Best v The State of Western Australia - [2020] WASC 273

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BEST -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 273
CORAM:   MCGRATH J
HEARD:   19 - 20 MAY 2020
DELIVERED          :   24 JULY 2020
FILE NO/S:   INS 72 of 2019
BETWEEN:   DAVID MORRIS BEST
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law – Evidence – Admissibility of record of interviews – Whether arrested suspect afforded reasonable opportunity to communicate with a legal practitioner – Effect of withdrawal from antidepressant medication – Discretion to exclude on grounds of voluntariness, reliability and unfairness – Turns on own facts

Legislation:

Criminal Code (WA), s 279
Criminal Investigation Act 2006 (WA), s 138, s 154, s 155

Result:

Interviews admissible

Category: B

Representation:

Counsel:

Applicant	:	Ms E P Roche
Respondent	:	Mr P M Usher

Solicitors:

Applicant	:	Lisa Roche Barrister & Solicitor
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Collins v The Queen (1980) 31 ALR 257
McDermott v The King (1948) 76 CLR 501
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
The State of Western Australia v Silich [2011] WASCA 135
Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10
Wendo v The Queen (1963) 109 CLR 559
Wright v The State of Western Australia [2010] WASCA 1999

MCGRATH J:

Mr Best has been indicted on one count which pleads that on 13 February 2019 at Mandurah he murdered Roy James Erwin contrary to s 279 of the Criminal Code.[1] Mr Best has pleaded not guilty to that count and will proceed to trial before a judge and jury.
[1] Indictment No. 72 of 2019.
By application dated 30 January 2020, Mr Best contends that four electronic records of interview conducted by the police on 17 February 2019, 20 February 2019 and 21 February 2019 respectively are inadmissible in their entirety on the basis that he was not afforded a reasonable opportunity to communicate with a legal practitioner and further on the basis of voluntariness and unfairness.[2] Mr Best's application is opposed by the State.
[2] Application dated 30 January 2020.
For the following reasons I have determined that the four interviews are admissible.
In these reasons for decision, I will consider the following:
1.The factual background.
2.The electronic records of interview.
3.The relevant legal principles.
4.An assessment of the merits of the application.

Factual background – the State's case

The State's case is that Mr Best stabbed the deceased, Mr Erwin, once in the chest with a knife while he was sleeping, which caused his death.[3] The State contends that Mr Best did so with the intention to kill the deceased or, in the alternative, with the intention to inflict bodily injury of such a nature as to endanger, or be likely to endanger, his life.
[3] State's Outline of Submissions dated 17 February 2020, 2.
In a statement of material facts the State has summarised the prosecution case as follows:[4]
[4] Statement of Material Facts dated 22 March 2019, 2.
The accused in this matter is 56 years of age and of slim build, the deceased is 23 years old and similarly built.
The deceased is of no fixed place of abode and has been trespassing at a vacant property at 120 Cooper Street, Mandurah where he has been sleeping in an unsecured shed.
The accused resides in a property at 6B Gray Road, Mandurah which backs on to 120 Cooper Street. The two properties are divided by a 'Super 6' type corrugated fence but there is a gap in the fence big enough for a person to walk through. The accused often sits in his back yard smoking and leaves the ends of his smoked cigarettes (known as 'bumpers') lying around the back yard.
Around 6.00 pm on Tuesday 12 February 2019, the accused attended his next door neighbour's home at 6A Gray Road and advised him that the deceased had been entering his rear yard from 120 Cooper Street and taking used cigarette ends. The accused asked his neighbour to accompany him as he confronted the victim about it. At the time, the accused was agitated and upset by the situation. The accused was in possession of a large knife in a scabbard which he was holding in his right hand on the inner side of his arm as if trying to conceal it.
The accused and his neighbour walked through the gap in the fence to the shed at 120 Cooper Street, where they confronted the deceased and told him not to enter the rear yard of 6B Gray Road, which the deceased agreed that he wouldn't. The accused did not brandish or threaten the deceased with the knife at that point and the situation seemed to end amicably.
On Wednesday 13 February 2019, during the evening, the accused was at his home and began drinking beer. Once it was dark, he again walked through the gap in the fence between his back yard and 120 Cooper Street. He was alone on this occasion and was in possession of the knife.
The accused entered the unsecured shed at 120 Cooper Street and found the deceased sleeping on a mattress within. Without waking the deceased, the accused knelt down beside him and stabbed him straight in the chest with the knife. The accused withdrew the knife and returned to his house with it.
About 11.23 am on Friday 15 February 2019, WA Police received a telephone call from a real estate agent advising that upon her attendance at 120 Cooper Street, Mandurah that day, she had located a male apparently sleeping on a mattress in the rear shed.
Upon Police attendance, they found the male was in fact not asleep but was deceased. An initial examination of the body revealed a large stab wound to the male's chest. A protected forensic area was declared and Homicide Squad took carriage of the investigation.
Inquiries led to the arrest of the accused at 5.40 pm on Sunday 17 February 2019 at Kojonup.

The electronic records of interview

The police conducted four electronic records of interview with Mr Best following his arrest:
1.The first record of interview was conducted between 7.28 pm and 8.55 pm on 17 February 2019 at Kojonup Police Station.[5]
2.The second record of interview was conducted between 1.39 pm and 1.48 pm on 20 February 2019 at Mount Trio, Stirling Range National Park (Stirling Ranges).[6]
3.The third record of interview was conducted between 4.05 pm and 4.12 pm on 20 February 2019 at Albany Police Station.[7]
4.The fourth record of interview was conducted between 9.05 am and 9.11 am on 21 February 2019 at Albany Regional Prison.[8]
[5] Exhibit 7, first record of interview.
[6] Exhibit 8, second record of interview.
[7] Exhibit 9, third record of interview.
[8] Exhibit 11, fourth record of interview.
Mr Best contends that all four records of interview are inadmissible 'given voluntariness and fairness considerations.'[9] In particular, Mr Best contends that he was not afforded a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner pursuant to s 138 of the Criminal Investigation Act 2006 (WA).

Material received at hearing of application

[9] Application dated 30 January 2020; Defence's Outline of Submissions dated 30 January 2020, 1.

At the hearing of the application the State called evidence from eight witnesses being Professor David Joyce,[10] Sergeant Allan Mallard,[11] First Class Constable Rory Lawty,[12] Detective Sergeant Walter Martin,[13] Detective First Class Constable Christopher Duke,[14] Detective Sergeant Roy Begg,[15] Detective Senior Constable John Dorrington,[16] and Senior Constable Jamie Bone.[17] Mr Best did not adduce evidence at the hearing of the application.
[10] ts 11 ‑ 33.
[11] ts 34 ‑ 39.
[12] ts 39 ‑ 45.
[13] ts 45 ‑ 90.
[14] ts 91 ‑ 97.
[15] ts 97 ‑ 115.
[16] ts 115 ‑ 125.
[17] ts 126 ‑ 128.

Relevant legal principles

Criminal Investigation Act 2006

The rights of an arrested suspect are outlined in the Criminal Investigation Act. Sections 137 and 138 of the Criminal Investigation Act provide:
137.Arrested people, rights of
(1)In this section —
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)This section applies to a person who has been arrested by an officer, no matter under what authority or written law.
(3)The arrested person is entitled —
(a)to any necessary medical treatment; and
(b)to a reasonable degree of privacy from the mass media; and
(c)to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
138.Arrested suspects, rights of
(1)In this section —
arrested suspect means a person who is under arrest having been arrested —
(a)under section 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence; or
(b)under the Criminal Investigation (Extra territorial Offences) Act 1987;
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)In addition to the rights in section 137 an arrested suspect is entitled —
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect —
(a)inform the suspect of his or her rights under section 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).
(4)An officer may refuse an arrested suspect his or her right to communicate or to attempt to communicate with a person if the officer reasonably suspects that the communication would result in —
(a)an accomplice taking steps to avoid being charged; or
(b)evidence being concealed, disturbed or fabricated; or
(c)a person's safety being endangered.
Sections 154 and 155 of the Criminal Investigation Act provide:
154.Evidence obtained improperly
…
(2)If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act —
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless —
(c)the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
155.Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account —
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence —
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f) any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
Accordingly, an arrested suspect must be afforded a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner. The police officer must not by any act or omission prevent a suspect exercising the right of entitlement to communicate with a legal practitioner. Upon the police officer informing the suspect of the right to communicate with a legal representative the onus is effectively cast on the suspect as to whether he or she wishes to exercise that right.[18] It is for the suspect to determine whether or not he or she wishes to exercise the right to communicate with a legal practitioner.[19]
[18] Wright v The State of Western Australia [2010] WASCA 199 [38].
[19] Wright v The State of Western Australia [2010] WASCA 199 [29] ‑ [30].
An accused's request to communicate with a legal practitioner is relevant to determining voluntariness and fairness.
If an arrested suspect is not afforded a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner then s 155 of the Criminal Investigation Act applies. Section 155(2) provides that the court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. Section 155(3) specifies various matters that the court must take into account in making a decision under subsection (2).

Voluntariness

Section 155 of the Criminal Investigation Act does not impact upon the common law determination of the issue of whether a confession or admission was made voluntarily. In determining the admissibility of a confession or admission under s 155(2), the court must consider any objection that the confession or admission was involuntary. Therefore, a concurrent determination of the issue of voluntariness must be made. If a determination was made that the confession or admission was involuntary, the undesirability of admitting the evidence would necessarily outweigh the desirability of admitting the evidence.
For admissions to be admissible in evidence they must be made voluntarily.[20] To be voluntary the statement must be made in the exercise of free choice.
[20] McDermott v The King (1948) 76 CLR 501, 511 (Dixon J).
The prosecution bears the onus of establishing on the balance of probabilities that a confession has been made voluntarily.[21] A confession will not be voluntary unless the evidence demonstrates that, on the balance of probabilities, the accused was capable of appreciating that he had a free choice as to whether to speak or remain silent and was capable of exercising sufficient volition to give effect to what he knew was this right.[22]
[21] Wendo v The Queen (1963) 109 CLR 559, 572 ‑ 573.
[22] The State of Western Australia v Silich [2011] WASCA 135 [155].
The word 'voluntary' does not mean volunteered. Rather, it means made in the exercise of a free choice to speak or to be silent.[23] The issue of voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused.[24]
[23] R v Lee (1950) 82 CLR 133, 149.
[24] Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J).
Any statement made as a result of duress, intimidation, sustained insistence or pressure is not voluntary. Further, a statement made as a result of an inducement held out by a person in authority is not made voluntarily.
In circumstances where an accused's mind was affected by intoxication with alcohol or drugs, the issue of voluntariness will depend on whether or not the accused understood what he was doing.[25] A confession made by an intoxicated accused is admissible unless 'the degree of intoxication is so great as to deprive him of understanding what he was confessing.'[26]
[25] Wright v The State of Western Australia [2010] WASCA 199 [113].
[26] Sinclair v The King (1946) 73 CLR 316, 336 (Dixon J).
The basis for the rule excluding admissions which are not voluntary is a combination of the potential unreliability of a confessional statement that is involuntary and the common law privilege against self-incrimination.[27]

Discretionary exclusion

[27] The State of Western Australia v Silich [2011] WASCA 135 [152].

In circumstances where an interview is found to be voluntary, it is prima facie admissible. In circumstances where there is no breach of the Criminal Investigation Act that renders the evidence inadmissible, the onus is then on the accused to establish on the balance of probabilities that there is a substantial reason why the confession should be excluded in the exercise of the court's discretion under common law on the basis of unreliability, public policy considerations or unfairness.
There are three possible bases for discretionary exclusions. They are that it is unfair to the accused to admit the admission, that public policy considerations make the admission unacceptable, or that the prejudicial effect of the evidence outweighs its probative value.[28]
[28] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 189.
The unfairness discretion is not concerned with whether the police acted fairly or unfairly. The concern is whether it would be unfair to the accused to use his confession against him.[29] Unreliability is an important aspect of the discretion to exclude evidence on the ground of unfairness.[30] Further, there may be concerns that the confession would not have been made at all if the interview had been conducted properly.[31]
[29] R v Lee (1950) 82 CLR 133, 154; Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 16.
[30] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 189.
[31] Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 20; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 195.
There are many factors that may be relevant to whether an interview was fair. Those factors include whether the accused conducted the interview in circumstances where he was fatigued, had inadequate breaks or sustenance, or was not able to understand and communicate properly. The inability to communicate may embrace a number of reasons including language issues or the existence of a medical condition. In addition, a further factor may be whether the police persisted with questioning after a suspect had indicated a wish not to answer further questions.[32]
[32] R v Ireland (1970) 126 CLR 321.
Given the overlapping nature of voluntariness, the unfairness discretion and the policy discretion, it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues.[33]
[33] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 196; Kelly v The State of Western Australia [2017] WASCA 221 [35]-[48].

Assessment of the merits of the application

The first record of interview

Background to first record of interview

At 5.38 pm on Sunday 17 February 2019 at Kojonup, Officers Lawty and Mallard arrested Mr Best. At the time of his arrest, Mr Best was given the caution advising him of his rights as an arrested person.[34] That caution included advising Mr Best that he had the right to communicate with a lawyer or legal representative. Upon being cautioned by the police officers, Mr Best stated in reply that he understood.[35] Mr Best was then placed in the police vehicle. At that time, Officer Lawty repeated the caution and the rights including the right to communicate with a lawyer. Mr Best in response stated that he understood.[36] Subsequently, Mr Best informed Officer Mallard that he had been advised of his rights.[37]
[34] ts 41 ‑ 42 (Officer Lawty).
[35] ts 41 (Officer Lawty).
[36] ts 42 (Officer Lawty); ts 35 ‑ 36 (Officer Mallard).
[37] ts 36 (Officer Mallard).
At the time of his arrest Mr Best stated that he had not taken his antidepressant medication nor eaten 'for a few days'.[38]
[38] ts 42, 44 (Officer Lawty).
Upon Detectives Martin and Duke arriving in Kojonup Mr Best was once again advised of his rights, including the right to communicate with a legal practitioner.[39]
[39] ts 46 (Officer Martin); ts 92 (Officer Duke).
At 6.40 pm on 17 February 2019, Mr Best was offered a meal but refused.[40]
[40] Exhibit 13, Custody Handover Summary, 7.
Mr Best was then taken to the Kojonup Police Station. Prior to the commencement of the record of interview the police officers offered Mr Best food, which Mr Best declined.[41]
[41] ts 50 (Officer Martin).
Between 7.28 pm and 8.55 pm on 17 February 2019, Detectives Martin and Duke conducted an electronically recorded interview with Mr Best. I received as an exhibit both the DVD and transcript of the first record of interview.[42]
[42] Exhibit 7, first record of interview.
During the first record of interview Mr Best made numerous admissions and confessed that he killed the deceased by stabbing the deceased in the chest with a knife.[43] Consequently, the first record of interview is highly probative.
[43] Exhibit 7, first record of interview, 9, 11, 37, 39.
At the conclusion of the first record of interview, the police officers once again asked Mr Best whether he required any food but 'he was adamant that he wouldn't have food.'[44]

Basis of exclusion of first record of interview

[44] ts 50 (Officer Martin).

Mr Best appears to rely upon the following contentions in support of the application that the first record of interview should be excluded:
1.The police failed to provide Mr Best with a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner. Therefore, the police officers breached the requirements of s 138 of the Criminal Investigation Act and the record of interview should be excluded. The court should not exercise the discretion under s 155 of the Criminal Investigation Act and admit the first record of interview. Further, the failure to provide a reasonable opportunity to communicate with a legal practitioner supports a finding that the first record of interview should therefore be excluded on the basis of voluntariness.
2.Mr Best had not taken his antidepressant medications for three days prior to the first interview, which caused him to be confused at the time the interview took place. Therefore, the first record of interview should be excluded on the basis of voluntariness and in the exercise of the unfairness discretion and the public policy discretion.

Reasonable opportunity to communicate with a legal practitioner

At the commencement of the first record of interview the officers cautioned Mr Best and advised him of his rights.[45] The officers did so comprehensively and without error. Mr Best was informed that he had the right to speak to a lawyer and Mr Best stated that he understood that right.[46] Mr Best was asked to explain his understanding of his rights to which he provided an answer that was characterised by clarity and understanding.[47] Mr Best was informed that the right to legal advice 'stays with you the entire time' and that Mr Best may exercise that right by informing the officers at any time.[48]
[45] Exhibit 7, first record of interview, 7 ‑ 9.
[46] Exhibit 7, first record of interview, 7 ‑ 8.
[47] Exhibit 7, first record of interview, 8 ‑ 9.
[48] Exhibit 7, first record of interview, 7.
During the interview the officers asked Mr Best properly structured direct questions. Mr Best engaged with the officers and provided direct answers to the questions. At no time during the interview did Mr Best express any inability to understand the questions nor any difficulty whatsoever in providing answers.
At the conclusion of the interview the officers asked Mr Best whether the interview was conducted voluntarily without inducement to which Mr Best stated 'yes I talked on my own free will today.'[49] Further, Mr Best was asked to confirm that he was informed of his right to speak to a lawyer but that he had declined to exercise that right, to which Mr Best stated 'of course, I understood that' and that he was content to speak to the police without legal advice.[50]
[49] Exhibit 7, first record of interview, 63.
[50] Exhibit 7, first record of interview, 65.
I find that Mr Best was afforded a reasonable opportunity to communicate with a legal practitioner. The police informed Mr Best of his rights at the time of his arrest. At the commencement of the interview Mr Best was informed that he had the right to communicate with a legal practitioner. The officers specifically asked Mr Best whether he wished to obtain legal representation. Mr Best declined that offer. Further, Officer Martin stated that at the conclusion of the interview, he further informed Mr Best concerning the procedures then to be followed including bail and obtaining a lawyer.[51]
[51] ts 86 (Officer Martin).
Officer Martin gave evidence that at no time did Mr Best request to communicate with a legal practitioner.[52]
[52] ts 87 (Officer Martin).
Counsel for Mr Best submitted that it was necessary for the police officers to provide contact details of legal practitioners such as the Legal Aid Commission.[53] It was not necessary for the police officers to do so. Mr Best was informed of, and understood, his right to communicate with a legal practitioner but expressly declined to communicate with a legal practitioner. In such circumstances it is not incumbent on a police officer to ignore the wishes of the accused and continue to provide contact details of legal practitioners. The police did not breach the requirements of s 138(2)(c) of the Criminal Investigation Act.

Failure to take antidepressant medication and confusion

[53] Defence's Outline of Submissions dated 30 January 2020 [5].

I now turn to the contention that the interview was not voluntary for the reason that Mr Best had not taken his antidepressant medication. The issue is whether Mr Best, when making utterances in his record of interview, given that he was not taking his antidepressant medication, was capable of:
(a)appreciating that he had a choice to speak or remain silent and was capable of exercising sufficient volition to give effect to what he knew was right; and
(b)understanding what was being said to him and significantly, what he was uttering and hence admitting.
At the commencement of the record of interview, the police asked Mr Best whether he was using any drugs or medication:[54]
[54] Exhibit 7, first record of interview, 3 ‑ 5.
DET SGT MAHON: Okay. Um, just want to ask you, David, if you've, um, had any drugs or - or any drugs - have you had any drugs today at all?
BEST: No, no, I don't do drugs.
DET SGT MAHON: Don't do any drugs, okay. Have you had any alcohol today at all?
BEST: No, no [indistinct]
DET SGT MAHON: Okay. When was the last time you had any alcohol?
BEST: Uh, would have been around - day - Wednesday.
DET SGT MAHON: Wednesday? Okay.
BEST: Can I?
DET SGT MAHON: Yeah, absolutely, yes. So - - -
BEST: 'Cause, look, uh, I don't think I had any - no, Wednesday.
DET SGT MAHON: Wednesday, so you were [indistinct] - - -
BEST: That's why I didn't - that's why - yeah, it - it was
Wednesday, 'cause I didn't go to work Thursday.
DET SGT MAHON: Okay. So, you're - you're feeling - you're - there's nothing affecting the way you're thinking at the moment?
BEST: No.
DET SGT MAHON: No, as far as any drugs - - -
BEST: No alcohol.
DET SGT MAHON: - - - or alcohol? No.
BEST: No.
DET SGT MAHON: Okay. And, um, are you taking any medications that are on - - -
BEST: I take two medications.
DET SGT MAHON: What medications are they?
BEST: Um, one's an antidepressant.
DET SGT MAHON: Yeah?
BEST: Um, uh, called [indistinct]. Another one is, um, um, basically just a tablet to help me get to sleep and stay asleep. I don't - can't remember - [indistinct] something like that, but I can't - I - I think it's [indistinct], they keep changing it.
DET SGT MAHON: And how, um, how often do you take the - - -
BEST: One.
DET SGT MAHON: - - - antidepressant?
BEST: Antidepressants daily, one in the morning, and the, um, [indistinct] is one at night.
DET SGT MAHON: Okay. And - and did - did you take your antidepressant tablet today?
BEST: No.
DET SGT MAHON: Okay. And, um, how many - how long since you haven't had that tablet?
BEST: Uh, three days.
DET SGT MAHON: Okay. And how long have you been on that tablet for?
BEST: Uh, two years.
DET SGT MAHON: Okay. And when you don't take that, how does that make you feel?
BEST: Um, the first day it's all right, but after that I start to get, like, a - a headache, constant headache, and I - no, I - I don't want to say 'confused' 'cause that would upset this, but it's just fuzzy, but not confused.
DET SGT MAHON: Okay. 'Cause I - 'cause I, um, with this interview it's really important that you're not confused and so -
BEST: No, I know.
DET SGT MAHON: - you're - I don't wanna [indistinct]
BEST: It's not 'confused', it's just - no, not, that's a bad word. It's just it's a - hard to describe, basically just get a headache.
DET SGT MAHON: Just get - have you got a headache at the moment?
BEST: Yes.
DET SGT MAHON: Okay.
BEST: Um, but that doesn't affect me talking.
DET SGT MAHON: Okay, so you're understanding everything - - -
BEST: Yes.
DET SGT MAHON: - - - that I'm saying today?
BEST: Yes.
DET SGT MAHON: Okay. Um, if - if at any stage in the interview, um. I say anything that you don't understand, though, or you want clarified, please just ask me, okay? And the same with Chris, if he asks you anything, just ask him or us to clarify that, and - and - yeah, 'cause we want to make sure that you understand what we're saying, okay. We don't want, uh, any confusion, 'cause it's a - it's a - it's a - um, it's obviously a - a serious matter, so we want you to be able to [indistinct]
BEST: I understand.
DET SGT MAHON: Okay, you understand?
BEST: Yeah.
The officers further informed Mr Best that if he was 'not feeling well … like that headache thing' and wished for medical treatment, then that would be arranged.[55] To that proposition, Mr Best answered that he understood.
[55] Exhibit 7, first record of interview, 7.
Mr Best was advised that if he did not wish to answer any question then he did not have to, nor did he have to speak to the officers, to which Mr Best answered 'I understand.'[56]

Professor Joyce

[56] Exhibit 7, first record of interview, 8 ‑ 9.

Professor Joyce, a medical doctor specialising in clinical pharmacology and toxicology,[57] produced a report and gave evidence at the hearing.[58] In preparing the report Professor Joyce received a toxicology report in respect of the accused dated 21 March 2019.[59] Further, Professor Joyce was provided with the repeat prescriptions for medication for Mr Best, which state that Mr Best takes the drugs mirtazapine and venlafaxine.[60]
[57] Exhibit 1, CV of Professor Joyce.
[58] Exhibit 2, Report of Professor Joyce dated 16 February 2020.
[59] Exhibit 3, Toxicology report for Mr Best.
[60] Exhibit 4, Repeat prescriptions for medication for Mr Best.
Professor Joyce was provided with the PBS Patient Summary which confirms the dose sizes dispensed for Mr Best in the months leading up to February 2019. Professor Joyce stated that the summary confirmed that there were 28 ‑ 30 days' supply of each drug approximately monthly which implies that Mr Best had a supply for continuous treatment.[61]
[61] Exhibit 5, PBS Patient Summary for Mr Best dated 21 February 2019; Exhibit 2, Report of Professor Joyce, 3.
Professor Joyce stated that mirtazapine and venlafaxine are both antidepressants, with application also in some psychiatric conditions. Professor Joyce stated that the amount prescribed to Mr Best was at the lower end of the prescribing range for mirtazapine and in the mid prescribing range for venlafaxine.[62] The two drugs work by different mechanisms so there may be a therapeutic benefit in prescribing them together for the reason that mirtazapine is mildly sedating so is taken at night, and venlafaxine can be mildly stimulating so is therefore used in the morning.[63]
[62] Exhibit 2, Report of Professor Joyce, 3.
[63] Exhibit 2, Report of Professor Joyce, 3.
Professor Joyce gave evidence concerning the effects of discontinuing the two antidepressant drugs. Professor Joyce said the cessation of antidepressant medications may allow the depression to re‑emerge but a time of three to five days is too short for a material loss of therapeutic effects.[64]
[64] Exhibit 2, Report of Professor Joyce, 4.
Professor Joyce said that most antidepressant drugs are affected by 'a discontinuation effect'.[65] The term discontinuation effect refers to changes in mood and wellbeing that are due to stopping the drug not just the re‑emergence of the psychiatric symptomatology. A discontinuation effect is more commonly recognised after stopping venlafaxine than after ceasing mirtazapine. Discontinuation effects usually run their course before there is any change in psychiatric disorder. Professor Joyce said that the period of three to five days from the last dose is credible for the appearance of discontinuation effects. However there is no good research data on how severity changes during this time, rather it may only be stated the possibility exists throughout this period.[66]
[65] Exhibit 2, Report of Professor Joyce, 4.
[66] Exhibit 2, Report of Professor Joyce, 4.
Professor Joyce gave evidence that discontinuation should not be understood as withdrawal symptoms. Professor Joyce said the symptomatology that arises from suddenly stopping mirtazapine is in his opinion sufficiently described in the Avanza SolTab product information as follows:[67]
Avanza SolTab is not addictive. Post-marketing experience shows that abrupt termination of treatment after long term administration may sometimes result in withdrawal symptoms. The majority of withdrawal reactions are mild and self limiting. Among the various reported withdrawal symptoms, dizziness, agitation, anxiety, headache and nausea are the most frequently reported. Even though they have been reported as withdrawal symptoms, it should be realised that these symptoms may be related to underlying disease.
[67] Exhibit 2, Report of Professor Joyce, 4.
Professor Joyce stated that the symptoms after ceasing venlafaxine are similarly described in the product information for Efexor-XR as follows:[68]
Symptoms reported included agitation, anorexia, anxiety, confusion, dry mouth, fatigue, paraesthesias, vertigo, hypomania, nausea, vomiting, dizziness, convulsion, headache, diarrhoea, sleep disturbance, insomnia, somnolence, sweating and nervousness. Where such symptoms occurred, they were usually self-limiting, but in a few patients lasted for several weeks.
[68] Exhibit 2, Report of Professor Joyce, 4.
Professor Joyce concluded that from the available information, approximately a quarter of patients who stop taking 150 mg of venlafaxine daily get a discontinuation effect. Further an unquantified number of patients discontinuing mirtazapine get a mild discontinuation effect. Professor Joyce accepted that the risk is greater when both are discontinued.
Professor Joyce said the discontinuation effect may be best summarised as 'a general sense of malaise'.[69] He further summarised the discontinuation effect as follows:[70]
Discontinuation effects may affect a person's ability to focus attention on a task or question, just like anything else that causes anxiety or causes a general sense of not feeling particularly well. Discontinuations effects will not otherwise interfere with a person's ability to understand questions and propositions that are put in simple language that is appropriate to his level of education and understanding. The discontinuation effects do not include psychiatric or physical illnesses like those accompanying withdrawal from addictive drugs. They do not cause the person to develop a psychosis, wherein false beliefs (delusions) and false perceptions (hallucinations) might appear. Discontinuation effects do not include impairments to memory as, for example, might generate false memories. They do not cause a delirium, wherein a state of persisting and fluctuating confusion exists.
[69] Exhibit 2, Report of Professor Joyce, 6.
[70] Exhibit 2, Report of Professor Joyce, 6.
With respect to answering questions in an interview, Professor Joyce stated that he had not undertaken any mental state examination of Mr Best. However Professor Joyce stated that the most likely concern from the discontinuation effect is a 25% probability that the person would be feeling irritable, a bit distracted, would have suffered from impairment of sleep and might be feeling a bit agitated.[71]
[71] ts 23 (Professor Joyce).
Professor Joyce stated that the symptoms in respect of withdrawal after cessation of medications can vary markedly from individual to individual.[72] Professor Joyce stated that a person conducting a record of interview with police would feel under pressure ordinarily and that may cause a person distress in any event.[73]
[72] ts 25 (Professor Joyce).
[73] ts 28 (Professor Joyce).
Professor Joyce was asked his opinion as to whether discontinuation may affect a person's ability to understand questions and propositions put to them in an interview. Professor Joyce expressed the opinion that it would have the same effect as anything else that is upsetting and agitating a person during any such interview.[74]
[74] ts 24 (Professor Joyce).
In cross-examination Professor Joyce stated that the abrupt cessation of taking venlafaxine may sometimes lead to the person developing strange beliefs but that was not anything he had previously encountered.[75]
[75] ts 29 (Professor Joyce).
Professor Joyce stated that there was no evidence in the toxicology report as to whether mirtazapine had been digested. Therefore Professor Joyce accepted the proposition that it is even conceivable that Mr Best had never taken mirtazapine.[76]

Determination - first record of interview

[76] ts 33 (Professor Joyce).

I am of the view, based upon the assessment of the evidence, that Mr Best's utterances in the first record of interview were voluntary. I find that based upon Professor Joyce's evidence, there is insufficient evidence to support a contention that the cessation of antidepressant drugs results in a person being so disorientated or confused that they are unable to appreciate that they have a choice whether to speak or to understand what is stated to them.
Officer Martin gave evidence that in his opinion Mr Best was not confused during the first record of interview.[77]
[77] ts 64 (Officer Martin).
Further, during the first record of interview Mr Best provides lucid answers to the questions that are asked. Throughout the first record of interview, Mr Best expresses his understanding of his rights and engages with the officer. Mr Best exercised both judgment and free will during the first record of interview. That judgment included his assessment that he did not require a legal practitioner.

Accordingly, I find that the police did not breach the requirements of s 138(2) of the Criminal Investigation Act and that the utterances of Mr Best during the first interview were voluntary. Finally, for the reasons given, I am of the view that the first record of interview should not be excluded on the basis of unfairness, nor do public policy considerations make the interview inadmissible, nor does the prejudicial effect of the evidence outweigh its probative value.

The second record of interview

Background to second record of interview

At 9.25 pm at the conclusion of the first record of interview, Mr Best was asked whether he wanted a meal but he declined.[78]
[78] Officer Begg running sheet booklet, 12.
At 11.46 pm, police retrieved Mr Best's medication from his home and conveyed it to the Perth Watch House.[79]
[79] Officer Dorrington running sheet booklet, 2.
At 12.28 am on Monday 18 February 2019, the police conveyed Mr Best to the Kojonup Hospital for a blood test.[80] The police then transported Mr Best to Perth.[81] At 3.25 am on 18 February 2019, Mr Best was lodged at the Perth Watch House.[82]
[80] ts 51 (Officer Martin).
[81] ts 51 (Office Martin).
[82] Exhibit 13, Custody Handover Summary dated 18 February 2019.
At 6.08 am on 18 February 2019, Mr Best refused his meal whilst in custody.[83]
[83] Exhibit 13, Custody Handover Summary, 4.
At 6.51 am on Wednesday 20 February 2019, Officers Martin, Begg and Dorrington attended Hakea Prison. At that time Mr Best travelled with the police officers to the Stirling Ranges for the purpose of locating the weapon allegedly used by Mr Best.
Between 1.39 pm and 1.48 pm on 20 February 2019, at a location at Mount Trio, Stirling Ranges, Officers Martin and Begg interviewed Mr Best.[84]
[84] Exhibit 8, second record of interview.
During the second record of interview Mr Best made numerous admissions agreeing that he confessed during the first record of interview that he used a Bowie knife in the commission of the murder and that he threw the knife from the driver's side of his vehicle.[85] Consequently, the second record of interview is highly probative.

Basis of exclusion of second record of interview

[85] Exhibit 8, second record of interview, 3.

Mr Best appears to rely upon the following contentions in support of the application that the second record of interview should be excluded as not being voluntary or in the alternative, the interview should be excluded in the exercise of my discretion on the basis of unfairness or public policy considerations:
1.The police removed Mr Best from Hakea Prison and transported him to Mount Trio for the purpose of locating the knife suspected of being the weapon used by Mr Best. At Mount Trio the police conducted the second record of interview. Mr Best contends that he was not afforded a reasonable opportunity to contact a legal practitioner and that he was isolated. Therefore, the second record of interview should be excluded on the basis of voluntariness and in the exercise of the unfairness discretion and public policy discretion.
2.Mr Best had not taken his antidepressant medications for three days prior to the first interview, which caused him to be confused at the time the interviews took place. Therefore, the second record of interview should be excluded on the basis of voluntariness and in the exercise of the unfairness discretion and public policy discretion.
3.Mr Best had not eaten anything for a number of days, and as a consequence was both physically and mentally weak. Therefore, the second record of interview should be excluded on the basis of voluntariness and in the exercise of the unfairness discretion and public policy discretion.
4.The police failed to provide Mr Best with a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner. Therefore, the police officers breached the requirements of s 138 of the Criminal Investigation Act and the second interview should be excluded. The court should not exercise the discretion under s 155 of the Criminal Investigation Act and admit the second record of interview. Further, the failure to provide a reasonable opportunity to communicate with a legal practitioner supports a finding that the second record of interview should therefore be excluded on the basis of voluntariness.

Removed from Hakea Prison

Mr Best contends that he was taken from Hakea Prison and transported to the Stirling Ranges in circumstances that were unfair and contrary to public policy.
At 6.51 am on Wednesday 20 February 2019 Officers Martin, Begg and Dorrington attended Hakea Prison.[86] The purpose of attending Hakea Prison was to convey Mr Best to Mount Trio in the Stirling Ranges to search for the knife that Mr Best allegedly used to inflict the fatal injury.[87] During the first record of interview, Mr Best stated that he used a knife to inflict the wounds to the deceased and then had thrown the knife from his vehicle in the Stirling Ranges.[88]
[86] ts 52 (Officer Martin).
[87] ts 52 (Officer Martin).
[88] Exhibit 7, first record of interview, 24 ‑ 25, 34, 37, 54 ‑ 55.
Officer Martin gave evidence that prior to the attendance of the police at Hakea Prison, Mr Best had stated that he would show the police where he threw the knife in the Stirling Ranges.[89] Officer Martin was unable to say when Mr Best told him that he was willing to assist the police. In cross-examination during the directions hearing, Officer Martin stated that he did not take a note of the conversation during which Mr Best agreed to show the police where he threw the knife.[90] However, Officer Martin stated that he would not have taken Mr Best to the Stirling Ranges to look for the knife unless Mr Best had agreed to assist for the reason that his senior officer would not have permitted the movement.[91]
[89] ts 52 (Officer Martin).
[90] ts 68 (Officer Martin).
[91] ts 68 ‑ 69 (Officer Martin).
Officer Begg also gave evidence that if Mr Best had not agreed then he would not have been taken to the Stirling Ranges.[92] The purpose of the travel was for Mr Best to show the police where the knife was located. Officer Begg gave testimony that Mr Best was 'probably not' expecting the police to attend Hakea Prison on 20 February 2019.[93]
[92] ts 108 (Officer Begg).
[93] ts 105 (Officer Begg).
Officer Martin gave evidence that Mr Best agreed to travel to the Stirling Ranges to assist the police and did so. Officer Begg stated that he did not discuss attending Hakea Prison with Mr Best.[94] Officer Dorrington gave evidence that Mr Best, upon being collected from Hakea Prison appeared 'indifferent' and was talkative and 'fully understood what was going on and what we had asked of him.'[95] Officers Martin, Begg, Dorrington, Bone and Duke travelled with Mr Best to the Stirling Ranges.
[94] ts 105 (Officer Begg).
[95] ts 117 (Officer Dorrington).
Upon arriving in the Stirling Ranges, Mr Best directed the police to a location.[96] Mr Best provided to the police specific directions.[97]
[96] ts 53 (Officer Martin); ts 100 (Officer Begg); ts 113 (Officer Begg); ts 118 (Officer Dorrington).
[97] ts 118 (Officer Dorrington).
Between 1.39 pm and 1.48 pm on 20 February 2019, at a location at Mount Trio, Stirling Ranges, Officers Martin and Begg interviewed Mr Best. The interview was conducted at the search of the area on the north side of the road, which Mr Best identified as the location where the knife was thrown.[98] I received as an exhibit both the DVD and transcript of the second record of interview.[99]
[98] ts 54 (Officer Martin).
[99] Exhibit 8, second record of interview.
The police officers were unable to locate any knife in the area. The police officers then conveyed Mr Best to the Albany Police Station prior to taking him to Albany Regional Prison for incarceration until his return to Hakea Prison the following morning.[100]
[100] ts 56 (Officer Martin).
I am of the view that the transfer of Mr Best from Hakea Prison to the Stirling Ranges was lawful. The evidence supports the finding that Mr Best agreed to assist the police officers.

Not taken antidepressant medications

Mr Best contends that he had not taken his antidepressant medications for three days prior to the first interview. I have outlined the evidence of Professor Joyce.
Mr Best during the second record of interview provides lucid answers to the questions that are asked. Throughout the second record of interview, Mr Best expresses his understanding of his rights and engages with the officer. Mr Best exercised both judgment and free will during the second record of interview.

Not provided with sustenance

Officer Martin gave evidence that he was aware that on 20 February 2019 Mr Best had not eaten and had not done so for some days.[101] Officer Martin acknowledged that was of concern to him and that he informed Albany Regional Prison regarding that issue.[102] However, Officer Martin stated that in his opinion Mr Best gave 'responses to the questions … that were consistent with somebody who was thinking clearly.'[103] Officer Begg gave evidence that he was aware that Mr Best had not eaten but that 'he just chose not to eat.'[104]
[101] ts 71 (Officer Martin).
[102] ts 71 (Officer Martin).
[103] ts 71 (Officer Martin).
[104] ts 106 (Officer Begg).
During the journey to the Stirling Ranges the police officers stopped for lunch at Williams. At that time the police officers offered Mr Best a meal but he declined.[105]
[105] ts 55 (Officer Martin).
During the second record of interview the officers observed that Mr Best had not eaten anything other than a number of cups of coffee and asked Mr Best to confirm that he had been offered food.[106] Mr Best replied 'most definitely' and stated that the reason why he was not eating was because he 'just didn't want to.' The police then reiterated that if Mr Best wished to eat at any stage then food would be obtained 'straightaway'.[107]
[106] Exhibit 8, second record of interview, 6.
[107] Exhibit 8, second record of interview, 6.
With respect to whether Mr Best had eaten there is a paucity of evidence. The medical summary at the Perth Watch House records that at 6.08 am on Monday 18 February 2019 Mr Best declined a meal. Between 6.08 am on Monday 18 February 2019 and 6.51 am on Wednesday 20 February 2019 there is no evidence whether Mr Best had eaten.

Reasonable opportunity to communicate with a legal practitioner

Further, Mr Best contends that the second record of interview should be excluded for the reason that he was not afforded a reasonable opportunity to communicate with a legal practitioner contrary to s 138 of the Criminal Investigation Act. Mr Best had been informed on a number of occasions prior to leaving Hakea Prison that he was entitled to communicate with a legal practitioner. He was advised twice at the time of his arrest and during the first record of interview. At no time did Mr Best request to communicate with a legal practitioner. At no time did Mr Best inform the officers that he had given instructions to a legal practitioner. During the directions hearing counsel submitted in oral submissions that she telephoned Hakea Prison during the morning of 20 February 2019 to speak to Mr Best but was informed that he was being transferred to Albany.[108] There is no evidence that the police officers were aware that counsel (who appeared at the directions hearing) had been 'briefed by Legal Aid',[109] nor is there any evidence that Mr Best had instructed counsel. To the contrary, at all times Mr Best stated that he did not wish to communicate with a legal practitioner.
[108] Defence's Outline of Submissions dated 30 January 2020 [7].
[109] Defence's Outline of Submissions dated 30 January 2020 [7].
As I have observed the second record of interview was conducted by Officers Begg and Martin between 1.39 pm and 1.48 pm on 20 February 2019, at a location at Mount Trio, Stirling Ranges. The second record of interview was conducted at the search of the area on the north side of the road, which Mr Best identified as the location where the knife was thrown.[110] The second record of interview was electronically recorded. It commenced with the officers cautioning Mr Best and advising him of his rights. Mr Best was, once again, informed that he has the right to communicate with a legal practitioner. Mr Best confirmed that he understood that right and that he did not wish to communicate with a legal practitioner. At no time did Mr Best inform the officers that he had instructed a lawyer or was expecting a lawyer to contact him.
[110] ts 54 (Officer Martin).
During the directions hearing counsel for Mr Best contended that the remote location supported a finding that Mr Best could not have been provided with a legal practitioner. There is no merit in that submission. Mr Best understood his right having been advised at the time of his arrest and during the commencement and conclusion of his first interview and then at the commencement of the second record of interview. He consistently expressed that he did not wish to be afforded the opportunity to communicate with a legal practitioner.

Determination - second record of interview

I find that the second record of interview should not be excluded on the basis of voluntariness or in the exercise of the unfairness or public policy discretions. Mr Best consented to the travel to the Stirling Ranges, having agreed to assist the police officers to find the weapon. Mr Best did so freely. At no time did Mr Best raise any concerns regarding being transported to the Stirling Ranges. Mr Best was lucid throughout and was clearly not suffering from any effects from not taking his antidepressant medication or from not eating. There is no basis to exclude the second record of interview on the basis of involuntariness.
Finally, for the reasons given, I am also of the view that the second record of interview should not be excluded on the basis of unfairness, nor do public policy considerations make the interview inadmissible, nor does the prejudicial effect of the evidence outweigh its probative value.

The third record of interview

Background to third record of interview

At the completion of the search at the location identified by Mr Best as being where he threw the knife, the police officers transported Mr Best to the Albany Police Station. Between 4.05 pm and 4.12 pm on Wednesday 20 February 2019 at Albany Police Station, Officers Martin and Begg conducted the third record of interview with Mr Best. Therefore the third interview was conducted approximately two hours after the police conducted the second interview. I received as an exhibit both the DVD and transcript of the third record of interview.[111]
[111] Exhibit 9, third record of interview.
The purpose of the third record of interview was to show Mr Best photographs of a 'Gerber Winchester Large Bowie Knife' that the officers had obtained from a website based upon the description given by Mr Best.[112] Officer Martin gave evidence that Officer Dorrington undertook the research to obtain photographs.[113] During the interview Mr Best, when shown the photographs of the knife, stated 'that's probably spot on',[114] 'that looks like the knife … ninety nine to a hundred per cent'.[115] The third record of interview is therefore, highly probative.
[112] Exhibit 9, third record of interview, 9.
[113] ts 72 (Officer Martin).
[114] Exhibit 9, third record of interview, 9.
[115] Exhibit 9, third record of interview, 10.
At the conclusion of the third record of interview, Mr Best was told that he would be taken to the Albany Regional Prison and then transported to Perth the next morning, being Thursday 21 February 2019.

Basis of exclusion of third record of interview

Mr Best appears to rely upon the following contentions in support of the application that the third record of interview should be excluded as not being voluntary or in the alternative, that the interview should be excluded in the exercise of my discretion on the basis of unfairness or public policy considerations:
1.The police removed Mr Best from Hakea Prison and transported him to Mount Trio for the purpose of locating the knife suspected of being the weapon used by Mr Best. At Albany Police Station the police conducted the third record of interview. Mr Best contends that he was not afforded a reasonable opportunity to contact a legal practitioner and that he was isolated. Therefore, the third record of interview should be excluded on the basis of voluntariness and in the exercise of the unfairness discretion and public policy discretion.
2.Mr Best had not taken his antidepressant medications for three days prior to the first interview, which caused him to be confused at the time the interviews took place. Therefore, the third record of interview should be excluded on the basis of voluntariness and in the exercise of the unfairness discretion and public policy discretion.
3.Mr Best had not eaten anything for a number of days, and as a consequence was both physically and mentally weak. Therefore, the third record of interview should be excluded on the basis that the interview was involuntary or in the alternative, should be excluded in the exercise of the unfairness discretion and public policy discretion.
4.The police failed to provide Mr Best with a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner. Therefore, the police officers breached the requirements of s 138 of the Criminal Investigation Act and the third record of interview should be excluded. The court should not exercise the discretion under s 155 of the Criminal Investigation Act and admit the third record of interview. Further, the failure to provide a reasonable opportunity to communicate with a legal practitioner supports a finding that the third record of interview should therefore be excluded on the basis of voluntariness.

Determination - third record of interview

I find that the third record of interview should not be excluded on the basis of voluntariness or in the exercise of the unfairness or public policy discretions. Mr Best consented to the travel to the Stirling Ranges, having agreed to assist the police officers. Mr Best did so freely. At no time did Mr Best raise any concerns regarding being transported to the Stirling Ranges.
I find that the police did afford Mr Best a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. Consistent with his previous expressed wishes Mr Best, at the commencement of the third record of interview, stated with clarity that he did not wish to communicate with a legal practitioner.
The police officers gave Mr Best the caution and advised him of his rights. Mr Best expressed his understanding of the caution and his rights stating 'I don't have to say anything if I don't want to.'[116] The officers commenced the interview by asking Mr Best whether he wished to speak to a lawyer and again asked Mr Best whether he wished legal representation prior to being shown the photograph of a knife. Mr Best confirmed that he did not require a lawyer.[117]
[116] Exhibit 9, third record of interview, 8.
[117] Exhibit 9, third record of interview, 8.
During the third record of interview the police officers asked Mr Best whether he required a meal to which Mr Best answered no.[118]
[118] Exhibit 9, third record of interview, 11.
Mr Best was lucid throughout and clearly not suffering from any effects from not taking his antidepressant medication or as a consequence of him determining not to eat. Mr Best declined offers to eat. There is no basis to exclude the third record of interview on the basis of involuntariness.
Finally, for the reasons given, I am of the view that the third record of interview should not be excluded on the basis of unfairness, nor do public policy considerations make the interview inadmissible, nor does the prejudicial effect of the evidence outweigh its probative value.

The fourth record of interview

Background to fourth record of interview

On the morning of Thursday 21 February 2020, the police officers attended at Albany Regional Prison for the purpose of transporting Mr Best to Hakea Prison. At that time, Mr Best informed the officers that he wished to speak to the officers in respect of the allegation. Officer Begg gave evidence that Mr Best spoke directly to him prior to entering the vehicle to return to Perth. At that time Mr Best told Officer Begg that he wished to tell the police something.[119] The police officers did not initiate the fourth record of interview. Rather, the police officers responded to a request from Mr Best that he wished to inform the police officers of a matter.
[119] ts 102 (Officer Begg).
The officers determined that it was necessary that they electronically record the utterances of Mr Best. Officer Begg directed Officer Dorrington to retrieve a video camera to ensure that the conversation was electronically visually recorded.[120]
[120] ts 120 (Officer Dorrington).
The officers then returned into the building at Albany Regional Prison in order to afford Mr Best the opportunity to inform the police of a matter. At no time prior to the fourth record of interview did Mr Best request that he be afforded an opportunity to speak to a lawyer.[121]
[121] ts 121 (Officer Dorrington).
Accordingly, on the morning of Thursday 21 February 2019 at Albany Regional Prison, Officers Dorrington, Begg and Martin conducted the fourth record of interview. The fourth record of interview commenced at 9.05 am on 21 February 2019 and lasted approximately five minutes. I received as an exhibit both the DVD and transcript of the fourth record of interview.[122]
[122] Exhibit 11, fourth record of interview.
During the fourth record of interview, Mr Best informed the officers that he had placed a pair of yellow gloves and a black singlet in a bin in a park next to his house. Mr Best stated that he disposed of the gloves for the reason that he 'wanted to get rid of them'.[123] Mr Best stated that he wanted to get rid of the items 'cause I thought they might be connected.'[124] The fourth record of interview is therefore, highly probative.

Basis for exclusion of fourth record of interview

[123] Exhibit 11, fourth record of interview, 3.

[124] Exhibit 11, fourth record of interview, 3.

Mr Best appears to rely upon the following contentions in support of the application that the fourth record of interview should be excluded as not being voluntary or in the alternative, that the interview should be excluded in the exercise of my discretion on the basis of unfairness or public policy considerations:
1.The police removed Mr Best from Hakea Prison and transported him to Mount Trio for the purpose of locating the knife suspected of being the weapon used by Mr Best. At Albany Regional Prison the police conducted the fourth record of interview. Mr Best contends that he was not afforded a reasonable opportunity to contact a legal practitioner and that he was isolated. Therefore, the fourth record of interview should be excluded on the basis of voluntariness and in the exercise of the unfairness discretion and public policy discretion.
2.Mr Best had not taken his antidepressant medications for several days prior to the fourth interview, which caused him to be confused at the time the interview took place. Therefore, the fourth record of interview should be excluded on the basis of voluntariness and in the exercise of the unfairness discretion and public policy discretion.
3.Mr Best had not eaten anything for a number of days, and as a consequence was both physically and mentally weak. Therefore, the fourth record of interview should be excluded on the basis that the interview was involuntary or in the alternative, should be excluded in the exercise of the unfairness discretion and public policy discretion.
4.The police failed to provide Mr Best with a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner. Therefore, the police officers breached the requirements of s 138 of the Criminal Investigation Act and the interview should be excluded. The court should not exercise the discretion under s 155 of the Criminal Investigation Act and admit the fourth record of interview. Further, the failure to provide a reasonable opportunity to communicate with a legal practitioner supports a finding that the fourth record of interview should therefore be excluded on the basis of voluntariness.

Determination - fourth record of interview

At the commencement of the fourth record of interview the officers cautioned Mr Best and advised him of his rights. Mr Best was asked as to his understanding of the caution to which Mr Best answered 'If I don't wanna say anything, I don't have to.'[125] Mr Best was once again informed that he had the right to legal representation and was asked whether he required a lawyer to which he answered no.[126]
[125] Exhibit 11, fourth record of interview, 2.
[126] Exhibit 11, fourth record of interview, 2.
At the conclusion of the fourth record of interview the police officers asked Mr Best whether the interview was conducted of his own free will and that he had done the interview voluntarily, to which Mr Best agreed stating 'I just wanna get it all out.'[127]
[127] Exhibit 11, fourth record of interview, 6.
I find that Mr Best was given a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. At the commencement of the fourth record of interview Mr Best was informed of that right. Mr Best did not wish to communicate with a legal practitioner. That was his considered decision. The contention of Mr Best that he was not given a reasonable opportunity to communicate with a legal practitioner is without merit.
I find that the fourth record of interview was voluntary. I do not accept Mr Best was confused during the conduct of the fourth interview for the reason that he had not taken his antidepressant medications for several days prior to the fourth interview. I make that finding based on the evidence of Professor Joyce concerning the effects of ceasing to take the antidepressant medication and the manner in which Mr Best gave clear cogent answers to the questions he was asked. I have outlined that evidence.
I also rely upon the appearance of Mr Best and the manner in which he presented and answered questions in the fourth record of interview. Mr Best gave precise answers to the questions and did not appear to be confused. To the contrary, Mr Best presented during the fourth record of interview as a person who requested to speak to the police and after being afforded his rights and cautioned outlined with clarity the issues that he wished to discuss with the police.
Officer Martin gave evidence that he was aware that Mr Best had not eaten for a few days at the time the fourth record of interview was conducted.[128] Officer Begg stated that the officers at Albany Regional Prison told him that Mr Best had not eaten breakfast.[129] Mr Best was offered a meal by authorities but declined. That was his decision. There is no assertion by Mr Best that the authorities declined to provide him with sustenance. I find that Mr Best was not confused or disorientated due to his choosing not to eat.
[128] ts 84 (Officer Martin).
[129] ts 111 (Officer Begg).
Finally, for the reasons given, I am of the view that the fourth record of interview should not be excluded on the basis of unfairness, nor do public policy considerations make the interview inadmissible, nor does the prejudicial effect of the evidence outweigh its probative value.

Conclusion

Accordingly, I have determined that the first, second, third and fourth records of interview are admissible.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath
24 JULY 2020