R v Waters [2002] ACTSC 13

3. Mr Waters gave a statement to the police on the day of the incident and described how, on leaving the Ampol Service Station at Kambah and about to move onto the roadway proper, a man had reached in the front passenger window. That man was holding a gun and he removed the carry bag in which Mr Waters had placed the money which he had collected. The man ordered Mr Waters to drive off and he did so.

4. On 5 March 1999, Detective Constable McClymont, who was the principal investigating officer, and Detective Sergeant Majer interviewed Mr Waters to put to him what they regarded as the somewhat unusual circumstances of the robbery. On the basis that no further light was shed on these circumstances, it was proposed to conclude the inquiry. The unusual circumstances that they perceived included the facts that the passenger window of Mr Waters' vehicle, which facilitated the theft, had been wound down, that Mr Waters did not follow the robber and that he took his time in returning to the Service Station after being ordered to drive off by the robber. No further action was taken by the police as a consequence of that interview.

5. On 12 May 1999, Nathan Costello, a fellow employee with the security company, gave a statement to the police in which he alleged that Mr Waters had discussed committing the robbery with him and had rung him on the day to say that he was going to do it. Mr Costello said that he, Mr Waters and their respective girlfriends had then spent some days afterwards in an apartment he had rented "down the coast". Mr Waters had discussed the robbery and showed him a large wad of money "mostly fifties".

6. At the time Mr Costello gave his statement, Detective Constable McClymont was on leave, but upon his return on 17 May 1999 a search warrant was obtained and executed on the premises where Mr Waters lived with his de facto wife, Kelly Wilson. Detective Constable McClymont supervised the search.

7. During the course of the search some conversation was recorded, but the tape was stopped for significant periods of time. Detective Constable McClymont said that he taped the procedural matters and any conversations of significance. After initially speaking about search procedures, Detective Constable McClymont cautioned Mr Waters in these terms:

"All right. Before we go any further there may be questions that I'll put to you during the search. I must caution you that you are obliged [sic] to say or do anything but anything you say or do may be given in evidence, do you understand that?"

8. It is quite uncertain whether or not there were significant matters discussed which were not tape-recorded during the search. Detective Constable McClymont was far from clear about that although he maintained that nothing untoward took place. Mr Waters, for his part, says that he was put under pressure with threats that Detective Constable McClymont would be speaking to his de facto's employer, parents and grandparents to check out matters. A number of other allegations were made by Mr Waters relating to pressuring him to confess. Some of these could well have arisen after Mr Waters was arrested and taken to the police station and some of what was said at the police station might also have been said at the search.

9. Very early in the piece at the search, Detective Constable McClymont informed Mr Waters of Mr Costello's allegations. After asking Mr Waters whether he thought a number of his named workmates (including Mr Costello) would lie for him or to the police, Detective Constable McClymont said:

"All right. I'm going to put it to you now Robert that you organised that armed robbery, or that theft with a person named Nathan Costello. What do you have to say to that?"

Mr Waters said "No".

"Would it surprise you that he and his girlfriend have dobbed you in for doing the job?"

Mr Waters said "Yeah, it would".

"It would? Well they have. I'm just letting you know that. Do you understand that?"

Mr Waters said "Yep".

"Do you now have anything to say about it?"

Mr Waters said "No".

10. Asked about when he turned on the tape in the course of the search, Detective Constable McClymont said:

"When there was procedural questions that had to be covered as a requirement of the law or when there was something pertinent to an item being found that had to be put to a defendant, or I had a question in relation to the allegations that I was making which - that I would be - I would have been trying to elicit an answer for."

Having heard Detective Constable McClymont give his evidence, I am not satisfied that he gave effect to this intention during the search and he certainly did not do so at the police station.

11. I am inclined to think that there were conversations that took place between Detective Constable McClymont and Mr Waters which were not recorded and that they conveyed an attitude that Detective Constable McClymont expected Mr Waters to confess. There are areas that Detective Constable McClymont says he canvassed with Mr Waters as to his intention to check what he was saying that are not recorded on tape. It is probable that it was in that context that Detective Constable McClymont spoke of checking with the parents and grandparents of both Kelly Wilson and Mr Waters. I also cannot be sure that Detective Constable McClymont did not speak of interviewing Kelly Wilson at her place of employment. I have little difficulty in accepting that Mr Waters took these references as an earnest that Detective Constable McClymont would make life difficult for him. More particularly, Detective Constable McClymont has not satisfied me that whatever he might have said off the tape did not cause Mr Waters to feel that way.

12. It is significant that Detective Constable McClymont says that he told Mr Waters at the search that he did not believe Mr Waters' story. No conversation along those lines is recorded on the tape. Also of significance is the fact that Detective Constable McClymont did not record his arrest of Mr Waters. Given its most benign interpretation, it would appear to be a careless oversight of a procedural matter which should have been taped, but it gives me no confidence in accepting Detective Constable McClymont when he says that he did not say anything during the search which would justify Mr Waters' later apprehensions.

13. Detective Constable McClymont said that the principal reason for arresting Mr Waters was the concern to have him bailed on condition that he not approach Mr Costello. That being so, it is difficult to see why he would put any allegation made by Mr Costello to Mr Waters in any way other than by way of recorded interview as he had already alerted Mr Waters to the fact that Mr Costello had "dobbed" him in.

14. At the police station, Mr McClymont gave evidence of a conversation that he had with the accused. He was asked about it [T 29-30]:

"Well, I can recall the - the gist of the conversation. Actual I said/he said I wouldn't be able to recall with any certainty, but words to the effect of, `Robert I intend to ask you some further questions about the incident at Kambah, the warrant, information that we have been told about events since we last spoke'. And I basically sat with him and I said, in essence, I still didn't believe his story. I relayed what we had been told in the two interviews with - well, the one interview conversation with Costello and Holm. What we'd been told of - of events leading up to the theft, his contact with Nathan [Costello] about that, his trip down the coast and what he did down there. We went through the story again and how I thought it was very unusual about the windows down and the person appearing out of nowhere. And the fact that he'd done that - that run for only a few times and this was at a different - relatively a different time, and that somebody would have to wait there for a considerable time. In other words, I - I went through why I suspected his story to be, you know, false. And - and in essence, that was what was happening, and that conversation went on for quite some time and it wasn't taped."

15. I should make some observations about this event. It is an obvious contravention of what s 139 of the Evidence Act 1995 (Cth) proscribes. At the time of this conversation, Mr Waters was under arrest. He had been arrested at his house and conveyed to the police station. Before any questioning commenced, no caution was given.

16. Ms Cronin, for the prosecution, argued that as Mr Waters had been cautioned at the search it was unnecessary to administer the caution. Quite apart from the caution on that occasion being limited to questions put during the search, such an approach is not countenanced by either s 139 of the Evidence Act or s 23F of the Crimes Act 1914 (Cth). I do not accept, because it might be said at the search Mr Waters was in "deemed" arrest (cf ss 139(5) of the Evidence Act, ss 23B(2) of the Crimes Act 1914 (Cth)), that circumstance relieved a person before starting the questioning following a formal arrest from administering the caution required by ss 139 (1)(c) of the Evidence Act or ss 23F(1) of the Crimes Act 1914 (Cth). Further, Detective Constable McClymont had no justification for not giving effect to his expressed intent to tape any questions he might ask in relation to the allegations that he was making.

17. After there had been the "conversation" referred to in paragraph 14, further things were said according to Detective Constable McClymont. He was asked [T 30]:

"And you were planning at this stage to conduct a taped video - sorry - - -? ---Yes.

- - - a video taped record of interview if Mr Waters would participate in that? --- Yes. That's - again I said to him that I wanted to conduct a further interview with him and that that was up to him again. He knew basically - well I said "You've been through this before so you'll know the procedure. Again it's up to you whether you want to be interviewed or not. The process from here would be basically that if you wish to interview it would have to be on tape". I'd do that and I would see what came out of that. There was some questions back and forwards after that and I basically put it to him that whether or not he had in fact done it and his response to that was "Yes, he had". That drew other questions from me in that was he - who else was involved essentially, and he said - no that's - I remember putting it to him that was his girlfriend involved but he said "No" to that.

M'mm?---I said "Do you want to - this is inadmissible" so I said "Do you want to go on tape" and he said - I asked him was he prepared to go on interview, he said "Yes". I said "Well I have to go and get the tapes and whatever and get set up". And he said "What's going to happen?" I said "Well this matter will have to go to court."

18. Section 23V of the Crimes Act 1914 (Cth) requires that any interview be tape-recorded as a precondition to its admissibility. This was not a case like Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370 where it could be said that there were separate periods of questioning. In that case, the accused was taken into custody and interviewed at a police station for between five and ten minutes. The accused gave the interviewing officers some details and they departed for about forty minutes to make further inquiries. There followed a formal tape-recorded interview lasting nearly two hours in which the accused made a full confession. That is a quite different factual scenario to the one that I am considering in this case.

19. All the judges of the High Court were of the view that where there had been different periods or episodes of questioning, the requirement that the confession be recorded relates to the particular period or episode during which the confession was made.

20. Although the court was not unanimous in the result, the justices were agreed that the proper approach was for a court to determine that essential question of fact (cf Mason CJ, Deane and McHugh JJ at 376-377, Brennan, Dawson, Gaudron JJ at 384 and Toohey J at 387).

21. I accept that this process involves the matters referred to by Mason CJ, Deane and McHugh JJ where they said, at 376-377, the resolution of the issue:

"... involves questions of degree and may require a weighing of a variety of factors including the proximity of time and venue, the relationship between the occasions on which questioning took place and the relationship between the interrogations which took place on those occasions."

(See, too, Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 219.)

22. In this case, what was said in the "conversation" that preceded the formal record of interview led into the tape recorded questioning. It is impossible not to regard it as part of the whole relevant questioning. On Detective Constable McClymont's evidence, the extensive nature of what he canvassed with Mr Waters, the questioning that must be implied, the fact of a confession being made and the continuation of the questioning which followed before the formal interview, all lead to a conclusion that what was unrecorded and recorded was part and parcel of the same interview.

23. Further, what Brennan, Dawson and Gaudron JJ said in Heatherington (supra) at 383, is particularly applicable:

"When there is a series of questions, including questions and answers that have been tape-recorded, and the confession is made during the tape-recorded questioning, the whole series of questions must be considered. By reference to the whole series, the court ascertains whether, as a matter of objective fact in all the circumstances - including time, place, content and the participating persons - the tape-recorded questioning and the questioning in the remainder of the series are part of the same questioning or are different questionings. When s 464H(1)(d) is applicable, evidence of a confession made by a suspect during questioning is admissible only if it is made during a questioning the whole of which has been tape-recorded. When s 464H(1)(d) is applicable and an investigating official has questioned a suspect in order to determine the involvement of the suspect in the relevant offence, but has failed to tape-record some of those questions, a confession made during questioning that is tape-recorded is not admissible if the questions which were not tape-recorded were part of the same questioning - unless, of course, the court exercises its "exceptional circumstances" discretion under s 464H(2)."

(The reference to s 464H(2) is a reference to s 464H(2) of the Crimes Act 1958 (Vic).)

24. The effect of s 23V of the Crimes Act 1914 (Cth) is, in my view, indistinguishable in the circumstances of this case from s 464H(2) of the Crimes Act 1958 (Vic). The Crimes Act 1914 (Cth) refers to "interviewed" as a suspect, the Crimes Act 1958 (Vic) has the concept of questioning (see Bina Raso (1993) 68 A Crim R 495 at 525 per Ormiston J). The discretion to admit under "exceptional circumstances" in the Crimes Act 1958 (Vic) is similar to the "special circumstances" provision in s 23V(5) of the Crimes Act 1914 (Cth).

25. Neither counsel addressed this issue. Ms Cronin put at the forefront of her argument, that I should regard the untaped conversation as a separate event, but did not address the consequences if I did not so regard it. I was not asked to exercise the "special circumstances" discretion to which s 23V(5) of the Crime Act 1914 (Cth) refers and, as appears subsequently, I could not have been satisfied that to do so would not be contrary to the interests of justice. It seems to me that now I have had the opportunity to consider in detail the decision in Heatherington, that I must rule that the record of interview is not admissible.

26. However, as the matter proceeded on other grounds upon which I formed certain firm conclusions, I will deal with those matters.

27. As I have earlier said, the "conversation" repeated what Mr McClymont admitted he had told the accused off tape at the search, namely that he did not believe his story. He apparently detailed what Mr Costello had said including what Mr Costello said about events before the theft, the alleged contact between Mr Costello and the accused on the day of the theft and the trip down the coast that they had taken after the theft.

28. Mr Waters said that he regarded it as intimidatory to have a police officer repeatedly say he "still did not believe his story". In the circumstances, there is some force in his complaint when Detective Constable McClymont cannot say how he put these assertions and the specific context in which they were made.

29. The effect of not being believed was described by Mr Waters in these terms [T 304]:

"I'm sitting there and there's a police officer telling me he doesn't believe me. He believes it's me. A mate of mine's dobbed me in. I got no choice. What - I got no chance. That's how I felt. I felt like, you know, they don't believe me."

30. Mr Waters gave evidence of two other major concerns to him. One was that Detective Constable McClymont threatened to involve his de facto wife in the alleged robbery and the other concern was that he would be locked up. The fact that this unrecorded "conversation" touched on these topics on Detective Constable McClymont's evidence gives me no confidence that Mr Waters was not affected by these matters in the way that he says he was. Nor does Detective Constable McClymont's evidence satisfy me that Mr Waters' apprehensions were not justified.

31. The effect was described by Mr Waters as follows [T302-303]:

"He sat down in that room, he said to me, "I don't believe you. I believe that you are involved, I put it to you that you're involved, I don't believe you. Your mate just dobbed you in", you know, "Don't make me go and question your family and Kelly's parents and Kelly at work, don't make me do these things, make it easier on yourself, tell me that you done it and it would just be easier. If you don't then I'll just" - he said, "you'll be taken" I remember him saying the city - he said "You'll be charged and locked up, you won't be released". I said, "Mate, I don't want that to happen", obviously I didn't want that to happen that was real scary, I never wanted to - for that to happen. He explained that if I made a confession, then I - that was the only way I can leave the police station and I guess I didn't know what to do, I honestly didn't want to get locked up."

32. Mr Waters was then interviewed on tape and video by Detective Constable McClymont. After the formal questioning there were the following questions and answers:

"Q24. Robert, would you agree that some time - sorry, on the twenty ninth of January, nineteen ninety nine, you informed me that you had been held up at the Ampol Service Station in Kambah?

A That's correct.

Q25. I put it to you, Robert, that was false and that, in actual fact, that the alleged armed robbery never occurred?

A It didn't - well, I'll explain to [sic] what happened.

Q26. Yeah, please explain to me what happened.

A The incident did actually happened [sic], okay. I just - I told a guy where I'd be, and what time I'd be there. Um, I basically said to the guy if you were to hold me up, I wouldn't chase you. Um, that's exactly what happened, he - he did go through with it, um, and I just called [sic] our front office had been held up."

33. Based on these matters, Mr Whybrow, counsel for Mr Waters, asked that I determine the admissibility of the record of interview, invoking s 85, s 90 and s 138 of the Evidence Act. Section 85(2) of the Evidence Act provides:

"Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected."

34. Section 90 of the Evidence Act provides:

"In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."

Because of the view that I take as to the effect of these sections on the admissibility of the record of interview, it is unnecessary for me to consider the public policy discretion provided for in s 138 of the Evidence Act.

35. For the purposes of s 85, I am satisfied that the admissions which are challenged were made in the course of official questioning. It is for the prosecution to satisfy me on the balance of probabilities that the circumstances in which they were made were such as to make it unlikely that their truth was adversely affected (cf s 142(1) Evidence Act 1995 (Cth)).

36. In considering this issue, Ms Cronin sought to argue that the video-taped record of interview should be looked at as a distinct period of questioning in which all rights were properly given. I do not see what relevance that has to the consideration of the circumstances that I must give as far as s 85 is concerned. In any event, as I have already said, I am satisfied that there was one instance of questioning that took place at the police station which encompassed the untaped and taped questioning of Mr Waters.

37. In considering the circumstances, I was asked by both Mr Whybrow and Ms Cronin to look carefully at the video, Mr Waters' responses, his general demeanour and the way he answered questions. It was said that such an approach commended itself to Hidden J in Brennan Patrick Donnelly (1997) 96 A Crim R 432. In that case his Honour remarked:

"I am satisfied that, for the purposes of s 85(2), regard may be had to the reliability of the confession to which objection has been taken in determining its admissibility. In other words, in examining whether the circumstances in which a confession was made were such as to make it unlikely that its truth was adversely affected, the terms of the confession itself are not to be ignored."

38. I agree that in some cases that may be of assistance and in the case before Hidden J it was put that the accused's depression could have led him to make a false confession. However, in the case before me I did not gain any real assistance as to whether or not what Mr Waters said during the course of the interview indicated that I could say that he was affected by anything that had transpired before the interview.

39. Those observations are also applicable to any question as to the truth of the confession. Ms Cronin argued that, having heard the evidence of Mr Costello, I should find that the confession was true. I am not able to say whether or not everything said by Mr Waters by way of admission was canvassed by Detective Constable McClymont before the admissions were made. That being the case, I do not think that what was put before me assists Ms Cronin to discharge her onus under s 85 of the Evidence Act and, of course, Mr Costello's evidence casts no light on the circumstances preceding the making of the admissions. It certainly cannot be the determining factor in respect of my consideration of matters relevant to s 90 and s 138 of the Evidence Act. Mr Whybrow argued that the confession is patently untrue and points to the weaknesses in the prosecution case as to its truth. He concentrated on the area of what was said to be newly acquired wealth particularly as Mr Waters admitted to purchasing items which could not have been purchased by the proceeds of the theft. I do not regard that fact as conclusive of the untruth of the confession taken as a whole. Neither submission materially assists me in applying the specific criterion for admissibility that s 85 demands.

40. After the taped-record of interview had been completed, Detective Constable McClymont returned Mr Waters to his home. He required Mr Waters to produce to him the video recorder and cordless telephone which Mr Waters had said he had purchased from the proceeds of the robbery. All who were present (his father, mother and de facto wife) testified that he was in a "state" and that he told them that if he gave the police these items that he could stay. To a limited extent, that supports his fear of being locked up. Within a short time Mr Waters obtained legal advice and in a written statement alleged that his confession was false and also alleged a number of threats which he said Detective Constable McClymont had made to him. Those threats were:

"1 That he would prove that my de facto wife was involved in the armed robbery;

2 That he would tell her employers that she was involved in the armed robbery;

3 That he would tell her grandparents and question them about the matter;

4 That he would make sure that I had "12 months of hell" and would then ensure that I came before Justice Gallop of the Supreme Court who would give me 5 years imprisonment;

5 That he would tell my wife that I had had an affair with a cleaner at the Hyperdome (which is completely untrue);

6 That he would investigate and question all my family members;

7 That he would have me sacked from my job (and I was sacked immediately after I arrived back at work after leaving the police station);

8 That I would only be given bail if I made a full confession;

9 That I would be given lesser charges of theft if I made a full confession;

10 That he would arrange for the matter to remain in the Magistrates Court if I made a full confession."

41. Mr Waters gave evidence to support the threats that he had particularised. I do not readily accept that the threats were made in the terms to which Mr Waters deposed. I think that Mr Waters built upon the situation in which he found himself and what he says is now coloured by his going over the events that took place. He said in cross-examination [T 332]:

"All I can say is that at that time I made this statement here that things were - I was very upset, things were very hard to - to recall I guess every detail, a lot of things had happened in the last day. Up until yesterday - I think about this thing 10 hours a day every day of the week, and it's what I - all I think about. And a lot of things I remember now clearly."

42. The clear recollection that Mr Waters now deposes to I suspect has been reinforced by what he now thinks might have happened and the gloss that he now puts on those matters. Nevertheless, I am of the view that what was said was enough to concern Mr Waters that unless he confessed, the police might involve his de facto wife, keep him in custody and continue to harass him. There is an evidentiary basis for me to question the reliability of his confession.

43. In the result, I am not satisfied that the prosecution have established that what might have been said by Detective Constable McClymont did not constitute, in all the circumstances, significant and untoward pressure upon Mr Waters to confess. I am not persuaded that it is unlikely that the truth of the confession was adversely affected. In that state of affairs it seems to me that the onus cast by s 85 of the Evidence Act on the prosecution is decisive and the evidence of the confession is not made admissible by the operation of that section.

44. Section 85 of the Evidence Act supersedes the common law development of the voluntariness of confessional evidence even though the common law may now be said to reflect the various sections of the Evidence Act which replace it. In R v Swaffield [1998] HCA 1; (1997) 192 CLR 159 at 194-5, Toohey, Gaudron and Gummow JJ said:

"Subject to one matter, an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of non-voluntary confessions, support the view that the approach suggested by the Chief Justice in argument already inheres in the common law and should now be recognised as the approach to be adopted when questions arise as to the admission or rejection of confessional material. The qualification is that the decided cases also reveal that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained."

45. Preceding that statement was the observation, at 194, that:

"Putting to one side the question of voluntariness, the approach which the Court invited counsel to consider with respect to the common law in Australia is reflected in the sections of the Evidence Acts to which reference has been made, when those sections are taken in combination."

46. Further, there was a recognition of the overlap between the issues that arise on questions of admissibility of confessional statements (at 196):

"One matter which emerges from the decided cases is that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1). It was held in that case that where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded. That overlapping is also to be discerned in the rationale for the rejection of involuntary statements. It is said that they are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable. That rationale trenches on considerations of fairness to the accused_. And if admissibility did not depend on voluntariness, policy considerations would justify the exclusion of confessional statements procured by violence and other abuses of power."_ (My emphasis.)

47. Where, as here, there is a question of what a police officer said before a formal record of interview, taken with the fact that no caution was given after a formal arrest, and the failure to tape what was said, there is such an overlapping of reliability and fairness.

48. That is particularly so in a case like the present where questions arise as to the effect of the actual circumstances of the case upon the will of the particular accused and hence the reliability of that confession (see Collins and Others v R [1980] FCA 72; (1980) 31 ALR 257 at 307). In that context, where the accused was questioned while under arrest without a caution being given and, importantly, when the questioning was not taped, that final circumstance deprived the accused of the possibility of independent evidence being available to support what he says he was told (cf Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 25 per Deane J.

49. These considerations lead me to indicate that, if it had been necessary for me to do so, I would have exercised the discretion that s 90 of the Evidence Act confers on me and refused to admit the evidence of the admissions made as it would be unfair to Mr Waters to use the evidence in his trial.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the Prosecution: Director of Public Prosecutions (ACT)