Allen v Director of Public Prosecutions (WA) [No 2]
[2014] WASC 472
•15 DECEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ALLEN -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [No 2] [2014] WASC 472
CORAM: JENKINS J
HEARD: 13 JUNE & 24 JULY 2014
DELIVERED : 1 AUGUST 2014
PUBLISHED : 15 DECEMBER 2014
FILE NO/S: INS 149 of 2013
BETWEEN: HENRY ALLEN
Applicant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
Catchwords:
Criminal law - Offence of breaching a condition of a dangerous sexual offender supervision order - Offence not proved
Criminal law - Confession - Voluntariness
Legislation:
Criminal Investigation Act 2006 (WA)
Dangerous Sexual Offenders Act 2006 (WA), s 40
Result:
Charge dismissed
Category: B
Representation:
Counsel:
Applicant: Mr R F Owen
Respondent: Mr M T Trowell SC
Solicitors:
Applicant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
JENKINS J: Henry Allen, the accused, is charged on prosecution notice FZ563 of 2013, that between 5 July 2013 and 7 July 2013 at Fitzroy Crossing, being subject to a supervision order without reasonable excuse contravened a requirement of the order by failing to make full disclosure regarding his past offending and the current order to a person with whom he commenced a sexual relationship, contrary to the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), s 40A(1). The accused has pleaded not guilty to the charge. The charge was heard by me on 13 June and 24 July 2014.
The prosecution called two police officers as witnesses, namely, Detective William Anthony James Thompson and Sergeant Jeremy Allan Marklew. Those officers conducted an electronically recorded interview with the accused on the evening of 11 July 2013 (EROI).
During the EROI, the accused said that he had sex with a girl on Friday, 5 July and Saturday 6 July 2013, and that before he did so, he did not tell her about his DSO Act supervision order (DSO order). In order to prove the charge against the accused, the prosecution relies entirely on the evidence of the admissions made by the accused in the EROI.
The prosecution sought to tender the EROI in order to prove that the accused made the admissions. The accused objected to the tender of the recording. The accused elected not to call evidence. The result is that if the EROI is admissible, the prosecution has proved its case against the accused. On the other hand if the EROI is not admissible, there is no evidence to prove the offence.
These are my reasons for finding that the EROI is inadmissible. As a consequence, the charge must be dismissed.
The grounds relied on by the accused to have the EROI excluded from evidence at his trial are:
(1)that it was involuntary; or
(2)it should be excluded in the exercise of the judicial discretion; or
(3)it was obtained improperly, contrary to the Criminal Investigation Act 2006 (WA) (CIA).
I will say no more about grounds 2 and 3 as I have decided that the interview was involuntary and is inadmissible for that reason.
The law
There is no disagreement about the relevant legal principles. They were summarised in Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 by McLure P (Buss JA agreeing) as follows:
An admission by an accused person is only admissible in evidence if it was made voluntarily. The prosecution has the onus of establishing that the statement was voluntary. Once the prosecution proves that an admission was made voluntarily, the onus is then on the accused to establish on the balance of probabilities that the admission should be excluded in the exercise of the court's discretion. An admission will be excluded in the exercise of the court's discretion if it is unfair to the accused to admit it or the admission of the evidence is contrary to public policy.
It is necessary at this juncture to address the relationship between the common law and the provisions of the Act. The only relevant provision is s 7 of the Act which provides:
'(1)Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2)If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3)If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.'
There is no common law right equivalent to s 138(2)(c) although requests to speak to a lawyer are relevant to the voluntariness or fairness of a record of interview: Mackenzie v The Queen [65].
Section 7 does not make express reference to the statutory consequences of a failure to comply with the statutory duty. There is clearly no express or implied exclusion or modification of the common law relating to the voluntariness of confessional evidence.
The position in relation to the discretion to exclude on the grounds of unfairness or public policy is not as clear. If the only matter relied on was a contravention or contraventions of the Act, there must be no scope for the application of the common law discretion. That may also be so if all matters relevant to the exercise of the common law discretion were relevant to the statutory discretion in s 155. However, it is unnecessary to answer that question in this case [44] ‑ [48].
The reference to 'the Act' in the above excerpt is a reference to the Criminal Investigation Act 2006 (WA) (CIA). Blaxell J, in the same case, said:
A confessional statement (or admission) by an accused person can be received into evidence if there is proof on the balance of probabilities that it was made voluntarily (R v Lee (1950) 82 CLR 133, 144). In McDermott v The King (1948) 76 CLR 501 Dixon J held:
'This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary (511).'
In Collins v The Queen (1980) 31 ALR 257 Brennan J outlined the correct approach to the determination of whether or not a confession was voluntary:
'The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary.
The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused (307).'
In cases where the accused's mind was affected by a mental condition or by intoxication with alcohol or drugs, the issue of voluntariness will depend on whether or not he understood what he was doing. In R v Buchanan [1966] VR 9 the Victorian Court of Appeal held that a confession made by an accused while suffering the effects of a head injury was voluntary. Sholl JA stated:
'Now the important point, as it seems to me, is that in a case of the present kind there is no suggestion in the evidence that there was a suspension of the faculty of judgment, and the mere reduction of that faculty by head injury or drink could not be held to be sufficient to render a confession or admission involuntary in the legal sense. It is always, as has been said, a question of degree, but for myself I would not be prepared to exclude such a statement as involuntary unless the evidence showed that … the accused was incapable of appreciating that he had a choice to remain silent, or incapable of exercising sufficient volition to give effect to what he knew was such a right of choice (15).'
More often, the admissibility of a confession in such circumstances will turn upon whether there should be a discretionary exclusion of the evidence. If the evidence is admitted, the accused's state of mind at the material time is always relevant to the jury's determination of what weight should be given to the confession (Sinclair v The King (1946) 73 CLR 316, 336, Jackson v The Queen (1962) 108 CLR 591, 596).
Once the prosecution proves that a confession was made voluntarily, it is prima facie admissible. The onus is then on the accused to establish on the balance of probabilities a 'substantial reason' why the confession should be excluded in the exercise of the court's discretion (Lee (152 ‑ 154)). There are three possible bases for a discretionary exclusion of a voluntary confession. These are that it is unfair to the accused to admit the confession, that public policy considerations make admission of the evidence unacceptable, or that the prejudicial effect of the statement outweighs its probative value (R v Swaffield (1998) 192 CLR 159 [51]). The focus of the unfairness discretion is on the rights of the accused whereas the public policy discretion is concerned with matters of public interest. The third discretion focuses on the probative value of the evidence and guards against a miscarriage of justice (Swaffield [52]). Depending upon the particular circumstances, these various considerations may well overlap (Swaffield [74]).
The unfairness discretion is not concerned with whether the police acted unfairly, but with whether it would be unfair to the accused to use his confession against him (Lee (154); Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26). The prime concern of the unfairness discretion is the potential unreliability of the confession, but it is not the only concern. There may be unfairness to the accused because the confession might not have been made at all, or might have been made in a different form, if the interrogation had been conducted properly (Van der Meer (20); Swaffield [71]).
The line between the unfairness and public policy discretions is sometimes blurred (Swaffield [54]). This is because the question of unfairness is often taken into account in the exercise of the public policy discretion (Bunning v Cross (1978) 141 CLR 54, 74 ‑ 75). However, unfairness is only one of the relevant factors in the exercise of this discretion which focuses on broader questions of 'high public policy' favouring the exclusion of any evidence which has resulted from unlawful or improper conduct by police (Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 202 (Deane J)). The exercise of the public policy discretion also requires a balancing of competing policy considerations. In Pollard, Deane J held:
'In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an "isolated and merely accidental non‑compliance" (Bunning v Cross, 78) with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. … . In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence (203 ‑ 204).' [111] ‑ [117].
The allegation
On 4 December 2009, Murray J made the DSO order, to which the accused was subject. The prosecution alleges that the accused breached condition 27 of the DSO order.
It says that pursuant to condition 27 the accused must make full disclosure regarding his past offending and the DSO order to anyone with whom he commences a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by the community corrections officer and police officer.
The prosecution alleges that the accused breached that condition of the supervision order by having sex with a female on 5 and 6 July 2013 without telling her beforehand about his DSO order.
The facts
I note that the parties' written submissions traverse facts which are known to them and to me from other proceedings relating to the accused, or which are contained in the disputed EROI. I will attempt to restrict my recitation of the facts to evidence adduced in this hearing.
Sergeant Marklew is an experienced police officer who has worked for many years in the northwest of the state. He has known the accused since October 2011 when, in his role as the ANCOR officer for the Kimberley district, he visited the Moongardi Community where the accused was then living.
In April 2012, Sergeant Marklew was posted to Fitzroy Crossing Police Station. From that time, he had regular contact with the accused. Initially, the accused was living in Bayulu, a community some 20 km from Fitzroy Crossing. Although he moved around to other places, in April 2013 the accused moved to a home in Henwood Place, Fitzroy Crossing. During his contact with the accused, Sergeant Marklew observed that the accused could read English. He observed him to read documents and to read magazines. He also saw him sign documents. He says that he did not have difficulty communicating in English with the accused.
On Monday, 8 July 2013, Sergeant Marklew was recalled to duty to assist in the investigation of a sudden death of a woman (the deceased). The prosecution alleges that the accused had sex with the deceased woman earlier that weekend and so breached the DSO order. The body of the deceased had been found at the accused's home.
On the afternoon and evening of 8 July 2013, Sergeant Marklew took a witness statement from the accused at the Fitzroy Crossing Police Station. His attendance at the station was voluntary. The statement took about five hours to complete. Sergeant Marklew typed the statement with the computer monitor facing the accused. The accused read and corrected the statement. After the statement had been completed, Sergeant Marklew dropped the accused at the home of one of the friends of the accused in Fitzroy Crossing. The accused was, on that day, at the station for about 12 hours.
The following day, 9 July 2013, Sergeant Marklew was asked by Detective Senior Sergeant Brett Baddock from Broome Detectives, who was one of the detectives who had travelled to Fitzroy Crossing to investigate the deceased's death, to arrest the accused on suspicion of murder of the deceased. Sergeant Marklew made inquiries and discovered that the accused had gone to stay with his brother, Gordon Ford, in the Bayulu Community.
At about 8.15 pm, he arrested the accused at Gordon's home. He advised him that he was under arrest as a suspect for murder and he told him, what are commonly called, the CIA rights. Sergeant Marklew explained those rights to the accused in colloquial terms. Sergeant Marklew believed that the accused understood what he was being told and he did not ask any questions of Sergeant Marklew. Sergeant Marklew also gave the standard caution to the accused, which explained the accused's right to silence.
The arrested suspect running sheet (ASRS) records that the accused replied:
I'm not going to say anything, but can I ask, have I breached my order?
The ASRS does not record what answer the accused was given. He was then transported back to the Fitzroy Crossing Police Station. He, again, was told his CIA rights and he was cautioned. The accused replied, 'I know, I know'. He was then placed in an interview room.
At about 10.00 pm that evening, the accused was given a pie and water. He was taken outside to smoke. He was shown a drinking fountain at the police station, which he was told he could use. The ASRS records that a forensic examination of the accused occurred and concluded at 10.47 pm that evening. The accused stated he wanted his stereo and some other items from his home.
At 11.00 pm, the accused was taken to the Fitzroy Crossing Hospital for further intimate forensic procedures to be carried out. He was taken back to the police station at 12.15 am. He was placed back into the interview room and provided with a mattress and two blankets. He slept for approximately seven and a half hours. At 8.10 am on 10 July 2013, he had a pie and a cup of tea for breakfast. At 8.30 am, he lay on his mattress and rested or slept for an hour. He was then taken outside for some fresh air. He made some comments to the police officers with him, who told him, again, of his right to silence and told him that whatever he said would be written down.
At about 10.00 am, a visiting detective told the accused he would be interviewed later on video. At 10.35 am, the accused was again cautioned and the role of an interview friend was explained to him. The accused nominated his brother, Gordon, as his interview friend. He was also asked which language he preferred to speak, and he said that he spoke traditional language but was happy for the interview to be in English, as he understood that, too. At about 1.00 pm, the accused was provided with two pies for lunch. That afternoon, Gordon Ford, his brother, came to the police station for a short visit. The rest of the time the accused relaxed at the station. He was given a sausage roll late in the afternoon and requested something other than a pie for dinner. He was given a heated, ready‑made frozen meal. He slept or lay on his mattress for 13 hours overnight.
On the morning of 11 July 2013, the accused requested something other than a frozen meal for breakfast and was given chicken and chips and a bottle of soft drink. He spent most of that morning outside of the police station. He asked to speak to the detectives and had asked on a number of occasions beforehand whether and when they would be speaking to him. At about 12.30 pm, he was given a frozen meal and a can of soft drink for lunch. He spent the morning and afternoon either in an interview room or outside the police station.
In the same period of time, Sergeant Marklew was tasked by detectives to locate Gordon Ford, to act as the accused prisoner's friend during an interview between the accused and the police. Sergeant Marklew found out that Gordon had left Bayulu to attend a funeral in Derby. Sergeant Marklew asked the CEO of the Bayulu Community whether he or his father would act as the accused prisoner's friend and neither would. An inquiry was made of another friend of the accused and he also declined.
Between 4.50 pm and 10.29 pm that afternoon and evening, that is, for five and a half hours, two detectives interviewed the accused at the Fitzroy Crossing Police Station. That interview related to the inquiries into the deceased's death. The prosecution does not rely on the first interview in this hearing. At the conclusion of the first interview, the interviewing officers left the room. The accused was not charged with any offence relating to the death of the deceased. It is not in dispute that at all times the accused's detention as an arrested suspect was authorised by the CIA and by orders made by a magistrate which extended the period of lawful detention.
The police had made a decision not to make another application to a magistrate to extend the detention of the accused beyond the end of the then extension order at 12.50 am on 12 July 2013. The investigating officers decided that given that the accused had been in custody a long time, but given also that he appeared to be in 'reasonable condition', it was fairer to interview the accused about alleged breaches of the DSO order that evening rather than seek an extension of his detention as a suspect under the CIA.
There is no evidence that the police considered releasing the accused and inviting him to return to the police station the following day with his brother or another prisoner's friend for an interview about the alleged breaches of the DSO order.
At 10.30 pm, the EROI commenced between the accused and Detective Thompson from the Major Crime Squad in Perth and Sergeant Marklew from the Fitzroy Crossing Police Station. The interview concluded at approximately 11.40 pm.
At the commencement of the EROI, Detective Thompson told the accused that he did not want to speak to him about what the other police officers had been talking to him about, but he wanted to speak to him about his DSO order.
The accused told the police he was tired. The police told him that this was 'normal'. He was not asked whether he would like a sleep before the interview commenced. As mentioned before, the accused had had a good night's sleep the previous evening, but he had been awake since about 8.30 am, apart from another short nap he took for no more than 20 minutes at approximately 1.30 pm that afternoon. However, by the time the EROI started, it was after 10.30 pm and he had just been interviewed for a murder enquiry by other police for over five hours. The accused was asked whether he was prepared to speak to the police 'for a few minutes, for a while', and he said, 'Yes'. The accused was asked whether he wanted to speak to a lawyer, and he said, 'Yes'. Arrangements were then made for him to speak to a lawyer from Broome on the telephone.
When the interview recommenced, the accused agreed that the lawyer had explained his rights to him and that he said, 'but she told me I'm not gonna say a word'. It is clear from this and other comments made by the accused, as well as from the number of times he had been told by officers of his right to silence, that, in basic terms, the accused was well aware that he did not have to answer the police's questions.
After that comment, the accused told the police at least five times in the next portion of the interview that he did not want to make a comment. Detective Thompson then said that he wanted to ask questions and the accused could answer some and say no to other questions, but that first he had to ask some questions to make sure 'I know what's got, you know, what's going on'. The meaning of that comment is not clear to me. I doubt that it was any clearer to the accused. Detective Thompson then asked the accused for his personal particulars, which the accused gave. He then asked him whether he was hungry. The accused said he was hungry and tired. The accused said he had not had his dinner.
The accused had eaten lunch at about 12.30 pm that day, that is, some 10 hours earlier. The prosecution submits that he had been given dinner just before 7.00 pm that evening. It relies on an entry in a computer running sheet to this effect. However, I am not satisfied that it is correct.
What the accused said to the police in the EROI at that point indicates to me that, maybe, the police intended or planned to give him a meal at the time recorded in ASRS but because of the earlier interview he was not given it. The accused's comment to that effect was not contradicted by the interviewing police officers.
An offer of some pizza was made to the accused. He was asked whether he was happy to eat and talk at the same time. He said, 'No', and there was then a break of eight minutes whilst he ate. The accused was given some slices of reheated pizza which were leftover from the investigating police officers' evening meal. That is hardly a complete meal for a person in police custody, especially if they had not eaten for 10 hours, but it was enough, apparently, to satisfy the accused's hunger.
On resumption of the interview, the accused was asked whether he wanted a friend to sit with him, and he said that he wanted his brother, Gordon. He was told that Gordon had gone to Derby. The accused said that he was not going to say a word until his brother was there. He said this four times. He said that his brother was the only person he would be comfortable with sitting with him.
Sergeant Marklew told the accused that it was physically impossible to get Gordon there by 10 minutes after midnight which, he said, was when the police wanted to finish the interview. This was a reference to the time at which the lawfulness of the accused's detention came to an end. The accused said that they could wait until the following day, when Gordon would return. Sergeant Marklew asked whether the accused was comfortable speaking to the police and the accused said, 'No'. No further discussion took place about the absence of a prisoner's friend, even though the accused had made it clear that he did not want to speak to the police without his brother being present.
It is apparent that the police were determined to complete the interview before the end of the lawful detention period and so were not prepared to delay the interview until a prisoner's friend could be present. The reasons for this are unclear. It could not have been because of a concern that the accused would leave Fitzroy Crossing. The accused's DSO order required him to reside at a place approved by a CCO officer. If he did not do so, he could have been arrested for breaching his DSO order.
Detective Sergeant Thompson then asked the accused why he was not comfortable, and the accused said, 'No, I'm not too good because all them things from the past are not going through'. The accused was asked what things in the past he was referring to, and his response is not entirely clear but he referred to rape and that he was going forward with his life. Detective Thompson asked him whether he was comfortable talking to him about what had happened since Friday, a reference to the previous weekend. The accused mentioned that he had already given a statement and asked why he had to repeat it all. Detective Thompson told the accused that he would give the accused his rights and then 'will go into what we need to talk about'.
I find that Detective Thompson's words and actions are likely to have confused the accused. On the one hand he had been told numerous times that he did not have to speak to the police, but then on the other hand he was told that there was something that they needed to talk about. Maybe, when referring to 'we', the police meant the police, but that was not made clear to the accused. The fact that it was not clear to the accused is confirmed when the accused asked Detective Thompson why he had to repeat it over and over. Detective Thompson then told the accused that the police thought that he may have breached his order. Although Detective Thompson did not specifically mention that he was referring to the DSO order, I am satisfied that the accused knew that that was the order he was referring to.
Detective Thompson told the accused that he was going to ask him if he had breached the order but that the accused did not have to answer the questions if he did not want to. He asked whether he, the accused, was okay to talk about things which had happened between Friday and Sunday. The accused said, 'Yeah'. Detective Thompson said that he was not going to mention the bad things from the past, 'just Friday up until Monday'. The accused replied, 'All right'.
Detective Thompson asked whether he was 'comfortable' with that, and the accused replied, 'Yeah, well, I'm not charged, eh?' Detective Thompson said, no, he was not charged but the police thought he may have breached his order. He, again, asked the accused whether he was comfortable to talk to him about the events of Friday through to Monday. The accused replied, 'Not Monday. Friday to Sunday'. The accused was then cautioned. At the end of the caution, the accused was asked whether he understood it and the accused said, 'Clearly'. He was asked to explain what he understood by the caution.
In the conversation which followed, Detective Thompson told the accused that he could choose not to answer any questions, and the accused said, 'I answer no questions'. There were then questions asked about whether he understood that he did not have to answer questions. His answers were sometimes contradictory. It is clear that the accused was struggling with the concept that he had said that he did not want to answer questions or talk to the police at that time but that the police officers were still asking him questions and telling him that they were going to continue to do so.
The accused was asked questions about the content of the DSO order. Following that, he was asked questions about what he had done or omitted to do which may have breached the DSO order. The accused answered the questions and on occasions volunteered information or corrected the interviewer. Towards the end of the interview, the police asked the accused about conversations he had had with the deceased. He said he 'couldn't say'. He went on to say that the detectives who had first interviewed him had his words, he had told them everything and he was tired of saying it over and over again.
A short time later, the police officers concluded the interview. In concluding, the police asked whether the accused had felt comfortable speaking to them, and he said, 'Not really', because his brother had not been present. He was asked whether he knew that he did not have to answer the police's questions and he said, 'No'. When the police attempted to explore the meaning of that answer, the accused declined to say anything more. However, after he had said 'Mm' in answer to a question and Detective Thompson asked him whether that meant yes, the accused replied, 'I don't think so, no. I don't think I talking but I do'.
When he was asked whether he had any complaints about the way he had been treated by the two officers, the accused said he was worried because the police already had his words and he did not know why they were reading it over and over. He said he just wanted to 'say no word'. The EROI concluded at 11.40 pm.
The accused was immediately charged with breaching his DSO order and bail was refused. He still has not been charged with any offence relating to the death of the deceased.
Voluntariness of EROI
After considering all the evidence, I am not satisfied that the accused made the admissions in the EROI in the exercise of his free choice to speak or to remain silence. Rather, I am of the opinion that his will was not to speak to the police further and certainly not to speak without his brother being present. I am satisfied that that will was overborne by the persistence of the police officers. In all the circumstances, I am of the view that the accused spoke to the police in the EROI as a result of persistent questioning and sustained pressure on him to answer the police's questions. The circumstances I have taken into account in coming to this conclusion are:
(1)although the accused has had a lot of interaction with the police, the criminal justice system and other government bodies, he is only basically educated, has basic verbal English language skills and is a reasonably traditional indigenous man;
(2)about 24 hours before he was arrested as a suspect for murder, he had spent 12 hours at the Fitzroy Crossing Police Station to voluntarily provide a witness statement to the police about the death of the deceased;
(3)after his arrest as a suspect, he was detained in custody for about 52 hours prior to the EROI commencing;
(4)there is no evidence before me that he knew that his detention would become unlawful a little after midnight on 12 July 2013 and that if not charged then he would be free to leave the police station;
(5)before the commencement of the EROI, the accused had just completed a lengthy interview with the police in relation to the investigation into the death of the deceased woman;
(6)the EROI commenced at 10.30 pm on 11 July 2013 when the accused was tired and hungry;
(7)the accused had been provided with basic food throughout his detention, but I am not satisfied that he had had dinner prior to the EROI commencing. He was given a few slices of pizza and a break of some eight minutes to eat it at about 11.00 pm during the EROI;
(8)given the above matters, the accused was susceptible to have his will overborne and the police should have been especially careful to ensure that the interview was voluntary, especially when the accused told them that he was tired and hungry at the start of the interview;
(9)the reason that the police interviewed the accused at such a late hour and after an earlier long interview was because they wanted to complete the EROI before their authority to detain the accused expired. Their intention to persist with the interview for this reason is apparent within the interview when Detective Thompson said that the prisoner's friend could not be obtained before 12.15 am. He frankly acknowledged in evidence that that was what motivated the police to proceed. However, the imminent cessation of authority to detain is not a justification for continuing to interview a suspect who has made it clear that they do not want to be interviewed, as the accused did;
(10)the police completed the interview relating to the death of the deceased first because they regarded it as the more serious matter. They regarded the breach of the DSO order as a relatively minor matter. That is true to some extent, but a breach of a DSO order may justify contravention proceedings being taken under the DSO Act. Contravention proceedings may result in the indefinite detention of a dangerous sexual offender. Consequently, the interview of a dangerous sexual offender for a suspected breach of a DSO order is more serious than would first appear. It is important that police respect the right of such an accused to remain silent;
(11)the accused repeatedly told the interviewing officers that he did not want to speak to them;
(12)the police continued to interview the accused after he repeatedly told them that he did not want to be interviewed without his brother, Gordon Ford, being present and that he was prepared to wait until his brother returned from Derby to be interviewed;
(13)the police repeatedly told the accused that he did not have to speak to them, he repeatedly told the police that he did not want to speak to them, and they told him that they needed to speak to him. It is far from clear to me that the accused understood how those three things were consistent and that he could still exercise his right to remain silent even though the police told them that they needed to speak to him;
(14)at the end of the interview, the accused was consistent, as he had been at the beginning of the interview, that he did not want the interview to take place without his brother being present; and
(15)the accused summed up his position when he told the police that he did not want to talk to the police, but he did. I am not satisfied that he did so voluntarily.
The prosecution's submission is that despite what the accused said in the EROI, he knew his rights and he was prepared to answer the police's questions about the events between 5 and 7 July 2013. I am not so satisfied.
I am of the view that he did not want to speak to the police at all during the EROI. Even if I take the view that he ultimately agreed to speak to the police about the events between those two dates, I am not satisfied that he did so in the exercise of a free choice to do so but rather as a compromise between his wish not to speak to the police at all and the police officers' insistence that they needed to speak to him about the breach of his DSO order. Such a compromise does not make the interview voluntary.
The prosecution submits that 'it was unreasonable for the accused to insist that the detectives wait until' Mr Ford's return from Derby until the interview occurred. That seems to me to be tantamount to saying that the accused had to submit to an interview, which, of course, is not the law. The accused was fully entitled to refuse to be interviewed at all or only on conditions which the police may have been unable or unwilling to fulfil.
In this respect, whether the Anunga Rules amount to rules or whether they were complied with is irrelevant. It may have been the existence of the Anunga Rules which caused the police to offer to get a prisoner's friend for the accused, but once the presence of his brother became the condition on which the accused agreed to participate in the interview, the police were not entitled to override the will of the accused by insisting on proceeding with the interview without the accused's brother being present.
The prosecution's submission that somehow the timing of the interview was fair to the accused because it meant that the police did not make a further application to a magistrate to detain the accused for a longer period also requires some consideration.
The prosecution submits that whether the accused would be released on bail depended on whether or not he had breached his DSO order, so that the issue had to be decided within the time remaining in the existing extension order made under the CIA, s 140(6). Clearly, the police wished to attempt to interview the accused about the alleged breach of his DSO order prior to the expiration of the period of lawful detention. It is also clear that the police wished to decide whether to charge him for breaches of the DSO order prior to the end of that period. That does not mean that the accused had to agree to be interviewed or to answer the police's questions. The wishes of the police do not override the accused's rights.
It would have been fair to the accused to seek to interview him when he wanted to be interviewed and in the presence of his brother. If this meant that an application for an extension of his detention had to be made, so be it. If it meant that he had to be released and asked to return to the police station the following day, so be it. These were not eventualities which justified the police overriding the will of the accused so as to ensure that the interview took place that evening.
Taking into account all of these matters, the EROI is inadmissible. In the absence of any other evidence, the charge must be dismissed.
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