The State of Western Australia v Yerkovich [2004] WASC 62

The State of Western Australia v Yerkovich [2004] WASC 62 - WASC 2004 case summary — Zoe

[71]

"--- Yes, I told them this. This was what I was saying at the end of the video-recording and they said, like they said in their evidence, 'Look, we've got three witnesses saying that you were armed,' and I said, 'Look, this is not how it happened,' and that's when they referred to saying, 'You're not helping yourself here, Mr Yerkovich,' and then it went on a bit to say, 'Do you know where any firearms are then?'

'Do you know where any firearms are'?---That's what they said.

Was it the case that you did know where there were any firearms?---Yeah, I did. I did know where one was. It was then that the police proceeded to tell me a story about some young kid or some gun or something along those lines as to what they said this morning.

Let me stop you there. Detective Bethell I think is his evidence talked to you - I'm sorry, he gave evidence that he said to you that there was a public safety issue involved in having firearms lying around?---Yes, that's right.

There was an incident involving a Warwick police officer who had had a gun taken off him and it was later found by a child. Is it the truth that you admit that those words spoken by Detective Bethell are in fact true?---Yes, they are true.

What else did he say?---He said along the lines of that's it safe to get it off the streets and I also indicated about my bail, if I was getting bail, and they said, 'Well, if you help us, you know, with our investigations, then we can grant bail here or we can also hand letters up to your Honour,' and I said, 'Yeah.' I made it clear that the gun wasn't mine and they said, 'No, no, it's just safe to get it off the street,' and that's when they told me that story, you know, and I said, 'Yeah, no worries' and took them to it.

So is it your evidence that you said to the detectives, 'Look, I might know where there is a gun but it's not the gun - - -'?---That was - that they're accusing me of using, you know.

It's the case, is it not, that you denied using any gun at all?---That's correct.

The detectives say that you were never offered the opportunity to participate in recording those statements on video. Do you agree with that?---Yeah, they never gave me the opportunity to go on video about that because it wasn't concerning my case.

You agree that I put to Detective Millar, 'Look, don't you think it's strange that Mr Yerkovich says nothing at all in answer to your inquiries, he exercised his right to silence on video and then as soon as the video finishes, he volunteers this information quite gratuitously, quite spontaneously?' Is that what happened?---No, that's not what happened. They told me when I asked about bail and them going on about me not helping myself and they promised me there's a letter they were going to write to the judge and that they were able to give me bail and because I knew these charges were that outrageous, I just thought, 'Well' - I also told them that if out, I could prove my innocence that I didn't do this.

If you were granted bail, you could prove your innocence? ---Yes.

Did you tell that to the detectives?---I did.

What did they say or can you tell his Honour which detective you're referring to?---I was mainly talking with Detective Bethell.

What did Detective Bethell say in response to your comment that if you were let out, you could prove your innocence? ---Well, he just said, 'No, no, no, no. First we will see where this gun is,' and went on about that.

When you say went on about it?---Yeah, well, just along that line of conversation he was saying - when he said - I took him to the gun and that was that ..."

[144]

"51 However, the English cases do not offer a sound basis for the appellant's construction. Parliament could have chosen to adopt a wider solution to the problem than that which appears in s 8 of the Act, but it is not open to the courts of this country to ignore or alter the meaning of s 8 in order to achieve what they might think is a better solution by creating safeguards which Parliament itself chose not to create. In numerous respects the legislature contemplated in s 8 that confessions or admissions could be admitted without being video-recorded by reason of matters resting wholly or partly on the oral uncorroborated evidence of police officers. One such matter is whether its maker was suspected or ought reasonably to have been suspected: s 8(1) of the Act. Another group of matters is whether it was practicable not to video-tape the confession or admission, or whether equipment was unobtainable, or whether the maker did not consent to being video-taped, or whether the equipment malfunctioned: s 8(3) of the Act. Another matter is whether there are exceptional circumstances: s 8(2)(d) of the Act. And yet another relates to issues of when official questioning started and ended, and what happened outside that period. To identify the possibility of uncorroborated police evidence being admitted on these questions is not to identify absurd loopholes to be closed at any cost to the actual language employed. The legislature was attacking part of the problem of uncorroborated police evidence. Minds can differ on whether it should have attacked more of the problem. The question is: what part did it in fact attack? That question is not to be answered by presuming that all parts were attacked.

52 The expression 'in the course of official questioning' in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made 'in the course of official questioning'. It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made 'in the course of official questioning', without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made 'in the course of official questioning' - whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression 'in the course of official questioning' is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical.

53 In this matter 'the course of official questioning' ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: '[W]e'll conclude the interview'. Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language."

[148]

"96 Acting on the recommendations and findings of various Commissions and Inquiries, all Australian legislatures have enacted legislation that seeks to protect the rights of accused persons during a period when their rights are vulnerable by reason of the mistaken recollection or lies of police officers. The enactments of the various legislatures are broadly similar in principle although they differ in detail. In general, they identify the period of vulnerability as commencing with the time when the facts raise a suspicion of the accused's guilt. In most jurisdictions, the period is thereafter open-ended. The enactments recognise that miscarriages of justice may occur when there is no mechanical record confirming an allegation by police officers that the accused has confessed to a crime or made a damaging admission after he or she was or ought reasonably to have been seen as a suspect. The evident policy of the enactments is that it is against the interests of justice to admit evidence of such confessions or admissions unless there is a mechanical record of such confession or admission or an acknowledgment of it, or in some jurisdictions that exceptional circumstances justify the admission of the evidence.

97 Given the mischief to which the Australian legislatures have directed their attention and the policy behind the enactments, it would not be defensible to make the admissibility of confessions or admissions made during the period of vulnerability turn upon fine verbal distinctions between the legislation of particular jurisdictions. Rather, courts construing the various legislative enactments should construe them in the same broad way that Dixon J in Little v The Commonwealth thought that protective provisions, such as time limitation provisions, should be construed. As far as the statutory language will permit, the legislation of the various jurisdictions should be interpreted liberally and uniformly to give effect to what is a national policy behind this class of legislation. To so construe the legislation of a particular jurisdiction in this way is not to reject the will of the legislature of that jurisdiction. It is merely another application of the dictum of Dixon CJ that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.' It also accords with the purposive theory of statutory construction." (Footnotes omitted).

[170]

"24 There has been some discussion of s 570D in the reported cases. The section and, indeed, the whole of Ch LXA was inserted in the Criminal Code by the Acts Amendment (Jurisdiction & Criminal Procedure) Act 1992. These particular provisions were proclaimed to operate only as from 4 November 1996 (Government Gazette, 25 October 1996, p 5361). But, perhaps wisely, very few of the decided cases have essayed any generally applicable interpretation, particularly of the provisions of s 570D(2) and s 570D(4). To a considerable degree, the effective and proper operation of the provision depends upon the judgment made against the background of the particular factual circumstances of the case as the trial Judge finds them to be. That is so in respect of the judgment whether there is a reasonable excuse for there not being a recording on videotape of the admission (guidance as to the meaning of the concept, but not an exclusive definition of the term "reasonable excuse", being provided by subs (4)). And that is certainly so with respect to the decision whether the circumstances of the case are sufficiently exceptional to justify the admission of the evidence in the interests of justice, even though there is not a videotape record of it and even though a reasonable excuse for that failure has not been established.

25 Because, as we would hold, it was open to the trial Judge in the circumstances of this case to conclude that there was a reasonable excuse for the failure to record the appellant's statements on videotape, it is strictly unnecessary for us, as it was for his Honour the trial Judge, to consider whether the circumstances of the case, to which we have adverted, were sufficiently exceptional to justify the admission of the evidence in the interests of justice. We think, however, that the decision of his Honour was fairly supportable on that ground also. We note that, as argued, his Honour's judgment about the lack of relevant unfairness sufficient to warrant the exclusion of the evidence by the application of the ordinary common law rules, is not called into question."

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The State of Western Australia v Yerkovich [2004] WASC 62 (5 April 2004)

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