Evidence - Admissibility - Criminal law - Alleged admission - Video record of interview (VROI) - Accused gave name and address then declined to participate further - Whether VROI admissible to prove name and address given

Criminal Investigation (Identifying People) Act 2002 (WA)

VROI admissible to prove name and address of accused

Fourth-named Accused : Marilyn Loveday & Associates

1 EM HEENAN J: I have been hearing submissions, in the absence of the jury, concerning the admissibility of a portion of a video record of interview (VROI), conducted on 26 April 2006, at police headquarters between Detective Senior Constable McNevin, Detective Senior Constable Hose and the accused, M. That VROI took place in the presence of a justice of the peace, Mr John McMillan, who was brought in to be present at the interview as a responsible adult to supervise the process and see to the best interests of the accused.

2 The interview began with some formal questions, included among which were questions asking the accused's name and address:

Q. Okay. Just for the tape can you please state your full name, your date of birth and where you currently live?

A. My name is [M] and I was born on [date] and I live at [address].

Q. [M] Street is that?

A. Yeah.

Q. Okay. And who do you live there with?

A. With my mum.

Q. What's your mum's name?

A. [A].

Q. Okay. And anybody else live there?

Q. Yeah my brother.

What's his name.

A. [B]

3 The interview then went on to deal with a number of other preliminary questions. After those were completed a caution was administered. When the interview was continued, M exercised his right to decline to participate further or to answer any further questions. The interview was then terminated.

4 The prosecution seek to introduce into evidence at this trial the preliminary part of this interview, up to and including the point at which M gives his name and address and says that he lives with his mother and brother, and to exclude all other parts of the interview. The reason for the attempt to adduce this evidence is that the prosecution seeks to establish that M was, at the material time, living at the disclosed address. This is because other evidence in this case tends to establish that a mobile phone, said to have been stolen from one of the victims of the robberies in Kings Park, was found in a search of those premises. Hence, the fact that M was living at this house is said to connect him to the stolen property.

5 Objection is taken to the reception of this evidence on several grounds. Essentially, however, the objection is that the power which the officer had to compel M to give his name and address, and which is relied on in this case, is set out in s 16 of the Criminal Investigation (Identifying People) Act 2002 (WA). The material provisions of that section are:

'personal details', in relation to a person, means -

(a) the person's full name;

(b) the person's date of birth;

(c) the address of where the person is living;

(d) the address of where the person usually lives.

(2) If an officer reasonably suspects that a person whose personal details are unknown to the officer -

(a) has committed or is committing or is about to commit an offence; or

(b) may be able to assist in the investigation of an offence or a suspected offence;

the officer may request the person to give the officer any or all of the person's personal details.

...

(6) A person who, without reasonable excuse, does not comply with a request made under subsection (2) ... commits an offence.

...

(8) A person who, in response to a request made under subsection (2), gives any false personal details commits and offence.

6 The submission by counsel for M is that, at the time this VROI was conducted and these particular questions asked, Detective McNevin already knew of M's address. That is, Detective McNevin had learned of the address from prior discussions with M and that, therefore, the compulsory power, conditioned as it seems to be on the fact that the personal details were unknown to the officer, did not apply.

7 Secondly, it is submitted that disclosure of the name and address in circumstances where this is actually or potentially incriminating is an encroachment on the so-called right to silence. Thirdly, it is submitted that in the context of this particular interview, there was an element of unfairness. When asking for the name and address, the question posed by the police officer was, 'Okay. Just for the tape can you please state your full name, your date of birth and where you currently live?' The reference 'just for the tape' was, however, somewhat disingenuous because the name and address were capable of being used for the purpose of establishing a case against the accused person. It would seem, therefore, that this third submission is designed to invoke the judicial discretion to exclude evidence otherwise admissible on the grounds of unfairness or prejudice.

8 In my view, the VROI evidence as to M's name and address is admissible. This conclusion follows from an analysis of the fundamental principles which apply in these particular circumstances. The privilege against self-incrimination and the discretionary power of a court to exclude potentially incriminating answers to questions which for some reason or another are unfair as encroaching upon the privilege against self-incrimination are largely, if not entirely, associated with the concept that the information obtained and to be adduced into evidence would otherwise be privileged. To put it another way, a person under interrogation has as right to withhold potentially incriminating information so that questions or approaches which entrench on that privilege, or in any way abuse or violate it, may render the evidence inadmissible.

9 A very great amount of law has been built up on exactly when and how this principle applies and the considerations germane to the exercise of the judicial discretion. I have mentioned some of these and alluded to others in the reasons for decision which I gave yesterday when dealing with a different matter in these proceedings (The State of Western Australia v Mohamed [2007] WASC 310). I adopt by reference the principal authorities which I cited on that occasion.

10 This situation, however, involves the disclosure of the name and address of an accused person. At common law and under statute that information is not privileged. A person has no right to withhold that information in circumstances such as these. There are perhaps some esoteric exceptions to the proposition that this information is not privileged, such as the name and address of an undercover police officer, a government intelligence agent or a serviceman on active duty. All of those examples, however, invoke different considerations of public interest privilege. I am not saying that those are the only exceptions which apply. However, generally speaking, in an unexceptional case, of which this seems to me to be an example, there is no right to withhold one's name and address.

11 That being so, I do not see how any part of this VROI dealing only with the name and address is privileged and therefore inadmissible. Nor do I see that any of the circumstances which led to the information being obtained would be a ground for excluding information which the police had a right to obtain. It is not suggested that the answer was involuntary and it is clear that at this point no force or coercion of any kind was attempted or implied.

12 In my view, the VROI, so far as it goes only to identifying the name and address of the accused and the family with whom he lives, is admissible.