R v Miller [2001] WASC 81

1 HASLUCK J: This is an application by defence counsel representing the applicant, Jarrah Miller, for a ruling before trial in the manner allowed for by s 611A of the Criminal Code as to whether three video records of interview in which the applicant participated should be admitted into evidence at the forthcoming trial, entirely or in part. That raises two subsidiary questions, the first being whether each of the three interviews was voluntary and the second, whether the interviews or certain passages should be excluded pursuant to the discretion to exclude admissions where the reception of such evidence would be unfair to the accused or where the evidence has been unfairly obtained.

2 The application led to the reception of evidence and submissions on voir dire and a consideration of facts and matters bearing upon the circumstances in which statements made by the applicant were obtained.

3 The applicant is one of four accused persons the subject of an indictment in these terms:

"(1) On 18 May, 2000 at Burswood JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON stole from ANDREW BURY with actual violence, a set of car keys, the property of ANDREW BURY

AND THAT at the time JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON were armed with offensive weapons, namely batons, a bat, a garden stake, sticks and branches

AND THAT at the time JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON were in company with each other and with others

(2) AND IN THE ALTERNATIVE to Count 1 that on 18 May 2000 at Burswood JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON unlawfully assaulted ANDREW BURY and thereby did him bodily harm

(3) AND FURTHER that on the same date and at the same place JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON assaulted MICHAEL DONALD D'ARCY with intent to steal and then and there used actual violence, in order to obtain the thing which they intended to steal

AND THAT at the time JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON were armed with offensive weapons, namely batons, a bat, a garden stake, sticks and branches

AND THAT at the time JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON were in company with each other and with others.

(4) AND IN THE ALTERNATIVE to Count 3 that on the same date and at the same place JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON unlawfully assaulted MICHAEL DONALD D'ARCY and thereby did him bodily harm."

4 The nature of the Crown case is reflected in its written submissions. The Crown alleges that at around 10.45 pm on 18 May 2000 the complainants, Andrew Bury and Michael D'Arcy, met in a park at Burswood in an area where gay men meet each other. They were approached by a group of at least five men who were armed with weapons and dressed in dark clothing. The group demanded money. When the complainants tried to leave, they were stopped and separated by the group.

5 The Crown alleges that Bury had his car keys snatched from his hand and his pockets were searched. He was hit in the leg with a weapon, causing him to fall to the ground. He was struck with a weapon to his back and legs. Bury managed to get to his feet and he was chased for a short distance while he ran away. He was later conveyed by ambulance to hospital, where he received treatment for his injuries. D'Arcy was felled by a punch to the head. He was then hit with a piece of wood and another weapon. When D'Arcy got up from the ground, he was chased for a short distance. He subsequently required medical treatment for his injuries.

6 In the vicinity of the park, police officers allegedly observed the applicant Miller and two others, Blasco and Grimshaw, running. After being spoken to by the police, the applicant Miller and the others departed. Later, the police apprehended two juveniles in relation to an alleged robbery and assault. On 19 May 2000, being the day after the incident, the applicant Miller and the co-accused, Grimshaw and Robert Norton, were apprehended. Blasco was apprehended on 20 July 2000.

7 Detective Sergeant Backhouse said in evidence at the hearing that the applicant Miller was conveyed by police from his residence in Maddington to the Cannington detectives' office at 1.30 pm on Friday, 19 May 2000. He was placed in a secure area near the interview room for a short time and he was then told that an interview was about to be conducted, but he did not have to participate. Sergeant Backhouse said that these statements were not accompanied by any threats or inducements.

8 At 2.28 pm on 19 May 2000, at the Cannington detectives' office, the applicant Miller participated in a video-recorded police interview. I will call this the "first interview". At 4.34 pm, he participated in another video-recorded police interview. I will call this the "second interview". In the interval between the first interview and the second interview, Sergeant Backhouse obtained some fresh information about the incident from others, and, thus, during the second interview, he touched on certain inconsistencies in the applicant's statements. On the afternoon of Monday, 22 May 2000, the applicant Miller participated in a video-recorded re-enactment of the scene at the park. The Crown case is that at that location he led the police to a piece of wood that he allegedly held on the night in question.

9 Counsel for the applicant did not dispute that three interviews were recorded on video in the sequence just mentioned. Counsel adduced evidence from the applicant on voir dire that he was born on 3 September 1981 and was therefore 18 years of age at the time the interviews were recorded. He had no prior experiences comparable to the undertaking of the first of the three interviews on 19 May 2000.

10 The applicant's case was that prior to the commencement of the first interview he was not offered the opportunity to contact a lawyer. It was a cold day, but he was not offered a blanket or warm clothing. The applicant said that he was not offered food or water. He said in evidence that he was scared by being at the police station. Before the first interview, Sergeant Backhouse told him what was about to occur and indicated that he would get home quicker if he participated in the interview. He spoke to no-one but Backhouse before the first interview, although the interview itself was conducted in the presence of Sergeant Backhouse and Police Constable Butler, with the former asking most of the questions.

11 Video recordings of the three interviews and related transcripts formed part of the evidentiary materials before the Court at the voir dire hearing. It was apparent from the written submissions of the applicant's counsel and from the way in which the case was conducted at the hearing that many of the applicant's submissions would be directed to the cautionary words uttered at the commencement of each interview. Accordingly, it will be useful to set out the relevant passages.

12 The transcript of the first interview commences with some questions being asked about the applicant's address. The transcript then contains this passage:

"Q. No? Okay. All right. During this interview we're going to speak to you about an incident that happened last night in Burswood near the casino.

A. Yeah.

Q. All right? Before we get into that I just want to inform you that you don't have to say anything if you don't want to, and whatever you do say is being recorded on video and may later be given in evidence. Do you understand that?

A. Yeah.

Q. Can you tell me what you understand that to mean? Can I get you to just move in a bit closer so that the microphones can pick up what you say?

A. It means that I pretty much just have to tell the truth.

Q. Well, I'd like you to tell the truth, as long as you understand that you don't have to take part in this video interview if you don't want to. Do you understand that?

A. Yeah."

13 The transcript of the first interview shows that the applicant spoke of catching a train to Victoria Park with his friends Daniel Grimshaw and Anthony Blasco early on the Thursday night. Later, they started walking across the park at Burswood. They were some distance away when they observed M and S involved in an altercation with two guys. The applicant and his two friends ran off, but were then spoken to by some police in uniform. After that, they went to the Burswood Casino where they borrowed some money from the applicant's sister for a taxi ride home. Towards the end of the interview, the applicant was asked some further questions about how far away he was from the altercation, and reduced his initial estimation of 200 metres to 50 metres.

14 It appears from the video that throughout the interview the demeanour of the applicant was generally calm and collected. His responses to the questions were coherent. In the final phase of the interview, the applicant said he wanted to go home. He confirmed that the interview was made of his own free will, without any threats or promises. He added, however, "I'm gonna get smashed for this", and he became visibly upset. He confirmed in evidence at the voir dire that this was a reference to what his friends might do if they thought he had dobbed them in. He agreed under cross-examination that he understood he did not have to say anything to the police. In the first interview, he tried to cover up the degree of his involvement because he did not want to implicate the others. At the end of the first interview, when he asked whether he had to stay at the police premises, he was told, "At this stage, yes. Okay."

15 Sergeant Backhouse agreed in evidence at the voir dire hearing that the applicant became upset at the end of the first interview, but he attributed this to the applicant's recollection of being involved in the incident.

16 The applicant said in evidence at the hearing that prior to the second interview, when he asked how long he would be in the holding cell, he was told to shut up. He was told also that the police knew he had lied because they had spoken to Daniel Grimshaw. The applicant was told that he had "better tell the truth this time or it might not look so good in my favour". Backhouse denied these allegations.

17 The transcript of the second interview commences with some introductory words identifying those conducting the interview and the nature of the recording equipment, and then contains this passage:

"Q. Okay and you're being interviewed a second time in relation to an incident that happened last night in Burswood, is that correct?

A. Yep.

Q. All right. Before we start again I again have to caution you again by saying that whatever you do say is being recorded on video. You don't have to say anything if you don't want to.

A. Mm.

Q. Do you understand that? Whatever you do say may later be given in evidence.

A. All right.

Q. Can you tell me what you understand that to mean?

A. Well that I can tell you whatever I want but I don't tell you anything I don't want.

Q. That's right, yes. You don't have to answer any of my questions or you can answer some of them or all of them, it's purely up to yourself.

A. Yeah.

Q. Do you understand?

A. (No audible response)

Q. Okay. Now you agreed that - - a couple of hours ago, an hour and a half or whatever it was, a couple of hours, we conducted a similar video interview with you regarding this same incident.

A. Yeah.

Q. Since then we've - - other officers have spoken to other people who were involved in that same incident - -

A. Mm.

Q. - - and I just want to clarify certain things that you told me in that initial interview.

A. All right."

18 I pause to note that in the second interview, immediately after the passage mentioned, the applicant went on to concede that not everything he had said at the initial interview was true and correct.

19 The applicant said in this interview that, in fact, he went by car with S, Daniel, Frank and Anthony to a unit in Rivervale where they joined M and Rob. From there they went down to the park where an altercation with two guys took place. Some of those in the group had sticks and the applicant himself had a bat or baton which he had brought with him from his home. On two occasions while the applicant spoke of watching what was going on, the question was asked whether he was keeping a lookout. The applicant replied in the affirmative.

20 It is apparent from the video that the applicant was generally calm and coherent during the second interview. Towards the end of the second interview, however, he said that he was worried that he might get smashed by others. This exchange then occurred:

"Q. Yeah. Has this interview been made of your own free will, without any threats or promises made to you?

A. Like - - not really like free will, like - - yeah.

Q. Well, no one's forced you to take part in this interview?

A. Not really, but I'll be stuck here for a long time if I don't tell. I want to go home.

Q. ...(indistinct)... Have you got any complaints about the way you've been treated by police?

A. Not really. No.

Q. No worries. Jarrah, you're going to be charged - -

A. Yeah.

Q. - - with stealing with violence - -

A. Yeah?"

21 As the questioning proceeded at the second interview, the interviewing officers touched on some of the matters that had apparently been discussed with other persons allegedly involved in the incident and put certain matters to the applicant for comment. For example, at page 37 of the transcript, the questioner said that "Daniel has just told other police that a discussion took place in this flat about going down into a park to bash poofters and steal their money" and the applicant was asked what he had to say about that. It appears from the transcript that the applicant responded: "Yeah, they were talking about shit like that." The interview continued with the applicant being again asked to described his movements. At page 40, the questioner said that "Daniel has told other police that all of youse, except himself, assaulted these guys." According to the transcript, the applicant said, a moment later, that "he's pretty much right".

22 It seems that on the Monday following the first two interviews, the applicant contacted the police officers with a view to recovering some shoes that had been taken from him. Sergeant Backhouse asked him if he would participate in a further interview and as a result of this conversation, the third interview took place in the park. The applicant appeared to be at ease in answering questions throughout this interview.

23 The accused said in evidence at the hearing that Backhouse asked over the phone if he would like to participate in another interview. His reply was "not really", but he was then allegedly told "that it would be in my best interest to do this because the judge would go a lot easier on me, and then when I arrived at the police station he told me basically the same thing again."

24 Sergeant Backhouse denied these allegations. He said that he was simply concerned to investigate the incident and find the truth of the matter.

25 The transcript of the third interview commences with a statement by Detective Sergeant Backhouse that it is Monday afternoon, the 22nd of May, 2000. The transcript then continues:

" ... We're at G.O. Edwards Park in Burswood where an incident took place last Thursday night. For the sake of this video can you say your full name, thanks?

A. Jarrah Miller.

Q. And your date of birth, Jarrah?

A. 3rd of September 1981.

Q. And whereabouts do you live, Jarrah?

A. Maddington.

Q. Okay. My name's Detective Sergeant Backhouse. That's Senior Detective Langford, and operating the camera is Detective Sergeant Pete Davies, okay? Now I'll give you the caution again, the same as I did last Friday night Jarrah, and that is whatever you do and whatever you say is being recorded on the video and may later be given in evidence in court. Do you understand that?

A. Yeah.

Q. Yeah? I also want you to understand that you don't have to say anything or do anything if you don't want to.

A. Mm hm.

Q. Do you understand that?

A. Yes.

Q. Can you tell me what you understand that to mean>?

A. It means I don't have to tell you anything that I don't feel happy - - feel comfortable about talking about, and anything that I do say can be used in court.

Q. Okay, and are you quite happy to show us just what happened here last Thursday night?

A. Yeah."

26 The applicant agreed at the voir dire hearing that he thoroughly understood the caution on this occasion, although he did not properly understand the cautions previously given.

27 In the course of the interview, the applicant described the layout of the park and the site of the incident. He also led the investigating officers to the place where, according to him, the bat or baton he had brought from his home was concealed in some bushes by Anthony Blasco shortly after the incident. Some discussion took place as to when certain words and markings were inscribed on the piece of wood. It is material to note that on this occasion the applicant's own summary of the caution given to him was full and certainly more complete than the summary he had attempted on the two previous occasions.

28 Counsel for the applicant made various submissions directed to the propriety of the police conduct and the voluntariness of the statements made by the applicant in the course of the three interviews, with a view to persuading the Court as a matter of law that all three records of interview should not be admitted into evidence or, alternatively, that certain passages specifically identified in his written submissions should be excluded. Counsel for the Crown generally opposed the application, save for one concession concerning a passage at page 22 of the transcript of the first interview. Accordingly, it will be useful to look briefly at the legal principles bearing upon an application of this kind.

29 The principles applicable to the voir dire were considered at some length by the High Court in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 and especially by Gibbs CJ and Wilson J at 519 to 526, that case being the principal source of the following summary.

30 The question of whether any confession or statement adverse to the maker's case was actually made is one for the jury and not for the Judge. Thus, if the only matter in dispute is whether the accused made any confession at all, it will not be appropriate to take any evidence on a voir dire. It is well-settled, however, that when an objection is taken to the admission of a confessional statement on the ground that it was not made voluntarily, the proper course is for the Judge to hear evidence on voir dire in the absence of the jury as to the circumstances in which the confession was made. When the accused not only disputes that any confession was made, but also claims that if a confession was made, it was not voluntary, a voir dire will be required. Because the Judge is under an obligation to ensure that the trial is conducted fairly, he must proceed to hold a voir dire, even if none is asked for (especially if the accused is unrepresented) once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown.

31 The issue to be determined on a voir dire is essentially whether the confession was made voluntarily or in circumstances of unfairness, although an inquiry of this kind may give rise to questions concerning the reliability of the confession. The Crown bears the burden of establishing that the condition of admissibility has been satisfied as the party seeking to introduce the confession into evidence. However, if there is nothing to suggest that the confession was involuntary, the presumption is that it was voluntary and the onus is discharged. The standard of proof is not proof beyond reasonable doubt, but simply to prove the voluntariness affirmatively. Once the confession has been shown to be admissible, an accused person who asserts that the confession was improperly or unfairly obtained bears the burden of proving facts that would justify the exercise of the discretion concerning unfairness in his favour. The Judge has a discretion to keep the cross-examination of witnesses on the voir dire within reasonable bounds, for it does not advance the course of justice to allow the voir dire to be used as a fishing expedition or as a means of testing the Crown witnesses.

32 An issue often arises on a voir dire (as in the present case) as to whether the accused was in custody when the interview or questioning giving rise to a confession or admission against interest commenced. The Judges' Rules recognise that when a police officer is endeavouring to discover the author of a crime, he may question anyone without giving a caution. Persons in custody, however, should not be questioned without the usual caution being first administered. It is a fundamental principle of the common law that a person cannot be taken into custody for the purpose of interrogation: Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278.

33 In strict analysis, the term "in custody" might arguably be confined to circumstances equivalent to formal arrest, but there is much to be said for the view that any person who is taken to a police station under such circumstances that he believes he must stay there is in the custody of the police. In that case, the police come under an obligation to administer a caution to the effect that the person is not obliged to say anything about the matter being investigated, but whatever he does say will be recorded and may be given in evidence. That is not only because the interrogation takes place under compelling circumstances, but also because the fact that the police create the impression that they are detaining a suspect is in itself some indication that they are contemplating the taking of further steps in relation to him: Van Der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232. It is not surprising, then, that in the circumstances of the present case the investigating officer felt obliged to administer a caution in the usual form.

34 The principles applicable to the admissibility of confessional statements were considered at some length by the High Court in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, that case being the principal source of the following summary.

35 Toohey, Gaudron and Gummow JJ noted that four bases for the rejection of a statement by an accused person are to be discerned in the decisions of the High Court.

36 The first basis lies in the fundamental requirement of the common law that a confessional statement must be voluntary, that is, made in the exercise of a free choice to speak or be silent. It cannot be voluntary if it is the result of duress or preceded by an inducement held out by a person in authority. Put shortly, the will of the statement-maker must not have been overborne.

37 The three other bases for rejection proceed on the footing that the statement was made voluntarily, but should be excluded in the exercise of a judicial discretion.

38 The second basis is that it would be unfair to the accused to admit the statement. Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which might be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement. Unreliability is an important aspect of the unfairness discretion, but it is not the sole factor.

39 The third basis focuses not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The discretion is exercised with some regard to the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by misconduct may be obtained at too high a price: R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74. In many cases, the discretions under the second and third bases will overlap: Foster v The Queen (1993) 67 ALJR 550.

40 The fourth basis is pursuant to the general rule that evidence may be excluded where its prejudicial effect exceeds its probative value. The purpose of the discretion in this context is to guard against a miscarriage of justice.

41 The rationale underlying these precepts is apparent in the reasoning of Brennan CJ. Voluntary confessions are thought to be trustworthy due to the unlikelihood of a person falsely stating what tends to expose him to penal liability. Hence, the courts have been cautious about admitting into evidence confessions obtained in circumstances which throw doubt on their reliability, although specific rules concerning duress and inducement commonly became the touchstone for exclusion. In Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, however, Deane J noted at 246 that the rational basis of the principle that evidence can only be received of a confessional statement if it can be shown to be voluntary should be seen as a combination of the potential unreliability of a confessional statement that does not satisfy the requirement of voluntariness and the common law privilege against self-incrimination.

42 It follows that admissibility as a matter of law (as distinct from issues concerning discretionary exclusion) must be determined not by reference to the propriety of the conduct of the police officers, but by the effect of their conduct upon the will of the confessionalist. It follows from the rationale also that when one turns to the exercise of the discretion concerning unfairness, the question is not whether the accused was treated unfairly, but whether the reception of evidence of confession would be unfair to him. Because dubious reliability is not the only justification for excluding a voluntary confession on the ground of unfairness, it is also open to the Court to exclude evidence on public policy grounds in circumstances where it was obtained by unlawful or improper means. The weight to be given to the public interest will vary according to the heinousness of the alleged crime, the reliability and unequivocalness of the alleged statement and the seriousness of the unlawful or improper conduct engaged in by the law enforcement officers.

43 Put shortly, there is a public interest in ensuring that the police do not adopt tactics that are designed to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society. There is a public interest that the law should be observed even in the investigation of a crime.

44 The broad principles under discussion in Swaffield can be fleshed out by reference to earlier cases. In R v Williams (1992) 8 WAR 265 at 272 the Full Court in this State held that there is a two-tiered approach to resolving a challenge to confessional evidence. If a confession is not voluntary, it is simply not admissible. Even if voluntary, it may be rejected in the exercise of discretion, if it would be unfair to the accused to admit it, or for reasons of public policy. Each case of this kind has to be examined in the light of its own facts and circumstances: Peters (1987) 23 A Crim R 451.

45 The confession will not have been voluntary if it has been obtained from the accused by fear, prejudice or hope of advantage held out by a person in authority, or as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure that has overborne the will of the accused: MacPherson v The Queen (supra) at 519.

46 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 on the will of the person confessing, must be applied according to the age, background, and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard. It requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused: Collins v R [1980] FCA 72; (1980) 31 ALR 257 at 307.

47 The decided cases indicate that oppressive or overly-persistent cross-examination of a suspect can sometimes be characterised as unfairness. Nonetheless, the mere asking by the police of a question which would only be asked in cross-examination at the trial does not necessarily amount to cross-examination. A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies: McDermott v R (1948) 76 CLR 501 at 517.

48 In Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508, Brennan J said, at page 513, that trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect, or keeping him in isolation without lawful justification are some of the improprieties which may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.

49 I note in passing that the reasoning of Brennan J just mentioned was recently cited with approval by the Full Court in this State in Errey v The Queen [2001] WASCA 75 at par 56. The principal issue in that case was whether an interview should have been discontinued after the accused made some mention of wanting to obtain a lawyer. A further issue arose as to whether the police questioning was overly persistent. A majority of the court upheld the trial Judge's decision on the voir dire to allow admissions made prior to a firm and unequivocal request for legal advice.

50 Pidgeon J, as the author of the leading judgment in that case, observed that his Honour was not to be taken as saying that investigating officers can never ask leading questions and, in particular, that they are not able to put to a suspect evidence in their possession to show that what the suspect is maintaining is incorrect. The essential question is whether the particular line of questioning is unfair or oppressive. If an admission were obtained as a result of a leading question, then that would be one of the factors to examine to see if the admission was a reliable one. In that case, for the most part, the line of questioning the subject of the voir dire was not thought to be unfair or oppressive and nor was it thought to be objectionable that the questioning continued after the first and rather ambiguous reference to a request for a lawyer.

51 Wheeler J had this to say in support of the majority view at par 150 to par 151:

"The prohibition on 'cross-examination' at the interview stage is properly understood as a prohibition on questioning which involves undue pressure or persistence, or which is designed to break down the answers of the accused to questions put by the police to which they had received unfavourable replies, or which convey disbelief in, or ridicule of, the answers already given by the interviewee: see B (A Child) v Potts (1992) 59 A Crim R 136 at 139-41 per Ipp J, McDermott v The King (1948) 76 CLR 501. It will often be appropriate for an interviewing officer to put to the interviewee information which contradicts parts of the account given by the interviewee: R v O'Neill [1988] 48 SASR 51. Indeed, a failure to put to an interviewee information inconsistent with the account which he gives, may in itself be unfair as tending to deceive or entrap.

The learned trial Judge in this case formed the view that there was in the course of this questioning no intimidation or undue pressure applied to the appellant. In my view, the mere fact that the police in this case put to the appellant matters inconsistent with portions of the account which he gave, and returned on occasion to those aspects of his initial account which appeared to them to be unsatisfactory, is not sufficient to render the questioning oppressive or unfair, so as to attract the exercise of the discretion to exclude it. Nor, in my view, can it be suggested that the manner of questioning was such as to render the admissions made during the course of the interview, involuntary."

52 Wallwork J was of the view, at par 130, in a dissenting judgment, that after the request for a lawyer on the first occasion the voluntary part of the interview was over. In any event, "the almost continual cross-examination of the applicant during the video interviews prior to when the applicant first requested a lawyer should have resulted in them being excluded on the ground of unfairness of the process".

53 There is no statutory provision in Western Australia which requires the police to offer a suspect the opportunity to contact a lawyer prior to a police interview. Similarly, there is no Western Australian case law which says that a police officer is required to offer a suspect the opportunity to contact a lawyer prior to interview.

54 In Pollard [1992] HCA 69; (1992) 64 A Crim R 393 admissions made during an interview which was conducted in breach of provisions of the Crimes Act 1958 (Vic) were excluded by reason of non-compliance with that statute. Relevant provisions of the Victorian Act require the investigating officer to inform the person in custody of the right to communicate with a friend, relative or lawyer and must defer any questions for a time that is reasonable in the circumstances. There is no such statutory requirement in this State. It therefore seems, in the absence of statutory provision, and having regard to the reasoning in Errey's case that the question is simply one of fairness.

55 One matter frequently mentioned is whether the Judges' Rules as to questioning of suspects have been complied with and the question of whether a sufficient caution has been given. The rules are not binding on the courts in Western Australia and should not be regarded as doing any more than prescribing, in a general way, a standard of propriety: Harling (1997) 94 A Crim R 437. The caution contains two elements. The accused must be told that he is not obliged to say anything but that what he says may be used in evidence.

56 I note in passing that in Bayly v Vaughan [1989] VicRp 33; [1989] VR 364, Kaye J disapproved of a caution being expressed in terms of evidence being used "against you". In other words, care should be taken to avoid any suggestion that a suspect's answers can only be used in evidence against him, as this may prevent or discourage an innocent person making a statement which might assist to clear him of the charge.

57 Generally, in regard to the need for a caution and the application of the Judges' Rules in Australia I take account of what is said in "Cross on Evidence" (6th Aust ed), par 33,690. The learned author notes that the rules cover the procedure to be followed when statements are taken from one or more joint suspects and one of them incriminates the others. The mere fact that a confession by one co-accused implicates others does not make it inadmissible; the Judge will simply direct the jury in due course that the out-of-court statements made by one accused are not evidence against the others.

58 I also take account of a number of precepts enunciated by the Court of Criminal Appeal in New South Wales in Plevac (1995) 84 A Crim R 570 at pages 579 to 581 concerning the putting of questions to a suspect who is willing to be questioned.

59 The court said in Plevac that the police may in the course of investigation, interrogate a suspect who is willing to answer their questions and that interrogation may include putting to the suspect the facts as the police know, or believe, or suspect them to be, in order to ascertain what, if anything, the suspect will say about them. Such questioning must be fair and must not amount to intimidation or sustained or undue pressure, but questioning is not to be regarded as unfair merely because it is persistent. An answer is relevant if it is an admission, or is capable of being regarded as an admission, of guilt or of a fact relevant to the proof of guilt. Answers may be admissible if they form part of an interrogation in the course of which some answers do amount to admissions or are capable of being so regarded.

60 The court went on to say that where the questions and answers under consideration, although having in themselves no probative value, but forming part of an interview and prima facie admissible as part of the context of that interview, do no more than place before the jury, in a hearsay form, assertions of fact which have already been established by other evidence, or which clearly will be established by other evidence intended to be led by the Crown, their prejudicial effect will be minimal and would not ordinarily justify their exclusion.

61 The court added this. Where, however, a question is asked, which contains a hearsay assertion of matter which the Crown is not in a position to prove, or which is inadmissible in evidence, and where the answer is not capable of amounting to an admission of the matter asserted by the questioner, there may be, depending on the nature of the matter stated and its relevance to the issues in the trial, very great prejudice, which may lead to the exclusion of the evidence, even if it means that the Crown is deprived of some probative and admissible evidence.

62 It is against the background of these principles that I turn to the circumstances of the present case and the application presently before me.

63 The Crown case was, via the evidence of Sergeant Backhouse, that the first interview was not preceded or accompanied by any threat or inducement. Counsel for the applicant referred to the youth and inexperience of the applicant and to the fact that he had no access to legal advice, and was apprehensive about what steps might be taken by other persons involved in the incident. Counsel emphasised the need to resolve the question of whether statements were made voluntarily by reference not to some hypothetical standard, but to the effect of the actual circumstances upon the will of the applicant. Counsel for the applicant conceded in regard to the first interview that the applicant's testimony on the voir dire was not sufficient to raise any issue or threat or inducement. Defence counsel submitted, however, that in the absence of a clear indication that the applicant understood both elements of the caution given to him and the presence of other factors such as age and inexperience and the absence of a friendly adult, all of which were likely to have had an effect on and to have led to the overbearing of the will of this particular applicant, the record of interview should be excluded as not being made voluntarily.

64 Defence counsel recognised that the applicant had answered affirmatively when asked whether he understood the caution, but counsel reminded the Court that the applicant's summation of what the caution meant was: "It means that I pretty much just have to tell the truth." The defence case was that this erroneous understanding of the caution by a young and inexperienced person, who was alone and in custody, tainted the first and subsequent interviews, with the result that all three interviews should be excluded. In other words, in circumstances where the applicant's will was overborne initially, the Court should presume that thereafter he remained subject to the dominant will of the investigating officer.

65 To my mind, it is significant that, as to the first interview, there was no evidence before me concerning the first interview of any threat or inducement. Further, the demeanour of the applicant as portrayed by the video interview does not suggest that he was subjected to pressure or that his will was overborne by the nature of the questioning. For someone of his age, he was relatively calm and coherent.

66 I accept that the applicant was "in custody", in that he was probably left with an impression that he was not free to leave. This meant that a caution in the usual form had to be given. The video record shows that a caution was given. To my mind, the caution was administered carefully in a form that was capable of being understood by the applicant, notwithstanding his youth and inexperience. It is true that his summary of what had been said to him failed to capture the two key elements of the caution, but that does not necessarily mean that his will was overborne or that there was some impropriety or lack of fairness in the process. When he was asked whether he understood the caution initially, he answered in the affirmative.

67 The decided cases indicate that the issue of admissibility must be determined not by reference to the propriety of the police conduct, but by the effect of their conduct upon the will of the confessionalist. In this case, the applicant's will does not seem to have been overborne. Accordingly, I am not prepared to rule that the first interview should be ruled inadmissible upon the basis that it was not a confessional statement made voluntarily. In that regard, and hereafter, pursuant to the reasoning in Plevac, I proceed from the premise that the statements made by the applicant comprising the interview should be treated as part of one account of what he did, and are therefore relevant, notwithstanding that certain passages or sentences, standing alone, might not strictly be regarded as an admission against interest or adverse to the maker of the statement.

68 It follows from earlier discussion concerning the legal principles that I must now proceed to determine whether grounds exist for the exercise of the discretion to exclude having regard to any unfairness to the accused and also to public interest considerations. It seems that as to unfairness I am entitled to take account of facts and matters bearing upon the reliability of the admissions sought to be adduced by the Crown. In this context also, it is important to determine whether the alleged impropriety had any material effect on the will of the accused. As to public interest, I am entitled to look at the seriousness of the situation. A prospective charge of wilful murder, for example, may bring with it stricter requirements than a charge of assault.

69 Counsel for the applicant, as I have already noted, placed considerable emphasis upon an alleged failure on the part of the investigating officers to ensure that the applicant fully understood the nature and implications of the caution given to him. Counsel for the applicant submitted that the investigating officers did not take adequate measures to ensure the applicant was made aware of his primary right to silence and of the fact that any utterance might be used in evidence. Reference was made to the passage I have quoted from the transcript of the first interview in which, after the caution was given, and the applicant acknowledged he had understood it, the applicant went on to say it meant "that I pretty much have to tell the truth". This, arguably, suggested that he saw the caution not as a protective mechanism, but as a stricture in the nature of a threat.

70 In my view, the applicant's argument concerning an alleged failure to give a sufficient warning was not sufficiently persuasive, bearing in mind, as I noted earlier that once the confession has been shown by the Crown to be admissible, the accused who asserts that the confession was unfairly or improperly obtained bears the burden of proving facts and matters that would justify the exercise of the discretion to exclude in his favour. The caution was given in a clear and conventional form. The applicant was youthful, but his demeanour suggests he was able to comprehend the nature of the caution. It is important to note that he did not claim to be unable to understand what was going on. His demeanour suggested that he would have had the presence of mind to ask for a parent or an adult if he thought that to be necessary or to make known any bodily discomfort.

71 This brings me to the question of the reliability of what was said. I see no indications on the video that he was upset or disoriented to such a degree that his answers became loose and disjointed or that he was minded to say whatever might please his examiners, simply to escape from the situation or relieve his anxiety. I have already noted that he was relatively calm and coherent. The answers given were generally consistent with answers given to earlier questions. It is true that in the second interview he acknowledged that there was a degree of misrepresentation in his account, but this was not due to police impropriety or to the pressure of questioning, but to an admitted wish not to "dob in" his mates.

72 It is significant also that several days later, in the third interview, where there appears to be no doubt that he understood the nature of the caution and participated in the interview voluntarily, the account he gave, then affirmed the reliability of his earlier confessional statements, subject only to the prevarication concerning his mates just mentioned. It follows from these considerations that I am not persuaded that any inadequacy concerning the caution in the first interview, or the other factors relied on by defence counsel, had a material effect upon the reliability of the applicant's statements. I am satisfied that the first interview was not unfair to the accused, save for a consideration of certain passages of the interview that I will come to later.

73 When I turn to the question of public interest, the question is whether the investigating officers acted improperly in persisting with their questions in circumstances where the caution may not have been properly understood. It follows from earlier discussion that I am satisfied the caution was properly administered and I am therefore not convinced that what happened amounted to police misconduct or impropriety contrary to the public interest. The tone of the police questioning was not intimidatory or overly persistent.

74 This brings me to the second interview. By this time, the applicant had been told that he had to stay and he was therefore undoubtedly "in custody". He had also displayed a degree of distress at the end of the first interview. On his evidence, before the second interview commenced, he was told to shut up and advised that things would go better for him if he co-operated. Reference was allegedly made to what the others were saying and to police awareness that he was lying.

75 I am satisfied on the evidence before me from Sergeant Backhouse that the second interview was not preceded by threats or inducements of the kind contended for. Backhouse denied the allegation and the evidence of the applicant directed to this point was rather vague. It follows from the tenor of my earlier reasoning that I am satisfied that the statements made in the second interview were made voluntarily.

76 When it comes to the evidence of the discretion, it follows from my earlier reasoning that the applicant has not satisfied me that there was any unfairness to him or that there was police impropriety contrary to the public interest. By now, he had been in custody for a longer period, but not significantly longer. His demeanour indicated that his moment of upset had subsided. The caution was properly administered.

77 It is significant also that in the passage I have quoted from the transcript of the second interview that the applicant said, when asked what he understood by the caution, that he could tell "whatever I want but I don't tell you anything I don't want". This suggests that he was clearly conscious that he was not obliged to say anything he did not want to say.

78 Defence counsel pointed to the absence in the applicant's summary to any awareness that his statements might be used in evidence. To my mind, the crucial consideration is that the caution was clearly and fairly administered. An accused's incomplete summary of the caution cannot be characterised, of itself, as a matter bearing upon the will of the accused or as an act of police misconduct. The question is whether it was unfair to the accused or improper to proceed where the incompleteness of the summary might suggest he had not fully comprehended the rights implicit in the caution. The incompleteness of the summary is one of several factors to be weighed up in determining whether the discretion should be exercised. In circumstances where the caution was fairly given and the accused was capable of comprehending what was being said, I am not satisfied that it was unfair or improper to proceed because the caution was not repeated back to the investigating officer word for word.

79 This brings me to the issue of whether the police questioning was too persistent. It follows from Errey's case that the police were at liberty to explore certain discrepancies in the applicant's evidence. The interview commenced upon the basis that the investigating officer wanted to "clarify" certain matters (as appears from the passage of transcript quoted earlier) and, to my mind, within the language of the decided cases, the questioning did not amount to a cross-examination designed to break down answers to which the police had received unfavourable replies. For the most part, there was no trickery and matters the subject of hearsay or leading questions, could be established by other means, with the result that the potential for prejudice was comparatively limited. Accordingly, I am not persuaded that the discretion should be exercised to exclude the second interview in its entirety upon the ground that reception of the evidence would be unfair to the accused or because the police conduct was improper.

80 I turn now to the third interview. The applicant was no longer in custody, but a caution was given and clearly understood. I am not prepared to exclude this interview on any of the bases mentioned in Swaffield. To my mind, the applicant's claim concerning an inducement was somewhat vague and therefore not sufficiently convincing. Issues of unfairness and impropriety were confined to certain disputed passages.

81 It follows from earlier discussion concerning the decided cases that police officers are at liberty to conduct questioning with a degree of persistence, provided this is not done in an overbearing or intimidatory manner. Before turning to objections to specific passages in the transcript, I confirm that, in my view, it does not emerge that the three interviews, considered collectively, should be excluded on the grounds of unfairness because of the persistence of the questioning. It is apparent from the decided cases that the investigating officers were at liberty to put to the applicant for comment information they had obtained from other sources, and to go over the events of the night in question in detail.

82 I will turn now to the specific objections raised by the applicant concerning each interview in turn.

83 As to the first interview transcript page 17, the objection concerned questions asked by police at the scene of the incident as to why the applicant and others were running. I consider that the questions and answers are relevant to set other questions and answers in the interview in context. Furthermore, the hearsay the subject of the objection and the applicant's reference to trying to "cover up" what had happened has minimal prejudicial effect, as the assertions of the fact will apparently be established by the police officers who stopped the applicant Miller near the park as he and others were running.

84 I pause to note that in his written submissions, defence counsel raised an objection under s 570D of the Criminal Code. That provision requires that evidence of any admission by the accused person be recorded on videotape. The objection may have been directed to the fact that a few words of explanation were given to the applicant before the video interview commenced as to what was about to happen, a query thus being raised as to whether the interview had been properly recorded in its entirety. I am not persuaded that there is merit in such a plea or that the passages complained of fail to comply with s 570D of the Criminal Code. I note that defence counsel abandoned this ground at the hearing, and I will therefore not make any further mention of it.

85 As to the first interview transcript page 22, objection was taken to a passage commencing "I am good friends with S" that went on to refer to the characters of other persons allegedly involved in the incident, including a reference to one of the accused having been in gaol. I note that this objection has been conceded by the Crown and I will therefore allow the objection.

86 As to the first interview transcript page 23, objection was taken to some persistent questioning concerning the applicant's distance from the incident, with a suggestion that this was unfair to the applicant in being sarcastic and judgmental. I disallow the objection. I consider that these were legitimate questions calling for clarification and/or comment, having regard to the previous estimates given by the applicant as to the distance between himself and the complainants when they were attacked.

87 As to the second interview transcript page 37, objection was raised to the passage I cited earlier when the investigating officers put to the applicant a suggestion that Daniel had told other police about a discussion directed to going down into a park to bash poofters and steal their money. This was objected to on the ground of hearsay. I disallow the objection. I consider, having regard to the views enunciated in Errey (supra) and Plevac (supra) that it was a legitimate investigative technique for information obtained from other sources to be put to the interviewee for comment.

88 As to the second interview transcript pages 40 and 41, similar considerations apply. Objection was taken on the grounds that the reference to what other persons were saying amounted to the introduction of hearsay evidence and unfairness. I disallow the objection on the grounds that this was a legitimate investigative practice. Pidgeon J, in Errey, approved the notion that the investigating officer may put to a suspect evidence in his possession to show that what the suspect is maintaining in incorrect provided the line of questioning is not unfair or oppressive. It follows from my earlier findings in the present case that the will of the applicant had not been overborne and it was therefore open to him to refute or disagree with what was being put to him for comment.

89 As to the second interview transcript page 50, the applicant's submission was that the suggestion put to the applicant that he was acting as a "look-out" was unfair not only because it was a leading question, but also because it involved an element of trickery in that the investigator had not disclosed to the interviewee what "look-out" meant and what the ramifications of an affirmative answer would be, that is to say, that this could be compelling evidence of his involvement as a party to the offence.

90 I allow this objection. In my view, it was not a legitimate investigative practice, in effect, to use a leading question of this kind to put words into the mouth of an accused in circumstances where the words that he himself had been using did not necessarily fit the description of keeping a look-out and where the legal implications of an affirmative answer to the question were potent and almost certainly not known to him. In other words, by s 7 of the Criminal Code, every person who aids another to commit an offence can be held to be a party to the offence. To act as a look-out could be incriminating. It follows that, in my view, on this occasion I should exercise my discretion to exclude a line of questioning the effect of which was unfair to the accused.

91 I will rule that the question and answer complained of on page 50 - "Q. Yeah. Alright. Just keeping a lookout? A. Yeah" - be excluded. Additionally, that part of the earlier question on page 49 that reads "but you were keeping a bit of a look out or something, were you?" must also be excluded.

92 As to the third interview, at page 6 of the transcript, where objection was taken to questioning concerning the involvement of the applicant as someone keeping a watch, the applicant's submission was that the question was leading and caused the interviewee to make a confession which was clearly different from the intention and meaning of the interviewee. The applicant submitted also that it was a form of trickery. I allow this objection for the reasons given earlier. It does seem to me that on this occasion the nature of the question had the effect of leading the applicant to make apparently an admission which might not otherwise have been made. I will rule that the passage commencing "Q. When you say keeping a watch ..." and concluding "... you could say I was looking out for them" must be excluded.

93 As to the third interview at page 17 of the transcript, objection was taken to a passage in which questions were asked concerning certain markings. The applicant submitted that there was no suggestion that the inscription occurred on or about the date of the alleged offence. Thus, such evidence was said to be irrelevant. It was also said to be prejudicial in that it might cause a jury to unfairly infer that the accused had some intention to commit an offence. It was said, further, that the inclusion of this evidence had no probative purpose for the Crown, yet was clearly prejudicial to the accused.

94 As to this matter, I will allow the objection, as I do consider that the statements have an unduly prejudicial effect and in the exercise of discretion should be excluded as unfair to the accused. The passage on page 17 to be excluded commences "Q. Those marks on there ..." and concludes " ... Panadeine Forte."