Supreme Court of WA|2008-12-09|Before: Martin CJ

THE STATE OF WESTERN AUSTRALIA -v- COX [2008] WASC 287 (9 December 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- COX [2008] WASC 287

Evidence - Criminal trial - Confessions and admissions - Video record of interview - Court may allow admission of inadmissible evidence - Criminal Investigation Act 2006 (WA), s 155 - Administering the caution - Opportunity to obtain legal advice - Requirement to advise of nature of allegations under investigation - Role of interview friend - Turns on own facts

(This judgment was delivered extemporaneously on 7 November 2008 and has been edited from the transcript.)

1 This is a hearing pursuant to s 98 of the Criminal Procedure Act 2004 (WA). It is an application by the accused person, David Cox, for a ruling as to the admissibility of a video record of interview conducted in a remote Aboriginal community on the afternoon of 20 March 2008. The context in which the application is brought is that Mr Cox has been charged with three counts of sexual penetration of the complainant who is said to be an 'incapable person' within the meaning of that expression in the Criminal Code (WA).

2 The first two counts allege offences which are said to have been committed between 1 January and 31 December 2007 and allege anal penetration and vaginal penetration respectively. The third count alleges vaginal penetration between 15 and 29 February 2008. The complainant is an Aboriginal woman in her twenties. She is said to be an incapable person because of mental impairment which she has suffered all her life as a result of foetal alcohol syndrome. Her mother is now deceased as a result of her alcoholism and the complainant's upbringing appears to have been supervised by her grandmother.

3 It seems clear that her capacities in any language are limited and her linguistic capacity in English very limited. I have been advised and accept that her capacity to give meaningful testimony is uncertain. A prerecording of her evidence has been cancelled because of these difficulties. The relevance of these matters is to heighten the forensic significance of the video record of interview at the trial of these charges. There is at least a possibility that the video record of interview may form a central plank of the State's case against Mr Cox.

4 The accused Mr Cox is also Aboriginal and is a neighbour of the complainant in the remote community to which I have referred. He was about 39 years of age at the time of the alleged offences. His preferred language is Kriol which is a dialect made up of a mixture of Aboriginal and English words. He also speaks English and it is not suggested, nor could it be concluded from the evidence, that his capacities in English were so limited as to necessitate an interpreter. However, it is clear from the evidence that his fluency in English is limited, and that he speaks a form of English sometimes described as Aboriginal-English, which may well give rise to issues as to the comprehension of his answers if the video record of interview is admitted into evidence.

5 The fact that an interpreter is not strictly necessary or essential does not mean that it is not desirable for an interpreter to be provided. There will be many cases - and this is one - in which the interests of justice will be advanced if an interpreter is present and available during police interview of a suspect and during any subsequent trial. There are many cases in which a suspect or witness may have sufficient command of English to participate adequately in conversations dealing with ordinary everyday subjects. However, police interviews, or sworn evidence in court, will often go beyond ordinary everyday subjects, and take a course in which the limited linguistic ability of the suspect or witness will place him or her at a significant disadvantage to the questioner. In those cases, it is highly desirable that an interpreter be available to assist as and when required.

6 I have said a number of times, and repeat again, that the lack of readily available, properly qualified and impartial interpreters for the many Aboriginal languages used by the original inhabitants of this state diminishes the quality of justice which is provided to the residents of the many remote regions of this vast state. That observation is just as apt to the quality of justice viewed from the perspective of the victims of offences allegedly committed in remote areas, who are almost always Aboriginal people with limited facility in English, as it is when viewed from the perspective of accused persons. Nevertheless, I repeat that in this case, the obvious limitations upon Mr Cox's fluency in English are not said to impact upon the admissibility of the video record of interview.

7 The State's case is essentially to the effect that during the course of 2007, the complainant came to the accused's house asking for food. It is alleged that Mr Cox indicated to her that he would not give her food unless she had sex with him. It is further alleged that Mr Cox partially removed the complainant's clothing before having both anal and vaginal intercourse with her. These allegations are based upon a combination of a written statement taken from the complainant and admissions made by Mr Cox during the video record of interview. Another component of the State's case is an allegation that Mr Cox knew or ought to have known that the complainant was an incapable person within the meaning of the Criminal Code.

8 The third count in the indictment alleges a similar sequence of events, resulting in vaginal intercourse in late February 2008. This allegation is, at this stage at least, apparently based only upon the admissions made by Mr Cox during the video record of interview. This is another reason why the admissibility of the video record of interview is likely to be of profound forensic significance to the disposition of these charges. It is also pertinent to observe that these are potentially very serious charges, if established, as they involve allegations of the sexual exploitation of a vulnerable young woman.

9 Evidence was called in the voir dire from the investigating police officers, Detectives Flatman and Bell. They established the following facts to my satisfaction.

10 Detective Flatman was with other police officers in the vicinity of the remote community to which I have referred on about 18 March 2008. He received certain information. That information included advice from the police station in the community to the effect that Mr Cox had attended the police station for the purpose of giving information to police. In response to that information, Detective Flatman travelled to the house where he believed Mr Cox to reside.

11 When Detective Flatman arrived there he was advised by others present that Mr Cox was not there, but advice was given to Detective Flatman as to where Mr Cox could be found. Detective Flatman travelled to where he found Mr Cox, some 200 or so metres away, spoke to Mr Cox and invited Mr Cox to accompany him to the police station for the purpose of giving information that Detective Flatman understood Mr Cox wanted to give. Detective Flatman also advised Mr Cox that it would be possible for him to have an interview friend for the purpose of the interview and asked him if he wished to avail himself of that opportunity.

12 Mr Cox indicated that he did wish to have an interview friend, after which Detective Flatman and Mr Cox travelled together to the art centre in this community, where they spoke to Mr Roger Taylor, a person who had been identified by Mr Cox as the person that he wished to use as an interview friend. Detective Flatman then spoke to Mr Taylor about the role and responsibilities of an interview friend and indicated, essentially, that his purpose was to provide support and assistance to Mr Cox during the interview process and to ensure that the interview process was fair. No specific advice was given to Mr Taylor by Detective Flatman as to his capacity to intervene in the process if he considered it to be unfair or as to his capacity to remind Mr Cox from time to time of his ability to refuse to answer questions if it appeared to Mr Taylor that those questions may be to the disadvantage of Mr Cox.

13 Detective Flatman then returned to the police station in the community, and 20 minutes later Mr Taylor and Mr Cox attended the police station. At the police station a record of interview was conducted and recorded. That interview commenced at 2.25 pm on 18 March 2008.

14 At the beginning of the video record of interview, there was an introduction to what a video record of interview was. After this there was brief reference to Mr Taylor as he was asked to introduce himself. The interviewer, Detective Flatman, then explained to Mr Taylor and Mr Cox there might be uncertainties of language because he was from Perth and not from the local community, and so if there were any misunderstandings those matters should be raised.

15 Detective Flatman then offered Mr Cox the opportunity to contact a lawyer and offered to make phone calls to a regional centre where advice could be obtained from the Aboriginal Legal Service. On that offer being made, Mr Taylor advised Mr Cox that maybe he should take up that opportunity and Mr Cox accepted that advice.

16 Detective Flatman then indicated that the video would be suspended while that phone call was made. Attention was then directed to any need for medical attention, or for food or sustenance. The caution was then administered by Detective Flatman. After administering the first limb of the caution, to the effect that there was no obligation to speak, Detective Flatman asked Mr Cox whether he had to answer a question if asked. Notwithstanding the caution, Mr Cox replied in the affirmative. Detective Flatman corrected that answer and explained at some length to Mr Cox that in fact he was not obliged to answer a question. At that point Mr Taylor intervened and explained to Mr Cox that it was a bit like the TV shows that he might have seen where somebody goes into court and if they had been prosecuted they bring in 'that tape'. Mr Taylor told Mr Cox that everything on the tape would 'count' and so it had to be the truth. Mr Cox indicated that he understood that, after which Detective Flatman repeated the caution. Detective Flatman then directed a number of questions to Mr Cox to ascertain whether or not he understood that he had the right to remain silent. Mr Cox answered all those questions to the effect that he did understand that right.

17 The second limb of the caution was then addressed; that is, the limb that is concerned with the use to which the statements could be put in any subsequent court proceedings. In that context Mr Cox was asked if he understood what a court was. He gave an answer which described in very general and colloquial terms the function of a court. He was then asked if he understood that the recording that was being made could be used in front of a judge and he said he understood that.

18 There was then discussion about Mr Cox's language skills. Mr Cox advised that he cannot read or write English and that Kriol is his preferred language, but that he did speak English.

19 Following this, there was then discussion about how the group had come to be there, in the course of which Mr Taylor stated that it had come to his attention that accusations had been made against Mr Cox which he had referred to Mr Cox, as a result of which Mr Cox wanted to see police to clear the matter up as soon as possible. There was then a recitation of the circumstances that had given rise to the interview, including the police driving up to Mr Cox and asking him if he wished to participate and that he had responded affirmatively.

20 The interview was then suspended while the telephone call to the Aboriginal Legal Service was made. The interview resumed and it was reported that advice had been given by Mr Espie, a solicitor employed by the Aboriginal Legal Service in Kununurra, to Mr Cox to the effect that he should not participate in the interview, as a result of which Mr Cox had indicated that he did not wish to proceed.

21 Detective Flatman then indicated that in that circumstance there was no point asking further questions but that he did want to conduct some further inquiries in relation to a 'young girl' in town. He asked Mr Cox to remain while those inquiries were conducted. He also said that if the interview was to be renewed, Mr Cox could call Mr Espie again to get advice from him. Detective Flatman then said, '[I]f you don't want to talk to us, you don't have to talk to us ...' He went on to say, '[Y]ou don't ever have to talk to the police, if you don't want to'. He asked Mr Cox if he understood that and he replied in the affirmative.

22 There was then discussion between the three present, that is, Mr Cox, Detective Flatman and Mr Taylor, about whether Mr Cox should remain or was free to go. In the course of that discussion, Detective Flatman confirmed that Mr Cox was free to go, after which Mr Taylor advised that he should exercise that right to leave and that is in fact what occurred.

23 However, before the interview was suspended there was affirmation of the fact that Mr Cox had participated in the video voluntarily. Then, almost at the very end of the interview, Mr Cox was asked if there was anything else he wanted to say. His answer was, 'Well, whoever the person talking ... me a liar'. Coupled with the statements made by Mr Taylor, to which I have earlier referred, it seems clear that at least at the time of that interview, Mr Cox was under the apprehension that allegations had been made against him. It is a fair inference that Mr Cox understood those allegations to be of a sexual nature, and involved a young girl. The interview then concluded.

24 On 19 March 2008, police conducted further investigations of a different nature to those that had been under consideration on 18 March. Those investigations involved the complainant in these proceedings. In the course of those investigations an attempt was made to take a video record of interview from that complainant. That attempt was unsuccessful because of the difficulties of language to which I have referred. However, notwithstanding those difficulties, it seems that written statements were taken from the complainant, as a result of which the police determined to pursue further inquiries with respect to Mr Cox.

25 To that end, Detective Flatman and Detective Bell travelled to Mr Cox's house on 20 March 2008. They made contact with Mr Cox and there was then a discussion between Detective Flatman and Mr Cox. Detective Bell was apparently not close enough to that discussion to hear what was said. Detective Flatman invited Mr Cox to accompany him to the police station for a further interview. Detective Flatman's evidence is to the effect that he also said to Mr Cox that he was an arrested suspect at that stage, before taking him to the police station.

26 For reasons that I will give, I do not accept that evidence. I think the best guide to what was said at the house is to be found in the video record of interview itself and I will refer to that in due course. The group then travelled to the police station. Detective Flatman renewed the offer to Mr Cox to obtain the benefit of an interview friend and Mr Cox indicated that he wished to obtain that benefit. Contact was made with Mr Taylor. Mr Taylor made his own way to the police station for the purpose of acting as interview friend. No further explanation was given to Mr Taylor as to his roles and responsibilities in that regard.

27 Before the video-recording commenced at the police station there was a discussion between the group of four who had assembled, that is, Detective Flatman, Detective Bell, Mr Cox and Mr Taylor. In the course of that discussion Detective Flatman renewed the invitation to Mr Cox to obtain legal advice. There was then a discussion between Mr Cox and Mr Taylor, after which Mr Cox advised that he was content to proceed without receiving further advice, he having been content with the advice that he had received two days earlier.

28 Detective Flatman also said in evidence that he had told Mr Cox that the reason he was under arrest was because of sexual matters. For the same reasons that I reject the evidence of Detective Flatman in relation to whether Detective Flatman advised Mr Cox that he was an arrested subject. I reject the evidence that Mr Cox was told why he was wanted for questioning. However, because of the aspects of the interview on 18 March to which I have referred, I find that Mr Cox would almost certainly have been aware that the reason he was required for questioning was because allegations of a sexual nature had been made against him.

29 The interview commenced with the usual introductions and a reference to Mr Taylor and his role as interview friend. Again, that role was described in the record of interview as being one of support of Mr Cox. Similar references were made to possible misunderstandings with respect to language and to the state of health of Mr Cox and to his literacy skills. It was again confirmed that Mr Cox is not literate in English. He was asked to confirm his awareness that Detective Flatman and Detective Bell were policemen, which he did. He was advised that if he did not understand a question he could ask Mr Taylor.

30 The caution was then administered, again in two limbs. The first limb of the caution was administered in what I might call fairly conventional terms, to the effect that Mr Cox did not have to answer any questions that were asked of him. The understanding of Mr Cox of those matters was probed at some length and it is clear from those answers that Mr Cox responded in terms that he did understand that he had the right to remain silent. It is to be remembered that this interchange took place only two days after Mr Cox had in fact exercised that right as a result of the legal advice he had received. In that context I see no reason to doubt that Mr Cox did in fact have an understanding of his right to remain silent.

31 He was then asked of his understanding of what a court was and again gave a very general description of the functions performed by a court, including the penal aspect of those functions and who sat in court. He was told that the video record of interview could be shown to the judge and other people in the court. He was asked if he understood that and he responded in the affirmative.

32 There was then a discussion about legal advice having been received some days earlier. There was in fact no invitation in the video record of interview to Mr Cox to obtain legal advice. It is highly desirable that the rights that are afforded to suspects while they are being interviewed by police are reflected and recorded in the interview which is videotaped or otherwise recorded. It is most unsatisfactory for a situation to arise like this in which it is suggested that the right to obtain legal advice was advised to Mr Cox outside the interview situation and then not explicitly repeated in the course of the recorded interview.

33 Notwithstanding that deficiency, on the evidence that I have heard, I am satisfied that before the interview commenced Mr Cox was invited to obtain legal advice. However, at the time that invitation was given to him he was not aware of the specific matters that were being investigated, although as I have found, I consider that he would have been aware that he was under investigation as a result of an allegation of sexual impropriety.

34 The interview then proceeded. There was some uncertainty with respect to the identification and description of the complainant. Statements were then made by Mr Cox as to the complainant. When asked why the complainant did not speak English, he responded with words that at least included an observation that the complainant 'must have been born a bit mad'. There was other discussion about her capacities.

35 Mr Cox was then asked a series of questions that are unrelated to the charges that have presently been brought against him, and in particular questions that relate to an allegation of a group sexual activity involving the complainant in which it is said that Mr Cox was one of the participants. Mr Cox steadfastly denied any involvement in any activity of that kind. In the course of the interchange he was asked whether he had ever had sex with the complainant, in response to which he volunteered an answer to the effect that he had had sex with her in return for giving her food.

36 He explained it on the basis that it was a swap arrangement, that she came to his house to ask for food and that he indicated to her that he would give her food if she allowed him to have sex with her. He volunteered the answer that he had sex with her on this basis on several occasions. Those answers were not responsive to the allegations that were being put to him with respect to the group sexual activity. Later in the interview, the words to the effect that the complainant was 'born a bit mad' were picked up by Detective Bell and put back to Mr Cox who responded to a question which incorporated those words.

37 There was then a point in the interview at which Mr Cox plainly did not understand the questions that were being put to him with respect to the sequence of events and, in particular, whether the complainant had gone to another house before going to his house. He turned to Mr Taylor in such a way as to indicate obviously that he was looking for his support and assistance. Mr Taylor asked if he could make a comment and then did his best to explain what he thought was being put to Mr Cox.

38 Detective Flatman then intervened and said in these words, 'Okay. We're at this point, Roger, that David can only ask for ... help. ... I do invite, if you'd like to afterwards ..., if you've got some information ... to pass it on to us'. The effect of that appears to me to have been to chastise Mr Taylor for having participated in the process in the way in which he had been expressly invited to participate earlier; that is, to provide support in an area of misunderstanding.

39 Detective Flatman stated in evidence that the reason he had taken that course was because he thought that Mr Taylor was intervening to provide answers on behalf of Mr Cox. That is not a conclusion that I draw from the video record of interview. On the contrary, Mr Taylor was doing precisely what he had been invited to do, which was to assist Mr Cox in relation to his understanding of the questions that were being put to him. Mr Taylor took no significant further part in this interview, perhaps understandably given the way in which he was chastised by Detective Flatman.

40 The interview continued and allegations with respect to sexual activity between the complainant and Mr Cox were put to him. He steadfastly denied having sex with the complainant against her consent but repeated on a number of occasions that he had had sex with her as part of a swapping arrangement for 'tucker and stuff'. Mr Cox indicated some motions that he used to indicate to the complainant what was expected of her if she was to obtain the food that she was seeking. He was asked the number of occasions upon which this had occurred and replied that there were two occasions, once 'long time ago' and once in the last few weeks. The answers to this effect were all volunteered without any significant pressure being placed upon Mr Cox and in a context in which he steadfastly resisted any allegation that he had been a participant in a group sex activity or that he had had sex with the complainant against her consent. The admissions upon which the State would rely were made at four or five separate points during the interview.

41 Mr Cox also made statements with respect to the removal of the complainant's clothing during the incidents he described. He indicated that sometimes she would remove her clothing and, on other occasions, he had assisted her to remove her pants. There was further discussion in the course of the interview about the mental capacity of the complainant, at least as understood by Mr Cox.

42 At the conclusion of the interview, Detective Flatman put a question to Mr Cox in these terms:

[W]hen we picked you up today at your house ... I said, "Would you like to come back to the office and finish off that ... talk we had the other day, and I may have mentioned earlier that we had a talk?" -

to which Mr Cox responded affirmatively. The next question asked was:

Okay. Did me or Sean force you to get in the car?

Well, I goin' through but I don't - I don't want to be left behind, you know?

Yeah. What I'm getting at is, did me or Sean or any policeman force you to come to the police station?

---No.

43 Those questions are entirely inconsistent with the proposition that Detective Flatman had placed Mr Cox under arrest. They are only consistent with a view of the facts to the effect that Mr Cox had been invited to voluntarily participate in an interview in the same way as he had been invited to participate two days earlier. I regard the video record of interview as the most reliable evidence of what took place prior to the video commencing. I therefore reject the evidence of Detective Flatman to the effect that he placed Mr Cox under arrest at his house, and find that Mr Cox agreed to accompany Detective Flatman to the police station in response to a request to that effect.

44 The next question asked by Detective Flatman was whether Mr Cox had been forced to speak on the video. Mr Cox responded emphatically on several occasions to the effect that he had not been forced to participate in the video. Then he was asked if he had talked to the police because he wanted to. The answer he gave was, 'I'm just - I'll want to talk to you straightforward'. Detective Flatman then said 'Okay,' and then Mr Cox stated, 'Because I want to talk to you'.

45 At no point in the interview was any allegation of anal intercourse put to Mr Cox. However, after other allegations had been put to him he responded in emphatic terms to the effect that he had voluntarily participated in the interview. I see no reason to doubt the genuineness and accuracy of those statements.

46 It is also pertinent for me to make observations with respect to the demeanour of the police during the interview. The tone and volume of the voices of the policemen were not aggressive or intimidatory. They did not use body language of an aggressive or intimidatory nature. They were both polite and courteous. They did not criticise the accused or make any expressions of disbelief, nor were any explicit or oblique threats, promises or inducements given to the accused during the interview.

47 I must reiterate that the admissions made by Mr Cox with respect to the swapping of food for sex were volunteered by him in the course of his denial of other allegations and were proffered by him, it seems, quite voluntarily on a significant number of separate occasions during the course of the interview.

48 The legal principles governing the admissibility of confessional material such as this are not seriously in doubt. Fundamental to those principles is the requirement that any confession must be voluntary. The State carries the obligation of proving that any confession is voluntary and that obligation must be satisfied to the civil standard, that is to say on the balance of probabilities.

49 However, the authorities also make clear that the significance of the confessional material that is sought to be admitted will be relevant to the degree of satisfaction which the court will require with respect to the voluntariness of the interview. Perhaps put another way, the principles enunciated by the High Court in cases such as Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 can and should be applied to issues of this kind.

50 In this case the admissions made by Mr Cox in the video record of interview are potentially very significant in relation to the case that has been put against him. Therefore, I approach the matters before me on the basis that in this case there is very little, if any, practical difference between the civil and the criminal standard as it applies to these circumstances. In other words, because of the forensic significance of the video record of interview, I approach the discharge of the State's burden of proof from the perspective that I must be completely satisfied that it was voluntary.

51 The question of voluntariness has been addressed in a number of authorities. The passage perhaps most often cited for the meaning of that expression is that of Sir Owen Dixon from the case of McDermott v R (1948) 76 CLR 501 where his Honour observed:

This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received ... If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence of pressure, it cannot be voluntary. (p 511)

52 In Tofilau v R [2007] HCA 39; (2007) 231 CLR 396, Gummow and Hayne JJ observed that where it is alleged that the confessional material is involuntary, in their Honours' words:

The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or remain silent. In this context 'overborne' should be understood in the sense described by Dixon J as 'the result of duress, intimidation, persistent importunity, or sustained or undue insistence of pressure'. ([60])

53 The decision of the High Court in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 has also been cited at length in the submissions provided to me. That decision establishes that the inquiry with respect to the admissibility of confessional material such as this will often involve three separate stages. The first is the assessment of the voluntariness of the confessional material, the second is its reliability and the third is the exercise of the discretion to exclude material otherwise admissible ([69] per Toohey, Gaudron and Gummow JJ). It is also clear from the decision in Swaffield that these three areas are not mutually exclusive, but will overlap in many cases.

54 Swaffield also establishes that in the area of discretion to exclude otherwise admissible material, while the categories within which that discretion may be exercised are not closed, three categories have been recognised in which a discretion may be exercised to exclude otherwise admissible material. They are: unfairness to an accused person; the public policy of ensuring proper standards of police behaviour and investigative conduct; and the discretion to exclude where the prejudicial value of the material would be entirely disproportionate to its probative value.

55 Reference has also been made to the Anunga rules in argument before me. It is, I think, clear that those rules do not have the force of law in Western Australia. However, they are guidelines as to what might be considered relevant to an assessment of voluntariness in the case of the interview of Aboriginal people, the assessment of fairness, and the exercise of the common law discretion to exclude or the exercise of statutory discretion conferred by s 155 of the Criminal Investigation Act 2006 (WA). But they are not rules of law, nor are they converted into rules of law by their adoption in the Commissioner's Orders and Procedures Manual (often known as the COPS Manual).

56 In the context of those findings and the legal principles as I understand them, I will turn now to the grounds upon which it is said that the confessional material should be excluded.

57 The first area of complaint relates to the caution. It is said that the first limb of the caution was deficient because there was no means given to the accused of indicating to the police that he did not want to answer a particular question. It is also said that he was not invited to repeat in his own words what he understood the caution to be.

58 Those observations are accurate, but it is necessary to address the substance of the evidence and, in particular, for me to form a view as to whether I am satisfied to the standard to which I have referred, that Mr Cox did understand that he had the capacity to decline to answer questions. I am satisfied to the requisite standard that he did have that understanding, notwithstanding that he did not repeat it in his own words and that he was not given a 'chapter and verse' explanation as to how he might exercise that right. I am satisfied of that because of what I have seen on the two records of interview. Further, I am encouraged in that conclusion by the fact that Mr Cox exercised the right to decline to answer on 18 March 2008.

59 Complaint is also made with respect to the second limb of the caution, relating to Mr Cox's understanding of whether or not the record could be used against him in court. I am satisfied that he said as much in his own words on both 18 and 20 March and that he understood the possible use to which the confessional material might be put.

60 The second area of complaint was the assertion that on the second interview occasion, Mr Cox was not offered the opportunity of obtaining legal advice. However, because of the findings that I have made with respect to the conversation that took place prior to commencement of the second interview, I am satisfied that Mr Cox was offered the opportunity of obtaining legal advice but that he declined to avail himself of that opportunity.

61 The third area of complaint attracted the most significant oral argument. That is the complaint that at the time Mr Cox was given the caution at the commencement of the second interview, and at the time he was offered the opportunity to obtain legal advice, he had not been told with any specificity whatsoever, the nature of allegations that were under investigation or the identity of the complainant. It is submitted that because of that lack of information, Mr Cox was not in a position to evaluate whether he should exercise the right to remain silent or whether he should obtain legal advice.

62 I am satisfied that Mr Cox had a general awareness that the matters into which the police were inquiring were allegations of sexual impropriety that had been made against him. I draw that conclusion from the statements made in the first interview. I therefore conclude, contrary to the submission of counsel for Mr Cox, that even if he had been told more specifically of the nature of the allegations against him, and even if he had been told of the identity of the complainant, he would nevertheless have proceeded to participate in the interview. I make that finding based upon my observations of his demeanour in the interviews themselves and from the fact that he presented himself to the police station voluntarily on 18 March 2008 at a time when it seems clear that he had an understanding that an allegation of sexual impropriety had been made against him.

63 I therefore conclude that the failure of the police to give specific advice to Mr Cox with respect to the matters they were investigating did not alter the course of events that would have taken place that day, nor did they deprive the interview which followed of its voluntary character.

64 The next area of complaint concerns the role of the interview friend. These complaints seem to me to be well founded. I do not think the role of the interview friend was properly or clearly explained to Mr Taylor. In particular, he was not told of his capacity to intervene on behalf of Mr Cox to object to questions that were being asked, or of his capacity to remind Mr Cox of his right to remain silent in the event that the interview appeared to be taking a direction that was harmful or damaging to Mr Cox.

65 Most importantly of all, during the course of the second interview, through the sequence I have described above, Mr Taylor was chastised as a result of his participation. Due to this, he was effectively excluded from further active participation in the interview. I will return to consider the effect of my conclusions in this regard later in these reasons.

66 There was a submission made in the written submissions complaining of a question put to Mr Cox based upon the premise that Mr Cox had never used the words 'born a bit mad'. Counsel for Mr Cox now concedes that it is at least arguable that those words were used by Mr Cox in the interview before they were put back to him by the police.

67 The sixth area of complaint is the proposition that the police intimated to Mr Cox that what was happening on the second occasion was essentially a continuation of their discussion on the earlier occasion, whereas in fact, at least from the police perspective, the situation had changed because by the time of the second interview they were armed with specific allegations against Mr Cox.

68 In relation to that allegation, it seems to me that the question of fairness is to be viewed from the perspective of Mr Cox. As I have found that on each of the two occasions upon which Mr Cox was interviewed he understood that he was being interviewed in connection with allegations of sexual impropriety that had been made against him, this ground blends almost indistinguishably into the ground to which I have earlier referred about the failure to apprise Mr Cox of the particular matters which were under investigation before the commencement of the interview. In relation to that ground, I would also observe that it is of some considerable significance that after the specific allegations had been put to Mr Cox, at the conclusion of the second interview, he reiterated in terms which I consider to be quite emphatic, that he had participated voluntarily throughout the entire process. That is another factor that reinforces my earlier conclusion that had he been told at the commencement of the interview of the specific matters that were being investigated, it would not have altered his decision to participate in the record of interview.

Compliance with Criminal Investigation Act

69 The next complaint raised concerns the question of compliance or otherwise with the Criminal Investigation Act. Since the commencement of the operation of that act on 1 July 2007, there is a clear distinction between the legal regime that applies to a person who is voluntarily assisting police with their inquiries and the legal regime that applies to a person who is an arrested suspect.

70 The rights of the former category of person are dealt with by s 28 of the Criminal Investigation Act, whereas the rights of the latter category of person are dealt with by s 137 and s 138 of the Criminal Investigation Act. In this case no attempt was made on either video record of interview to identify the status of the interviewee under the Criminal Investigation Act at the time of the interview. This is most undesirable.

71 It would be highly desirable, with a view to reducing arguments of this kind, for a general practice to be adopted whereby police identify on the video record of interview the precise status of the interviewee under the Criminal Investigation Act; that is to say, whether they are a person voluntarily assisting the police with their inquiries or alternatively, an arrested suspect. Further, it would also seem to be highly desirable for the police to adopt the general practice of then ensuring on the video record of interview itself that there is a permanent record of the conferral of the rights required to be conferred by the Criminal Investigation Act upon that person by reference to their status. So, in the case of a person who is assisting the police voluntarily with their inquiries, it would be highly desirable for the video record of interview to record the officers conferring upon that person the rights specifically identified by s 28 of the Criminal Investigation Act.

72 Similarly, in the case of a person who is identified in the course of the interview to be an arrested suspect, it would be highly desirable, and likely to reduce debates of this kind, if the police were to adopt the general practice of conferring the rights required to be conferred by s 138 in the course of the recorded interview, thus eliminating the scope for debate about whether or not those rights were conferred.

73 On the facts that I have found, there cannot be any doubt that one or other of s 28 or s 138 was breached in this case. If, which I think is the better view of the facts, Mr Cox was not under arrest, it is clear from the evidence of Detective Flatman that on 20 March, unlike 18 March, Mr Cox was not told that he was not under arrest, that he did not have to accompany the police and that if he did accompany the police, he would be free to leave at any time.

74 The evidence of Detective Flatman, that I have rejected, was to the effect that Mr Cox was under arrest. If I had accepted that evidence, it would follow that there had been a breach by Detective Flatman of the obligation imposed by s 138(2)(a) to inform the offender of the offence for which he or she had been arrested. Detective Flatman conceded that, on his evidence, his general reference to sexual matters would be insufficient compliance with that obligation.

75 Despite some initial prevarication, it is clear from Detective Flatman's evidence that he was advancing the proposition that he took a deliberate choice not to comply with that requirement of s 138 so that, in his words, he could 'get the jump' on Mr Cox. If I had been satisfied that that had in fact occurred, that would have been a most serious matter for me to take into account in the exercise of the discretion with respect to the exclusion of this material, particularly on the ground of public policy.

76 However, because I have rejected Detective Flatman's evidence to the effect that he arrested Mr Cox, I reject also his evidence as to his reasons for failing to advise Mr Cox of the offence for which he had been arrested. However, I find that there was a breach of s 28 of the Criminal Investigation Act in that Mr Cox was not advised that he was at liberty to decline to attend the interview.

77 I turn then to review the admissibility of material having regard to these findings. There are two conclusions to which I have come that are material. The first is the conclusion at which I have arrived with respect to the emasculation of Mr Taylor's role as an interview friend because of the failure to properly advise him of his role and responsibility and because of his effective exclusion from the latter half of the second interview by reason of the events that I have described above. The other finding that is relevant is the failure to comply with the obligations imposed by s 28 of the Criminal Investigation Act.

78 Notwithstanding those departures from desirable protocol and legal procedure, in the circumstances of this case I am satisfied to the requisite standard that the interview was voluntary and that Mr Cox participated in it voluntarily. I arrive at that conclusion because of the matters to which I have previously referred, including his voluntary attendance at the police station on 18 March, the fact of his awareness that he did not have to participate as demonstrated by his exercise of that right on 18 March and the statements that he made on 20 March not only at the commencement of the interview but also, most significantly, at the completion of the interview after the specific allegations had been put to him. I therefore conclude that the interview was voluntary in the sense described by Dixon J in McDermott.

79 The next area for consideration concerns the area of reliability. It seems to me that while this will of course in due course perhaps be a matter for a jury, there is no reason to doubt the reliability of the admissions upon which the State rely. The admissions were made in the context of steadfast denial of other allegations that were put to Mr Cox and were volunteered quite separately on a number of occasions. There was significant repetition of the proposition that Mr Cox had obtained sex from the complainant in return for food.

80 Turning then to the discretionary grounds, the first area for consideration is unfairness. If I had taken a different view of the consequences of the failure to advise Mr Cox of the specific allegations against him, then there may have been a cogent argument of unfairness. However, because of the view to which I have come, it does not seem to me that there was any relevant unfairness in relation to the way in which this interview was conducted, and the demeanour of the police, to which I have already referred, is of some significance on this issue.

81 Moving on to the area of public policy, if I had come to the view that there had been a deliberate breach of s 138 by Detective Flatman so that he could in his words 'get the jump' on Mr Cox, that would have provided a very strong ground for exclusion of the confessional material on public policy grounds. I got the impression from Detective Flatman when he was advancing that proposition, which in the end I rejected, that he took the view that the obligations imposed by the Criminal Investigation Act were optional obligations which he could choose to disregard if he formed the view that they would impede his investigation.

82 It must be said loudly and clearly by the court that such an attitude, if in truth it exists, is entirely unacceptable and that if it is manifested in cases of this kind in the future it will very likely result in the exclusion of confessional material on public policy grounds. The only reason I have not taken that course in this case is because of my rejection of Detective Flatman's evidence to the effect that he placed Mr Cox under arrest, as a result of which I have also rejected his evidence as to the reasons why he did not tell Mr Cox of the specific charge that had caused him to be arrested.

83 I do, however, need to consider the breach of s 28 of the Criminal Investigation Act. The breach occurred prior to the interview and it is therefore at least arguable that s 154 of the Act is enlivened, so that the material obtained from the breach of the Criminal Investigation Act should not be received in evidence.

84 That then raises for consideration the question of whether I should exercise the discretion to allow admission conferred by s 155 of the Criminal Investigation Act, notwithstanding the breach. I will now specifically address the factors set out by s 155(3).

85 First, whether objection has been taken (s 155(3)(a)). Plainly objection has been taken in this case.

86 Second, the seriousness of the offence (s 155(3)(b)). As I have already mentioned these matters are very serious.

87 Third, the seriousness of any contravention of the Criminal Investigation Act in obtaining the evidence (s 155(3)(c)). This is where I would have taken a different view if there had been a deliberate and wilful contravention of an important provision of the Criminal Investigation Act such as s 138. In this case it seems to me that the contravention of s 28 could not be regarded as serious because of the view that I have formed with respect to the voluntariness of the participation of Mr Cox in the interview in any event. Had I formed the view that the breach of s 28 had deprived Mr Cox of an understanding that he had a right to decline to participate in the interview, then that would be a different matter. But because of the view to which I come with respect to Mr Cox's voluntary participation, it does not seem to me that the breach of s 28 is properly characterised as serious.

88 Fourth, whether the contravention was intentional or reckless (s 155(3)(d)). Given Mr Cox's active participation two days earlier, it seems to me that it is open to conclude, and I do, that the failure of Detective Flatman to comply with s 28 of the Criminal Investigation Act was due to his understanding that Mr Cox was a willing participant in the process, and this supports the conclusion that his failure to comply with s 28 was not intentional or reckless. As I have said before, had I come to a different conclusion with respect to s 138, the result of this case may have been quite different.

89 I turn to the final matter specifically enunciated by s 155, which is the probative value of the evidence (s 155(3)(e)). As I have indicated it is quite possible, depending on how this matter proceeds, that the confessional evidence will have a very significant forensic value.

90 The final area for consideration is the possibility that the prejudicial value of the confessional material might outweigh its probative value. As I have already indicated, the probative value of this material is high in the context of the charges that have been laid. Therefore, I do not think there is any basis for exclusion on this ground.

91 Weighing those various factors, this seems to me to be a case in which I should exercise the discretion conferred by s 155, by permitting the evidence to be admitted notwithstanding the breach of s 28 which I have found.

92 Although the issue has not been raised by counsel for Mr Cox, I have given some consideration to the material in the interview which relates to allegations of group sexual activity, which Mr Cox has denied. Because issue has not been taken with respect to the specific admissibility of that portion of the interview on this occasion, it is not appropriate that I rule definitively on that issue. The issue that was joined before me was whether the video record of interview should be excluded as a whole. I would leave it open to the parties to raise again before another court the question of whether there are particular portions of that material that should be edited out; for example, on the ground that its prejudicial value outweighs its probative value.

93 In relation to the allegations put to Mr Cox about group sexual activity, it would be clear to any jury seeing that material that he steadfastly denied those allegations. It is also difficult to exclude that material from the interview without altering the context of the other answers that he gave. At a trial, I would in any event expect an appropriate direction to be given by the trial judge to the effect that when viewing that material the jury will of course pay attention only to the answers and not give any weight to questions where those questions are denied.

94 Although I stand it over for another day, it doesn't seem to me that there are insuperable problems (at least on the state of the information presently available to me) in relation to that aspect of the interview. So for all of those reasons I have come to the conclusion that this material is generally admissible. However, I should make it clear that in arriving at that conclusion I do not by any means wish to be seen as endorsing the interview techniques and processes that were used generally in this case.

95 The obligations to comply with the Criminal Investigation Act are clear and unequivocal. Steps should be taken to ensure that compliance with those obligations is made clear on video records of interview themselves. The role of an interview friend is a very important role when people from remote Aboriginal communities are being interviewed. It should not be diminished or curtailed by the actions of any investigating officer, although, unfortunately, that occurred in this case.

96 It is also I think to be made abundantly clear that any wilful and deliberate departures from the obligations of investigative propriety imposed by the Criminal Investigation Act are very likely to be met with a decision of the court to the effect that the confessional material will be excluded on public policy grounds.

97 For the reasons I have given, I conclude the material is admissible in this case. The next step then should be to remand Mr Cox over to the next status conference in the District Court.

Investigation Act 2006

THE STATE OF WESTERN AUSTRALIA -v- COX [2008] WASC 287 (9 December 2008)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (112 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- COX [2008] WASC 287 (9 December 2008)

Compliance with Criminal Investigation Act

Legislation Cited (2)

Cases Cited (5)