THE STATE OF WESTERN AUSTRALIA -v- GDB [2015] WASC 366 (6 October 2015)

4 The applicant has given notice, dated 11 August 2015, that he intends to give or adduce alibi evidence that, at the time of the robbery, he was with his brother PJB.

5 The applicant objects to the admissibility of his record of interview by police officers and to evidence of six telephone calls made by him from prison while on remand. The objections were heard by me at a directions hearing under s 98 of the Criminal Procedure Act 2004 (WA).

6 The interview took place on 10 September 2014. The interviewing officers were Detective Senior Constable Hugo and Detective Sergeant Brumble. The interview was audiovisually recorded in accordance with s 118 of the Criminal Investigation Act 2006 (WA). The applicant accepts that the police officers followed the correct procedure under that Act. He accepts that he understood that he had a right to remain silent. He also accepts that the answers were not involuntary.

7 The grounds upon which the applicant objects to the admissibility of the interview are:

1. that he did not make any admissions which relate to the charge in the interview;
2. that, in answer to many questions, the applicant said 'no comment' or gave a similar response, and those questions and answers are inadmissible and would need to be removed from the audiovisual recording of the interview; and
3. that, to the extent that there are limited admissions, they should be excluded on the grounds of unfairness.

8 The State has suggested that some edits be made to the interview, but wishes to lead evidence of some questions and answers where the answers were substantially 'no comment'. The basis upon which the State wishes to lead evidence of the 'no comment' answers is that the answers to other questions would not be intelligible if the questions and answers were deleted. The State does not submit that the accused demonstrated a consciousness of guilt by selectively answering questions. If the 'no comment' answers are played in evidence at trial, the State will not make any comment adverse to the accused on those answers.

9 The interview commenced at 3.12 am on 10 September 2014. It took place at Curtin House, 60 Beaufort Street, Perth. At the commencement of the interview, Detective Senior Constable Hugo identified the time, date and location at which the interview was taking place. The accused was asked questions about his name, date of birth and place of residence, which he answered. He confirmed that he had been stopped by police officers earlier that night and that he had been 'under caution' the whole time that he had been with police officers since he was stopped.

10 Detective Senior Constable Hugo explained to the applicant that the interview was being recorded. He informed the applicant that he did not have to answer any police questions and that the audiovisual recording of the interview could be played in court. The applicant confirmed that he understood the caution.

11 Detective Senior Constable Hugo also confirmed with the applicant that the applicant had been informed that he had the right to contact a member of his family or a friend, to obtain necessary medical treatment and to contact a lawyer, and that the applicant continued to have those rights. The applicant confirmed that he has spoken to someone from ALS. He said that he had been advised that if he did not want to say anything, then to say 'no comment'.

12 The applicant confirmed that he was Aboriginal and that he had been given something to eat and drink while he was with the police officers. The applicant also confirmed that, while he had been with the police officers, he had been in and out of sleep. He was asked how he was feeling. The applicant said that he was a bit drowsy, but it was just normal tiredness. He was asked if he was too tired to continue with the interview. He said: 'No, I should be right, yep.'

13 Detective Senior Constable Hugo said that if the applicant did feel too tired to continue the interview, then he could inform Detective Senior Constable Hugo and the police officers could always stop the interview.

14 Detective Senior Constable Hugo then asked the applicant some questions about his education, which he answered. The applicant informed Detective Senior Constable Hugo that he was not under the influence of drugs, alcohol or prescribed medication.

15 Detective Senior Constable Hugo said to the applicant that, as the applicant knew, he had been arrested on suspicion of an aggravated armed robbery offence at the newsagency, which the police officer identified. The applicant's answer is typed on the transcript of the interview, at the bottom of page 7, as being: 'Yeah, I [indistinct] that one, yep.' I heard the applicant's answer as being: 'Yeah, I know that one, yep.'

16 Detective Senior Constable Hugo then said that this had happened last Friday and he asked the applicant: 'Okay. Can you tell me, or explain to me what you did last Friday, from the morning?' The applicant replied: 'Ah, no comment, yeah.'

17 Detective Senior Constable Hugo then asked the applicant if he could say where he was on Friday and the applicant said that he had been told by his lawyer not to say anything. Detective Senior Constable Hugo then asked the applicant if he had been at his home address on the Friday, to which the applicant said: 'No comment.'

18 Detective Senior Constable Hugo then asked the applicant some questions about his car. The State proposes to edit those questions and answers so that the following remains. It is at page 9 of the transcript:

SCON HUGO: [edit] your vehicle, a blue SS Commodore, I think it's a VR, is that right? A VR Commodore?

[Applicant]: Ah, yes, it is, yep.

[Edits]

SCON HUGO: Okay. Are you the owner of that VR SS Commodore?

[Applicant]: Ah, yes, I am.

SCON HUGO: Do you know where that car is right now?

[Applicant]: No, I do not.

SCON HUGO: Okay. When was the last time you saw that car?

[Applicant]: Um, probably, probably a week and a half, two weeks.

19 The applicant was then asked about his employment status and history, his children, his income and expenses.

20 Detective Senior Constable Hugo then asked the applicant some questions about the use of drugs. The State accepts that those questions about drug use and the applicant's answers should be edited out of the interview.

21 From page 12 of the transcript until page 14, Detective Senior Constable Hugo asked the applicant questions to which he substantially replied 'no comment'.

22 Detective Sergeant Brumble then asked the applicant some questions. He informed the applicant that police officers believed that his vehicle had been used in the robbery. The following exchange, which is recorded at pages 14 to 15 of the transcript, then occurred:

SGT BRUMBLE: What we are trying to ascertain from you is, were you there? If you weren't there, did you give your vehicle out? Have other people been using your vehicle?

[Applicant]: Right. The only questions that I can answer for you, um, my vehicle, well, ah, oh, had been taken, an, um, I can get, oh, the word on the street was, it was taken by someone who's already took it, and, um, yeah. That's why - - -

SGT BRUMBLE: [indistinct]

[Applicant]: That's why if you're saying that, um, well, well, I can't really give much more than that, so.

SGT BRUMBLE: Okay, I mean - - -

[Applicant]: For my own, my own wellbeing, yeah.

SGT BRUMBLE: No, look, that, that's fine, well - - -

[Applicant]: Yep.

SGT BRUMBLE: I mean, you've said you've saw the vehicle a week to a week and a half ago.

[Applicant]: Yep.

SGT BRUMBLE: Mate, do you wish to tell us - - -

[Applicant]: Well, I - - -

SGT BRUMBLE: Who took the vehicle [indistinct]

[Applicant]: I haven't been home, well, I've been back and forward, back and forward, so I mean days, [indistinct]

SGT BRUMBLE: Do you, do you know who took the vehicle? I mean you say this person took it - - -

[Applicant]: Ah, no comment.

23 The applicant then made clear he did not wish to comment on that question. Detective Sergeant Brumble explained that the charge was serious, which the applicant acknowledged. Detective Sergeant Brumble asked some more questions about who had the car, to which the applicant replied substantially 'no comment'.

24 At page 16 of the transcript, Detective Senior Constable Hugo asked the applicant how many Commodores he had. In answer to questions from Detective Senior Constable Hugo, the applicant said that he had three Commodores, two blue and one red, and that the two blue Commodores had been taken.

25 At the top of page 17 of the transcript, Detective Senior Constable Hugo asked the applicant if he knew where the car was. The applicant replied: 'Um, no comment.' He then replied 'no comment' to a number of questions, informing Detective Senior Constable Hugo again that he had received advice.

26 Just below the middle of page 17, the following exchange occurred:

SCON HUGO: Yeah, but, but, when we're trying to, ah, when we're trying to ascertain, if someone else has taken your car - - -

[Applicant]: Um - - -

SCON HUGO: That is something I'd like to know.

[Applicant]: Right, someone else - - -

SCON HUGO: Okay?

[Applicant]: Is taking my car, okay?

SCON HUGO: Okay, if, if that's, if that's a - - -

[Applicant]: Someone else has tooken my car, okay.

27 Detective Senior Constable Hugo acknowledged that information and then asked if this other person did the robbery, to which the applicant replied: 'No comment.'

28 The police officers then asked the applicant questions to which his replies were 'no comment' or similar.

29 On page 18 of the transcript, Detective Sergeant Brumble informed the applicant that the robbery occurred during the time that the applicant said that his car had not been in his possession. At the top of page 19, Detective Sergeant Brumble said that the applicant would not tell the police officers who took the car or when the car was taken. He asked if the person who took the car took it with the applicant's permission. The applicant replied: 'Um, no, the car was not taken with my permission.'

30 Shortly afterwards, still on page 19, the following exchange occurred:

SGT BRUMBLE: Ah, have you reported it to police?

[Applicant]: Um, no comment.

SGT BRUMBLE: Because the only reason I'm asking is, we have checked, we cannot see any that has been reported stolen. So what we wanna make sure is that you haven't went in somewhere, reported it, and it's still to come through the system.

[Applicant]: Ah, no, I have not reported it.

31 Detective Sergeant Brumble then said that they 'were getting somewhere' and that it was now helping 'us' understand that 'maybe you weren't in that vehicle'. He informed the applicant that if he did not wish to answer questions, that was up to the applicant. The following exchange then occurred, in the middle of page 20 of the transcript:

SGT BRUMBLE: We believe that vehicle was used in a serious offence, namely an armed robbery. Now the two males were in that car, they did the armed robbery, and then they went back to that car, okay? And then that car was taken somewhere else. You are the registered owner of that car. [edits]

...

So what we're looking at is, is, ah, somebody been using it without you knew -, knowing.

[Applicant]: Oh, well, obviously.

SGT BRUMBLE: Okay. So where are the keys kept?

[Applicant]: I've got one at home - - -

SGT BRUMBLE: Yep.

[Applicant]: And the spare one's missing.

SGT BRUMBLE: So you've got two, two keys for the car - - -

[Applicant]: Yep.

SGT BRUMBLE: And one is missing?

[Applicant]: One is missing, yep.

32 Detective Sergeant Brumble then asked the applicant if he knew who took the key, to which the applicant replied 'no comment'.

33 At page 21 of the transcript, the police officers informed the applicant of the time and date of the robbery and asked the applicant where he was at that time, to which the applicant replied 'no comment'. Some discussion and questions about not being in two places at one time then followed, and then the following exchange occurred at pages 21 to 22 of the transcript:

SGT BRUMBLE: Can you give me any place you were at during that time last Friday?

[Applicant]: I was with a female, yep.

SGT BRUMBLE: You were with a female?

[Applicant]: Yes, I was, yep.

SGT BRUMBLE: Okay, Would that female be willing to come forward and give us a statement?

[Applicant]: I mean, yeah, ah, um, for what? For me?

SGT BRUMBLE: To, yeah, to, to say, say you were wi-, with her.

[Applicant]: Oh, oh, probably, yeah.

SGT BRUMBLE: Okay.

[Applicant]: Yep.

SGT BRUMBLE: Would we be able to speak to that female?

[Applicant]: Um, I wouldn't know.

34 Detective Sergeant Brumble then asked if the applicant would give the police officers the female's name. The applicant said that he would not do so, at least until he had spoken to his lawyer.

35 There then followed some discussions and questions to which the replies were substantially 'no comment'.

36 At page 25 to page 26 of the transcript, the following exchange occurred:

SCON HUGO: Ah, [applicant], can I just ask you another question there?

[Applicant]: Yeah, yes, sir.

SCON HUGO: Your car, okay. When it got, when it got taken by this person, what was in it?

[Applicant]: My stuff.

SCON HUGO: Yeah, what, what stuff, like - - -

[Applicant]: Like, mate, I've got - - -

SCON HUGO: Wh-, what was in, what was in the car?

[Applicant]: There, there, there's paperwork in the glove box.

SCON HUGO: Yep.

[Applicant]: There's, um, clothes in a bag. There's, um, I don't know, [indistinct] there's, well, there's no stereo system anymore.

SCON HUGO: No?

[Applicant]: I know that much.

SCON HUGO: Okay.

[Applicant]: From when I wh-, took it last time.

38 However, when I listened to the interview, I heard the applicant say:

[Applicant]: From when it got tooken last time.

SCON HUGO: Okay.

[Applicant]: Yep, that's about all I can give you.

SCON HUGO: Okay. What was, what did you, what did you say was in the back?

[Applicant]: I said a lot of shit in the back, clothes, paperwork - - -

SCON HUGO: Mmhmm.

[Applicant]: Empty bottles.

SCON HUGO: Okay, what kind of clothes were in the back?

[Applicant]: Couldn't tell you, um, ah, it got tooken last time. We retrieved it, took it again. That's all I can say.

40 Detective Senior Constable Hugo then asked the applicant if there were tools in the car, to which the applicant replied 'no comment'. There then followed some discussion and questions about what was found by police officers in the applicant's car, which the applicant declined to answer.

41 At page 28 and page 29, the applicant was asked about some writing on a piece of paper found in the car and the following exchange occurred:

SCON HUGO: These phone numbers? Is [the phone number]?

[Applicant]: Oh, that has been, ah, that's, I think it's ah, Renee, oh, Renee's auntie's, oh, phone number.

SCON HUGO: Okay.

[Applicant]: Or a friend.

SCON HUGO: Is your - - -

[Applicant]: Yep.

SCON HUGO: DNA gonna be on that paperwork?

[Applicant]: Um, oh, oh, to be honest with you, I did write that.

SCON HUGO: Yep? That's your handwriting?

[Applicant]: Yes, it is.

SCON HUGO: Yep? And this one here? [phone number], I can't see that number on that, that photo.

[Applicant]: Couldn't tell ya, I mean.

SCON HUGO: Well that paperwork was located in that bag.

[Applicant]: [Indistinct], okay.

SCON HUGO: So how did it get into that bag?

[Applicant]: Do not know.

SCON HUGO: And you haven't touched that bag?

[Applicant]: Which bag?

SCON HUGO: This bag here, that you're looking at, the Liquorland bag?

[Applicant]: No comment.

SCON HUGO: Okay.

[Applicant]: I mean, I can see where you're going with the questions, like, you've gotta, h-,h-, hit one in there.

SCON HUGO: Oh, I just wanna know if you've, you've touched these items before?

[Applicant]: I believe that there's some other stuff in my car, that probably have got my prints on it, 'cause its my car. So who's not to say that people that took my car, [indistinct], but I can't say, [indistinct]

SCON HUGO: That's what I'm saying, are these, any of these items yours?

[Applicant]: No comment. I'm not trying to be a smart arse, um, like, I mean youse love people, I know that.

42 There was then discussion between in which the applicant said that he had been advised, he had no comment to make and that he wished to find out what had occurred.

43 At page 31 to 33 of the transcript, the applicant was asked about an injury on his leg, which he said was caused by a motorbike accident, and a tattoo on his other leg, which the applicant said was done in prison. The State proposes to edit the DVD to delete the reference to prison.

44 Detective Sergeant Brumble then said that he thought that the evidence would close. He asked the applicant if he wanted to say anything else, to which the applicant replied 'no comment'. Detective Senior Constable Hugo then made a comment that he 'can't understand it, 'cause if it wasn't me - - - I'd be saying '.

45 The applicant replied that he wanted to find out 'stuff'. Detective Sergeant Brumble said that was understandable and that it was open for the applicant to come back to the police officers. The applicant said that he would be coming back to the police officers. Detective Senior Constable Hugo then asked if the applicant would be approaching people, to which the applicant replied 'no comment'. The applicant then referred to 'fictional characters'. Detective Senior Constable Hugo asked if they were not fictional, to which the applicant replied 'no comment'.

46 The interview then concluded in the usual way, with Detective Senior Constable Hugo asking if the applicant had been offered any inducements or threats, whether he wished to say anything else, and that if he were to be charged then he could obtain a copy of the recording of the interview.

47 The applicant submits that the evidence of the telephone conversations is inadmissible because they do not contain any admissions to matters that are the subject of the indictment and so have no probative value. The applicant also submits that evidence of the telephone conversations would be prejudicial because they reveal that the applicant was in custody.

48 The State submits that the telephone conversations contain relevant statements by the applicant.

49 The first call was made on 17 September 2014. The conversation begins, at page 2 of the transcript, with an enquiry by the person to whom the applicant was speaking which I interpret as being an enquiry as to what evidence that the police had against the applicant. The applicant's response was nothing other than a car and clothes.

50 There then follows a passage that the State proposes to delete from the recording to be played in evidence. At page 7 of the transcript, the applicant is shown as saying:

[Applicant]: Yep. And they tried to, they tried to make me jump on the wi, on the other fella, but I said, no comment, no comment, all the way.

51 When I listened to the recording, I heard the applicant saying:

[Applicant]: Yep. And they tried to, they tried to make me jump on the wit-, on the other fella, but I said, no comment, no comment, all the way.

[Person called]: On what other fella?

[Applicant]: Oh, the one that, um, the one that stole my car before.

[Person called]: Oh, oh, yeah, yeah, yeah, you know - - -

[Applicant]: Mmm, I just said - - -

[Person called]: [indistinct]

[Applicant]: No comment, all the way, you know.

[Person called]: Yeah, yeah, fuck that, you know, my bro, you don't nag, you know, like - - -

[Applicant]: Oh, my brother, that's not me.

53 There then followed a discussion about the car and the clothes in the car. The following exchange, at page 8 of the transcript then occurred:

[Person called]: Oh, oh, so they've got clothes on your car?

[Applicant]: Yeah, well, yeah.

[Person called]: [indistinct]

[Applicant]: Well, no, from that, when the, when the bag it's in the bag that got hidden.

[Person called]: What bag?

[Applicant]: Well, that, well, the, you know, the bag in the bush.

54 Some further discussion about the evidence against the applicant then took place and was followed by the following exchange, at page 9 of the transcript:

[Person called]: Ah, ah, what else do they have, like [indistinct] - - -

[Applicant]: Well, they reckon they have someone, that someone in Ma-, um in, in Mangaroo, I think it is there.

[Person called]: Yeah?

[Applicant]: Seen me. Seen me drive in.

[Person called]: Oh, they're trying to say that there's someone that, um, eye witnesses on you or some shit?

[Applicant]: Yeah, but that, but that's nothing.

[Person called]: That's nonsense, my brother.

55 Later on 17 September 2014, the applicant made a telephone call to a different person.

56 In that telephone conversation, the applicant said that he needed a good lawyer and that he would ask 'PJ' (the transcript shows 'BJ' but I heard 'PJ') to get him a good lawyer and he asks the person he called to assist him to arrange for Paul and Amie to come and visit him together. It is likely that the references to PJ and to Paul are references to the applicant's brother, the subject of the applicant's alibi notice.

57 On 20 September 2014, the applicant made another telephone call. He asked the person where PJ was. The person's response indicates that PJ was nearby. He then told the applicant that his 'old boy' was there and puts him on the phone. It seems clear that the 'old boy' was the applicant's father. The following exchange occurred at pages 14 and 15 of the transcript:

[Applicant's father]: What are you doing?

[Applicant]: Haha.

[Applicant's father]: Haha.

[Applicant]: Just doing time, pop.

[Applicant's father]: Yeah, what happened, mate? Ah, that's no - - -

[Applicant]: Fucked up.

[Applicant's father]: Eh? You fucked up?

[Applicant]: Yep.

[Applicant's father]: Alright.

[Applicant]: But I just need, um, yeah, need a good lawyer, man, I'll be out and about.

58 Shortly afterwards, another person speaks on the phone to the applicant. That person appears to be the applicant's brother PJB. They do not discuss the applicant being with PJB at the time of the robbery. At page 17 of the transcript, the following exchange occurred:

[Applicant]: So you know, you know, um, what's his name - - -

[PJB]: [indistinct]

[Applicant]: Your, your, you know your daughter's nana?

[PJB]: Yeah.

[Applicant]: You need to have a yarn with her.

[PJB]: Yeah.

[Applicant]: Yeah, she never seen me.

[PJB]: Alright, bro.

[Applicant]: You know?

59 The applicant then told his brother that he needed a lawyer and there was some discussion on that subject.

60 Later on 20 September 2014, the applicant made a telephone call to a different person. At pages 23 and 24 of the transcript, the person that the applicant called refers to a person being out on bail. The transcript shows that the person being called speaks of 'Rich', however, I heard 'Whit'. In the exchange that followed, the applicant expressed anger against this person because it was his view that this person has been released on bail because he had informed against the applicant.

61 On 22 September 2014, the applicant made a telephone call to his brother PJB. At page 6, the applicant asked about getting a lawyer. PJB replied that the applicant 'was on his own'. The applicant enquired whether he had to 'build his own rope'. PJB replied affirmatively.

62 At page 8 of the transcript, there was more discussion about a lawyer and the applicant said: 'Cause it got to do, be doing fucking four years to doing eight years, my brother, you know what I mean?'

63 On 30 September 2014, the applicant made another telephone call to his brother PJB. In that call the applicant asks PJB to come and see him. A statement by the applicant is transcribed at page 10 of the transcript as follows:

[indistinct] a lawyer and shit like that, you know what I mean?

64 The State submits that the statement should be transcribed:

Before I have ...a lawyer and shit like that, you know what I mean?

Have a yarn ... a lawyer and shit like that, you know what I mean?

66 Admissions made by an accused out of court are admissible against the accused as evidence of the truth of what the accused said.[1] The admissions frequently admitted into evidence at a criminal trial are admissions made during a police interview, but the admissibility of the evidence is not limited to admissions made during a police interview. The admissions can be made in other circumstances, such as in R v Simons[2] where the evidence was what an accused was heard to say to his wife on leaving a magistrate's room after having been committed on a charge.

67 As the admissible evidence is what the accused has said, questions are not evidence unless the accused adopts them.[3]

68 If a statement is not unequivocally an admission but is capable of being regarded as such, it is a question for the jury to decide whether it is an admission.[4]

69 Where an accused makes admissions in an interview by police officers and the prosecution wishes to adduce evidence of those admissions, the prosecution is required to tender in evidence the whole of the admissible portions of the interview. The prosecution cannot tender only the fragments of the interview that contain the admissions.[5]

70 A person who believes on reasonable grounds that he or she is suspected of having been party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the offence. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of that person's failure to answer those questions or supply that information.[6]

71 In some circumstances where an accused gives selective answers to questions or consciously omits details from a full account of an event, a court can conclude that the failure to give a full account can reveal a consciousness of guilt.[7] However as I have noted, in this case counsel for the State does not contend that the applicant's 'no comment' answers were selective answers which revealed a consciousness of guilt. Counsel for the State informed me on the hearing of the applicant's application that the State will simply be relying on the admissions that the applicant made in the interview and will not make any comment on the 'no comment' answers. Counsel for the State informed me that the State's position is that it is not possible to sever the 'no comment' portions from the interview and, if it were possible, then to do so would make the whole interview artificial and nonsensical.

72 Sometimes in a criminal trial the parties agree that 'no comment' answers are left in the interview. The defence may not object to those questions and answers for tactical reasons, or the parties may agree that the interview is not intelligible without those questions and answers.

73 It may be appropriate to allow 'no comment' answers in an interview to be played to a jury, when not to do so would result in a distorted or unreal version of the interview.[8]

74 In R v Barrett [9] and in Brain v The Queen[10], the trial judge was held to be correct to allow 'no comment' answers to remain in an interview played to the jury. Nevertheless, as Coughlan AJA said in Brain, as a general rule, 'no comment' answers are regarded as irrelevant and potentially prejudicial.[11] For that reason, they are normally excluded. However, the question of admissibility must, in the end, depend upon the particular circumstances of the case.

75 The discretion to exclude admissions made by an accused was explained by Martin CJ in The State of Western Australia v Camus:[12]

A trial judge has a discretion to exclude an accused's voluntary confession if it would be unfair to the accused to admit the confession into evidence. In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him. The purpose of this discretion is to protect the rights and privileges of the accused, including his or her procedural rights. However, when considering if admissions should be excluded for unfairness, it may be relevant to examine the propriety of the police investigation, the treatment of the accused, and the manner and circumstances in which an interview is conducted.

While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. There may be unfairness to the accused because the confession might not have been made at all, or might have been made in a different form, if the interrogation had been conducted properly.

An accused person who asserts that the confession was improperly or unfairly obtained bears the burden of proving facts that would justify an exercise of the discretion in his favour. (citations omitted)

Whether the applicant made admissions in the interview

76 I do not accept the applicant's submission that he did not make admissions which relate to the charge in the interview by police officers. In my view, the accused did make relevant admissions in that interview. Those admissions are:

1. that he knew the newsagency;
2. that he owned a blue Commodore;
3. that, while he maintained that the Commodore had been stolen prior to the robbery, he had not reported the theft to police;
4. that he was with a female at the time of the robbery - this has become a relevant admission by reason of his alibi notice asserting that he was with his brother PJB at the time of the robbery;
5. that his clothes and papers and a bag were in the Commodore when it was stolen; and
6. that he had scarring and a tattoo on his legs - this is relevant because one of the robbers wore leggings under shorts.

77 As I have said as a general rule, 'no comment' answers are irrelevant and potentially prejudicial and, for that reason, are normally excluded from the recording of an interview played in evidence. I do not accept the State's submission that it is not possible to sever the 'no comment' portions from the interview and, if it were possible, then to do so would make the whole interview artificial and nonsensical.

78 In my view, most, if not all, of the sections of the interview that contain the 'no comment' answers can be deleted without making the interview unintelligible. It will then be obvious to the viewer of the DVD that it has been edited, but that is not unusual in a criminal trial and the trial judge will be able to give an appropriate direction as to the routine editing of audiovisually recording of interviews which are tendered into evidence.

79 The DVD should also be deleted to remove the section where, at the end of the interview, the applicant is invited to come back to the police officers and he said he would do so. This might lead a jury to draw an inference that the applicant's failure to do so reflects adversely on him.

80 I will allow the State a reasonable time to make the edits to the DVD and to confer with the applicant's counsel as to those edits. If there are some 'no comment' sections of the interview that cannot practicably be edited, then they can remain in. Subject to those exceptions, the 'no comment' answers and the questions to which those answers are a response are to be deleted from the DVD.

Whether the interview should be ruled inadmissible on the ground of unfairness

81 I do not accept the applicant's submissions that it would be unfair to allow the prosecution to play the edited interview in evidence. The police officers' questioning of the applicant was not intimidating or overbearing. The applicant was well aware of his right not to answer questions and he exercised that right often. The police officers asked the applicant questions and he chose to answer some. In my view, there is nothing unfair about the asking of those questions.

82 While the applicant was tired, he said he was not too tired to be interviewed and he knew that he could terminate the interview if he felt he was too tired to continue. I have viewed the interview and I did not see anything to indicate that the applicant was overly tired or unable to concentrate.

83 For those reasons, it is not appropriate to exercise the discretion to refuse to admit the interview in evidence. The interview is admissible, subject to editing to delete the inadmissible content.

Whether the applicant's telephone conversations contain admissions

84 In my view, the applicant made the following relevant admissions in the telephone calls he made from prison.

85 A jury could conclude from what the applicant said in the first telephone conversation:

1. that he acknowledged that his co-accused (the person 'wit') was involved with him in the robbery; and
2. that the applicant was involved in the robbery by reason of his knowledge that the bag from the car had been found in the bush. At my request, counsel for the State has made enquiry and, on the basis of those instructions, has informed me that he will be able to say at trial that this information was not provided to the applicant by police.

86 The jury could only use this evidence against the applicant. An appropriate direction would ensure that the jury did not consider any out of court statements by the applicant when considering the State's case against the coaccused.

87 On its own, the fact that the applicant wanted to speak to his brother PJB would not be relevant. However, it is possible that, with other, evidence a jury might properly reach the conclusion that the applicant has admitted his involvement in the robbery by his expressed desire in several telephone conversations to speak to PJB. That other evidence is the content of the alibi notice, the fact that the applicant told the police in the interview that he was with a female at the time of the interviews and the fact that in a telephone conversation with PJB that he told PJB that he should speak to 'daughter's nana' to tell her that she did not see the applicant.

88 In my view, a jury could not properly conclude from the applicant's statement to his father that he had 'fucked up' as an admission that he had committed the crime with which he has been charged. The statement is such a general statement that it would be inappropriate to allow the submission to be made. That part of the conversation should be deleted.

89 However, the statement to PJB that he should speak to 'daughter's nana' and to tell her that she did not see the applicant is capable, along with other evidence, of allowing the jury to draw the inference that the applicant was admitting the he knew that the witness' recognition of the applicant driving his car soon after the robbery was correct, and that this implicated him in the robbery.

90 A jury could, along with the other evidence, draw the conclusion that the applicant has admitted that he was not with his brother at the time of the robbery from his failure to say in this conversation, in which they are discussing a witness who has given a statement concerning a matter associated with the robbery, that at the time of the robbery the applicant was with PJB, as he has said in his alibi notice.

91 A jury could conclude from what the applicant said in the fourth conversation that the applicant was angry with the co-accused because he believed that the co-accused had provided police with information about his being involved in the robbery, and that his anger was based on the fact that he knew that both he and the co-accused had, in fact, been involved in the robbery. The jury could only use this evidence against the applicant. An appropriate direction would ensure that the jury did not consider any out of court statements by the applicant when considering the State's case against the co-accused.

92 In my view, there is nothing in the fifth conversation that a jury could properly draw an inference against the accused, even if the evidence were to be considered with the other evidence. The reference to being on his own, in my view, could not properly be interpreted as suggesting that PJB would not support an alibi. The conversation was about getting a lawyer and who would assist him doing so. The reference to 'doing four years to doing eight years' could not, in my view, be properly interpreted by a jury as referring to the possibility of a plea of guilty. In my view, it is a reference to the range of sentences that might be imposed if the applicant were convicted.

93 In the context of this conversation, which is primarily about the applicant securing a lawyer and in which the evidence against the applicant is not the subject of the discussion, the failure of the applicant to say that, at the time of the robbery, the applicant was with PJB could not properly lead to the jury drawing an inference adverse to the accused, even when the evidence is considered with the other evidence.

94 In my view, the recording of the fifth conversation does not contain admissible evidence.

95 I am also of the view that the recording of the sixth conversation could not properly be used by a jury to draw an inference against the accused, even if the evidence were to be considered with the other evidence. The applicant and his brother were discussing the applicant's brother coming to see him, and the applicant mentioned a lawyer. I consider that it would be inviting the jury to speculate if the jury were to be asked to draw the conclusion that the reason the applicant wanted to see his brother was to discuss the alibi. I am also of the view that the failure of the applicant to say in this conversation that, at the time of the robbery, the applicant was with PJB could not properly lead to the jury drawing an inference adverse to the accused when the conversation was not about the evidence against the applicant.

96 In my view, the recording of the sixth conversation does not contain admissible evidence.

The prejudice to the applicant of the evidence that the applicant was in prison

97 From time to time in trials, the prosecution leads evidence from which the jury is made aware that the accused was in prison on remand before the trial. In those cases, the trial judge usually gives the jury an appropriate direction that it is not uncommon for a person charged with a serious offence to be remanded in custody until trial and that the jury is not to draw any conclusion against the accused by reason of his or her remand in custody. Juries are able to understand and apply these directions.

98 In my view, the fact that evidence of the telephone conversations will disclose that the applicant was remanded in custody does not warrant the evidence being excluded as, with an appropriate direction, the evidence of the applicant's remand in custody will not be prejudicial to him.

99 For these reasons, I conclude that, with editing to remove most, if not all, of the 'no comment' sections of the interview, the references in the interview to the applicant coming back to police and to delete the part of the third telephone call in which the applicant had a conversation with his father, the interview and the first to fourth telephone calls are admissible. The conversations in the fifth and sixth telephone calls are not admissible.

100 I will allow the parties a reasonable time to confer about the edits to be made in accordance with these reasons and then will finalise the edits.

[1] Heydon D, Cross on Evidence (10th Aust. ed, 2014) [33425] - [33430]; R v Simons [1834] EngR 927; (1834) 6 Car & P 540; 172 ER 1355.

[2] R v Simons [1834] EngR 927; (1834) 6 Car & P 540; 172 ER 1355.

[3] R v Norton [1910] 2 KB 496, 500; Straker v The Queen (1977) 15 ALR 103, 109.

[4] Plevac v The Queen (1995) 84 A Crim R 570.

[5] Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 [39] (Hayne J).

[6] Petty & Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95.

[7] Woon v The Queen [1964] HCA 23; [1964] ALR 868; (1964) 109 CLR; R v Cuenco [2007] VSCA 41; (2007) 16 VR 118.

[8] R v McNamara [1987] VicRp 68; [1987] VR 855.

[9] R v Barrett [2007] VSCA 95; (2007) 16 VR 24.

[10] Brain v The Queen [2010] VSCA 17.

[11] Brain v The Queen [2010] VSCA 17 [30].

[12] The State of Western Australia v Camus [2013] WASCA 156 [23] - [25].