R v Norton [2001] WASC 84

R v Lee [1950] HCA 25; (1950) 82 CLR 133

1 HASLUCK J: This is an application by defence counsel representing the applicant, Robert Michael Norton, for a ruling before trial in the manner allowed for by s 611A of the Criminal Code as to whether two 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 Miller and two others, Blasco and Grimshaw, running. After being spoken to by the police, this group 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 Robert Norton and the co-accused, Daniel Grimshaw and Jarrah Miller, were apprehended. Blasco was apprehended on 20 July 2000.

7 The Crown case was that the applicant was apprehended after a search warrant was executed on a unit in Lathlain at 10.30 am on 19 May 2000. The applicant was invited to accompany the police and was conveyed to the Cannington Detectives' office. The applicant was placed in a holding room while Detective Chadwick, the investigating officer, made some inquiries about the progress of the investigation. The officer had no specific conversation with the applicant prior to the formal interview. At this stage, Detective Chadwick said in evidence that the applicant seemed calm and almost "disinterested". At 12.52 pm on 19 May 2000, at the Cannington Police Station the applicant Norton participated in a video-recorded police interview. I will call this the "first interview".

8 At 2.15 pm, he was released into the custody of the Victoria Park Police. Two hours later, he was taken to the East Perth lock-up on charges arising out of another matter. At 6.25 pm, he participated in another video-recorded police interview in relation to the incident in the park. I will call this the "second interview". Following that interview, he was charged with offences arising out of the incident in the park.

9 Counsel adduced evidence from the applicant on voir dire that he is now 20 years, but as at 19 5 2000 he was 19 years of age.

10 The applicant's case was that he had been held at gunpoint during the execution of a warrant at 10.30 am. After that, without being under arrest, he was held in custody at Cannington Police Station. He was, some time later, transported to the East Perth Lockup where the second interview was conducted.

11 The applicant's case was that he was not told at any time he was under arrest or told that he would be charged with the offences. Reference was made to the applicant being under medical supervision and being treated with antidepressants. He appeared in court at 10.30 am on Saturday, 20 May 2000. Counsel for the applicant submitted that as to each interview the Police Commissioner's guidelines OP.38 concerning interviewing suspects had not been complied with in each case in that after being cautioned the applicant was not asked whether he wished to continue and at the end of each interview he was not asked whether any threats, promises or inducements had been made.

12 Video recordings of the two 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 some of the applicant's submissions would be directed to the cautionary words uttered at the commencement and conclusion of each interview. Accordingly, it will be useful to set out the relevant passages.

13 The transcript of the first interview commences in this way:

"DET CHADWICK: All right. Robert, my name is Ricky Chadwick and this is Michael Kelly. We're detectives from the Cannington Police Station. Currently there's a video camera going and it's recording everything we say and do. Today's date is Friday, and that's the 19th of May in the year 2000 and the time now is 12.52pm in the evening and we are at the Cannington Police Station. Robert I wish to speak to you about an inquiry I have involving the assault and stealing of a car earlier on this evening, this morning, rather. Before I do I've got to caution you that you don't have to participate or answer my questions if you don't want to but what you do say will be recorded and may be used in court. Do you understand that?

MR NORTON: Yes.

Q. All right. So if I ask you a question, do you have to answer it?

A. Not? particularly?.

Q. All right. And can his be used in court?

A. Mm.

Q. All right. Can I just get your full name, Robert?

A. Robert Michael Norton.

Q. All right. And your date of birth please, Robert?

A. 23.6.80."

"Q. All right. All right, that's all the questions I have Robert. Is there anything you wish to say?

A. No.

Q. Nothing?

A. No.

Q. All right. Do you have any complaints?

A. Not really, I'm all right now. I was just spinning out when I was handcuffed there, I didn't know why I was - - I didn't think I was under arrest and I - - spin - - I'm not under arrest am I?

Q. No, you're not under arrest. All right. Well I'll finish now. The time if 1.16 pm."

15 The transcript of the first interview shows that the applicant Norton spoke of living at 10/10 Rutland Avenue, Lathlain. When asked about his movements, he spoke of being at home and waiting for a phone call from his girlfriend. He said in the interview that he met her at the train station and after that they cooked up some two-minute noodles and watched TV. He said that no-one attended at his place during the evening and that he basically hopped into bed and the next thing that happened was that the police were knocking on the door.

16 When it was put to him that the questioner had information contradicting what he said, he referred to obtaining some pizzas with his brother from the Eagle Boys shop in Burswood. His recollection was that his brother left after they finished watching Stargate. When it was put to him that people came over to his unit, he observed that this was "interesting" to him. He knew nothing about a car being stolen. He agreed that a baseball bat found in his room belonged to him, being a bat he had had for ages. There was some discussion about items found in his unit when the place was searched. He said that he got some injuries to his hand by knocking the glass out of his window at home.

17 The interview concluded on the basis that he did not have any complaints. He said: "I'm all right now. I was just spinning out when I was handcuffed there, I didn't know why I was - I didn't think I was under arrest and I - spin - I'm not under arrest am I?" He was told that he was not under arrest and the interview would finish now.

18 It appears from the video that throughout the first interview the demeanour of the applicant was calm and somewhat detached. He did not appear to be upset.

19 The transcript of the second interview commences in this way:

"DET CHADWICK: All right. Robert, my name is Ricky Chadwick, and this is Michael Kelly. We're detectives from the Cannington Police Station. Currently there's a video camera going, and it's recording everything we say and do. It's now Friday, and its the 19th of May the year 2000. We're at the Central Police Station - -

A. Mm hm.

Q. - - upstairs in an interview room. The time now is 6.25, and that's pm, in the evening. All right. Robert, before we go I've got to advise you that you don't have to say anything unless you wish to do so, but what you do say will be recorded and may be used in court. Do you understand that?

A. Mm hm.

Q. All right. So if I ask you a question do you have to answer it?

A. No.

Q. And what we say, can that be used in court?

A. Yes.

Q. All right. Just for the purpose of the interview, can you state your full name?

A. Robert Michael Norton."

"Q. All right. That's all the questions I have. Is there anything you wish to say about that incident, Robert?

A. Not really.

Q. All right. Well, I'll end the interview now. Just before I do, have you any complaints about the way you've been treated?

A. No.

Q. All right. The time is now 7.12 pm"

21 The applicant agreed in this interview, early on, that he might have gone for a walk through a park in Burswood last night, probably around midnight, with some mates. He then named his mates, including Anthony Blasco, Daniel Grimshaw and Jarrah Miller. He agreed that others in the group came to his house before the walk. In the park he heard some guy having his car keys taken off him. He thought the man had a mate with him. He was not sure what he saw, or whether he saw a person being robbed. He said the only thing that he might have done was maybe smash a car window or something.

22 He denied having heard any talk about going poofter bashing. When it was put to him that he might have slipped in the boot, he denied doing so, although he went on to say, "I know he got hit but I don't know how he was getting hit." He ran off when he saw the police. The others came back to his place eventually. He was then asked more questions about what he saw and whether he saw anyone being hit. It was put to the applicant that according to others in the group he hit the fellow who had his car keys taken. The applicant denied the allegations and said that someone else hit the man. He could not see who was actually holding the stick. He agreed that the fellow who was hit could have felt threatened.

23 It was put to the applicant that he was acting as a lookout, but he denied the allegation and denied that there was any plan. He was asked why he stayed in the shadows and responded: "It's not a good idea putting yourself on show in a faggot park." He denied that he hated faggots and said that he just did not care for them. The interview concluded with a query as to whether he had any complaints about the way he had been treated, to which he answered in the negative.

24 It appears from the video that throughout the interview, the demeanour of the applicant was again calm and detached. He yawned on one or two occasions, but did not appear to be overly tired.

25 Various submissions were made on behalf of the applicant as to whether the statements made in the interview could be characterised as voluntary and as to the propriety of police conduct.

26 Counsel for the applicant, in her written submissions, contended that it is not in the public interest to allow improperly conducted video-taped records of interviews to be admitted as evidence in a criminal prosecution. The presumption that participation in a record of interview is voluntary cannot arise in circumstances where the interview is not conducted according to proper procedure. To be admitted into evidence, an interview should be conducted according to proper standards without violating a suspect's rights. She sought to rely upon reference material from the Detectives' Training School concerning interviews of a suspect in relation to a serious offence. The material sets out the caution to be administered in the conventional form and indicates that the interviewee is to be asked at the end if the interview was made without any threats, promises or inducements being made to him or her.

27 Counsel for the defence submitted that the will of the applicant had been overborne prior to the interviews by the circumstances in which he was taken into custody and the fact that he was held in custody for a considerable period. Defence counsel submitted that there was not a series of questions asked at the conclusion of each interview to establish that it was made voluntarily. More specifically, counsel argued, the format of the interviews did not comply with current practice for interviewing suspects.

28 Against this background, it will be useful to look briefly at the legal principles bearing upon an application of this kind.

29 The principles applicable to 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 The Queen [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 The King (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 Detective Chadwick, that the interviews were not preceded or accompanied by any threat or inducement. No persuasive evidence was presented to the Court that the will of the applicant was overborne or casting doubt on the reliability of the confessional statements referable to the manner in which the interviews were conducted. The applicant's demeanour and responses made it clear in the interviews that he could give reliable and coherent answers to questions. There was substantial compliance with the Judges' rules and with the accepted practice in Western Australia in regard to the interviewing of suspects. Further, in an any event, there is no statutory provision or case law in this State which requires a police officer to ask a suspect a series of questions at the conclusion of the interview to establish that it was made voluntarily. In the present case, in fact, questions were asked which were sufficient to establish that the applicant had no complaints and that what he said was said voluntarily.

64 The defence case, as I have indicated previously, was essentially that the applicant was interviewed while being unlawfully detained. I consider that in the course of executing the search warrant, the police were entitled to use some initial force in order to secure the premises: R v Rose, unreported; SCt of WA; Library No 970014; 21 January 1997. They did so. I find that the applicant then accompanied the police voluntarily, whereupon he was questioned, but subject to a caution in the usual form. Even if it be held that he was detained, this was not unlawful in that he was not detained for the purpose of questioning and was brought before a court in due course when circumstances permitted. Interviews, subject to an appropriate caution, are permissible in such circumstances: Williams v The Queen (supra).

65 It was also the defence case that the interviews were not conducted according to proper procedures, with particular reference to an alleged lack of compliance with the police guidelines OP.38. Defence counsel emphasised the youth and inexperience of the applicant and referred to a degree of ambiguity as to what was put to him at the end of each interview and the answers he gave. It is apparent from the transcript, however, that he did not complain of any police misconduct in regard to either interview.

66 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 the present case, the video record shows that a caution was given and it seems to have been administered carefully in a form that was capable of being understood by the applicant, notwithstanding his youth and inexperience.

67 There was no evidence before me of any threat being made or inducement offered to the applicant prior to the conduct of the first interview. In regard to the second interview, the applicant made some passing reference to an inducement, but his allegation was not specific and I am satisfied by the prosecution evidence that no inducement was made. The demeanour the applicant in the video interview does not suggest that he was subjected to pressure or that his will was overborne by the nature of the questioning. He was calm and detached. Accordingly, I am not prepared to rule that either the first interview or the second interview should be ruled inadmissible upon the basis that it was not a confessional statement made voluntarily. I am not persuaded that the form in which questions were put and answers given at the end of each interview casts doubt upon the voluntariness of the statements made. The police guidelines are not binding in law and they are not strictly obliged to ask such questions. Further, and in any event, in the circumstances of the present case, it is material to note that the applicant did not complain of any misconduct or of any matters bearing upon his decision to participate in the interview.

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. I noted earlier that once a 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.

69 As to the first interview, I consider that unfairness to the applicant has not been demonstrated for the reasons previously given. His will was not overborne and the defence case at the voir dire hearing did not cast doubt on the reliability of the confessional statements. Defence counsel submitted that failure to adhere to the police guidelines OP.38, especially in regard to questions not asked at the end of each interview, evidenced police impropriety. The public interest required that a formal police policy be adhered to. I am not satisfied that the confessional statements should be excluded on this ground in a context where the guidelines are not binding in law and where the police evidence suggests that any deviation was not for any malign purpose, but, rather, due to a belief that it would be sufficient to afford the applicant an opportunity to voice any complaints he might have.

70 As to the second interview, I consider that again, the demeanour of the applicant and the matters I have just mentioned weigh against exclusion of the evidence on the grounds of either unfairness or public policy.

71 However, I am obliged to conclude by saying this. In the corse of his evidence on voir dire the applicant spoke of the detectives at the second interview "twisting" some of the answers he gave. This caused me to review the transcript of both interviews for signs of any unfairness reflected in particular passages of the transcript.

72 As to the second interview, transcript page 42, I note that the applicant was asked whether he was acting as a lookout. He answered in the negative, but it was put to him that another member of the group had indicated that he (the other member) was acting as a lookout, this being part of the plan that brought the group to the park.

73 Notwithstanding the applicant's negative answer, I consider that in the exercise of my discretion I should exclude the short passage at the foot of page 42 commencing "Q. Okay. You said earlier ... " and concluding "... to make sure that youse weren't being set up by anyone else in the park." It seems to me that the effect of this passage is overly prejudicial in that it seeks to introduce hearsay that the prosecution may have difficulty in establishing by other evidence and it colours the answer given by the applicant. I distinguish this passage from some later exchanges concerning the notion of acting as a lookout, which I will not exclude, because on those occasions the answers given are not affected in the manner I have just described. The unfairness to the applicant of the passage to be excluded is referable to s 7 of the Criminal Code whereby every person who aids another to commit an offence can be held to be a party to that offence.