Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeals against acquittals on basis of no case to answer - Each respondent charged with making false statement to police officer - Whether allegation "it was stated" in indictment confined to allegation of express statement - Each charge extended to allegation of statement having that effect or conveying that impression - Trial Judge erred in finding evidence incapable of establishing falsity of each statement in particular alleged - Appeals allowed

Criminal law - Evidence - Whether statements of respondents admissible against each other - Where conspiracy not charged - All respondents made similar initial statements omitting particular information and later included information in supplementary statements - Powerful inference of agreement to conceal truth - Statements admissible to prove each statement knowingly false

Criminal Appeals Act 2004 (WA), s 24(2)(e)(i), s 33(2)(c)

Criminal Procedure Act 2004 (WA), s 85, s 108(1)(a), Sch 1 cl 6(12)

Kamleh v The Queen [2005] HCA 2; (2005) 79 ALJR 541

Khan v The Queen [1967] 1 AC 454

Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367

Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163

Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482

Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580

R v Bilick (1984) 36 SASR 321

R v Hally (1962) Qd R 214

Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87

Galbraith v The Queen (1989) 6 WAR 12

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

King v Armstrong; Ex parte King (1985) 20 A Crim R 197

King v The Queen [1986] HCA 59; (1986) 161 CLR 423

Mok (1987) 27 A Crim R 438

R v Dossi (1918) 13 Cr App Rep 158

R v Lanteri (1985) 4 NSWLR 359

R v M [1980] 2 NSWLR 195

R v Tearse [1945] KB 1

Re Dowling; Ex parte Graham [1969] 1 NSWR 231

Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1

1 STEYTLER P: The State appeals against the acquittal of the respondents, each of whom had been tried before a jury on a charge of contravening s 170 of the Criminal Code (WA). At the material time, that section read as follows:

"Any person who, on any occasion on which he is permitted or required by law to make a statement or declaration before any person authorised by law to permit it to be made before him, makes a statement or declaration before that person which, in any material particular, is to his knowledge false, is guilty of a misdemeanour, and is liable to imprisonment for 3 years."

At the close of the State case the trial Judge concluded that none of the respondents had a case to answer. She consequently acquitted them pursuant to the provisions of s 108(1)(a) of the Criminal Procedure Act 2004 (WA). An appeal by the prosecutor against a judgment of acquittal of that kind is provided for by s 24(2)(e)(i) of the Criminal Appeals Act 2004 (WA).

2 The charge against each of the respondents was framed in similar terms, as follows:

"On 18 December 2000 at Wooroloo ... [the respondent charged], being permitted by law to make a statement touching on the death in custody of CHRISTOPHER PETER MOORE, made a statement touching on that matter before ... a member of the Western Australian Police Force who was then authorised by law to permit the statement to be made before him, which was false in the material particular, in that it was stated that resuscitation attempts were immediately commenced until the arrival of paramedics, whereas in truth no immediate resuscitation attempts were made, as [the respondent charged] then well knew."

3 The evidence introduced at the trial established the following.

4 About 5.30 am on 18 December 2000, two prison officers, the respondents Olson and Stenton, were conducting a routine muster check of prisoners at Wooroloo Prison Farm. They found one of the prisoners, Christopher Peter Moore, sitting on the side of his bed, slumped over. There was a bucket on the floor between his feet and there was vomit on the floor. The prison officers spoke to Moore but obtained no response. They felt for a pulse but found none. Moore's wrist felt cold but the rest of his body felt normal. He was not breathing.

5 The two officers contacted the respondent Pietersen, who was a senior officer. He arrived together with the respondents Tilbrook and Coombs while Olson and Stenton were attempting to place Moore on his bed. The respondent Coombs had brought with her an "air-viva" apparatus. She and Olson were about to commence cardio-pulmonary resuscitation ("CPR") when Pietersen ordered all of the officers out of the room, saying that nothing was to be touched and that the room should be locked and guarded by an officer. Olson questioned this order, saying that CPR should be performed. Pietersen refused to allow this to happen. All of the officers then left the cell, save for Olson who stood guard outside it.

6 Some minutes later, the Assistant Superintendent of Security, Mr Graham Bond, arrived at the cell. He said that CPR should be performed. He used his two-way radio to request that the air-viva apparatus be brought to the cell. He also requested that an ambulance be called immediately. The air-viva apparatus was brought to the cell by Coombs who, having cleared Moore's airway, commenced resuscitation attempts. These were continued until ambulance officers arrived.

7 The police were notified of the incident. They arrived at the prison later that morning in order to investigate the circumstances of Moore's death. A statement handwritten by a police officer was taken, that morning, from each of the respondents. Each of the respondents was also required to complete an "Incident Description Report" form.

8 In their statements, and in the Incident Description Reports, all five prison officers gave a similar version of events. However, none of them mentioned the order given by Pietersen that they should not administer CPR and that they should leave the prison cell. Instead, each gave the following descriptions of what had taken place after Coombs had arrived with the air-viva apparatus.

9 Olson's Incident Description Report read, in this respect, as follows:

"Officer Coombs checked for Moore's pulse and responses, then immediately started using the air-viva with my help. Officers Stenton, Tilbrook, Coombs and I took turns at the chest compressions and air-viva operation. At some point ASSEC G Bond arrived and assisted with the air-viva operation. Followed by Superintendent Dunstan. We continued CPR until the ambulance officers arrived."

10 On page 5 of his statement, Olson said the following:

"Officer Coombs had arrived with the air-viva apparatus. Officer Coombs checked for vital signs from the prisoner before immediately using the air-viva with my help.

Officers Tilbrook, Coombs and I took turns at both the chest compressions and air-viva operation.

At some point in time Assistant Superintendent of Security Mr Graeme Bond had arrived and assisted with the air-viva operation. Superintendent Dunstan had also arrived.

CPR was continued until the ambulance officers arrived."

11 Stenton's Incident Description Report read, relevantly, as follows:

"Officer Coombs arrived with the air viva case and also Officers [sic] Tilbrook and Officer Pietersen who was the OIC arrived at the cell at this time. Resuscitation commenced and continued until the ambulance arrived at approximately 0625.

ASSEC G Bond arriving at approximately 0600 hours."

12 The relevant part of Stenton's statement read as follows:

"Officer Olson cleared prisoner Moore's airway, in less than a minute from making the radio call. Officer Coombs arrived with the Air viva case, at the same time Officer Tilbrook and the Officer In Charge, Officer Pietersen arrived.

Officer Coombs commenced CPR by administering air to the prisoner and Officer Olson performed compressions.

After some time we swapped positions each of us taking turns to perform CPR until the ambulance arrived at 0625 am.

The ambulance officers then took over the CPR."

13 The relevant part of Pietersen's Incident Description Report read as follows:

"Upon my arrival I immediately checked the prisoner's pulse ... Officer Coombs commenced resuscitation with the air-viva assisted by the others, whilst I instructed them to keep the cell secure from other prisoners. I then notified Superintendent Dunstan and ASSEC Mr G Bond, the ambulance and various others as per the relevant documentation."

14 Pietersen's statement read, relevantly, as follows:

"After prisoner Moore was placed into the prone position on the bed I checked him for a pulse both at the wrist and the neck. I was not able to detect a pulse.

...

Officer Coombs commenced resuscitation with the air-viva assisted by the other officers. I instructed the cell be kept secure from other prisoners.

I immediately notified Superintendent Dunstan and Mr Graeme Bond. I requested an ambulance at approximately 6.02 am."

15 The relevant part of Coombs' Incident Description Report read as follows:

" ... Officer Stenton requested that I attend cell 1B58. She further stated that its occupant was possibly deceased. I left unit 2A ... and went via the duty room and obtained the air-viva. I informed Acting Senior Officer Charles Pietersen of Mrs Stenton's radio call and we both made our way from the duty room to 1B58. Upon entering the cell Officers Olson and Stenton briefly explained the situation to me and stated that they could find no signs of life on the prisoner. I commenced a check for any signs of breathing and a carotid pulse. After clearing Moore's airway [sic]. The prisoner was not breathing and there was no pulse located. CPR was commenced and continued until the ambulance officers arrived and took over from Officer Olson and myself ... "

16 The relevant part of her statement read as follows:

"I retrieved the air viva from the office and Officers Pietersen, Tilbrook and myself went to 1B58 ...

....

I cleared the airway of the prisoner and removed a small amount of vomit before applying the air viva.

...

I secured the face mask for the air viva to the prisoner, this covered the mouth and nose.

Officer Olson decompressed the bag forcing air into the prisoner's airway. Officer Tilbrook commenced CPR under my direction.

...

Officers Tilbrook, Olson, Stenton, ASSEC Bond and myself all provided assistance to the prisoner. At times we alternated the tasks being performed.

Myself and Olson were assisting the prisoner when the ambulance officers arrived. We continued with CPR until advised to stop.

The ambulance officers took over and we were directed to leave the cell."

17 Tilbrook's Incident Description Report read, relevantly, as follows:

" ... Officer Coombs arrived with the air viva kit. Officer Coombs attached the mask to the prisoner's mouth and Officer Olson and I alternated in performing CPR. By this time OIC Pietersen had arrived and asked to have the room secured. Approximately 15 minutes later ASSEC G Bond arrived. We continued CPR until an ambulance arrived at 06:30 hours."

18 The relevant part of Tilbrook's statement reads as follows:

"Myself and Officer Coombs went over to 1B58. Officer Coombs grabbed the air viva kit and took this to the cell.

...

Officer Coombs placed the mask for the air viva over the prisoner's nose and mouth.

Officer Olson commenced CPR and we alternated between ourselves.

We continued with the CPR until the ambulance arrived at approximately 6.30 am."

19 Each of these Incident Description Reports and statements was tendered by the prosecutor. The prosecutor also tendered statements that were subsequently made by each of the respondents to the Prison Superintendent in early January 2001 as well as amended statements made by them to the police on 8 May 2001.

20 Olson's subsequent statements recorded that, when he and Coombs were about to commence CPR, Pietersen had ordered all of the officers out of the room, that he had questioned Pietersen's order, saying that CPR should be performed and that Pietersen had responded "very strongly" that the officers should obey his orders. The officers then left the cell. He went on to say that he stood guard outside the cell for some minutes until Bond arrived and instructed that CPR be carried out.

21 The subsequent statements of the other four respondents are generally consistent with what was said by Olson (although Pietersen added that he had "personally thought the prisoner had been dead for at least one hour" and that he had "made a judgment call that no amount of CPR would serve to bring the prisoner back to life").

22 Each of the officers, in their amended statements to the police, apologised for the earlier omission. Olson said that the omission had been made at a time when he was exhausted and distressed. Each of Pietersen and Coombs said that the omission was made at a time when they were tired and stressed. Stenton said that the omission was made at a time when she was distressed.

23 The prosecutor relied upon the supplementary and amended statements in order to establish the falsity of the earlier statements. She contended that the falsity was material to the investigation by the police into the circumstances of Moore's death.

24 In her opening address, the prosecutor did not say, expressly, how she proposed to establish that the statements were knowingly false. However, she stressed (transcript 35) that all five respondents had provided similar statements and incident reports. She went on to say (transcript 36):

"So what you end up with, members of the jury, is this: all five accused tell the same false version of events on 18 December 2000, all of them telling that false version contrary to the very clear obligation to tell the truth and then in early January 2001, about two and half weeks later, all five prison officers, all five accused, indicate that they want to alter their version of events on the CPR issue and then in May 2001 they ultimately provide a second statement to police."

25 In her judgment in respect of the submission that the respondents had no case to answer, the trial Judge commenced by pointing out that the indictment did not allege that there was a false statement by omission. She also said that, in her opening address to the jury, the prosecutor had suggested that each of the respondents had made a false statement to the police "about what they did after they located and attended upon the body of the prisoner". The trial Judge went on to say that it was consequently "abundantly clear" that the State case was that there was "a positive statement by the prison officers to the effect which the prosecutor outlined to the jury". She said that, although the details of the false statement might be categorised as a particular, it was a particular which had "in effect hardened into an element".

26 After reciting the general contents of the statements that had been made, and some of the evidence that had been adduced by the prosecutor, the trial Judge went on to say (transcript 275):

"Given the way the indictment is framed and given the prosecutor's opening, it's clear that the State case is that there was a positive assertion that resuscitation attempts were immediately commenced until the arrival of the paramedics - and continued until the arrival of the paramedics. None of the statements made on 18 December 2000 state this in terms ... The most that can be said about the statements made to the police is that the Pietersen involvement ... was omitted. The statements as far as they went were true."

27 Then, after mentioning that the subsequent statements contained no admission that the prior statements had been false, and after referring to the test to be applied in the case of a submission that there was no case to answer, the trial Judge said (transcript 276):

"In my view, the State case has failed to establish the charge to the required standard, particularly in this regard that there was a positive statement that CPR was not commenced immediately [sic]. As well, in my view, the statements made by the officers to police on 18 December 2000 as far as they go have not been proved to the required standard to be false ... "

28 There are two grounds of appeal. They read as follows:

"1. The learned trial Judge erred in law in interpreting the particulars of the indictment in a narrow and restrictive way so that it unfairly hampered the State in its presentation of its case on the 'no case' submissions.

a. There was a specific error in that her Honour failed to consider the meaning of the State's argument of 'false version'.

2. The learned trial Judge erred in law in failing to consider all the evidence presented by the prosecution in considering the submissions for a no case to answer, and thereby usurped the function of the jury and their role to adjudicate upon the facts.

a. Her Honour failed to consider ... the totality of the prosecution case which included both direct and circumstantial evidence.

b. There were adequate inferences raised by the prosecution case that a reasonable person could be satisfied beyond a reasonable doubt of the guilt of the accused."

29 It is common cause between the parties that, where a "no case to answer" submission is made on behalf of an accused, the trial Judge is required to ask whether the evidence of the State, taken at its highest, is capable of establishing the guilt of the accused beyond a reasonable doubt: R v Bilick (1984) 36 SASR 321 at 335 per King CJ; Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482 at 489 per Malcolm CJ, with whom Kennedy and Ipp JJ were in agreement. In Bilick, applied in Morrison at 491, King CJ said (at 337):

"The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be asked by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt ... Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?"

30 In my respectful opinion, the trial Judge erred in the course of applying that test.

31 First, as I read each charge in the indictment, it was not restricted to the allegation that the particular respondent expressly said, in the statement made on 18 December 2000, that resuscitation attempts were immediately commenced and that they continued until the arrival of paramedics. As will be apparent, each charge alleged that "it was stated" that this had been the course of events. In my opinion this is not confined to an allegation that there was an express statement that resuscitation attempts were immediately commenced and that they continued until the arrival of the paramedics, but extends to and includes an allegation that there was a statement to that effect or a statement which conveyed that impression. Clause 6(12) of Sch 1 of the Criminal Procedure Act (which is given effect by s 85 of that Act) provides that, in a charge that alleges an offence involving the giving of a false statement, "it is sufficient to allege the effect of the ... statement, or as much of the effect as is material, without alleging the actual ... statement given". The word "effect" in cl 6(12) includes the impression produced by the express words of the statement. At all material times each of the respondents was legally represented and none sought further particulars of the charge against him or her in this, or any other, respect. Moreover, as I read the prosecutor's opening address and the way in which she ran the prosecution case, it seems to me that she relied not only upon the express statements in question but also upon the impression created by each. So, for example, the prosecutor said (in a passage particularly relied upon by the respondents) that (transcript 35):

"All five [respondents] provided statements to the police on that very day ... and in general terms all five accused provided statements to the police which stated that CPR was provided to the prisoner Moore immediately upon his body being discovered in his cell at about 5.30 that morning."

That passage seems to me to do no more than describe the general effect or impression of what was alleged to have been said by each of the respondents.

32 In my opinion it was undoubtedly open to the jury to find that this description accurately conveyed the effect or impression of what had been said by each of the respondents. That appears from the passages that I have earlier quoted. Olson said expressly that he and Coombs had immediately begun using the air-viva apparatus. His statement plainly conveys the impression that this use continued until the ambulance officers arrived. Coombs' statement specifically records that, having checked the prisoner's pulse, she secured the face mask for the air-viva to the prisoner and Olson then decompressed the bag so as to force air into the prisoner's airway. Her statement, too, quite plainly conveys the impression that this state of affairs continued until the ambulance officers advised them to stop. Stenton's statement is to similar effect. So, too, is that of Tilbrook. Pietersen's statement suggests that Coombs commenced resuscitation before he instructed that the cell be kept secure from other prisoners. It conveys the plain impression that resuscitation attempts continued while the cell was kept secure.

33 As each supplementary statement reveals, together with the testimony of Bond, CPR was not in fact commenced until after Bond had required this to be done. As will be apparent, Coombs said that she was still attempting to check for life signs when Pietersen entered the room and gave his orders. She also said that Olson had told Pietersen that he thought "resuscitation should be started"(my italics). Olson, in his supplementary statement, said that he and Coombs were "about to commence CPR" (my italics) when Pietersen ordered them out of the room. Tilbrook, in his supplementary statement, said that Olson asked Pietersen if "we should commence CPR" (my italics) and that Pietersen replied "no". Stenton, in her supplementary statement, said that Olson challenged "Pietersen's decision not to resuscitate" and was told to do as Pietersen said and secure the door. Later in the statement, she said that Bond arrived and "resuscitation was commenced upon his order" (my italics). In his later statement to the police, Pietersen said that "upon arrival" in the cell, he observed Coombs completing a vital signs check of the prisoner. He said, in his supplementary statement, that he "personally checked out the body" and "then made a judgement call that no amount of CPR would serve to bring the prisoner back to life". Pietersen's later two statements also reveal that, at this point, he instructed the officers to leave the cell and lock the door to "ensure the integrity" of the crime scene and that he returned to the duty room where he "placed the Air-Viva back in it's [sic] usual location". He said that Bond "called for the Air-Viva to be sent down to him" a short time after Bond arrived at the prison and that he handed it to an officer for that purpose.

34 At the trial, Bond gave evidence that, when he arrived at the scene, the cell door was shut and that there were no officers inside the cell (transcript 40 - 41). He gave evidence that he asked where the air-viva apparatus was, that it was not there at the time and that it had to be fetched (transcript 52). He also agreed in cross-examination that he gave instructions for CPR to start (transcript 56). In cross-examination, he also gave evidence that, before CPR was "commenced in ... [his] presence", Coombs cleared "the prisoner's airways because it was quite ... obstructed with vomit" (transcript 71).

35 In all of these circumstances, it seems to me that the charge was in each case adequately framed and that there was ample evidence to enable a jury to conclude, beyond reasonable doubt, that each statement was false in the particular alleged, even accepting that each charge should be read as alleging that there was "a positive statement" of the effect or which created the impression alleged. It was in my respectful opinion undoubtedly open to the jury to be satisfied to the requisite standard, in each case, that what was said amounted to a positive statement having the effect or creating the impression alleged in each charge. I should add that there was no dispute, for the purposes of the appeal, as regards the proposition that the particular alleged to have been false was material.

36 While this seems to me to have played no part in the trial Judge's reasoning, there was some argument, in the course of the appeal, as regards the question whether or not there was evidence upon which a jury might conclude, beyond reasonable doubt, that each statement was knowingly false. In my opinion, there was. The investigation made by the police was one into the circumstances of Moore's death. It is, no doubt, true that there was no evidence to suggest that the police investigation focused on steps that might have been taken after Moore was found slumped on his bed. However, at the time at which the statements were made (at a very early stage in the investigation), the failure immediately to give CPR was plainly a matter of potential relevance to the investigation. As I have said, there is no dispute as regards the proposition that it was open to the jury to find that, if each statement was false in the respect alleged, it was false in a material particular. In those circumstances, and given that each of the five respondents omitted any mention of what had been done (or not done) after Pietersen's arrival, and, instead, suggested that CPR had commenced immediately and continued until the paramedics arrived, it seems to me that it was open to the jury to infer that each falsehood had been deliberate, in the course of a joint attempt to conceal the fact of the failure immediately to administer CPR. This inference is strengthened by the fact that each of the respondents provided a supplementary statement setting out the true position at about the same time in early January.

37 Counsel for the respondents contended that no charge of conspiracy was alleged in the indictment and that it was consequently not permissible for the prosecutor to establish that one respondent's statement was deliberately false by taking into account what had been said in the statements made by the others. I am unable to accept that submission. There was no need for the State to charge a conspiracy (see, for example, Khan v The Queen [1967] 1 AC 454 at 462 - 463). The prosecution case was that each of the respondents had knowingly made a false statement. While there may well have been a conspiracy that each should do that, there was no reason why each charge should have been framed in that way rather than in the way in which it was framed. It also seems to me that the evidence of the statements and the supplementary statements made by other respondents was admissible in the case against each respondent. As I have said, those statements were probative because their similarity, and the similarity in timing, gave rise to the very powerful inference that there had been agreement to conceal the true state of affairs and, consequently, to the inference that each initial statement was deliberately, and therefore knowingly, false.

38 It is well recognised that, "when coincidence of fact and concurrence of time are relied upon, the sufficiency of the circumstances must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved": Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163 at 173 per Knox CJ and Dixon J; and see also Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 376 per Dixon J; Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580 at 587 per Gibbs CJ; R v Hally [1962] Qd R 214 at 227 per Gibbs J. It was undoubtedly open to the jury to conclude that the

similarity of content and timing in this case was such that it would contradict general human experience to draw any other inference than that each statement had been the product of an agreement to mislead those conducting the investigation. Moreover, it is plain that the statements and supplementary statements of others were not relied upon in any individual case for the truth of their contents. What was relevant was the fact that they were made. There is consequently no scope for the operation of the hearsay exclusion: Kamleh v The Queen (2005) 79 ALJR 541; [2005] HCA 2; Khan at 462 - 463.

39 Counsel for the respondents contended that, because the prosecutor had not presented her case in this way, it would be unfair, now, for the Court to take into account evidence of statements made by other respondents in the case against each respondent. There is no basis for that submission. I have already said that, as I read the prosecutor's opening comments, it was plainly implicit in what she said that the deliberate falsity of the statements could be inferred from the similar conduct engaged in by each of the respondents. Moreover, the transcript of the submissions made in respect of the "no case" application reveals that defence counsel had been told, by letter, a week in advance of the trial that the State would highlight the implausibility of the explanation offered by the respondents for their initial false statements "in light of all of the co-accused giving the same explanation for the same false version".

40 It follows that I would allow the appeals. Pursuant to the powers given by s 33(2)(c) of the Criminal Appeals Act, I would set aside the judgments of acquittal entered by the trial Judge and order a new trial.

41 ROBERTS-SMITH JA: I agree with Steytler P and have nothing to add.

• The terms of the indictment
• The prosecution case at trial
• The judgment of the trial Judge
• The grounds of appeal
• Was the trial Judge in error?
• Conclusion