a process of reconstruction of a reasonably commonplace event nine months later gives rise to the possibility of reconstruction of memory, whether intentional or unintentional. An example of this is given by Walsh. In his evidence in cross-examination he freely admitted he was unable to recall words being spoken and said:

From memory, he advised them that they were under arrest and that's why they had to come with us and that that was the nature of the allegations that we were investigating. I think from there Detective Doyle simplified things and said it was a matter of doing silly things with young girls (ts 99).

17 The word 'arrest' was not mentioned in Walsh's statement or relevantly in his evidence-in-chief. I consider this as an example of reconstruction of events to which he was not an active participant many months later. Doyle gave evidence that he does not lie on oath and there is no reason particularly to conclude that he does in this case. However, testimony may be rejected for reasons other than conscious dishonesty. All court cases are a remembrance of things past.

18 Memory may become uncertain with the passage of time, particularly when the precise events may not be memorable. I accept that having to drive out to the bush camp was a memorable event. However, there is nothing particularly in the conversation at the camp that strikes me as immediately memorable. This is why police officers and judges keep notes of events, especially when events, such as apprehending and interviewing a great many suspects, are occurring. It is undeniable that Doyle and the other officers were extraordinarily busy during this period.

19 Johnston's understanding of the Criminal Investigation Act as at 10 July 2007 was minimal at best:

A very basic awareness of the act. I was aware through - I did a training course, I think it was in February 2007, so I was aware that we now had a power to arrest someone for the purpose of interview and that we had a six-hour time frame before seeking an extension of that time. (ts 67)

20 In cross-examination he conceded that he had not sufficiently understood the rights of arrested suspects:

So it was along the lines of, 'Look, there's been allegations of boys have sex with girls who were too young'?---Yes.

Something like that to both those boys and, 'We need to speak to you about it'?---Yes.

What did you say then?---I told the boys that they were under arrest and would have to come back to Halls Creek.

Did you use the word 'arrest'?---Yes, I think I did.

You think you did?---Yes.

You're on oath, detective. You said, 'Think'. Are you saying on oath you said it or are you saying on oath that you think you said it?---I'm saying I said it.

You just said a moment ago, you said, 'I think I said it'?---Well, I've corrected myself.

You've changed your mind, have you?---Corrected myself.

But nowhere have you found a piece of paper that you've written or anyone else has written that indicates that you told the boys that. Correct?---That's correct.

So you say you said, 'You're under arrest and you need', you have to come back or you need to come back. What did you say?---You'll have to come back.

Your statement says 'need'. What does that mean? Do you agree it says 'need'?---If you've got it in front of you and that's what it says, I agree with what you've said, yes.

Apart from saying that you would need to come back did you say anything else to them, these boys?---Yes.

What did X say when you said 'You need to come back with us to Halls Creek'. What did he say?---I don't remember if he said anything. (ts 76).

21 In cross-examination, the accused's memory of some events is also shaky. For example, he did not remember being asked by Officer Rigoir at the Halls Creek police station, 'Do you want ALS to represent you?' and saying no. He denied later that he had been asked a question (ts 134). However, he was emphatic that he was not told he was under arrest, not told that he could have a family member present and not told that there was an ALS officer in town he could talk to at the time of the apprehension.

22 I do not regard Walsh's recollection as a sufficient or reliable base to act upon it and I put it to one side. The evidence of Doyle and Johnston was clearer as to what was said. However, having regard to the length of time before it was necessary for them to recall the event to mind, the relatively commonplace nature of what was actually said, Johnston's general lack of knowledge of the detail of the Criminal Investigation Act, the lack of a contemporaneous note, the lack of any reference to the matter on either video, the collaboration in the recollection of memory and the emphatic denials of the accused, I am unable to accept on the balance of probabilities that the accused was formally arrested at the bush camp.

23 No officer gave evidence that there were reasonable grounds to suspect the accused of committing an offence. There is no evidence that at the bush camp he was told the identity of the girl with whom it is alleged he had a sexual relationship. However, I am able to draw an inference from the video record of interview and the questions and comments of Doyle that there did exist in him a reasonable suspicion that the accused may have committed an offence. I am satisfied that the nature of the allegations, although in barest outlines, was nevertheless conveyed to the accused at the bush camp.

Does the Criminal Investigation Act apply?

24 Counsel for the accused submitted that in the absence of evidence that the accused was arrested, his detention was unlawful from that point and the matter should be judged on the discretion to exclude. There is some substance in the submission but, on balance, I consider that the matter properly falls to be determined under the Criminal Investigation Act.

25 The accused was effectively arrested in the sense that he was detained under compulsion. Although Johnston had a minimal understanding of the Criminal Investigation Act, he at least thought it gave him power to detain suspects for a period for the purpose of interview. This is true.

26 The better way to view the situation is that the police purported to exercise power conferred under the Act to detain for interview but contravened a requirement or requirements under the Act.

27 The power under the Criminal Investigation Act is s 139(2)(c) - that is, the power of detention for the purpose of interview - is subject to preconditions. First, an arrested person obtains a bundle of rights as a result of that status: s 137. An arrested suspect obtains those and other rights: s 138.

28 A precondition for the exercise of the detention power for the purpose of interview in s 138(3) is the condition which imposes on the officer in charge of the investigation as soon as practicable a duty to inform the suspect of certain rights and to afford them those rights.

29 The first difficulty facing the respondent ('prosecution') is that there is no evidence as to who was the officer in charge. Each officer disclaimed this position. Doyle was the senior officer who conducted the substance of the interview, while Walsh prepared the brief. The duties of the officer in charge may be delegated (Criminal investigation Act s 12) but in the absence of an officer in charge or evidence that there was an officer in charge I am unable therefore to find any valid delegation. In particular, I am unable to find therefore that the officer in charge delegated any power to Rigoir to inform the accused that he had a reasonable opportunity to communicate with a lawyer.

30 It is of course to be noted that in any event Rigoir's perfunctory asking of questions and filling in boxes on the computer was not 'as soon as practicable'. There is no evidence how Rigoir asked the question or if any explanation was given that if the accused wanted a lawyer a reasonable opportunity would be given for him to obtain one.

31 For the reasons I expressed in relation to the apprehension, I am also not satisfied that at the camp Johnston advised the accused of his right to communicate with a lawyer. The accused has given evidence that he did not at that time know what the initials 'ALS' meant. This evidence was unchallenged.

32 I divert to deal with a submission from counsel for the accused to the effect that the Act requires the opportunity to communicate with a lawyer. Halls Creek apparently did not have a lawyer at the offices of the Aboriginal Legal Service ('ALS'), although they may have had a court officer or field officer. In my opinion, the police would fulfil the requirement of the Criminal Investigation Act by informing and giving the accused the opportunity to communicate with the ALS. I consider it would be sufficient compliance with the Act and it is not necessary for the accused to physically speak with a lawyer if he speaks with a legal service who can, if necessary, make the appropriate arrangements.

33 An arrested suspect who is detained for the purpose of the interview must be detained in the company of an officer and not in a lockup or other place of confinement unless the circumstances make it impracticable to do so. The accused gave evidence that he was placed in the lockup. Rigoir's evidence is that the general assessment was conducted at 1332 hours and he recorded the time of interview at 1346 hours, the accused being arrested at 1423. He was unable to say where the accused had been placed.

34 Doyle believed the accused and X were in the hallway of the police station but could not specifically recall any conversation. Later, Doyle said in cross-examination:

I remember seeing them in the hallway.

Right, and then what did you do?---I went off and did something else, prepared for the interview.

Is it correct you did go off and leave them in the hallway?---I can't remember exactly. Possibly. (ts 54 - 55)

35 I find the probabilities are that the accused was detained as he said for a time in the lockup prior to interview.

Voluntariness of the video record of interview

36 I have taken account of the written and oral submissions of counsel for the accused and for the prosecution, and of course also observed the video record of interview. I have also taken account of the accused's status as an arrested person, whether in fact or as advised, in considering whether the interview is voluntary.

37 There are some unsatisfactory features in relation to the question whether the accused wanted a friend to be present, but taking all things into account I am satisfied on the balance of probabilities that the interview was voluntary, in that the accused understood he could speak or remain silent and exercised a choice to speak. Although he does not read and write very well, he completed year 11 at school and displayed on the video record of interview a more than adequate command of English to communicate.

38 I note, for example, some emphatic denials of engaging in sexual relations with certain persons, indicating to me that his will was not overborne. Moreover, the manner and tone of questioning does not give rise to the probability that he was overborne or threatened by the surroundings or by being interviewed. I have not overlooked the fact that he was but 19 and without support of a friend or relative in reaching this conclusion.

39 The accused's evidence in court as to his state of mind at the time of the interview seems to me to be at odds with his demeanour on the video record of interview. I have also borne in mind the fact that the accused was collected from the camp and taken to Halls Creek, submitting to that because it was the police. I find that he did ask that he could be taken back and was told 'Yeah', a factor which may also have played on his mind in affecting the answers he gave, as also might the compulsory nature of his attendance. Nevertheless, from my assessment of the video record of interview and all the surrounding circumstances, I nevertheless still conclude on the balance of probabilities that the actual interview was voluntary.

The Criminal Investigation Act contraventions

40 I find there to have been significant contraventions of the Criminal Investigation Act in the purported exercise by police of the power to detain a suspect for the purposes of interview.

41 First, for the reasons I have given, I am not persuaded that the accused was formally arrested and informed of his rights as soon as practicable, particularly the rights in relation to a reasonable opportunity to communicate with a relative or friend and his right to a reasonable opportunity to communicate or attempt to communicate with a lawyer. As it happens, though, his uncle was informed at a time when, on the return to Halls Creek, the police stopped at the grader to deliver the young boy who was with them.

42 Even if the accused was informed by Johnston that he could contact the ALS, a matter about which I am not persuaded on the balance of probabilities, as Johnston conceded in evidence:

You have said that at Tanami you said, 'We could organise for them to have a family member present when we spoke to them and I told them there was an ALS officer in town that they could talk to'. That's what you say you said to them. Correct?---Yes.

You said that because you considered it to be important information that should be conveyed?---Yes. It was just to be fair to the boys.

It was important - and what you say, important to be fair?---Correct.

Yet when you got to Halls Creek you did absolutely nothing about either of those matters, did you - not a thing?---No. That's correct.

Not a thing, so where is the fairness in that, detective? Any fairness there?---No. (ts 88 - 89)

43 In the circumstances, I do not consider Rigoir's evidence is a sufficient informing of the rights or reasonable opportunity to communicate, especially as the accused has given evidence that he did not understand what the initials 'ALS' were. I find that the accused was detained in the lockup and there is no evidence that the circumstances made it impracticable to be detained in the company of an officer.

44 Because I am not satisfied that the accused was arrested at the bush camp, it follows that I am not satisfied that he understood precisely what he was being arrested on suspicion for. He certainly had general knowledge of allegations of boys having sex with or being silly with young girls, but no sufficient detail to enable him to exercise a reasoned choice as to the presence of an interview friend or to seek legal advice. I therefore find that the video record of interview, although voluntary, was obtained in contravention of the Criminal Investigation Act and is inadmissible.

45 I may decide to admit the evidence if satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. I turn to the matters I must take into account under the Criminal Investigation Act, s 155(3):

(a) Any objection to the evidence being admitted

46 The accused objects to the evidence being admitted.

(b) The seriousness of the offence in respect of which the evidence is relevant

47 I have previously remarked in another case that this is something of a two-edged sword. On the one hand the more serious the offence, the greater the public interest may be served in allowing in evidence that is otherwise inadmissible. On the other hand the more serious the offence, the greater the consequences to an accused and the more important, therefore, that all procedural rights be strictly complied with.

48 Counsel for the prosecution submits that the seriousness of the offence can only be judged by the penalty, not by the circumstances. It is true that the Act does not speak of circumstances. In this respect it may be compared to the Sentencing Act 1995 (WA) s 8. Reference might also be had to the Sentencing Act s 46 which speaks of the circumstances of the offence.

49 The court under the Criminal Investigation Act s 155 is exercising a statutory power analogous to the exercise of a discretion in that it involves the balancing of various factors, some pointing to desirability and some pointing to undesirability. I do not consider that Parliament intended that balancing exercise, which necessarily must be a matter of judgment in the individual circumstances of each case, to be constrained only by the reference to maximum penalty.

50 Section 128 of the Act defines 'serious offence' for the purpose of that section. The word 'serious' is an adjective. The word 'seriousness' is a noun whose meaning can only be given form by circumstances. The Act applies to all offences, not just sexual offences carrying terms of 20 years. In terms of the consequence to an individual, any offence that carries a term of imprisonment is a serious offence. Courts routinely speak of 'a serious example of an offence' or, conversely, that 'the offence is not in the circumstances of a serious nature'. I tend not to but others do.

51 The offence of reckless driving carries with it, for example, a maximum penalty of six months' imprisonment.

52 It may be committed in circumstances which do not justify any imprisonment or the circumstances may be so serious that imprisonment is justified. Counsel was unable to specify the lower range of offences which would not justify the adjective 'serious', pointing only to the upper range offences. However, in order for counsel's argument to be sound, there must be at some point a cut-off line in relation to penalty separating serious from not serious offences. In my respectful view such a submission is illogical. Parliament clearly intends a judge to take into account the circumstances of the offence in gauging its seriousness.

53 The offences with which the accused is charged are themselves serious offences. However, the circumstances which are alleged against him, if proved, do not mark the offences as the most serious of their type. The accused was 17 or 18 at the time of the offences and the girls, though young, were apparently willing participants. Having regard to the decisions of the Court of Appeal, it is unlikely in the circumstances, though not, of course, out of the question, that even if the accused was convicted he would receive a custodial sentence to be immediately served.

(c) The seriousness of any contraventions of the Act in obtaining the evidence

54 The contraventions are serious. It is a precondition of the exercise of the power of detention for the purpose of interview with an arrested suspect that they are informed of their rights and afforded their rights. In failing to do so one of the preconditions for continuing detention is not met. In this case I am not satisfied that the accused was informed of his right to consult a lawyer in any meaningful way at any time and even less satisfied that he was afforded any realistic opportunity to do so especially as he did not understand the initials 'ALS'.

(d) Whether any contravention of the Act was (i) intentional or reckless or (ii) arose from an honest and reasonable mistake of fact

55 There is no mistake of fact in this case. I do not consider that the officers acted intentionally in breach of the Act but in all the circumstances their actions were reckless. Put bluntly, there is no excuse for failing to be aware of the relevant provisions of the Criminal Investigation Act.

56 The long overdue power to detain for the purpose of interview under the Act is balanced by corresponding rights. If those rights are not afforded then the system is out of balance. The officers ought to have had an adequate working knowledge of the Act as at 10 July 2007 and did not.

57 The evidence is clearly highly probative. The probative value of itself does not justify its admission.

(f) Any other matter the court thinks fit

58 Counsel for the prosecution pointed under this heading to a large number of allegations of sexual abuse in remote communities and the work of Operation Barnham. I should say that there have been a number of convictions following pleas. I take account of that as of now they are not simply allegations; there have, in fact, been some convictions.

59 I am unsure, however, whether these facts, either singly or in combination, can be legitimately taken into account in deciding the desirability of admitting evidence in a particular case where that evidence has been obtained in contravention of the Criminal Investigation Act. Even if those factors are taken into account they do not seem to me to make it desirable to admit evidence in the present case dealing, as the present case does, with specific allegations in respect of a specific accused with specific complainants.

60 I have taken account of all matters under s 155. The only matter which would justify admission in my view is 'the probative value of the evidence' but by s 155(4) that does not of itself justify its admission. In consequence I am not satisfied that it is desirable to admit the evidence.

61 In case I should be mistaken about whether this matter falls to be determined under the Criminal Investigation Act, or on the basis that there was an unlawful detention under the general common law discretion, I have reviewed the exercise of my discretion using factors outlined in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and Swaffield and I reach the same conclusion. My findings are that although the video record of interview was voluntarily obtained it was obtained in breach of the Criminal Investigation Act in such circumstances that do not make it desirable to admit the evidence and in any event I exercise a judicial discretion to exclude the evidence.