Court of Appeal (WA)|2001-09-26|Before: Wallwork J, Owen J, Parker J

Willis v The Queen [2001] WASCA 296 (26 September 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WILLIS -v- THE QUEEN [2001] WASCA 296

Criminal law - Evidence - Accused interviewed twice by police - Prosecution led evidence of first interview at trial but not second - Whether defence could adduced evidence of second interview - Interviews 12 days apart, new circumstances - Not in truth one interview

Criminal law - Common purpose - Whether evidence capable of supporting withdrawal from common purpose - No new principles

MH v The Queen, unreported; CCA SCt of WA; Library No 970203; 17 May 1997

Smith v Blandy (1825) 171 ER 1013

Wace v The Queen, unreported; CCA SCt of WA; Library No 980124; 24 March 1998

1 In this case the applicant was convicted of the offence of murder on 30 March 2000 in the Supreme Court at Perth. It was alleged by the prosecution that the applicant and his co-accused, Steven Wood had been stealing from motor vehicles early in the morning of 4 July 1998, when they were disturbed by the deceased, Mr Furina. The jury found that Mr Wood had stabbed Mr Furina with a knife. It was common ground that at the time of the stabbing, the applicant had been close by. Both the applicant and Mr Wood were charged with murder.

2 Prior to the trial the applicant had been interviewed by police officers on video. During the course of the interview there had been questions asked of him as to why he and Mr Wood had had with them a screwdriver and a knife respectively.

3 On the day following that interview, which lasted for approximately six hours, the applicant had been videoed showing the investigating officers where various things had happened. Approximately 11 days later one of the officers had requested the applicant to come down to the police station and answer further questions. The applicant was again interviewed for approximately three hours.

4 At the trial the Crown led evidence of the first two videos but did not lead evidence as to the third interview on video. When the counsel for the applicant sought to cross-examine the interviewing officer as to something which had been said in the third interview, the prosecutor objected. The prosecutor contended that the third interview was not admissible unless it was produced by the prosecution. He said:

"The point is that at this stage he was asked questions again about what happened on the occasion and he gave to some extent a differing version in respect of some matters, and the matter in particular which I think my learned friend recognises is of some significance, because he touched on it, is the question of his state of knowledge, whether there was a common purpose, what the plan was when they went to Luffe Court. The accused was given an opportunity to explain why he had a screwdriver, why there was a knife in the first interview. The fact that he may seek to water that down, albeit by way of being given an opportunity to do so through questioning from police, does not make it admissible, so in my submission, any questions that go to the purpose of certain questions that were put to the accused is simply irrelevant."

5 The learned trial Judge upheld the Crown objection.

6 It is now contended on appeal that the exclusion of what was said by the applicant at the third video interview, which was a second long video interview, may have deprived him of a chance of acquittal and that his conviction should be set aside.

7 The first interview had taken place on the 12th day of July 1998. It had commenced at 1725 hours. The applicant was then 16 years of age. He had spoken to a lawyer. The lawyer was not present at the interview. The applicant's mother was sitting with him. It is common ground that the applicant had attempted to mislead the police officers during the first part of that interview about what he had been doing on the evening in question. He had gone to the police station by arrangement with Mr Wood to attempt to explain why his cap had been found at the scene. After he had been caught out by the investigating officers concerning whether he had been wearing the cap on that evening he had said, "Well, can I just - can I like just get out of this white room for a while because my eyes are going all funny?" At a quarter to 10 pm, the interview was then suspended. At three minutes past 10, and after the applicant had had a discussion with his mother, the interview was resumed. His mother had told the applicant to tell the detectives the truth about what happened. The detectives had warned him that whether his mother thought he should do that or not was one thing, but it was up to him.

8 A little further on in the interview he was asked, "Can you tell me what happened on the morning of Saturday, 4 July 1998 in relation to the death of Mr Bruno Furina?" The applicant's answer was, "No, I don't want to tell you because I'm dead anyway." When the detectives asked him what he meant by that, he said he had been told by "rugby players" that the deceased's "mates are taking the law into their own hands. If they find who done it, they'll kill them. So I'm not saying nothing". He then explained to the detectives that he had been told that Mr Furina's friends were going to kill him and Mr Wood as soon as they found out who had killed Mr Furina.

9 Later in the interview the applicant told the police that Mr Wood had stabbed Mr Furina although he had not seen him do it, but he had shortly thereafter seen blood coming from Mr Furina when he (the applicant) had jumped back over a fence and seen Mr Furina. Mr Furina had "jumped for me". The applicant said he had dodged him and he ran. He had then "stopped and looked at Steve and I looked at that dude and he had all blood".

10 The applicant expressed the view that: "Those dudes want Steve. They're going to come straight for me next because Steve's going to tell them". He was assured that nobody could come after him as he was in police custody and that the police's job was "to protect all people. It doesn't matter what they've done or what they haven't done. We'll protect everybody without prejudice, Okay? Now, why did you go to Luffe Court?"

11 The applicant told the police that he did not really know why they had gone there, but that Steve had led the way. He was asked, "Who had the weapon?" He answered, "Steve". When he was asked what it was, he said, "We both had a weapon but he had a knife. I had a screwdriver". He told the police officers that Steve had later thrown the knife into the river and that the screwdriver was at Steve's house. He told them he had not used the screwdriver but "Steve's trying to blame that on me. I'm not happy with that".

12 The applicant told the police officers that he had not used the screwdriver and had not touched the deceased "but they're going to say that in court, because everyone reckons it was a screwdriver. I'm not that type of person".

13 The applicant told the police officers that he and Steve had looked at a few cars after they had left Steve's house but they had got nothing. They had later gone back to the house and then gone out again. They had gone to Luffe Court early that morning "because we just wanted some money". He also said, "We don't know how to steal cars and we just wanted some money". He said that at Luffe Court he had been out the front on the driveway and Steve had gone up to check the cars to see if they had any money in them. There had been a red car and a green car. Steve had gone to them to see if there was any money. The deceased had then "come flying out" of the house yelling at the two offenders and threatening them.

14 The applicant said, "I just ran so fast. Jumped the fence." He told the police officers that Steve was not far behind him. The applicant had got over the fence and kept on running. However, some dogs in the house had chased him and he jumped back over the fence. Steve and the deceased were sitting there "rumbling". Steve and the deceased were fighting. The deceased had jumped off Steve and started after the applicant. However, the applicant had kept running. He had had the screwdriver in his right hand.

15 The applicant told the police officers that when he had come back over the fence Steve and the deceased were fighting: "that big dude was sitting there laying into Steve". When asked, "Did Steve have anything in his hands?" he said, "I couldn't honestly see anything but he had something. He had a cut around here and it was bleeding". He said the deceased had then left Steve and come charging after him and he had run down the path. He told the police officers that it was getting light at that time and that after Steve had arrived back at Steve's house, Steve had had the knife then. The applicant said he did not have any blood on his clothing but Steve had had blood on his jeans.

16 The applicant said that later Steve's mum had told them that the deceased had died. He had been present when Steve had got rid of the knife. The applicant was asked if he had physically hurt the deceased in any way and he said, "No, I was nowhere near him. I didn't even touch him. He didn't even touch me".

17 The applicant was asked whether he had a plan before he went into Luffe Court that morning. He was asked, "Did you have a plan of what would happen if somebody come out or you were confronted by anybody?" He answered, "No". He was asked whether he was sure he had not discussed it with Steve. He answered he was not sure. He said he knew there was not a plan. He was asked, "Well, why did you have the screwdriver?" He said he did not know. He repeated that.

18 After some further questioning the applicant was asked had Steve told him whether or not he had stabbed Mr Furina. The applicant did not respond at first. However, when he was asked, "Did he or didn't he, Damien?", at first he did not respond but then he said, "Yes". When asked, "What did he say?" he said, "He thought he got him on the ribs". He then said he thought he got him in the rib. He said Steve had said it was not on purpose. When asked how many times Steve had stabbed him, the applicant said, "He said one". He was further questioned and he said, " ... like I said, I was too scared, just ran".

19 The applicant was later asked, "What did you think would happen with both of you going out to steal from cars or whatever, and you've got a screwdriver and a knife?" He said, "I wasn't planning on using them. I'm not that type of bloke. I don't go around trying to stab people or kill anyone. I run". He was then asked, "Why take the weapons then?" His answer was, "Don't know". It was then put to him that there must be an explanation for taking a knife and a screwdriver and he said, "Just ... I don't know, something about self-defence or something". He was then asked, "What do you mean 'something about self-defence or something'?" and he said, "Oh, you know". And he was then asked, "No, I don't ... I don't know, Damien? What do you mean?" He then answered, "... something like if anyone comes out, you're meant to use them but ... ." He was then asked, "If anyone comes out you're meant to use them?" His answer was, "No, I don't know. I've said that wrong".

20 The applicant was asked to explain that and he said, "It was just, like, I don't know, break into cars ... or if we couldn't, like, get into them, like the doors don't open". He was further questioned, "What were you going to do if somebody came out?" His answer was, "Well I've proved that point. I ran". He was asked, "But was there a plan prior to that?" His answer was, "No". He was asked, "Did you discuss with Steven at all; if somebody comes out we will do this or we won't do that?" His answer was, " ... not that I can remember".

21 The applicant told the police officer that he had seen the blood on the deceased when the deceased was chasing him. Steve had then been on the ground.

22 The applicant was asked why he had the screwdriver in his hand if he was standing on the road near the driveway. The applicant said he was crouching down leaning on it, but he was not going to stab anybody.

23 He said, "I said I wasn't going to stab no-one, if that's what you're getting at". He then said, "I just want to go home and go to bed, get arrested or whatever tomorrow". He was told, "You can't go home at the moment. Okay? You can't go home". He was then further questioned about why he had not gone to the police after Mr Furina died. He was questioned about how he had got home to Steven's house. He asked for a drink and if he could go to the toilet. He told the police, "I didn't do nothing. I just stood there and watched and ...". He was asked further questions about the knife and about where they'd been near Mr Furina's house. It was then said to him, "You sure you're not trying to distance yourself here from anything Damien?" He answered "Yeah". It was then said to him, "I mean, because from what you've told us tonight basically Steven did everything, okay?" After some further questions the applicant said, "I just kept a lookout". He was asked, "And if anyone came out what were you supposed to do?" He said, "I don't know. It never come to that. That's why I ran". He was asked further questions and said, "Basically, there I was keeping lookout". He was asked again why did he have the screwdriver. He said, "I don't know". He was asked, "What do you mean, you don't know, Damien?" He said, "Something stupid." He said he didn't know why he had a screwdriver. To a further question he said, "Just ... yeah, well, just in case, like ... like going to break into a car and the knife wouldn't fit and we had the screwdriver, because most of the time it was in my sock". He then said to the police officers, "From my point of view it just sounds like you're trying to make me say that I did it". He was told again that the police officers had to ask questions and "it appears to me that you have distanced yourself and put everything onto Steven". The applicant again said he had just stayed there and that Steve had gone up to the cars and "why can't you believe that?"

24 The applicant was further questioned. The question was asked, "You're standing at the top of the driveway, with a screwdriver in your hand, when you weren't going to break into that car, were you? You've already said that. You were keeping watch. You mentioned earlier, when I asked about the weapons, self-defence". The applicant said, "It didn't come out like ... it didn't come out. I didn't mean that". He was then asked, "Did you have your ... any of those weapons on you for self-defence?" He answered, "No". He was asked, "Prior to doing this didn't you think what possibly could happen?" He answered, "No". It was put to him, "You're there ...". He said, "I didn't think this was going to happen". He was further questioned about whether he thought that somebody could be hurt. He was pressed on that and asked, "Well what's ... what's the answer to that question?" He answered, "I suppose". He was further questioned. He asked if he could go to the toilet. He did that and the interview was resumed at 23.42. He was asked further questions including how many cars he thought they had visited that night. He answered about six or seven. The interview was concluded at about eight minutes to 12 pm.

25 Approximately ten days later police officers contacted the applicant's mother and said that they would like a further interview with the applicant. The officers were then aware that the applicant had seen a solicitor. They asked the solicitor's name. They contacted the solicitor and asked whether there was any objection to them interviewing the applicant further. There was not.

26 On 23 July 1998, the applicant attended at the police station. He was interviewed by detectives. The interview took approximately three hours. The applicant was cautioned. One of the detectives present had been at the first interview. The second long interview took place 11 days after the first interview. This Court was told that in the meantime the solicitor had not had access to depositions or the transcripts of the statements which the police had earlier taken.

27 The applicant was still 16 years of age. He was asked whether he had been in touch with his solicitor. He said, "Yes". He was asked had the solicitor advised him in relation to the interview. He said, "Yes". He said he had been advised not to talk about the actual murder to the officer. He was asked was he prepared to continue with the interview. He said, "Yes". The applicant was asked what he had done on the Thursday prior to the stabbing. He told the officers that that afternoon he had been with Steve, and Mitch later on. Mitch was Steve's girlfriend.

28 From the questions asked it is obvious that the police were seeking information as to what had happened during the whole of the Thursday prior to Saturday 4 July 1998 and in great detail. At the time the applicant had first spoken to the police officers on 12 July 1998, they did not know what part Mr Wood had played in the events.

29 The interview on 23 July was an important part of the police investigation into Mr Furina's death. The applicant was asked in great detail about his movements on the Thursday. The interview then moved on to Friday, 3 July. It commenced with questions about what time the applicant had got up on that morning. It continued in considerable detail as to the applicant's movements on that day. He answered every question in detail, including what he was wearing, for example, whether his jacket had buttons and a hood or long or short sleeves. He told how he had met Steve and his girlfriend around about 5 or 6 pm and how they had gone to Steve's house. He told them that they had obtained a video and then gone back to Steve's house and out to his room in the shed at the back. Some other people had come to the shed. They had a few drinks and listened to music. Some of the visitors had left about 1.45 pm. A girl called Karen had left about half an hour later. Mitch and Steve had then had "a fight". About 3 am he and Steve had gone to a BP garage to get some smokes and a drink. They had returned to Steve's house around about 4 am. Steve and Mitch had had another fight and Steve "just went ballistic". He and Steve had then gone out to break into cars. This would have been about 5.30 am.

30 The applicant then said that they had left around 4.30 am and come back about 5.30 . Just before 5 o'clock they had broken into a car. When they had gone back to Steve's house the applicant said he had grabbed a screwdriver. Steve had given it to him. He was asked what was the idea of the screwdriver. He said, "Oh, just like if we're going to get in the cars and we seen a wallet, just break into them". The applicant said Steve had a knife. The applicant described the knife. The applicant said that ever since he had known Steve he had had that knife. The applicant was asked did he know Steve had the knife. He said he had seen Steve go to open a car door with it. That was before they had gone back to the house. The applicant was asked in detail about that incident.

31 The applicant said that when they had gone back to the house, Steve had picked up a screwdriver and given it to him. He was asked what he thought he was given it for and "at what point during the night did you understand that was going to be the plan?". The applicant told the police officer that they had tried a couple of cars but got nothing. They then went up to Luffe Court. That would have been around 6 .00 am.

32 The applicant said (apparently out of sequence) that Steve had asked him for his screwdriver when he got into one of the cars and Steve had got the radio out. They had taken some gear back to Steve's house. Steve had hidden the speakers and stuff under his house. They then went to the Luffe Court area. The interview was suspended at 12.13 pm.

33 The interview was resumed at 12.40 pm. The applicant was cautioned again. He said he was prepared to continue with the interview. He said they went towards the direction of a place called Luffe Court. Steve was wearing the "VB hat". The applicant was asked what clothes he and Steve were wearing. He gave the details.

34 The applicant said he had had a screwdriver and Steve had his knife. It would have been about 6.15 am. The applicant said that when they had been near the two cars he had crouched down on the road. He had got the screwdriver out and leant on it as he was crouching down. Steve had gone up to the cars. The applicant was 10 or 15 metres from the front of the house. He was looking everywhere. Steve could not get into the red car. It was all locked up. At that time the applicant had seen a curtain move. Then Steve went to the green car. The curtain moved again and he had yelled out to Steve. Then the person had come out. The applicant said he knew that Steve had the knife in his hand. He did not know whether the blade was out or not. Steve still had the VB hat on.

35 The applicant was asked in detail about Steve's movements prior to the man coming out of the house. The applicant said he (the applicant) was still at the front of the drive on the kerb, just crouching down. The applicant was asked why he had the screwdriver out of his sock. He said it was just to lean on because the grass was wet and he did not want to sit down. As soon as the person came out of the house the applicant said he had started running. He said that at no time, when he had been at that place, had he had hold of the knife. Steve had not had hold of the screwdriver. The questioner apologised for "Keeping going over this all the time". The applicant said that Steve was halfway out the driveway; the person came out. Steve still had the knife in his right hand. He had the blade out. The applicant said he had been following Steve all night, "He just took us to places". The applicant said that as soon as he saw the deceased come out of the house he took off. He was asked, "Had you and Steve discussed at all at any stage what would happen if somebody did come out and ...?" His answer was, "No, no. I just thought, you know, run. I don't know Steve's point on that. I didn't really hear him say anything about it". He said, "I only knew what I was going to do". He was asked, "What was that?" He said, "Run". When he was asked, "Why was that?" he said, "I don't know. You just don't want to fight the person, you just run". It was put to him, "But you had a screwdriver?". He answered, "Yeah I know, it was like for getting into cars".

36 The applicant said that he had run to his right. He had had the screwdriver in his hand. He did not look back. When he got to the corner house he jumped a wooden fence. He grazed his leg. When he got over the fence there were a couple of dogs. When he saw the dogs he ran back and jumped back over the same fence. He said he did not know the area. The applicant was asked when he came back over the fence what did he see. He said, "Well, I'm not willing to talk about that because the solicitor said just don't talk about what happened there". He was then asked, "Are you happy for me to ask questions and you can respond how you like with this point?" He said, "Yeah". He said he just kept running after he jumped back over the fence. He was pressed about who was there and his answer was, "No. Well, I don't know. Like, I'm not really meant to speak about that part, so I can't". He was asked what he meant when he said he had kept running and ducking. He was asked, "Ducking from what?" He said "Mr Furina". He was asked what did Mr Furina do towards him to make him duck. He answered, "He just jumped at me". He said he just kept running. He was asked, "Did you swing the screwdriver towards him?" He said, "No, I didn't". He was asked, "Did Mr Furina hit you?". He answered, "No". He also told the police that Mr Furina had not stopped him and he had not fallen on the ground at all. He said he had ducked when Mr Furina tried to grab him. At that point of time Mr Furina was on Steve. He was asked, "What do you mean he was on Steve?" The applicant said, "Well, I can't like really talk about that so ... I can't really answer that question". He was asked, "You can't answer that question or don't want to?" He answered, "Oh I can, but um, I don't want to". He was asked was that a question which was likely to incriminate him. He answered, "No. Because I was ... it was just the solicitor said you're not allowed to talk about that part, what actually happened".

37 It was obvious the police officers were intent on finding out exactly what had happened and what the applicant's part had been in it. He was shown a map and asked if he would like to draw on it, where he had run from. He was asked where he was when he had last seen Steve and where Steve was when he had last seen him. He was also asked, "And what was happening there when you last saw him?". He said, "When I last saw him he was just lying on the ground". He was asked, "Why was Steve lying on the ground?". He said he was not allowed to answer that question. Again he was asked, "You're not allowed - you don't want to answer that question?". He answered, "No". He was then asked did he see Mr Furina and what was he doing. He said Mr Furina was just chasing him. He was again taken back to the time when he had jumped over the fence and asked, "Where was Steve and Mr Furina standing?". Again he said he was not allowed to say.

38 It is obvious that the police officers did not wish to let the 16-year-old suspect act on his solicitor's advice without pushing him to do otherwise. He was asked did he see anything on Mr Furina. He said a slash, "Just like a wound". He told the police officers Mr Furina had "blood coming out, wasn't much". He showed the police officers where the blood was coming from, "up top near the rib". He was then asked, "Do you know how that happened?" He said he had not seen it. He was asked, "Did you do that?" He said no. He was asked, "At any time did you have the knife?" He answered, "No, not in this part around here, no". He was asked had he at any stage had a fight or wrestle with Mr Furina. He said, "No". He said he had just kept on running. He was asked, "Why did you keep running if you saw Steve lying on the floor?" He was asked did he not feel like he wanted to go back and help him. He said, "No, not really. I was just too frightened to help". He said he just kept running.

39 The applicant was asked what was the reason for not answering the questions about what had happened as he had run off. He answered, "My lawyer said 'Oh, just don't talk about the murder', so I'm not gonna". He was then asked, "Where was Steve standing when Mr Furina came out of the house?" He indicated where that was. He was asked had he seen Steve turn around and look at Mr Furina or anything. He said, "Oh, I don't know, I just keep on running". He was asked, "What was the last point that he had seen Steve." He said well, he couldn't. He was asked about the kind of dogs in the backyard. He was asked, "At the time Mr Furina was hurt, where were you located?" He said, "Well, that's the thing. I don't know when he was actually hurt, so I would have been somewhere, I don't know, around here or could have been here, I don't know for sure". He was asked, "So you believe that it was before you jumped back over the fence?" He was asked was there any reason for him having that belief.

40 A very long question was then put to the applicant concerning Steve having a knife and having previously chased someone. He was asked, "Do you think the situation with Mr Furina was pretty likely?". He said, "Pardon?" He was asked did he think the situation with Mr Furina was going to be something that was going to eventuate, "considering the sort of person Steve is." Again the question went on at some length. He said, "I can't answer that question". He told the officers that the only thing he had touched would have been the fence. He told them that when he got back to Steve's house he had felt sick. He was asked why and he said, "Don't know. Just from seeing that dude stabbed. I just felt weird and then just started chucking up out the back." He was asked, "Seeing Mr Furina stabbed?" He answered, "Well, just blood coming off him, yeah".

41 The applicant told the detectives that two or three minutes later Steve got back. He was asked where the screwdriver was which the applicant had had. He said, "Because like, I was chucking up, so I just had the screwdriver and stuck it in the ground to lean on because I didn't want to get my hands dirty". He said that when Steve came back he "just got real aggro at me for not helping him". Steve had kicked him in the head and had gone "real psycho at me". The applicant said he had turned around and said to Steve, "You stabbed him?". Steve had said, "Yeah". He said he had just felt sick again because of what had happened. The applicant said that a day or so later, Steve had pulled his jacket out of a cupboard and showed him a big blood clot on the back of his jacket.

42 The applicant said that after they had got home, they had just gone to bed. It would have been around 7.00 am or something. Later that day they had gone in to Midland Gate. Steve's mum had told them what had happened to Mr Furina. The applicant said he had gone home after they had bought something to eat. The next day Steve had said, "Oh, we'd better get rid of everything". That was on the Sunday.

43 The applicant was then questioned about when they had gone home after what had happened at Luffe Court. He was asked did Steve have any blood on anywhere except his arm. He said on his jeans, on the right leg of the jeans. He said Steve had had blood on his jacket and on his jeans. He had shown them to Mitch. He said Steve had told Mitch that the applicant hadn't come to help him. He said that Steve had taken the knife out of the pocket of the jacket and it had blood on it. Steve had wiped the knife totally clean and shoved it somewhere. At eight minutes to two (pm), the interview was suspended.

44 At seven minutes past two (pm) on 23 July, the interview resumed. The applicant was cautioned. He said that after Steve's mum had told them that a person had died in Swan View, she had then left the room. Steve had then said to him and Mitch that they had been in a different area. Then Mitch had gone off. Steve had then said, "Oh, that was us". They had then gone to the shopping area. The applicant said he had got back to his own home at about three or four that afternoon and had watched TV that night. The next day Steve and Mitch had come around and collected him. It was about midday. When he had got into the car they had just said, "Oh, we just have to get rid of the jacket and knife and stuff". Steve had said that. They had then gone to Steve's house. The applicant said he had later gone home and had not seen them for a couple of days. He said, "And then we just like - we got of the - the knife and the basketball on the same day. Mitch come and picked us up. We went up in the hills." He said that was the day all the cops were searching the park for the knife. They had gone up into the hills and Steve had burnt the jacket. Then they had gone down to the river and Steve had thrown the knife in the water and then they had gone home. He was further questioned on that subject. It was about Tuesday "or something" that Steve had said that he just had to get rid of his jacket and the knife. He said that a couple of days after it had happened, he and Steve had just said, "Oh, we're not going to tell no one about it, like no friends or nothing like that".

45 The applicant said that Steve had told Mitch half the story and half lies. He said Steve had told Mitch that "He's been hitting him a bit hard and then probably he must have landed on a stake. That was the story he told her." He said Mitch had never said anything to him about it.

46 The police officers asked about the jacket being taken up into the hills and whether that was "a location you've since showed to us?". The applicant said that Steve had burnt the jacket, then they'd gone down to the river and thrown the knife in. He said he had not done anything to the jacket himself. It had been "part in little bits". Steve had pulled the bits of the jacket out of an old basketball and then he had burnt it all.

47 Towards the end of this interview, one of the officers said, "Obviously there's a few more questions we'd like to ask. I'm just thinking about time for yourself. Um, if we suspend it now, are you able to re-attend at some stage, or would you be prepared to do that or do you want to ....?".

48 At the end of the interview, the applicant and his mother were informed that a copy of the tape would be made available to his legal representative should she request one. The interview was concluded at 2.44 pm.

49 In this case, the jury found, without having seen the third tape, that is, the second long interview, that Mr Wood had stabbed Mr Furina.

50 On appeal, it was submitted to this Court that prior to the applicant going down to see the police on the first occasion, a story had been concocted by Mr Wood and his girlfriend that the applicant should contact the police and inform them that he had lost his VB cap some days earlier. Mr Wood's girlfriend had telephoned Crime Stoppers. Later Willis had gone to the police to tell them the full story. He had arrived at the police station at about 1.00 pm on 12 July 1998. He had then waited in the reception area until about 5.25 pm when he was interviewed. That first interview had continued until 11.52 pm. For the first part of the interview, and for approximately 162 pages of the transcript of the interview out of the total of 225 pages, the applicant had told the false story. At p 162 those present had watched a video from the BP Service Station. That had showed the applicant there with his cap with the VB logo on it. The video had revealed that the story the applicant had been telling the police officers that he'd lost the cap several days earlier was clearly wrong. He had been in the service station wearing the cap at 3.16.37 on the morning when the deceased had met his death.

51 At that first interview, it was 9.45 pm approximately when the applicant had told the police officers that he wanted to get out of the white room for a while "because my eyes are going all funny". It was then that he had asked whether he could go home and come back tomorrow.

52 The first interview recommenced at three minutes past ten pm. It was then that the applicant told the police officers that he had not stabbed Mr Furina but he had seen blood coming from him, after the applicant had jumped back over the fence and commenced to run away. He said, "I stopped and looked at Steve and looked at that dude and he had all blood". It was during that interview that he told the police officers that Steve was trying to blame it on him and he was not happy with that; that he hadn't used the screwdriver and hadn't touched the deceased.

53 It was put to this Court that it was a police officer who had first used the word "weapon" in the first interview and not the 16-year-old applicant. Counsel for the applicant submitted that at the end of the first interview the applicant had been at the police station for nearly 11 hours, although he had not been interviewed for all of that time.

54 Counsel advised that at the end of the first interview, the applicant had been charged with unlawfully doing grievous bodily harm and had been released on bail on the next day. The police had then made further inquiries. The co-offender Mr Wood had simply denied any involvement. He had told the police that it was the applicant's idea to go and steal the cars and that it was the applicant who was trying to break into the cars. He had basically reversed the true roles.

55 This Court was advised that after several days' inquiry the police officers had contacted the applicant's mother and told her that they would like a further interview. That was when the third interview, the second long sit-down video interview, was carried out. On that day the applicant had attended the police station at 11.00 am. The interview had continued with breaks, until about 2.44 pm, being about three and a half hours. One of the detectives present on that occasion had been present at the first interview. The Court was told that no transcript, or tape, or statements, or anything had been in the hands of the applicant's solicitor before that time.

56 It was submitted that in that second long interview, the applicant had been telling the police that there had been no plan to use the knife or the screwdriver against any person who might come out. The applicant had told the police that he had been too frightened to help Steve and he'd run off. At no stage had he touched Mr Furina.

57 The applicant's counsel contended that the second long interview, which had been initiated by the police, had occurred after Mr Wood had distanced himself from the stabbing by telling the police officers that it had been the applicant who had stabbed the deceased and that it had been the applicant's idea to go around the metropolitan area looking for property and motor vehicles. Mr Wood had maintained that stance throughout the trial. During the first interview, one of the detectives had told the applicant that he would have to double check what he had been told because the applicant had distanced himself from the stabbing. It was during the first interview that the police for the first time had become aware of Mr Wood's presence at the scene.

58 It was submitted for the applicant that this was not a case where the applicant had come back to tell a further story to the police. The police had requested that he come back. Because Mr Wood had told them something different to the applicant, they had decided to re-interview the applicant.

59 At the start of the trial, the learned prosecutor had opened the Crown case to the jury on the basis that the two offenders had taken a weapon with them to the scene to resist anyone who might try to stop them from getting away if they were disturbed. It was submitted to the jury that Mr Furina had been stabbed by one of the offenders in precisely the sort of situation for which they had taken the weapon to the scene. It was submitted to the jury that both participants would be guilty of murder if the act which caused the death was a probable consequence of carrying out the unlawful purpose. It was submitted to the jury that an unlawful purpose in those circumstances would include resisting any action on the part of anyone who might try to interfere with them leaving the scene "and so it's the Crown case that when these two accused set out to break into the cars to steal property on the morning in question, it was part of the unlawful purpose to leave the scene without being caught and he used the knife to resist being caught". It was submitted that "when two people go out in joint possession of offensive weapons intending to use them to resist being caught, even if it's only to cause fear in someone else, there is always a likelihood that in the tension and the excitement, the weapons will be used in such a way that death or serious injury can occur. That is exactly what happened here."

60 It was submitted to the jury that "in this case insofar as Willis is concerned, his own description of the knife as a weapon, his own description of the screwdriver which he said he had with him as a weapon, clearly suggests that they had them to hurt someone, or at least to frighten them if they came out and tried to stop them from getting away. Mr Furina's death was caused with such a weapon. It was a probable consequence of the unlawful purpose. That's the case against Willis."

61 It was pointed out for the applicant that, in the first interview, the applicant had told the police officers that he was not planning on using the screwdriver or a knife: "I am not that sort of a bloke. I don't go around trying to stab people or kill anyone. I run."

62 It seems to be a fair inference that the police officers, having conducted the second long interview and obtained all the information they needed from the applicant, would have submitted that information to the prosecutors. The decision would then have been made not to use that second long interview at the trial.

63 In my view, and with respect, it was not fair to the 16-year-old accused, who in that second long interview had answered all the questions asked of him, except some of those connected with what had happened at the time of the stabbing, for the prosecution to withhold that interview from the jury. It is apparent from the video that the applicant answered the questions as they were asked, and in full, apart from the last mentioned aspect. There was considerable detail in the second interview about what had happened on the various occasions when they had gone back to Mr Wood's house, which was not in the first interview and which might have played a part in the jury's consideration of the charge against the applicant.

64 The jury, by the verdict, accepted that Mr Wood was the stabber. It was most important for the jury, in considering the part the applicant had played, to know all of what happened, a good part of which is contained in the second long interview. At the present time, the applicant has been convicted of murder without the jury being told of all the facts which the prosecution knew before the trial started.

65 The law is that where there has been a departure from a common purpose, and if in this case the applicant had never contemplated that the knife would be used by Wood to attack someone, the applicant would not be guilty of murder - Barlow (1997) 93 A Crim R 113 and the decisions referred to therein.

66 The first and critical finding the jury had to make was what the plan was. If Mr Wood had used the knife outside the contemplation of the plan, the accused would not be guilty of murder. If, however, the jury came to the conclusion that the plan had been a plan to use the weapons for self defence or to make good an escape, then the applicant could have been guilty of murder.

67 The relevant second long interview contained far more detail than the first interview which was presented to the jury by the prosecution. That second long interview had resulted from very detailed questioning by the detectives in the course of their investigation. They knew a lot about the case by that time.

68 The applicant had revealed in detail, in his answers in that second long interview, what he said his part in the plan had been. For example, when he had been asked in the interview, "What would you expect? What would you think was a likely consequence if somebody came out to protect their property and you've got a weapon? What do you think would possibly happen?". He had answered, "I've proved that. I ran."

69 It is not without significance that at the relevant time of the interview, the applicant was an Aboriginal youth of 16 years of age who left school at the age of 13 years. It is against that background that his comment in the first interview about self defence should be viewed. He had initially been encouraged to go to the police by the primary offender Mr Wood and his girlfriend in order to give a false story about his VB hat having been lost. He had resiled from any notion of self defence when he said, "I've said that wrong". That was during the first interview.

70 The second long interview was conducted in great detail by the interviewing officers. It took some 3 hours and 45 minutes. It was the police officers who wanted the clarification of the circumstances surrounding the offence and who wished to ask the questions.

71 It is fair in the generally accepted sense that the jury should have been able to see how the applicant stood up to the detectives' detailed questioning. He was not making a self-serving statement in the generally accepted sense of that phrase. He was answering the questions of police officers during the course of their investigation.

72 It is significant that there are admissions against interest in the second long interview. That renders that interview admissible. Had the applicant said anything in his evidence at the trial contrary to what he had said in that second interview, no doubt he could have been cross-examined on it by the learned prosecutor.

73 The complete details of that second interview could have thrown light on some of the applicant's answers in the first interview, either for or against him, but the jury would have had the whole story had the video been admitted into evidence. It is significant, in my view, that the relevant interview does not appear to be an attempt to totally exculpate the applicant from the unlawful activity on that evening.

74 It is also significant that the relevant interview was a continuation of the inquiries being conducted by the investigating officers after they had investigated the assertions by the applicant in the first interview. As stated above, at the time of the first interview the police officers were not aware of either the applicant's or Mr Wood's part in the events as a result of which Mr Furina died.

75 In answer to the above propositions, it was said for the respondent that the first interview was self contained. However, at the conclusion of the first interview the applicant was informed: "We still have to conduct further inquiries ... you will be charged in relation to the death of Mr Furina, but I don't know what the specific charge will be at the moment ... and there are a few more things that we are going to have to do".

76 With respect to the further inquiries, on the day following the first interview, the applicant took the police to the locations where the jacket had been cut up and burnt and where the knife had been disposed of, and during the course of that enquiry the applicant made further statements about how those things had been done. That was before the relevant interview took place about 10 days later. Both the video of the first interview and the video of the visits to the scenes were played to the jury.

77 As the relevant interview, in which the police officers had expanded on their initial questioning, was not shown to the jury, the jury did not have the benefit of the complete interviews by the police officers. They were only shown part of the interviewing process. In my opinion, that could have been very misleading in this case.

78 It was put for the respondent that the reasons for which the police conducted the relevant interview were not decisive of the question of whether it was admissible. The question was whether the interviews stood alone, in the sense of being self-contained.

79 In my view, the jury could have taken into account in their deliberations as to his guilt or innocence, that on the second occasion, when he was approached by the police, the applicant had come forward and responded positively and in detail to the questions of the police officers. The statements made at the relevant interview were part of the police investigation and were not all self-serving statements. There were admissions against interest contained in them. It could be maintained that it is not a correct procedure to use a first interview at a trial and not put in a later interview which might contain, and in this case did contain, material which was very relevant and explanatory of the first questioning.

80 It was said for the respondent that the applicant had given evidence concerning what he had said at the relevant interview. However, such a course puts a different emphasis on the matter. The jury could have regarded the applicant's evidence as only self-serving. The best evidence of what the applicant said at the relevant interview was what appeared on the video.

81 The jury may not have fully appreciated that the applicant had told the detectives the things that he said in evidence that he had told them. In any event, his answers and his explanations given in the witness box are against a different background to that in a police station.

82 It is not without relevance that in the second video interview, a 16-year-old person was being questioned in great detail by experienced police officers. It would have been obvious from the video how he was standing up to that questioning and it would have assisted the jury in deciding whether to accept what he said overall. Secondly, the questioning by the detectives in the relevant video was with the background of their further inquiries which they had made. With that background, they had questioned the applicant for approximately three and a quarter hours.

83 It was put for the respondent that the test whether the relevant interview should be admitted is whether in fact it is mixed with the first interview in such a way that the first interview could not stand alone. It was said that that was the test because otherwise the interview could not be admissible at the instigation of the defence. In my view, in all the circumstances the first interview could not be said to stand alone.

84 However, the fundamental question in considering whether the relevant interview should have been admitted into evidence is whether, without it, the trial was fair to the accused person. At the trial, the applicant was extensively cross-examined concerning whether or not he had taken the screwdriver with him to use as a weapon. That was the Crown case.

85 In Callaghan (1993) 70 A Crim R 350, Fitzgerald P said he found it unnecessary to reach a firm conclusion on "the legal issues which they have carefully analysed," being the issues which had been raised in that case and analysed by Pincus JA and Thomas J and which were in some respects similar to those which I have discussed in these reasons.

86 Pincus JA and Thomas J in their joint reasons referred to "an exculpatory record of interview" taken about six hours after the applicant's apprehension. The Crown did not allege in Callaghan that the relevant statement contained admissions against interest. The trial Judge in that case had expressed the provisional view that the relevant statement's contents were "uniformly self-serving and inadmissible." It had been conceded on appeal by the applicant's counsel that the interview did not contain any statements inculpating the applicant.

87 It can be seen from those comments that the facts in Callaghan were quite different to those in the present case.

88 At p 354 of Callaghan, their Honours said:

"There may be exceptional cases where the interests of justice require some special qualification of a strict application to the hearsay rule (for example Daylight (1989) 41 A Crim R 354; cf Walton [1989] HCA 9; (1989) 166 CLR 283 at 293; [1989] HCA 9; 38 A Crim R 276 at 282), but it is highly desirable that the limits upon admissibility of evidence remain identifiable."

89 In Daylight (supra) at p 356, which was a decision concerned with the statements of a victim who had died before the trial, Thomas J had said:

"The approach of the Privy Council in that case (Ratten [1972] AC 378) shows a loosening of the tests that for a long time imposed strict limitations on evidence of res gestae. It is a recognition that the hearsay rule should not stand in the way of such evidence provided that it seems safe, relevant and probative."

90 His Honour, a little further on in his reasons, said:

"Notwithstanding this, I conclude that it would be contrary to the interests of justice if the evidence were to be excluded. It is evidence capable of suggesting that some other person may have been the offender. Indeed, it is directly relevant to the question of the identity of the offender. To deprive the accused of the right to present this piece of evidence to the jury along with all the other evidence of the case, in my view, defies any notion of fair play. The evidence is capable of being quite telling and probative, although of course submissions may be made to impair its prima facie effect. The possibility of a concoction or insincerity appears to be negligible."

91 In my opinion, the above remarks apply to this case where the evidence in the relevant interview is capable of suggesting that some other person may have been the offender. The answers given by the applicant on the video in question are directly relevant to the question of identity of the offender.

"However such evidence does not need to be irrefutable. These are, I think, jury matters. It seems to me it would be unfair if the jury did not have such evidence to weigh in the balance."

93 Thomas J quoted from Mason CJ in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 293 (282), where the Chief Justice said:

"The hearsay rule should not be applied inflexibly. ... Equally, where in the view of the trial Judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the Judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay."

94 In Callaghan, Pincus JA and Thomas J said at 354:

"If an accused person can introduce his own self-serving version to a police officer as evidence, why may he not also introduce such versions that he gives to the others at the scene, or to his wife or to anyone else? If an accused can corroborate himself by means of his own consistent statements why may not other defence witnesses do so? Why for that matter should not the prosecution witnesses similarly be able to do so?"

95 Those comments do not, in my opinion, apply to this case where the police officers, as part of their enquiries into the case, and at their instigation, conducted a lengthy and detailed interview with the applicant in which he made inculpatory statements. In fairness to everybody, including the jury, the relevant video interview enables the facts of the case to be fully revealed.

96 In Callaghan, when discussing whether or not the evidence in that case should be admissible, their Honours said:

"The basis upon which Mr MacMillan submitted that such evidence ought to be received was that it would show that the applicant gave a similar version on a prior occasion, and this would show consistency; it would go in as evidence of his reaction to the police investigation, and would support his credit. In our view those matters do not constitute true issues. It is of course possible for such evidence to become admissible if an issue was created, such as recent fabrication. However we reject the submission that such evidence should be received and placed before the jury on any of the above bases."

97 In the above passage, their Honours recognise that "it is of course possible for such evidence to become admissible if an issue is created".

98 In my view, in this case an issue had been created by the persistence of the prosecution in attempting to inculpate the applicant on the issue of whether or not he had carried the screwdriver as a weapon. A jury having seen the relevant video might think that there was considerable evidence that the screwdriver had been taken solely for the purpose of breaking into cars and not for use as a weapon. Evidence had been given that the young men were breaking into cars. A jury might conclude that all the actions of the applicant, including him running away and not attempting to attack the deceased man, were evidence that he was not carrying the screwdriver for use as a weapon. As was said by Justice Thomas in Daylight, those were jury questions.

99 The respondent relied on the decision in Middleton v The Queen (1998) 19 WAR 179 for the proposition that the statements made by the applicant to police officers eleven days after the first video interview were not admissible, as the prosecution had elected not to lead evidence of the statements made by the applicant.

100 In Middleton, the Crown had not led evidence of statements made by the applicant prior to him being interviewed on video because, amongst other reasons, the first statements had not been recorded and for the prosecution to have led them would have been contrary to the provisions of s 570D(2) of the Criminal Code WA.

"The Crown was not obliged to lead any evidence of statements made by the applicant. But if the recorded interviews were to be put before the jury the evidence of the earlier conversations should have been admitted also. Without that evidence, the jury did not have the complete picture. Indeed, it seems that the Crown would have led the evidence but for the belief of counsel that it was inadmissible by reason of the provisions of s 570D(2)."

"Plainly, the jury did not accept that the applicant's emotional state affected the accuracy and reliability of what he said in the video interview. But what if the jury had been told that about half an hour after the stabbing and five and a half hours before the video interview, in another interview with the police - when the applicant was in the same extreme emotional state - he had admitted stabbing his wife but had said that he had done so in circumstances subtly but significantly different to those which he had described later in the video interview? In my opinion, it would be open to a jury to find that, in those particular circumstances, the fact that the applicant made a prior statement which was to a significant extent inconsistent with the later interview, casts additional doubt on his ability at the time of the video interview to recount reliably and accurately what had occurred. It is in this sense, in my view, that the first interview is capable of being relevant to the state of mind of the applicant at the time of the video interview."

103 In this case, and relevant to the views expressed in Middleton, when the applicant had first been interviewed he had originally gone to the police station to give them a false story about his cap. When his false story had broken down, he had then been questioned for approximately two hours. During the interview at one stage he had asked if he could "just get out of this white room for a while because my eyes are going all funny?." He had on a later occasion taken the police to the hills where some clothing had been burnt. He had been interviewed on that occasion also. That interview had been shown to the jury. He had later been asked to come down to the police station by the police officer to continue being questioned about the matter. On that third occasion he had been interviewed for approximately three hours and had given detailed answers to detailed questions. That interview had not been arranged by him but had been requested by the investigating officers as part of their investigations. In my view, to exclude the details of the third interview from the jury comes within the words of Heenan J referred to above: "Without that evidence, the jury did not have the complete picture".

104 The above proposition is in accord with a comment in vol 15 of The Queensland Lawyer (94-95) at 15, where it is said:

"Finally, in R v Bruce David Kirkwood (unreported; DCt Toowoomba, 2 November 1993), Howell DCJ has formulated a useful summary of the principles applicable to the admissibility of self-serving statements made by an accused out of court. His Honour sets out those principles as a series of propositions. They are as follows:

1. ...

7. If an accused person makes two out-of-court statements, one of which contains a statement adverse to interest and the other of which is totally self-serving, the general rule is that the adverse statement is admissible and the separate self-serving statement is inadmissible. The clearest application of this principle occurs where there is no connection between the first statement and the second. There may, however, be situations in which there is such a connection between the two statements that both the adverse statement and the self-serving statement may properly be led. Such cases call for a careful examination of the circumstances in which each statement is made in order to determine whether the self-serving statement is properly admissible or not. (His Honour gives, as an example of the circumstances in which a subsequent self-serving statement may be admissible, the situation in which an accused person is interviewed by a police officer, and makes incriminatory statements. Further inquiries are then made and the same or some other police officer subsequently reinterviews the accused and obtains a self-serving statement. His Honour thought it likely that, in such a case, the self-serving statement would be rendered admissible.)"

105 In Spence v Demasi (1988) 48 SASR 536, Cox J, after reviewing the authorities, said at 540:

"The rule against hearsay evidence usually operates to prevent a party from tendering his self serving statements made out of court in proof of the truth of the matter so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain a mixture of admissions and self serving statements. The Crown cannot pick and choose .... The whole interrogation (or narrative statement ...) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts: ... the failure of the accused to give evidence may well influence their attitude to the self serving answers."

106 In R v Su [1997] 1 VR 1, at 65, the Victorian Court of Appeal referred to the above comments of Cox J and said:

"These statements were adopted by the South Australian Court of Criminal Appeal in R v M [1994] SASC 4618; (1994) 72 A Crim R 269 at 274. In our view these authorities accurately describe the evidential status of self serving, non incriminating statements, when they are tendered as part of the case made by the Crown. The Crown has an obligation to put the whole statement before the jury for its use, giving the statements such weight as it believes they deserve."

107 During the second part of the first interview, the applicant told the police officers what had happened. The officers did not know before that time that he and the other man had been involved in the incident.

108 At the conclusion of the first interview, the officers said that they would continue their enquiries, which they did. When the co-offender wrongly blamed the applicant for the killing, the police officers quite properly had to come back to the applicant to get the true picture. They questioned him at length. Having realised that he was telling them, if not the whole truth, then a lot of it, they prosecuted both offenders. The jury found that the other man was the stabber.

109 In my view, it was unfair to the applicant in all the circumstances of this case for the prosecution to tender in evidence that part of the interviews which inculpated the applicant and to leave out that part which put him in a better light.

110 In Walton v The Queen (supra), at 308, Deane J said:

"The hearsay rule should not, however, be inflexibly applied but should be qualified where the circumstances are such that its inflexible application would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve."

111 In Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, Mason CJ said at 566:

"The case for relaxing the hearsay should in my view prevail so as to permit, at least, the reception in evidence of statements during the course of a telephone conversation made by a party to that conversation when they form part of that conversation and identify the other party to the conversation. Such statements will be in the nature of implied assertions and it is in the field of implied assertions which naturally form an integral part of a conversation that there is a very strong case for relaxing the hearsay rule. An implied assertion of this kind is spontaneous and likely to have a high degree of reliability.

True it is that evidence of this kind is not the best evidence of the identity of the other party to the conversation and that it is evidence of identity, the truthfulness and accuracy of which cannot be tested in cross-examination in the way in which it would be tested if the party to the conversation gave the evidence. These shortcomings are generally expressed to be the reasons for the adoption and maintenance of the hearsay rule (see Lejzor Teper v The Queen [1952] AC 480, at p 486, per Lord Normand, where his Lordship described the rule as "fundamental"). But it does not seem to me that these considerations, powerful though they may be, should prevail against the reception in evidence of an implied assertion when that implied assertion is clearly spontaneous and "has a high degree of reliability and can be acted upon safely", to repeat the words of Gaudron and McHugh JJ in Reg v Benz [1989] HCA 64; (1989) 168 CLR 110, at p 143). Indeed, to insist on an application of the hearsay rule when the witness who participated in the conversation is dead is to deprive the court of evidence which may be relevant, reliable and valuable. In most cases, telephone conversations take place in circumstances in which a reference, in the presence of a witness, by one party in the course of the conversation to the identity of the other party, will be spontaneous and may be expected to have a high degree of reliability."

112 In the same decision, at 595 - 596, Deane J said:

"Once the view is taken that the hearsay rule should not be treated as being incapable of adaptation by the courts in circumstances where its inflexible application would confound justice or common sense, the conclusion seems to me to be inevitable that the rule must be adjusted to the extent necessary to permit the adoption of a sensible approach to an apparently spontaneous and reliable contemporaneous statement of one party to a telephone conversation identifying the other party to the conversation."

113 In R v Su & Others (1995) 129 FLR 120, at 161, the Victorian Court of Appeal said:

"If, as may be said to be suggested by the judgments of Mason CJ and Deane J in Walton and Pollitt, regard may be had to questions of reliability of the evidence then there would appear to be no reason to exclude the evidence now in question. If, however, as may be said to follow from the judgments of Brennan CJ and McHugh J in Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1, exceptions to the hearsay rule are not to be extended according to whether the evidence is likely to be reliable, other considerations would appear to rise."

114 Applying the principles which are referred to in the abovementioned decided cases, it is my opinion that the jury in this case did not have "the complete picture" before them. The jury were only informed of a part of the police interrogations, and to an extent did not have those parts which were favourable to the applicant. The jury may have been misled as to all the circumstances. The applicant may thereby have lost a chance which was fairly open to him of being acquitted of the murder charge. The appeal should therefore be allowed - Mraz [1955] HCA 59; (1955) 93 CLR 493 at 514 - the conviction quashed, and a new trial ordered.

115 OWEN J: I have had the advantage of reading the reasons for decision that Wallwork J and Parker J, respectively, propose to publish. The facts and the law are set out in detail in those reasons and there would be little point in me repeating what is there said. I propose to set out my views on this matter in a much shorter form than their Honours have done. I am able to do so because the facts and the law have been so well covered in the other judgments. The brevity of these reasons should not be taken as an indication that I have failed to appreciate the importance of the matter for the applicant and for the public generally.

116 An incident occurred early on the morning of 4 July 1998 as a result of which a man was stabbed with a knife and died. At the time, the appellant was 16 years of age. It is now beyond doubt that the appellant and his co-offender Steven Woods were involved in the death. They had been present at the deceased's residence and had attempted to break into, and steal from, a car that was parked in the driveway. They were disturbed by the deceased but, unfortunately, in a scuffle that ensued he was stabbed. As a result of the jury verdict it can be accepted that Woods, not the appellant, stabbed the deceased.

117 It was the appellant's case at trial that during the preceding night he and Woods had taken a knife and a screwdriver and broken into a car. They returned to the place where Woods was staying. They then left a second time but the appellant denied he had taken a knife from the house. They went to the deceased's residence. The appellant waited at the top of the driveway while Woods went to the car. The appellant saw the blinds in a room in the house move. He called out to Woods. The next thing he knew, the deceased came out of the house. The appellant then ran away from the house. He looked around and saw the deceased and Woods in a scuffle. The deceased was bleeding. The appellant did not see Woods stab the deceased.

118 On 12 July 1998 the appellant attended, voluntarily, at the police station and was interviewed. Shortly after, he was taken to various locations and, while being recorded on video, showed the police officers where things had happened. On 23 July 1998 police officers asked him to return for a further interview and he did so. In the meantime he had taken legal advice. He was not accompanied by a solicitor but his mother was present during the interview.

119 The 12 July 1998 interview contained some inculpatory material. The 23 July 1998 interview was, in effect, exculpatory in the sense that the appellant gave a different version of certain happenings and placed his part in the incident in a better light. I do not say that in a pejorative sense but it is important as the base from which to assess admissibility.

120 At the trial the prosecution adduced in evidence the entirety of the 12 July 1998 video even though it contained both inculpatory and exculpatory material. I do not think there is any reason to doubt the correctness of that course: see Middleton v The Queen (1998) 19 WAR 179 per Pidgeon J at 182. However, the prosecution declined to adduce the 23 July 1998 video at all. When senior counsel for the defence sought to cross-examine the police officer about that interview the Crown prosecutor objected on the basis that the material was inadmissible. The objection was upheld. The neat, but important, point raised in this application is whether the ruling was correct.

121 From time to time it becomes important to go back to first principles. One such principle is that out of court statements are, generally speaking, not admissible in evidence. This is because they are hearsay. Relevantly, they become admissible only if they fit within one of the recognised exceptions to the hearsay rule. A second fundamental principle is that a trial Judge has an overriding responsibility to ensure that an accused person has a fair trial. In carrying out that responsibility a trial Judge has a discretion to exclude what would otherwise be admissible evidence if its prejudicial effect outweighs its probative value. However, this is a discretion to exclude evidence that would otherwise be admissible. It does not extend to permit the admission of what would otherwise be inadmissible material.

122 In Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 the High Court declined to rule that there was a general exception to the hearsay rule based on the perceived reliability and probative value of the contested evidence. Such an exception has been recognised in some other common law jurisdictions but most members of the Court found it unnecessary on the facts of the case to follow suit here. However, Brennan CJ referred to earlier authority in which it had been held that a trial Judge's opinion as to the reliability of the evidence does not make hearsay admissible: see, for example, Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283. It seems to me that unless and until the High Court revisits the matter, this must be taken to be the state of the law in Australia.

123 There are some English cases which suggest that a self-serving statement is admissible to show the reaction of the accused at the time when the statement was made: see for example Pearce v The Queen (1979) 69 Cr App R 365. However, in R v Callaghan [1994] 2 Qd R 300 the Court of Appeal of Queensland declined to follow these authorities. Callaghan demonstrates the comparative difficulty which a person wishing to adduce evidence of self-serving statements has in effecting that purpose.

124 How, then, would the content of the 23 July 1998 interview have become admissible as an exception to the rule against hearsay? It seems to me that the only way would be by an application of the principles enunciated in Middleton concerning the effect of inculpatory and exculpatory material in separate statements. In Middleton, at 190 Ipp J said:

"Thus, the rationale for admitting the exculpatory parts of one whole statement is that, having been uttered on the same occasion that the crime is admitted, their reliability is greater than otherwise would have been the case. Where exculpatory utterances are made as part of a separate statement, this consideration does not apply.

I agree with Pidgeon J that the appellant's utterances in the first interview cannot be regarded as part of his statement recorded in the video interview. They were plainly separate occasions. They were separate in time by nearly six hours and they were made to different persons under different conditions. Accordingly, in my view, the exculpatory statements made in the first interview do not fall within the mixed statement exception. It follows that there is no basis on which the first interview can be admitted as to the truth of its contents."

125 Each case must be viewed according to its own facts and the comments of Ipp J that I have set out are not directly applicable here. However, it seems to me that questions of temporal separation, differing circumstances and the like will often be involved in the value judgment that has to be made as to whether several utterances made at different times are in truth "part of the statement" on which the prosecution (or for that matter the defence) may wish to rely.

126 In this case there was a delay of some 11 days. The 12 July 1998 interview had been concluded. At the end of it the interviewing officer told the appellant that he would be charged with an offence (unspecified) concerning the death of the deceased. It is true that the officers told the appellant further inquiries would be made but there is nothing in the transcript to suggest that they were holding over the interview process. It

was almost midnight. The appellant asked if he could go home and was told: "We've got some paperwork to do and a few other things. You're going to be staying with us". He was later released on bail. Again, there is no evidence the appellant was told that he was to be held because further inquiries were necessary or that he would be subjected to a further interview.

127 The circumstances in which the 23 July 1998 interview came to be scheduled and held is set out in detail in the reasons of Wallwork J and of Parker J. I wish only to make three comments. The first is the obvious one, namely, that 11 days had elapsed. In a temporal sense, there was a complete severance between the two interviews. Secondly, as I understand it, there were no admissions against interest made by appellant on 23 July 1998 that had not been made by him in the earlier interview. If there had been new or additional admissions against interest, the contents of the second interview would have been admissible for that reason. Finally, the second interview occurred after the investigating officers had obtained from Woods a version of events that was different from that which had been given by the appellant. The reason why the appellant was requested to participate in the second interview was to enable the investigating officers to put Wood's version of events to the appellant. This, it seems to me, stamps the later interview with a different character.

128 I am acutely aware of the need to exercise caution to protect the rights of young persons in situations like this. However, on balance, I have come to the conclusion that the two interviews are so separate (in the sense that I have outlined) that the conditions for the admissibility of the 23 July 1998 interview have not been satisfied. If the evidence is not admissible there is very limited scope for subjective views about fairness to be given free rein. In my view, there was no error in the ruling that prevented senior counsel for the defence from cross-examining the police officer about the contested material.

130 PARKER J: The grounds of appeal against the conviction of the appellant of the offence of murder, after trial before the Chief Justice and a jury, raise two issues.

131 The first issue is whether the trial miscarried by virtue of the ruling that counsel for the defence could not, by cross-examination of a police witness, adduce into evidence the contents of an interview between

investigating police and the appellant, which interview had not been adduced in evidence by the prosecution.

132 I am grateful for the reasons of Wallwork J which have set out extensively the content and circumstances of the interview which was conducted on 23 July 1998, as well as the content and circumstances of an earlier interview which was conducted on 11 July 1998 and which was adduced in evidence as part of the prosecution case. I will not repeat those matters in these reasons.

133 By virtue of the rule of evidence against hearsay, an out of court statement by an accused person is not admissible as to the truth of its contents unless it comes within one of the recognised exceptions to the rule; Allied Interstate (Queensland) Pty Ltd v Barnes [1968] HCA 76; (1968) 118 CLR 581 at 585; Spence v Demasi (1988) 48 SASR 536 at 540; R v Callaghan [1994] 2 Qd R 300 at 302; Middleton v The Queen (1998) 19 WAR 179 at 182, 189. What counsel for the appellant sought to do in his cross-examination in this case was to adduce hearsay evidence for the purpose of establishing the truth of its content.

134 One recognised exception is that, at the option of the prosecution, admissions by an accused person can be led by the prosecution. In this regard it was observed by Pidgeon J in Middleton v The Queen at 182:

" ... an admission will often be accompanied by an explanation and other exonerating and exculpatory material. In that sense it becomes a 'mixed' statement. The general rule in the case of a mixed statement is that the whole of the confession must be given in evidence, including parts favourable to the accused person .... The rule thus expressed goes no further than saying that if it is the wish of the prosecution to tender the admissions, then the prosecution must tender the whole statement. It does not suggest that the prosecution is bound to tender the statement containing the admissions and the exculpatory material. Clearly at law it is not so bound. It was stated in R v Callaghan (supra at 304) that there is no general obligation on the prosecution to call such evidence."

After commenting briefly on the reason for this position, Pidgeon J went on to say at 182:

"It would be open to the Crown simply not to lead any evidence of the admissions. In those circumstances if the accused person wished to base his defence on the facts in that statement, he must do so as a witness and be cross-examined. If the prosecution puts in the admissions then it must put in the whole statement and what is said by the accused in that statement becomes evidence in the trial. If the accused person does give evidence the earlier statement may well become admissible to rebut recent invention or possibly to show he had given other explanations different from the one in evidence."

Ipp J at 188 - 189 agreed with the reasoning of Pidgeon J, and Heenan J particularly at 201 accepted the law to be as indicated in these passages from Pidgeon J's reasons.

135 The essence of the argument for the appellant in this respect is that the interview on 23 July 1998 was part of the earlier interview on 11 July 1998 so that, in accordance with the principles enunciated above the "whole" of the statement should have been admitted, ie what was said on 23 July 1998 together with what was said on 11 July 1998. There appear to me to be fundamental difficulties in the way of accepting this proposition in the circumstances of this case.

136 The interview on 11 July 1998 occurred after the appellant went to the police station to volunteer, what later he accepted to be false information, that his cap had been missing for some days. The cap was known to be a significant lead which the police investigations were pursuing. The appellant changed his position about the cap in the course of that interview having been shown a video recording made at a service station on the day of the murder in which the appellant could be seen wearing the cap. There then followed a part of the interview in which the appellant made admissions on which the prosecution relied, as well as a number of statements which were in the nature of self-serving or exculpatory statements. In accordance with the principles set out earlier, as the prosecution sought to rely on the admissions against interest in this interview, the whole of its content was admissible. The statement was treated in this way at the trial.

137 That interview was the first occasion it seems on which the interviewing police became aware of the identity of the appellant and his co-offender.

138 One of the interviewing officers present on the first occasion again interviewed the appellant on 23 July 1998. A particular purpose of the second interview was to raise with the appellant matters asserted by the co-offender when the police spoke to him. In the meantime the appellant had taken legal advice pursuant to which he was prepared to be interviewed again but was not prepared to discuss certain events. The second interview covered a number of matters which were not the subject of the earlier interview and revisited some that had been. It may be said generally that the appellant answered questions quite readily except where he perceived that the questions dealt with those events which, on legal advice, he was not prepared to discuss further with the police. In respect of a critical issue in the trial, that is the reason why the appellant and the co-offender had a screwdriver and a knife respectively at the time of the offence, the answers of the appellant during the second interview, in contrast to his answers during the first interview, appear to be self-serving.

139 The factual circumstances in which the first and the second interviews were conducted, the range of subject matters discussed, the reason for the second interview, and the lapse of time between the two interviews, all appear to tell quite strongly against the submission that they were in truth two parts of the one interview. The first interview appears to have been entirely self-contained and to have reached a natural and clear conclusion. New and different circumstances having emerged as the police pursued their enquiries in the intervening days, an entirely distinct interview was conducted. It does not appear in circumstance or content to be a continuation of the first. There is no sense in which it may be said that the first interview was suspended and resumed on 23 July 1998.

140 The authorities considered by Ipp J in Middleton v The Queen at 189 - 190 do not assist the appellant in his submission that these two interviews, so separate in time and circumstance, were in truth part of the one interview.

141 It follows in my view that there is no basis on which the two interviews are properly to be regarded as one. The second interview was not admissible therefore at the behest of the defence as to the truth of its contents.

142 There are circumstances in which an out of court statement by an accused person may be admitted at trial, not as to the truth of its contents but for other reasons. No such circumstances are directly relied on in this appeal. I would note, however, that there has been no authoritative acceptance in Australia of the English decisions to the effect that a self-serving statement is admissible to show the reaction of the accused at the time he made it; cf Middleton v The Queen at 190 and the cases there noted. Nor was there any issue alive in this trial as to the state of mind of the appellant at the time he was interviewed on 23 July 1998. It was on this basis that in Middleton v The Queen Ipp J held that the earlier of two interviews in that case was relevant and admissible, not as to the truth of its contents but as to the reliability of the second interview. The factual circumstances which provided the basis for that decision have no applicability to this appeal.

143 For the reasons given I am not persuaded that the ruling at trial was in error or that on this basis there has been a miscarriage of justice.

144 The second issue raised on appeal is whether there was error in law in the direction given to the jury that there was no basis in the evidence to say that either of the offenders had withdrawn from the common purpose at the time of the fatal wounding.

145 As was said by Brinsden J in R v Raw (1984) 12 A Crim R 299 at 305:

"As I understand the contention it is said the unlawful common purpose embraces only the acts actually involved in the infliction of wilful damage and as the assault if it happened, happened after the damage had been inflicted it could not be said to have been in the prosecution of the unlawful purpose and likewise could not have been a probable consequence of the common intention to do wilful damage. This submission places all too much an artificial restriction on the words of the section 'prosecute and unlawful purpose'. The prosecution of an unlawful purpose obviously includes necessary acts prior to the commission of the actual offence as, for example, in this case obtaining the hammer and the knife and proceeding towards the motor car. Also the prosecution of the unlawful purpose could include events subsequent to the acts which actually comprise the unlawful purpose, such events being as for example departing from the scene of the crime and resisting any action on the part of another to interfere with that departure."

See also Seiffert & Stupar v The Queen, unreported; CCA SCt of WA; Library No 990003; 15 January 1999 at 38 per Pidgeon J, Kennedy and White JJ concurring, where his Honour concluded:

"I consider that the only interpretation open on the evidence of each of the appellants is that the purpose was still being prosecuted when they were leaving the scene in the manner they described. There was no basis to say that either or both had withdrawn from the common purpose. They were still giving effect to it to enable them to get away."

146 In this case the two offenders were together involved in breaking into parked cars in the early hours of the morning. As each knew the appellant had a screwdriver and the co-offender had a knife. As the co-offender examined one car in a driveway the appellant stood near the road watching and waiting. The deceased came out of the house. Both offenders ran off and the deceased gave chase. The appellant ran through the front garden of another house and jumped over a fence. He found himself confronted by a dog and retreated back over the fence and then saw the co-offender and the deceased struggling. The co-offender called out but the deceased ran on and made good his escape. As he did so he said that at one point he noticed the deceased behind him as though he was chasing the appellant. By the verdict it is clear that the jury accepted that the deceased was stabbed with the knife by the co-accused during this episode and died as a consequence.

147 In my view of this evidence the only conclusion which the jury might properly make was that both offenders were attempting to depart the scene to escape apprehension. The evidence does not provide any sufficient factual basis for an inference that the appellant, by running off as he did, was withdrawing from the prosecution of the unlawful purpose. Further, by s 8(2) of the Criminal Code the appellant must not only have withdrawn from the prosecution of the unlawful purpose, but he must also have communicated the withdrawal to his co-offender by words or conduct and, having so withdrawn, he must have then taken all reasonable steps to prevent the commission of the offence. There is absent any direct evidence, or any sufficient factual basis for an inference to be drawn by the jury, of any of these requirements.

148 In my view, the direction given at trial was appropriate and justified given the evidence which the jury had to consider. I am unable to accept the submission that the direction involved a miscarriage of justice.

149 For these reasons I would dismiss the appeal for which leave was granted on 23 April 2001.

Willis v The Queen [2001] WASCA 296

At a glance

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Judgment (183 paragraphs)

Willis v The Queen [2001] WASCA 296 (26 September 2001)

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Cases Cited (9)