Evidence - Admissibility - Criminal law - Alleged admissions - Video record of interview (VROI) - Illiterate accused with little fluency in English - No interpreter - Failure to understand rights or nature of caution in first two VROIs - Third VROI with interpreter present but inadequate caution - Inducement offered - VROI inadmissible

Fourth-named Accused : Marilyn Loveday & Associates

1 EM HEENAN J: I am sitting in the absence of the jury to deal with the outcome of submissions made by counsel for the prosecution that certain video record of interview (VROI) material should be admitted as evidence in this trial against the accused Habtom Tekle. Objection has been taken by counsel for Mr Tekle on the grounds that, first, the evidence sought to be relied upon is inadmissible on the basis that the alleged confession, or confessions, are not voluntary and, secondly, that if that is not the case, the evidence should be excluded in the exercise of the judicial discretion on the grounds of fairness and other considerations. In order to consider those submissions, it is necessary for me to say a little about the context of this case and the charges.

2 In April 2006 there appears to have been a series of armed robberies from members of the public in Kings Park. Over a period of some eight days, between about 14 April and 22 April, it appears that there were seven or eight such robberies, resulting in an extensive police investigation.

3 Typically, these robberies appear to have involved the following setting. Members of the public, in groups numbering between about one and three persons, often visitors or tourists, would be walking in the gardens at Kings Park in the vicinity of the Pioneer Women's Memorial Fountain in the early evenings, taking photographs and admiring the setting. These were people entirely going about their lawful and innocent business. While they were doing that, a group of young men would appear and gather around and close in upon them. These young men, not all of whom have been identified and who extend to people other than the accused, were typically, but not exclusively, men of north-east African origin. When closing in upon the visitor or visitors one or more of the young men would be brandishing a weapon, in some cases a metal pole, in others a sharpened wooden stick. Having closed in on the victim or victims, the group would demand money or valuables and would steal whatever the victim had. Various items were stolen, typically mobile telephones, iPods, cameras, other electronic gear and small quantities of cash. In some instances the victim was attacked and punched or otherwise physically assaulted. These episodes came to be termed "gankings", a slang expression indicating the type of operation which I have described.

4 By 22 April 2006, the police had eventually obtained information as to the identity of whom they believed were some of the people involved in these episodes. On that day, in the mid-evening, after dark, Mr Tekle was taken into custody. Quite when and where he was taken into custody is a matter of dispute in the proceedings. According to police officers who have given evidence on this voir dire hearing, they saw him first in a holding cell at a police station in the southern suburbs. According to Mr Tekle himself, he was arrested, handcuffed and held in custody at his home in Bentley where events, which I am about to describe, then immediately followed. For present purposes, nothing turns on this controversy. It is clear, however, that Mr Tekle was in police custody, under restraint and not free to go about his ordinary affairs.

5 What then happened was that the police conducted a search under warrant of the premises in Bentley where Mr Tekle and some of his friends were living. In the course of that search the police conducted a VROI with Mr Tekle. That VROI (Exhibit 1 on the voir dire) is the first of the evidence to which objection has been taken and upon which I had been initially asked to rule.

6 After that search had been completed, Mr Tekle, still under restraint, was taken to police headquarters. An hour or so later, in the early hours of the morning of 23 April 2006, he was interrogated by two police officers in an interview room at that police station. That interview was recorded and is the second VROI tendered in these proceedings (Exhibit 2 on the voir dire) on which I had been initially asked to rule.

7 Following the second VROI, Tekle was formally charged with a series of counts of aggravated armed robbery and was held at Hakea Prison. On 26 April 2006, at Hakea Prison, he was visited by two detectives and a young man who spoke his own language. He was interviewed for a third time on video. That third VROI (Exhibit 5 on the voir dire), is another item upon which I am asked to rule. It turns out to be the critical VROI for the purposes of the prosecution case.

8 I need to say a little more about the circumstances of this case. Mr Tekle is presently on trial, together with three other accused persons. He faces a total of five counts of aggravated armed robbery. The first three counts in the indictment allege that he, Habtom Tekle, together with each of the three other accused, committed three armed robberies at Kings Park on 15 April 2006 while in company with others. The fourth and fifth counts in the indictment allege that Mr Tekle committed two armed robberies, again at Kings Park, but on 20 April 2006, being armed with an offensive weapon, namely a sharpened bamboo stick, and while in company with others, the others not being the co-accused. He has pleaded not guilty to each of those charges.

9 Mr Tekle, when giving evidence, was unable to say when he was born or what his present age is. It is, however, alleged by the prosecution that he was born on 1 January 1986 and is therefore presently aged 21 years and some 10 months, and was aged 20 years and three months at the date of these alleged offences. Whatever may be his exact date of birth, he is obviously a young man aged in his early 20s or thereabouts. He and other members of his family came to Australia some time ago - quite when has not been established - as refugees from the Sudan.

10 Mr Tekle has little English, although sufficient to deal with minor, ordinary, everyday conversation. His native language is Tigrinya, a special language spoken by people in Tigray, the north-east region of Ethiopia, and in central Eritrea. It is a language unlike English or any other European language and, although it has an alphabet, it differs from a 'Western' alphabet. He converses in that language with his friends, family and colleagues. During the course of proceedings in this court, we have had the advantage of a specialist independent interpreter, Mr Atsebaha, experienced and fluent in Tigrinya and English, to translate questions and answers to and from Mr Tekle.

11 I should also add that it emerges from evidence which Mr Tekle himself gave, and which was not sought to be contradicted, that he is almost completely uneducated, having never been to school in his native country; that he is illiterate in his native language - that is, he is unable to read and write Tigrinya; and, that he is illiterate in English. He appears to me to be a young man who is very unsophisticated because, no doubt, of the different community in which he is living and his complete lack of education.

12 Since he came to Australia he has never worked in this country. However, he has been attempting to learn English and for some time, quite how long has not been established, has attended courses at Cyril Jackson Senior Campus in Bassendean, Western Australia, in an attempt to improve his English. As I say, he appears to have a smattering of English and a comprehension in English which, it seems to me, is greater than he acknowledged when giving evidence. Nevertheless, it is severely limited.

13 The first and second VROI - that is, those conducted during the night of 22 and 23 April 2006, the first at the home during the search and the second at the police station - were both conducted without the benefit of any interpreter and were conducted entirely in English. There is a question about the extent of Mr Tekle's comprehension of what was going on and there is also a question about the adequacy of cautions given during those interviews.

14 The third VROI - the one which was conducted at Hakea Prison on 26 April 2006, was conducted in the presence of a friend, a man named Daniel, who was a house-mate of Mr Tekle's, but was not involved in any of the alleged offences. The processes of questioning and answering which took place was as follows. Questions by the police were translated by Daniel into Tigrinya, responses were then given in Tigrinya by Mr Tekle, and those responses were translated into English by Daniel and conveyed to the police. The extent and adequacy of the translation process and the extent to which the interpreter, acting conscientiously no doubt, added to or embellished questions or answers by way of explanation or otherwise has attracted comment by the independent interpreter Mr Atsebaha when giving evidence in these proceedings. I will return to this later.

15 Initially it was anticipated that the prosecution would submit that each VROI was admissible in evidence against Mr Tekle at the trial. However, in the course of final submissions, counsel for the prosecution, in my view acting entirely properly and realistically, declined to press the admissibility of the first and second VROI. Therefore, the position now is that only the third VROI - that at Hakea Prison - is being propounded as admissible evidence against Mr Tekle.

16 I am, however, asked to consider the first and the second VROI with a view to using them as evidence which may be indicative of the extent of fluency or comprehension by Mr Tekle of English, and hence his ability to understand and comprehend the process which was taking place during the third VROI. That proposition, it seems to me, involves some difficulties itself. If the first and the second VROI are inadmissible, then whether they may still be used for the limited purpose suggested gives rise to difficult questions. However, it is not necessary to examine those matters for reasons which will soon emerge.

17 I do, however, need to say something about the first VROI. This, as I have already indicated, occurred at the home of Mr Tekle, after he had been taken into custody and during the time when his hands were handcuffed behind his back. A transcript of that VROI is not in evidence but it has been used during the course of these proceedings. I hasten to add, in case any other regard needs to be paid to that transcript, that I have considerable reservations about the accuracy of the transcript insofar as it records responses from Mr Tekle. I make that observation without any implied criticism of the authors of the transcript but, having seen and watched that VROI, it seems to me that the responses are very difficult to understand and are far more uncertain, ambiguous or indecipherable than the transcript may indicate.

18 The impression I gained from that first VROI is that Mr Tekle had very little real comprehension of what was going on or of his rights or of the questions being asked. In many instances, the questions which were asked of him were leading and his responses appear to have been in the affirmative. However, whether they are true affirmations of the point in the question or whether they are simply responses of a person who has no real idea of what is being said, but realises that some kind of acknowledgment is demanded of him, cannot be said. It seems to me that the probabilities are that in many instances it is the latter case.

19 In that first VROI, after the interview had progressed some way, one of the interviewing police officers attempted to administer a caution to the accused and said:

Q. Okay. Now, before I ask you any questions, all right, I want to give you a caution.

A. Mm hm.

Q. Now, um, that caution is you don't have to say anything if you don't want to but if you say something - -

A. Yeah.

Q. - - it'll be recorded by the video. Do you understand the video is recording in here - -

A. Yeah.

Q. - - on tape and we can use it in court. Do you know what a court is?

A. No - - yeah.

Q. Um, a - - a court is like a law, law court, where there is a judge. Do you know what a judge does?

A. Judge - No - -

Q. Judge in court?

A. No.

Q. In the Sudan do you have, um, when - - when you - - or when people get into trouble do they go to a court or to gaol - -

A. Yeah.

Q. - - to a judge?

A. Yeah. Yeah. But - -

Q. Okay. So do you ... he finds people guilty or not guilty.

A. Yeah.

Q. So you understand what the word 'judge' means?

A. Yeah. I understand.

Q. Okay. Now do you understand that you don't have to say anything if you don't want to?

A. Yeah.

Q. Yeah? Okay. You also understand that you can - - you can understand [answer] some of my questions if you want to or you don't have to answer any.

A. Mm.

Q. Do you understand that?

A. Yeah.

Q. Okay.

Then, apparently speaking to a colleague, the police officer says:

That's the best explanation you're going to get out of him anyway.

20 It seems to me that this response by the police officer was a very realistic response. It is very uncertain as to whether the accused appreciated what was involved in the caution, or whether he understood the point which was being made that he was under no legal obligation to respond or what the real significance was of answers which he might give.

21 I hasten to add that attention was given by police officers on this evening to obtaining the services of a skilled interpreter in the Tigrinya language to assist in their interrogation of Mr Tekle. However, since no such interpreter was available, they went ahead without one. In all the circumstances, however, I am not in the least satisfied that there was appreciation by Mr Tekle of the right to remain silent or the consequences of answering questions that were pressed by the police officer.

22 Were it necessary to do so, I would decline to admit this first VROI into evidence. The answers which were given do not appear to me to relate to any of the offences which are alleged to have been committed in the present indictment. There is reference to offences alleged to have been committed on that very evening, 22 April 2006, but not to offences on either 15 or 20 April 2006. However, such acknowledgments as there may be in this VROI do not relate to any of the charges presently before the court. On that basis the material is irrelevant. However, even if it were relevant, I would decline to admit it under the discretion because of the lack of adequate cautioning.

23 At this point I should pause just to acknowledge the principles which apply when a challenge is made to the admissibility of an alleged confession. It is not necessary for me to go into this matter in any great detail because in this same prosecution, in an earlier decision involving one of the other accused persons, Simmonds J gave a ruling on 9 October, with reasons published on 1 November (The State of Western Australia v 'G' (A Child) (2007) WASC 262), in which his Honour, in my respectful opinion, very comprehensively discussed (at [16] - [25]) the applicable principles. In those reasons, in circumstances which are quite different to those presently being examined, his Honour concluded that the material upon which he was asked to rule should not be admitted in evidence against one of the co-accused.

24 I adopt, with respect, his Honour's analysis of the authorities and the principles which are set out in that case. I do acknowledge that lack of a caution does not make a confession involuntary and therefore inadmissible; although, it may enliven the judicial discretion to exclude the evidence under recognised grounds. In that regard, I refer to Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, especially the passage at 375 - 376, and to the recent decision of the High Court in Carr v State of Western Australia (2007) HCA 47 [2], [38]. However, no question of a discretion to exclude evidence arises if the statement is involuntary because in that case it is simply not admissible. See R v Lee [1950] HCA 25; (1950) 82 CLR 133, 150 - 151, and the very recent decision of the High Court in Sophear Em v R (2007) HCA 46 [54].

25 When it comes to the factors which affect whether an alleged confession is voluntary or not, there are many authoritative decisions which establish the principles. It is, however, sufficient for me to go to the well-known passage of Dixon J in McDermott v The King (1948) 76 CLR 501, 511 - 512. There, in a passage which has been quoted with approval on many subsequent occasions, his Honour said:

If [the accused's] statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. The expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority. That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject. ... The extreme applications which were made at one time of the principle that confessions obtained by the use by persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will. (citations omitted)

26 Now, on the question of inducements, there has been a series of cases dealing with many different types of inducement. Some of these decisions are summarised in Cross on Evidence (7th Australian ed, 2004):

Anything suggesting that the outcome of a confession might be some beneficial result in connection with the prosecution will render it inadmissible. Everything depends on the circumstances but some of the expressions which have been held to have an exclusionary effect are: 'Tell me where the things are and I will be favourable to you': 'If you don't tell me you may get yourself into trouble and it will be worse for you'; and 'I only want my money, if you give me that you may go to the devil'. On the other hand, mere moral exhortation, even if not of the kind of which the court approves, will not render a confession inadmissible [33640]. (footnotes omitted)

27 It is with those principles in mind that I turn to the second and the third VROI. The second, as I have already described, was the interview at the police station in the early morning hours of 23 April 2006. It was conducted without an interpreter. Again, while it is not necessary for me to go into the details, I am satisfied that the absence of an interpreter renders the reliability of material in that VROI extremely doubtful. I should also say that it is difficult to ascertain whether there is any material in that VROI which is directly relevant to the charges in the present indictment, as distinct from other offences of armed robbery having been committed in Kings Park during April 2006. There is, therefore, a very serious question as to the relevance of that material. It seems to me that there is also a question about the adequacy of the comprehension of the caution attempted on that occasion.

28 Therefore, if it were necessary to do so, I would exclude the second VROI on the grounds of relevance. Failing that, I would exercise the discretion to exclude it on the basis of fairness because of doubts arising about the comprehension of the accused and his appreciation of the attempted caution. However, it is not necessary for me to make those rulings because, as I have said, the prosecution does not press the tender of that second VROI.

29 That brings me to the third and final VROI, conducted at Hakea Prison on 26 April 2006 (Exhibit 5 on the voir dire). There are some features of this which require initial explanation. I have already said that two police officers, in company with the man, 'Daniel', who is fluent in Tigrinya, went to the prison to interview Mr Tekle and to have it recorded. The recording of the interview on video signifies that a permanent accurate record of the interview was intended to be kept, with a view, potentially, to the recording being admitted in evidence in proceedings against Mr Tekle, subject to it satisfying the requirements of the law. However, the interview did not begin on that basis.

30 A caution was not administered or attempted at the commencement of the interview. As appears from the VROI, and as explained by the detectives, the interview was initially conducted with a view to obtaining information helpful to the police which might identify other potential offenders, assist in locating stolen property, and provide additional information to help the police in their inquiries. The focus of this part of the interview was not so much upon obtaining incriminating admissions from Mr Tekle, but obtaining information which would independently be of assistance to the police in pursuing their investigations. Despite that, there can be no escape from the underlying assumption and the obvious foundation for the interview; namely, that Mr Tekle was a person directly involved in at least some of these offences and was in a position to provide first-hand information about them.

31 The interview commenced by a series of questions being put by one of the interviewing police officers indicating that, at that moment, Mr Tekle was considered to be the main offender but that the police doubted that that was the true position and wanted him to tell them who else was involved so that he would not be left with the entire blame. This received direct expression in the following exchange with the interpreter:

Q. Okay. All right. Did - - did you say to him, look, what we want to do is we want to - - at the moment Hafteab [Habtom] is the main, the main offender.

INTERPRETER: Yeah. That's what I said to him, you know.

Q. Yeah?

INTERPRETER: I said, you know, if you don't tell us who the people were that's going to, you know, you going to stay for a long time.

Q. Yeah. That's right. So tell him we, we don't want him to take the blame.

INTERPRETER: Mm.

Q. We don't want him to take all the blame. At the moment he's taking all the blame like a big man - -

INTERPRETER: Yeah.

Q. - - I respect that, but we don't want him to do that because that's not fair. Can you just tell him that?

INTERPRETER: Yeah.

32 It seems to me that there is really no escape from the proposition that this was, in the words used in the passage quoted from Cross on Evidence, a suggestion that the outcome of a confession might be some beneficial result in connection with the prosecution and therefore an incentive to speak in the hope of a benefit. It seems to me that is indeed what it was, and that was the intention of the police officers.

33 It may be that this approach was excusable when co-operation was being sought with a view to obtaining information which would not or could not be used against Mr Tekle. Indeed, that seems to be the initial purpose of the interview. However, such a division of purpose was never likely to be maintainable - and it was not maintained.

34 As the interview continued a point was reached, some eight minutes from the beginning, where the attention turned directly to Mr Tekle's alleged involvement in the offences. Before any caution was attempted, questions were asked of Mr Tekle, via the interpreter, whether he was involved, and who else was involved, in certain of the alleged 'gankings'. Answers were then given which indicated that Mr Tekle himself was involved in some of these episodes.

35 After that point had been reached the interviewing officer, no doubt realising that a point had been reached and passed where self-incrimination was occurring, or likely to occur, said:

Q. ... Okay. Okay. I want to ask him some questions now that he doesn't have to answer, um, so I'm going to tell you the - - I'll tell you and if you'd tell him exact words if you can - -

INTERPRETER: Oh, yeah.

Q. - - that, yeah, he doesn't have to - - he doesn't have to answer these questions if he doesn't want to, okay?

INTERPRETER: (own language)

A. Mm.

Q. And - - but if he does answer the questions the answers that he used could be used in court later against him.

INTERPRETER: (own language)

A. Mm.

INTERPRETER: (own language)

Q. Okay. Does he understand what you said? Do you understand that?

A. Yeah.

INTERPRETER: Yep.

Q. Okay. Um, now I'll ask a question. If - - just tell him if he doesn't want to answer just - - he just tell you, 'No, don't answer', something like that, okay? Just - - you tell him that one?

36 That was translated. Then there was a series of questions asked over the balance of the interview which went on for some time. These questions and answers related to a number of alleged robberies. Clearly, some of them related to offences which are not advanced in the indictment against Mr Tekle. In particular, an episode or episodes on the evening of 22 April 2006, some other episode involving a white man and an African woman and some other episodes at unspecified dates beforehand.

37 As the questioning proceeded, attention was given to two or three robberies which occurred on one night and involved other people who it seems are alleged to be the co-accused. The victims of these robberies were described as two women - one of whom was accompanied to her car - and a Japanese or Asian man - who was punched and beaten. That is enough to provide a connection between that particular episode and the offences charged in counts 1, 2 and 3 in the indictment.

38 This interview was conducted, as I have said, via the interpreter. The element of lack of comprehension present in the first two interviews is, I am satisfied, absent on this occasion. It is, however, doubtful whether the caution was properly appreciated. That aside, the statement at the beginning of the interview about being told, 'if you don't tell us who the people were, that's going to, you know, you going to stay for a long time', indicates to me that Mr Tekle's responses were preceded by an inducement.

39 That observation was not made by either of the police officers. It was made by the interpreter, apparently spontaneously. However, it was immediately accepted and acknowledged by the police and no attempt was made to dispel it. It is true that it relates to the preliminary stage of the interview in which attention was on the activities of others, but in that case there would be a need to dispel any such inducement and its effects at the time attention turned to the involvement of Mr Tekle himself. That was never done. So, compounding the problems with the caution is the absence of any attempt to dispel or retract that inducement.

40 I am satisfied that it has not been established by the prosecution that the third VROI was in the proper sense voluntary. Therefore, I hold that it is not admissible. Were I to take a different view about the question of the voluntariness of that interview, discretionary considerations concerning the effect of the caution would need to be addressed. However, I will not extend this discussion to deal with that proposition on this occasion as it is not necessary.

41 My ruling therefore is that the third VROI (Exhibit 5 on the voir dire) is not admissible against Mr Tekle in this trial. I acknowledge that no intention to adduce the first or second VROI has been pursued.