Arthurs v The State of Western Australia
[2007] WASC 209
•31 AUGUST 2007
ARTHURS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 209
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 209 | |
| Case No: | INS:166/2006 | 28 AUGUST 2007 | |
| Coram: | BLAXELL J | 31/08/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Ruling that bulk of admissions are inadmissible in evidence | ||
| B | |||
| PDF Version |
| Parties: | DANTE WYNDHAM ARTHURS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Evidence Admissions to police Whether admissions made voluntarily or as a result of persistent importunity, insistence or pressure |
Legislation: | Nil |
Case References: | Collins v The Queen (1980) 31 ALR 257 McDermott v The Queen (1948) 76 CLR 501 R v Bodsworth [1968] 2 NSWR 132 R v Oickle [2000] 2 SCR 3 Tofilau v The Queen [2007] HCA 39 Wendo v The Queen (1963) 109 CLR 559 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Evidence - Admissions to police - Whether admissions made voluntarily or as a result of persistent importunity, insistence or pressure
Legislation:
Nil
Result:
Ruling that bulk of admissions are inadmissible in evidence
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr R Richardson
Respondent : Mr S Vandongen
Solicitors:
Applicant : Legal Aid WA
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Collins v The Queen (1980) 31 ALR 257
McDermott v The Queen (1948) 76 CLR 501
R v Bodsworth [1968] 2 NSWR 132
R v Oickle [2000] 2 SCR 3
Tofilau v The Queen [2007] HCA 39
Wendo v The Queen (1963) 109 CLR 559
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1 BLAXELL J: The applicant is to stand trial on 8 October 2007 on an indictment which includes a charge that on 26 June 2006 at Canning Vale, he wilfully murdered Sofia Rodriguez-Urrutia Rey-Baltar Shu.
2 It is not in issue that the victim of this alleged offence was an 8-year-old girl who on the afternoon of 26 June 2006 was at the Livingstone Shopping Centre with her brother and other members of her family. While there, Sofia needed to visit the toilet and she entered a disabled toilet cubicle. When Sophia had not re-emerged after a considerable time, her brother went into the cubicle and discovered that she was dead.
3 The police were immediately informed, and they commenced a forensic examination of the area in and around the disabled toilet cubicle. During the early hours of the following morning, a forensic expert obtained a fingerprint from a wash basin in the cubicle which matched that of applicant.
4 Consequently, detectives executed a search warrant at the applicant's home at approximately 4.35 am on 27 June 2006. The applicant was then taken to the Cannington Police Station where he participated in a three hour interview with detectives which was recorded on video.
5 I am required to rule on the admissibility of this video record of interview at trial. In this regard, the applicant contends that the record of interview:
was involuntary in its entirety or, alternatively, partially, on the basis that the accused's will was overborne by his treatment during the search video and at his home and the police station prior to the commencement of the interview, by way of inducements, threats, misrepresentations and insistent pressure to answer questions in the face of voiced opposition by him to that process. The accused also relies on the cumulative effect of these matters during the course of the interview.
6 Importantly, the applicant does not claim that the video record of interview should be excluded on the additional ground that it was unfairly obtained. Although I have a discretion to exclude admissions when they are obtained in circumstances that would make it unfair for them to be used against an accused, the applicant does not ask me to exercise this discretion, but simply asserts that his statements in course of the interview were involuntary.
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The principles to be applied
7 It is a fundamental principle of our criminal justice system that a self-incriminatory statement or admission by an accused will not be received in evidence unless it is made voluntarily. An admission is not 'voluntary' simply because it is volunteered by an accused, because there is always the possibility of that happening as a result of a threat, inducement, or some other form of undue pressure. An admission is only voluntary when it is made in the exercise of the free choice to speak or remain silent. In this regard:
If he [the accused] 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. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement was made … An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority.
[Dixon J in McDermott v The Queen (1948) 76 CLR 501, 511]
8 In the decision delivered yesterday by the High Court in Tofilau v The Queen [2007] HCA 39 Gummow and Hayne JJ (at [55]) state that the reasons of Dixon J in McDermott 'have rightly been taken to be the authoritative statement of the common law of Australia on the admissibility of confessions'. The judgment in Tofilau extensively reviews the law relating to admissibility of confessions and also develops the doctrine of 'basal involuntariness'. Callinan, Heydon and Crennan JJ (at [327]) state that this doctrine is partly based upon the following passage from Dixon J's reasons in McDermott (at 512):
It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will.
9 In my opinion, Tofilau's development of the law as to admissibility of confessions does not impact in any way upon previously understood principles which govern the outcome of the present case. As will be seen from the reasons which follow, the critical issue in the present matter is whether the applicant's will was overborne by 'persistent importunity, or sustained or undue insistence or pressure'.
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10 When determining whether or not an admission was voluntary, the quality of the conduct that is said to have resulted in the will of the accused being overborne is irrelevant. As was stated by Brennan J in Collins v The Queen (1980) 31 ALR 257 at 307:
The ultimate question is whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will. A finding that there has been an attempt to overbear by persons in authority is neither determinative of, nor an essential prerequisite to, a finding that the will of the person making the confession was overborne. …
So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. 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, focusing 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.
11 After making this careful assessment, the court is required to determine in a commonsense way, whether or not the accused's will was in fact overborne. In this regard, Brennan J (at 308 - 309) in Collins emphasised:
[T]he importance of ascertaining all of the facts which may bear upon the confessionalist's state of mind, and the importance of a practical common sense assessment of the effect of those facts upon his mind. but the issue of voluntariness is not to be regarded as a mere problem of semantics: it is not resolved by a simple inquiry as to the meaning of the words used by a police officer (or other person in authority). An assessment must be made of the effect of the verbal and non-verbal conduct of the police officer (or other person in authority) upon the will of the confessionalist in the circumstances in which the confession is made. If the evidence does not show that the confession was made in the exercise of a free choice by the confessionalist to make it, the confession is inadmissible. As the means by which a confessionalist's will can be overborne are various, one cannot postulate in advance of particular cases the extrinsic circumstances which will necessarily result in the exclusion of a confession as involuntary, or
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- which will inevitably prove insufficient to found a challenge to its voluntary character. When all the facts are ascertained then 'in a common sense way' the court must find whether or not the will of the particular confessionalist was overborne.
12 In the particular circumstances of the present case, it is relevant to note that the factors identified in McDermott as capable of rendering an admission involuntary include persistent importunity (viz persistent and pressing solicitation of the admission), sustained or undue insistence or pressure, or an inducement. As to the last of these factors, it is easy to understand that an offer by a person in authority to an accused of some form of beneficial treatment in return for cooperation constitutes an inducement.
13 However, not all actions or statements by persons in authority that impact upon the will of an accused are easily characterised as inducements. For example, in the present case (as noted below), the applicant was repeatedly told that 'her parents need to know what happened' and 'your parents need to know about it'. The applicant was also told to 'be a man' and to 'get it off your chest'. The applicant contends that these and other moral exhortations of a similar kind were inducements which contributed to him making statements which were involuntary.
14 In response to this contention, the State has referred me to the authority of R v Oickle [2000] 2 SCR 3. There, the Supreme Court of Canada upheld the general rule that 'confessions which result from spiritual exhortations or appeals to conscience and morality, are admissible in evidence, whether urged by a person in authority or by someone else' and went on to state that:
In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.
15 It is important to note that the reference in Oickle to 'raising a reasonable doubt' can have no application in Western Australia. In this jurisdiction, the prosecution bears the onus of establishing on the balance of probabilities that a disputed confession was made voluntarily (Wendo v The Queen (1963) 109 CLR 559, 572 - 573).
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16 The decision in Oickle, is consistent with the decision in R v Bodsworth [1968] 2 NSWR 132, 139, where the New South Wales Court of Criminal Appeal held:
In an attempt to apply the rule' (as an inducement) 'for practical purposes of a criminal trial we are disposed to emphasise two tests. The first is to avoid putting ingenious constructions on colourless words so as to detect a hint of improper inducement, as was at one time the case, but rather to construe the words only according to their natural, obvious and commonsense meaning. The second is to apply the rule so as not to exclude confessions unless the inducement is of a temporal character. Merely to urge a person on moral or religious grounds to 'speak out' or 'tell the truth' is not likely to cause him to tell untruths, and it is difficult to see on what principle to be applied in today's detection of crime a statement which follows such exhortation should be excluded.
17 In my view, the moral exhortations relied on by the applicant cannot be inducements because (in terms of McDermott) they did not take the form of 'some fear of prejudice or hope of advantage exercised or held out by the person in authority'. Those statements by the police officers are nevertheless relevant to the issue whether they formed part of any persistent importunity, or sustained or undue insistence or pressure.
The circumstances of the interview in the present case
18 At the material time the applicant was 21 years of age and was employed as a overnight shelf stacker at a supermarket in the Livingstone Shopping Centre. I understand that he repeated Year 11 at secondary school but then completed a TAFE course. His demeanour on the video suggests that he is not sophisticated or highly articulate, and that he is what I would describe as a fairly simple person. In this regard it is significant that when cautioned in the usual way at both the house and at the commencement of the subsequent interview, the applicant professed not to understand the second part of that caution concerning the use that might be made of his recorded statements.
19 When the police arrived at the applicant's home with a search warrant at 4.35 am on 26 June 2006 he was asleep in his bedroom. Upon entering the house the police awoke the applicant, made him sit on the end of his bed, and placed his arms behind his back in handcuffs.
20 While this was happening, the most senior detective present was in the lounge room with the applicant's parents explaining why the police where there. A video camera recorded what then took place between the Detective Senior Sergeant and the parents. After showing them the search
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- warrant, the Detective Senior Sergeant stated that their son would be 'coming with us'.
21 It is significant (in terms of what later occurred in the interview) that the applicant's father then pointed his finger at the Detective Senior Sergeant and demanded that a solicitor be present while his son was interviewed. The Detective Senior Sergeant replied that the applicant would 'be given his rights'. This caused an immediate reaction from the applicant's mother who loudly shouted a number of times to the effect that her son had not been given his rights 'last time'. Having regard to the layout of the house, it is reasonable to assume that the applicant would have heard most if not all of these remarks by his parents.
22 Not long afterwards the Detective Senior Sergeant and the father (accompanied by the operator of the video camera) entered the applicant's bedroom. The applicant was in the company of other detectives and still handcuffed and sitting on the end of his bed. He was asked to identify the clothing that he had been wearing the previous day.
23 When the Detective Senior Sergeant and the video camera operator left the bedroom, the father initially insisted on remaining behind with his son, but was then persuaded to leave. While this was happening, the applicant's mother was outside the bedroom door shouting words to the effect that 'we do not trust you any more'. The video camera did not capture what might have passed between the applicant and his father during this period.
24 At 5.15 am the applicant was driven to the Cannington Police Station where he was placed in an interview room for approximately 20 minutes. Detective Sergeants Rowson and Douglas then entered the interview room and commenced a video recorded interview with the applicant at 5.54 am. That interview continued for approximately three hours until 8.57 am and was recorded on two video tapes. (The first video tape recorded all but the last five minutes of the interview. Because of faulty equipment, that last part of the interview took place in a different room.)
25 Apart from the time when the participants shifted to the other room, there were no breaks in the interview. However, in terms of the demeanour of the applicant, I consider that there were three distinct stages to the interview (which I will now refer to).
26 During the first stage of the interview the applicant was asked questions as to his background and as to his movements on the previous day. His answers although abbreviated, appeared to be reasonably direct
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- responses to what he was asked. Throughout this part of the interview the applicant appeared to be fairly calm and (given the circumstances) relatively relaxed.
27 In his answers to questions the applicant confirmed that he was employed as a shelf stacker at the Livingstone Shopping Centre and that he had been working there between 3.00 am and 8.00 am on 26 June 2006. He had then gone home to bed and had slept until 11.00 am or 12.00 noon. After eating lunch, he had driven to the Carousel Shopping Centre where he did some banking. He then drove to the Livingstone Shopping Centre where he went to the Big W store to look for board games. (This was in effect the first admission that the applicant made in the interview because it placed him near the scene of the crime at around the time that it occurred.)
28 According to the applicant, after he had looked at board games for a while he decided that he could not afford to buy any, and decided to drive home. When he arrived home his mother asked him to buy some grocery items and he then returned to the Carousel Shopping Centre once again. While at Carousel he also filled his car with petrol.
29 The accused was then questioned in greater detail about his movements at the Livingstone Shopping Centre and he was shown a floor plan of the centre. At the request of the detectives he pointed out the toilets on the floor plan, and he was obviously familiar with their location by reason of working in the centre.
30 The applicant was then told that his fingerprint had been found on the wash basin in the disabled toilet and that the wash basin had been cleaned at 3.00 pm the previous day. Having been told that, the applicant was then questioned as follows (ts 21 - 22):
Q. … some time after 3 o'clock that little eight year old girl has been killed in that toilet. What do you have to say about that?
A. I don't have anything to say?
Q. Why?
A. I don't know what to say.
Q. Well how about telling us your version of what happened?
A. How, if I can't remember what happened?
Q. Well you've remembered - - -
(Page 10)
- A. If something's happened and I can't remember it how am I going to tell you what's happened.
Q. Well - well all right tell me this, you've talked to me about what you've done today right through all the events of today but you can't remember what happened at that toilet. No?
A. No.
Q. Can you remember leaving Big W?
A. No.
Q. No? Okay. Do you have any condition that I should know about where your memory lapses? Any medical condition that you have certificates for or have been diagnosed with?
A. Can't think of any.
Q. No? Okay. So there should be no reason why you don't remember.
A. Yes.
Q. That's right isn't it? Okay. So how about you tell me the truth what happened?
A. I don't know.
Q. All right. Well just try. Just - just have a think about what happened.
A. I try to remember something and - -
Q. Okay.
A. - - - the harder I try the harder I - - -
Q. All right. All right. Would you agree with me then that you did something to the little girl in that toilet?
A. Possible. I don't know
Q. Okay all right. Do you remember being - do you remember coming out of that toilet?
A. No.
31 Thereafter there were further questions directed to the possibility that the applicant had gone into the toilets, and his answers were along the lines that he honestly couldn't remember. When asked why he didn't
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- remember his answer was that 'I haven't got a clue why I don't remember' (ts 27).
32 These questions marked the start of the second stage of the interview involving a progressive change in the applicant's demeanour so that he became less responsive to questions and ended up with his head slumped forward into his hands with his face obscured.
33 As the applicant became less and less responsive, the questioning by the detectives became increasingly strident and leading in nature. The detectives not only persisted with repeated questions as to what the applicant could remember but also made statements (sometimes repeatedly) such as:
Her parents and her family need to know what happened.
Her brother saw you run out and leave her in there.
You have a version of events obviously.
You must have already been in this toilet when the girl walked down there alright. Would we agree on that?
- The applicant's response to this last question was 'most likely, yes' (ts 29).
34 Not long afterwards the applicant was asked the question 'did she seem older than she was?' and he responded with a very emphatic 'don't know'. In answer to further questions he also indicated that he did nor recall what the girl looked like and did not know whether she was Asian in appearance. He was asked if he agreed with a particular description of her school uniform and his answer was 'not coming back to me at all' (ts 30).
35 It was at about this point in the interview that the following exchange occurred (ts 31):
A. I am going to say this again, if I've done something wrong then I'd like a lawyer.
Q. Okay. Well did you do something wrong?
A. I don't know.
36 Not long afterwards the applicant said that he had 'just remembered' that he had had an argument with his mother the previous day and that he had 'stormed out of the house and drove off'. This resulted in further questions including the following (ts 31 - 32):
(Page 12)
- Q. … So it's made you very angry and you've taken off to the shops. Yeah? Okay. And you've been angry walking around the shops and you take your anger out on someone. Is that right?
A. Most likely yes.
37 From that point on the interview continued to deteriorate to the extent that the applicant became almost totally unresponsive to the questions that were asked (ts 34 onwards). He was repeatedly asked for his 'version of events' and also told that 'your mum and dad need to know and especially this little girl's parents need to know'; 'her brother saw you coming out'; 'there is no denying you have walked in there with that girl'; and 'You have strangled her to death and you have caused her death. So now its time for you to be a big enough man and tell us what you have done'. On the few occasions that the applicant did respond he essentially said that he did not know what had happened. There was then the following exchange (ts 38):
Q. You do know what happened.
A. I don't care. I' don't - don't want to talk to you anymore until I've spoken to a lawyer.
Q. Well a lawyer's always an option and we can arrange that but at this time in the morning none's going to be available all right.
A. I don't care.
38 For only a short period, the applicant became more responsive when he was asked questions 'about after the event' (from ts 39 onwards). One of the detectives then stated that there was 'only a window of half an hour here where you can't account for' (ts 41). When pressed why he wouldn't talk about this 'window' the applicant responded (ts 42):
I don't remember specifically that window …
I just remember opening the door and washing my hands is all.
39 However, his answers to the subsequent questions on this subject were not very comprehensible, especially when the following exchange occurred (ts 45):
Q. Did you go to the toilet?
A. Think so.
Q. Sorry?
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- A. Possibly.
40 Not long afterwards the interview deteriorated once again into the situation where the applicant was mostly unresponsive to the questions that were put to him. He had his face in his hands nearly all of the time but would occasionally nod or shake his head (sometimes almost imperceptibly) in response to questions. At one point (ts 50) a detective pulled the applicant's right arm away from his face, but it made no difference. An example of the extent to which the interview had deteriorated is revealed by the following series of questions (ts 49 - 50), none of which were answered:
Q. Did you mean to kill her or was it an accident? Dante? Did you kill her because you were angry with mum? Do you hate females? You don't hate females but you're very angry and you happened to get very angry with this little girl didn't you? Hey? Dante, took your anger our on the girl didn't you? Isn't that right? Isn't that right? Hey? You must have been a very young man weren't you? Did you want to get back at mum and you took your anger out on that girl who is now deceased didn't you? Look at me. Hey look at me. Don't - don't go off in to the - you look at me and tell me why you did that and don't say I don't know because I'm sick of hearing that to be quite honest. You do know. So what happened?
41 The applicant was also told that it was 'no use holding your hands to your head mate because its not going to go away and nor are we okay' (ts 52). There was then the following exchange (ts 53 - 54):
Q. … If you need some sort of assistance that can be done for you. We can deal with that. But we need an explanation as why. Why and how?
A. I'm not (indistinct) saying another word.
Q. Why don't you want to say any word - why don't you want to say anything now?
A. Why do you keep asking me the same question over and over again when - - -
Q. That's fine.
A. - - - I'm saying exactly the same thing? So there's no point in me saying anything else.
Q. Well there is.
Q. So you're going to stick by that you can't remember that specific event and period in time?
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- A. Yes.
Q. Why not?
A. Because I can't.
42 It was after this exchange that I consider that the third stage of the interview commenced. The applicant was asked questions about his visit to the Big W store and he responded fairly readily. He also responded freely to questions about washing his hands in the toilet and when asked 'why do you think your shutting down there?' responded, 'because something happened and I don't want to remember it' (ts 63). He also said that 'I try to remember it - it just gets blacker and blacker' (ts 64).
43 In answer to mostly leading questions the applicant then gave a vague version of events which was very speculative in tone as if he was guessing what might have happened. For example, he said that the little girl 'may have walked in on me. Don't know' (ts 65). And further (ts 67):
Q. … And you've pulled her in to the cubicle, yeah? [at which point the applicant nodded] Okay. Locked the door? You obviously did because her brother couldn't get in.
…
A. Probably. Yes.
44 The applicant also stated that the incident 'must have been very short' because the 'blankey bit, doesn't feel that long' (ts 68). When asked if he did what he did because of 'frustration and anger at the argument you had with mum?' his response was 'most likely' (ts 68). There were similar responses to the following questions:
Q. How do you think you would have grabbed her? Its only a small girl.
A. Around the neck. (ts 70)
Q. You would have overpowered her very easily didn't you?
A. Must have done. (ts 70 - 71)
Q. So you've got her continually by the throat have your or not?
A. Yes. (ts 71)
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45 It is unnecessary to outline the detail of the subsequent admissions that were made by the applicant but they were all of the same flavour. Towards the end of his account, there was the following exchange (ts 79):
Q. … when you grabbed her by the throat did she struggle at all or was she trying to fight you off or was - was there any sort of struggle or?
A. Possibly.
Q. What do you mean by possibly?
A. Wouldn't know if she or didn't.
46 It is also relevant to note the following questions and answers at the very end of the interview (ts ?):
Q. … Dante have you got anything else you wanna say about this matter?
A. I'd just like to speak to a lawyer.
…
Q. … Have you made this video of your own free will Dante?
A. Yes.
Whether the video record of interview is admissible in evidence
47 As noted at the beginning of these reasons the applicant does not seek to have the video record of interview excluded on the grounds that his admissions were obtained in circumstances which make it unfair for them to be used in evidence against him. In this regard, I was specifically informed by his counsel that 'there will be no submission on behalf of the applicant that your Honour should entertain the fairness discretion' (ts 48).
48 Accordingly, I am not in any way concerned with the question of whether or not the applicant's admissions were unfairly obtained. Circumstances such as the applicant's (implicit) requests that he have a lawyer present are only relevant to the extent that they might show that his will was overborne. Therefore I am not being asked to determine whether it was unfair to the applicant for the interview to continue once those requests were made.
49 I am also not being asked to determine the reliability of the applicant's admissions, or whether or not they might have any probative value. Irrespective of what weight might be put on those admissions if
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- they were to be received into evidence, the only issue for me to determine is whether or not they were voluntary.
50 The burden is on the State to establish on the balance of probabilities that the applicant's admissions were made voluntarily. In deciding whether the prosecution has discharged that burden, I must determine all of the circumstances in which the admissions were made, and carefully assess in a 'practical common sense' way the effect that those circumstances had on the applicant's mind at the time that each admission was made.
51 The circumstances relied upon as relevant to that assessment include the early morning events at the applicant's home, his lack of understanding of the caution, his requests for a lawyer, the moral exhortations by the detectives, and in general the circumstances of questioning said to amount to persistent and undue pressure.
52 In my view, the circumstances that are most critical to the question of whether or not the applicant's mind was overborne, are those that occurred during what I have termed the second stage of the interview. The limited exacts from the transcript that I have quoted do not convey the full picture of all that occurred between the interviewing detectives and the applicant. In this regard, the demeanour of the applicant, and what might be termed the 'atmospherics' of the interview, are very important factors that can only be appreciated by viewing the video.
53 In essence, the applicant by that stage of the interview had described his movements up to leaving the Big W store and after driving away in his car. The detectives were understandably anxious to ascertain what had occurred during the period in between, but the applicant's answers were to the effect that he had a blank spot in his memory.
54 The detectives did not accept this assertion by the applicant as being truthful and they repeatedly told him so. As well as the moral exhortations previously referred to, they repeatedly told the applicant what he had done, and urged him to 'be a man' and to own up to it.
55 The questioning along these lines was very repetitive, very leading and persistent. The applicant's reaction to this was to cease answering questions and to seemingly retreat within himself. In this regard there are pages of transcript which consist almost entirely of questions and in which the answers occupy only one or two lines.
(Page 17)
56 In my view, the questioning at this stage of the interview created conditions that clearly amounted to 'persistent importunity, or sustained or undue insistence or pressure' (as per McDermott). It is also my view that the applicant ultimately appeared to succumb to this pressure and to make admissions which by their very nature suggest that they were not made in the exercise of his free choice to speak or remain silent. For these reasons, I am not satisfied that the admissions in the second and third stages of the interview were made voluntarily.
57 In my opinion, the questioning during the first part of the interview (up until page 26 of the transcript) was reasonably innocuous and can have no bearing on the question of whether or not the admissions made were voluntary. The only serious issues raised by the applicant in respect of that part of the interview are his assertion that he had previously requested that a lawyer be present, and the adequacy of the caution.
58 As to the first issue, the two interviewing detectives have testified that the applicant did not request the presence of a lawyer prior to the commencement of the interview. Nevertheless, it is submitted on behalf of the applicant that I should infer there was such a request, because when he first mentioned a lawyer during the interview (ts 31) he stated:
I am going to say this again if I've done something wrong then I'd like a lawyer. (emphasis added)
59 In my view, an alternative reasonable inference is that the applicant had overheard his parents demanding that a solicitor be present prior to him leaving the house. The two detectives impressed me as being reliable witnesses on this point, and I have no reason to disbelieve them when they say that there was no such prior request.
60 As to the second issue, the caution that was administered at the beginning of the interview was in the usual form, but when the applicant was asked to explain what it meant he said that he did not understand all of it. Detective Sergeant Rowson then went to some lengths (over two pages of transcript) to explain the caution, and I am satisfied that at the end of that explanation the applicant had a clear understanding of it.
61 In any event, I am also of the view that the issues raised as to the requests for a lawyer, and the adequacy of the caution, are matters which go to the exercise of the fairness discretion rather than to the question of whether or not the admissions were voluntary. (In this regard note Tofilau [353])
(Page 18)
62 Furthermore, it seems to me that the applicant at all material times was willing to answer questions concerning his movements on 26 June 2006 up until leaving the Big W store and after returning to his car to drive home. It was only in relation to the period in between that he said he had no memory and showed a reluctance to answer questions. For these reasons, I am satisfied to the required standard that the admissions in the first stage of the interview were made voluntarily.
63 I accordingly rule that the video record of interview up until page 26 of the transcript should be received in evidence at trial, but that the balance of the interview is inadmissible.
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