Court of Appeal (WA)|2001-02-22|Before: Pidgeon J, Kennedy J, Wallwork J

The applicant said: "No. I'm telling you I didn't do it. I have not done any of it. None of it."

177 The applicant was further questioned. Three pages further on in the transcript the applicant was asked: "Can you answer that for me? Why didn't you make such a big thing of finding this window open?"

179 The officer said: "I think we're getting deeper and deeper here aren't we?"

"I think we are Margaret. There's a lot of things coming out which seem to me and to Graham to certainly sound strange. Down the track if anybody else happens to be listening to this and watching this video ...."

183 The officer said: "OK. I'm sure to them it may sound strange as well. OK? We could take ... like Graham said at the beginning, it may be used in evidence against you. OK? Now that may mean ...."

184 The applicant said: "What are you talking about?"

185 The officer said: "If you are charged with these matters. OK? If. I'm not saying 'yes or no', I'm saying ...."

186 The applicant said: "How can I be charged with it when I never did it?"

187 The officer then said: "No, no, just a minute. What I'm saying to you is, if you were charged with these matters ... if we consider that there is sufficient evidence to charge you with these fires - OK - and it meant that you went to court, at some stage a magistrate and/or a judge would watch this video and it might be played to a jury. OK. Do you know what a jury is?

"OK. They may sit there and listen and watch everything we've been discussing for nearly two hours now and they could form their own opinion as to whether or not they think the answers that you've given are reasonable or whether they think they're a bit strange, the same as we do. OK? ...."

190 The officer continued to talk to the applicant.

"You've been here for an hour and 46 minutes. I appreciate that. It wouldn't have taken this long if we hadn't have had to beat around the bush about silly little things like the window, the flyscreen and following this person to that room. You know just silly things. OK. I think it's probably a good hour since we have actually asked you whether you lit the fires - and you've denied that. But now we're just going back now over the ground trying to build up what did happen on the night. Just little things about what you say to us happened on the night are being blown completely out of all proportion you know? That's why you've been here for so long now. I know it's late. I apologise for that."

193 The applicant said: "It's too long. I've had enough."

"Well that's fine. It's like we said before when I said to you when we were making a cup of coffee - if you've had enough just tell us and we'll stop. We'll turn the video off. But as you feel like you've had enough, that's fine. You're not under any obligation at all to sit there and to answer our questions. We don't take it personally. Anybody who looks at this tape down the track would think 'she must be guilty because she doesn't want to answer questions.' That doesn't come into it at all. If you say now "Tom, Graham, that's it. I've had enough. I want to go home - that's it. We'll turn the video off, put our gear away and take you home. You will be home by half past 8. Alright." (My emphasis).

195 In my view the approach taken by the police officers to the questioning of the applicant was out of order.

196 In McDermott v The King (1948) 76 CLR 501 at 511 Dixon J said:

"It may be accepted that if a statement is made as a result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary"

See also the reasons of Malcolm CJ in Vale v The Queen [2000] WASCA 21.

197 The applicant continued to say that she had not committed the offences. She was asked if she wanted to stop then or did she want to answer just a few more questions. She said: "Have you got more questions to ask?" The officer said: "Just basically Margaret - as Tom just said - we've been here so long but everything you have told us hasn't been the truth has it? As far as following, windows, all that sort of thing." The applicant said: "I didn't do it."

198 The officer then said: "But nothing you've told us so far has been the truth as far as those things has it?"

200 The applicant was further questioned and cross-examined on her answers. Eight pages further on in the transcript the officer said: "Margaret, you're getting yourself deeper and deeper here".

201 The applicant then said: "Has everybody else been 'drilled' like this, or is it just me?"

202 The officer said: "No, they haven't because we've had straightforward, easy to understand, questions and answers from them. We haven't had 16 answers to every question that we've had to bloody run through and sort out what's going on. Now did you see Julie shutting the back door? Yes or no?"

203 The applicant answered: "No. I would have heard it. I ...."

204 The officer said: "No, no. Did you see Judy shut the back door? Yes or no?"

206 The officer said: "That's fairly basic, that is. Either you did or you didn't."

208 A little further on the applicant said: "This is all getting too much for me." The applicant was further questioned. She was then told: "It's 20 past 8. We don't want to keep you here any longer than what we have to do. Alright? We've just got a couple of things here - not to do with this. Just to finalise the interview. Things that we've got to ask you. Another five minutes and then we will be done.

209 The applicant said: "This seems like it's going on forever."

210 The officer said: "It's gone on for two hours. Alright? We started at 6.15, it's now 20 past 8. The officer asked: "Is there anything you want to say to use now about any of this.

211 The applicant said: "Just that I didn't do it. I just feel like you are blaming me and I didn't do it. You told me before that it was pointing at me. I didn't do it. I've got no reason to do it. I'm happy working there."

212 When asked if she had any complaints about the way she had been treated the applicant said: "No, no". She then said "I've got to work tomorrow."

214 In my opinion in this case, in the words of Dixon J in McDermott which have been referred to above, the applicant was subjected to duress, persistent importunity, sustained insistence and pressure. The applicant's statement could not be said to be voluntary.

215 Because of that, in my view, the video interview should not have been admitted into evidence and the learned trial Judge was in error in allowing it to be adduced.

216 In Wilde v The Queen [1988] HCA 6; (1987-1988) 164 CLR 365 at 371, Brennan, Dawson and Toohey JJ said:

"Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted', to use the phrase of Fullegar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 or 'a real chance of acquittal', to use the phrase of Barwick CJ in Reg v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376. Unless it can be said that had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524; Reg v Storey (supra); Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at p 412-413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen (supra). The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case."

217 In my view there is nothing in this case to suggest that the applicant would inevitably have been convicted had the video interview not been admitted into evidence.

218 I would therefore allow the appeal and quash the convictions on this ground.

219 I also agree with the reasons for judgment and the conclusions of Kennedy J concerning the questions arising from the statements of the applicant which the prosecution contended were lies. I further agree with his Honour's comments concerning a new trial.

Speed v The Queen [2001] WASCA 125 (22 February 2001)

Director of Public Prosecutions v Starr [1999] VSC 143

Fletcher v The Queen [1999] WASCA 18

Nestorov v The Queen [1999] WASCA 303

18 In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, at 209, Deane, Dawson and Gaudron JJ said:

"When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' [Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 555 per Griffith CJ] or as corroborative evidence.

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him [Eade v The King (1924) 34 CLR, at 158]. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him' [Reg v Tripodi [1961] VR, at 193]."

20 In Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, at 333, note 59, Gaudron and Gummow JJ usefully summarised the import of Edwards' case so far as it was relevant to the case before them:

75 As was discussed by Wallwork J in Cotic v The Queen [2000] WASCA 414 a fair trial of an accused person can be prejudiced by giving an Edwards' direction where an Edwards' issue does not arise.

Speed v The Queen [2001] WASCA 125

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Speed v The Queen [2001] WASCA 125 (22 February 2001)