Blum v The State of Western Australia [No 2]
[2012] WASCA 40
•23 FEBRUARY 2012
BLUM -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2012] WASCA 40
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 40 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:131/2010 | 21 OCTOBER 2011 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 23/02/12 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEVEN JAMES BLUM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Receiving stolen property Evidence of an alleged admission to a police officer not recorded by audiovisual means Evidence of the admission led without objection Whether trial judge erred in failing to exclude the evidence Whether a miscarriage of justice occurred |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(b), s 30(3)(c) Criminal Code (WA), s 414, s 428 Criminal Investigation Act 2006 (WA), s 118, s 155 |
Case References: | Blum v The State of Western Australia [2011] WASCA 73 LBC v The State of Western Australia [2011] WASCA 201 Oblak v The State of Western Australia [2007] WASCA 176 R v Soma [2003] HCA 13; (2003) 212 CLR 299 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 Zeiler v The State of Western Australia [2010] WASCA 227 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BLUM -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2012] WASCA 40 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND BUN 21 of 2010
Catchwords:
Criminal law - Appeal against conviction - Receiving stolen property - Evidence of an alleged admission to a police officer not recorded by audiovisual means - Evidence of the admission led without objection - Whether trial judge erred in failing to exclude the evidence - Whether a miscarriage of justice occurred
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(b), s 30(3)(c)
Criminal Code (WA), s 414, s 428
Criminal Investigation Act 2006 (WA), s 118, s 155
Result:
Appeal against conviction dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Blum v The State of Western Australia [2011] WASCA 73
LBC v The State of Western Australia [2011] WASCA 201
Oblak v The State of Western Australia [2007] WASCA 176
R v Soma [2003] HCA 13; (2003) 212 CLR 299
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339
Zeiler v The State of Western Australia [2010] WASCA 227
(Page 3)
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: On 6 August 2010, the appellant was convicted, after a trial in the District Court before Sweeney DCJ and a jury, of one count of receiving a quantity of jewellery, contrary to s 414 of the Criminal Code (WA) (the Code).
3 The appellant appeals to this court against his conviction.
4 I agree with Mazza JA that the appeal should be dismissed. My reasons are as follows.
The background facts and circumstances
5 The background facts and circumstances are set out in the reasons of Mazza JA, with whose reasons McLure P has expressed her agreement. I will not repeat the relevant facts and circumstances, except to the extent necessary to explain my reasons.
The stolen jewellery and the appellant's defence at trial
6 Between 12 and 14 September 2009, a burglary was committed at the premises of Australind Jewellers. A large quantity of jewellery was stolen.
7 On 19 September 2009, the appellant was driving his motor vehicle. Police apprehended the appellant and searched his vehicle. They found a bag containing jewellery in the boot. The jewellery had been stolen from Australind Jewellers during the burglary.
8 The appellant gave sworn evidence in his own defence at trial. He said that he found the bag containing the jewellery, partly buried in sand, at Wonnerup Beach. When he examined the jewellery, he recollected a news item about a burglary at Australind Jewellers. He said that he supposed he 'ought to have known' that it was stolen property, but he did not say that he made this conclusion at the time. According to the appellant, he intended at all times to take the jewellery to the Busselton Police Station. However, before he was able to hand in the jewellery, he was arrested by the police. He claimed that his possession of the jewellery was innocent.
The sole ground of appeal
9 The sole ground of appeal, as developed in argument before this court, is that the trial miscarried as a result of the State having adduced in
(Page 4)
- evidence from Detective Sergeant Darren Clifton an alleged admission made by the appellant to him that was not captured on an audio visual recording.
Detective Sergeant Clifton's witness statement
10 Detective Sergeant Clifton's witness statement, which formed part of the prosecution brief of evidence given to defence counsel before the trial, reads, relevantly:
In September 2009 I commenced inquiries into a burglary offence at the Australind Jewellers store committed over the weekend of 12-13 September 2009.
During the morning of Monday 21 September 2009, as a result of information received about the burglary, I attended the lock-up area of the Bunbury Police Station in company with Detective Constable 1/c ROYLE.
There we met a male person in a holding cell who I now know to be Steven James BLUM, the accused in this matter.
I advised the accused that I wished to speak with him regarding the burglary at Australind Jewellers, as he had been apprehended recently in possession of a large quantity of jewellery believed to have been stolen from the store.
I cautioned the accused and requested he participate in a video recorded interview.
The accused stated: 'I'm not doing any interview. I'll plead guilty to the four twenty-eight, but I didn't do any burglary.'
I asked the accused if he knew the whereabouts of the jewellery items not yet recovered.
The accused said: 'Fuck off.'
I again asked the accused to divulge the whereabouts of the remaining jewellery items. He continued to swear at me and denied committing any burglary.
I then advised the accused that he would be charged with the burglary at Australind Jewellers. (emphasis added)
Detective Sergeant Clifton's evidence at trial as to the alleged admission
11 During his examination-in-chief at trial, Detective Sergeant Clifton gave evidence that he and another detective spoke to the appellant on 21 September 2009 at the Bunbury Police Station.
(Page 5)
12 Detective Sergeant Clifton then gave this evidence, without objection:
At that time did you caution [the appellant]?---Yes, I did. I advised him that I wished to speak with him regarding a burglary that had been committed at the Australind Jewellers as he'd been recently apprehended in possession of a large quantity of jewellery stolen during the burglary, and so I cautioned him, and by that I mean I told him he wasn't obliged to answer any questions if he didn't wish to, and then I asked him if he'd participate in a video recorded interview. He said to me, 'I'm not doing any interview, I'll plead guilty to 428 but I didn't do any burglary.'
Did you ask him any further questions?---Yes, I asked him if he was aware of the whereabouts of the jewellery not yet recovered from the burglary. The [appellant] swore at me. I again asked him the same question in relation to the outstanding jewellery but he continued to swear at me. I advised him that he was going to be charged in relation to this matter and then Detective Royal and I left the area (ts 80 - 81).
13 The alleged admission was the appellant's statement that he would 'plead guilty to 428'.
14 Section 428 of the Code creates the offence of possession of stolen or unlawfully obtained property. It is an alternative offence to the offence of receiving created by s 414 of the Code.
15 The maximum penalty for the offence of receiving, contrary to s 414 of the Code, is, in general, 14 years' imprisonment. The maximum penalty for possession of stolen or unlawfully obtained property, contrary to s 428 of the Code, is 2 years' imprisonment and a fine of $24,000. Plainly, the offence of receiving is significantly more serious than the offence of possession of stolen or unlawfully obtained property.
The appellant's submissions
16 Before this court, counsel for the appellant argued that there was a real (as distinct from a fanciful) risk that the jury would have understood from the evidence in question that the appellant had admitted his guilt to a criminal offence in relation to the jewellery that was different from and less serious than burglary.
17 Counsel for the appellant submitted that the trial judge 'should have said something to the jury' about the alleged admission (appeal ts 22). According to counsel, her Honour should have taken it upon herself to draw the jury's attention to the evidence in question, and then have instructed them to ignore it (appeal ts 21 - 22).
(Page 6)
How the alleged admission was dealt with at trial
18 Shortly after the evidence of the alleged admission was adduced, the trial judge raised with the prosecutor, in the absence of the jury, the apparent inadmissibility of the evidence:
SWEENEY DCJ: Yes. Counsel, there's just a matter I need to raise in the absence of the jury with each of you. It may well have been the subject of discussions between you, but I don't know. Members of the jury, would you just retire into the jury room for a few minutes for me, please.
(At 10.39 am the jury retired)
SWEENEY DCJ: There's no need for the witness to leave at this stage, but Ms White, paragraph 7, was that the subject of discussion?
WHITE, MS: Yes, it was.
SWEENEY DCJ: You appreciate you needed the leave of the court to lead that evidence? Have you received it on some prior occasion?
WHITE, MS: No, I apologise. I didn't appreciate that.
SWEENEY DCJ: It's an admission of an accused not on video.
WHITE, MS: The counsel for the accused said that his client would admit that, and I apologise. I didn't appreciate that I needed the leave of the court to do so.
SWEENEY DCJ: It's a pretty significant admission. Are you going to lead any evidence explaining what it means or
WHITE, MS: No.
SWEENEY DCJ: I'm baffled, Ms White.
WHITE, MS: It was going to be an
SWEENEY DCJ: How were you going to use this evidence?
WHITE, MS: It was going to be an area of cross examination, your Honour.
SWEENEY DCJ: So you're not relying upon this admission. Is that what you're saying?
WHITE, MS: No.
SWEENEY DCJ: Right, so you won't be putting to the jury that they should draw anything from that? It's purely been led to open it to the defence for cross examination?
(Page 7)
- WHITE, MS: Yes.
SWEENEY DCJ: All right. Yes, it's a very unusual situation, but all right, we'll leave that as is.
WHITE, MS: I apologise, your Honour, for not seeking
SWEENEY DCJ: We'll have the jury back, thank you, madam sheriff's officer (ts 82 - 83).
19 Defence counsel did not demur from the prosecutor's explanation to her Honour.
20 In the event, no further evidence was given at the trial in relation to the alleged admission. Defence counsel did not cross-examine Detective Sergeant Clifton about it.
21 After the State closed its case, defence counsel informed the trial judge, in the absence of the jury, that there had been discussions between the prosecutor and defence counsel after the evidence of the alleged admission was given, and that it had been agreed between them that there would be no further mention of '428':
SWEENEY DCJ: Mr Joubert, just on the last point that I raised before when I sent the jury out, there was of course no cross examination the
JOUBERT, MR: No.
SWEENEY DCJ: - - - piece of evidence. But it's clear there were discussions between counsel … and that evidence was
JOUBERT, MR: Yes, there were, but - and the discussions have been continuing and my understanding is that there will be no more mention of that matter of 428.
SWEENEY DCJ: Right, and I suppose if the jury ask a question about we'll just deal with that when it happens.
JOUBERT, MR: Yes (ts 85).
22 Before the commencement of the closing addresses, her Honour confirmed with the prosecutor and defence counsel, in the absence of the jury, that nothing would be said about the alleged admission:
SWEENEY DCJ: Just before we start, it just occurs to me because I've been talking about the right to silence, we are all clear that no one is in effect making any comment at all about what the accused said to the detective sergeant?
(Page 8)
- WHITE, MS: Yes, we are.
SWEENEY DCJ: Yes. All right.
WHITE, MS: If your Honour wishes to say anything about that obviously in your remarks to the jury, then
SWEENEY DCJ: I don't know what I can say about that. I remain baffled about why that was done by counsel. However it was done and it seems to me the best thing is to say nothing about it. But I just hope the jury doesn't ask a question.
WHITE, MS: Yes (ts 121).
23 Defence counsel did not demur from anything said by her Honour or the prosecutor in this passage.
Defence counsel's tactical decision and change of mind
24 It is apparent from the transcript of the evidence at trial (in particular, the passages I have set out at [18], [21] above) that there were discussions between the prosecutor and defence counsel before the evidence in question was adduced. I infer that the prosecutor and defence counsel had agreed that Detective Sergeant Clifton could give evidence as to the alleged admission and that the appellant would admit having made it. The apparent forensic strategy of defence counsel, when the trial began, was for the appellant to admit having committed an offence under s 428 of the Code, but to deny having offended against s 414.
25 After the initial intervention of the trial judge, the prosecutor and defence counsel appear to have had further discussions. I infer that defence counsel decided to change his forensic strategy. The prosecutor and defence counsel agreed that nothing more would be said about the alleged admission. Defence counsel did not apply to abort the trial and he decided against asking her Honour to give the jury a direction in relation to the evidence in question.
The relevant provisions of the Criminal Investigation Act 2006 (WA)
26 Part 11 of the Criminal Investigation Act 2006 (WA) (the Act) is headed, 'Interviewing suspects'. Part 11 comprises s 115 to s 124.
27 Section 115 provides that in pt 11, relevantly:
suspect means a person suspected of having committed an offence, whether or not he or she has been charged with the offence.
(Page 9)
28 By s 118:
(1) In this section -
admission means an admission made by a suspect to a police officer … , whether the admission is by spoken words or by acts or otherwise;
…
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
(a) the admission was made when it was not practicable to make an audiovisual recording of it;
(b) equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c) the suspect did not consent to an audiovisual recording being made of the admission;
(d) the equipment used to make an audiovisual recording of the admission malfunctioned.
(2) This section applies in respect of a suspect who is -
(a) …
(b) an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.
(3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a) the evidence is an audiovisual recording of the admission; or
(b) in the absence of an audiovisual recording of the admission -
(i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii) the court decides otherwise under section 155.
(Page 10)
29 Section 118(3)(b) refers to s 155 of the Act.
30 Section 155 of the Act empowers the court to allow the admission of inadmissible evidence. It provides:
(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;
(f) any other matter the court thinks fit.
(4) The probative value of the evidence does not by itself justify its admission.
The proper characterisation of the alleged admission
31 In my opinion, there was no real (as distinct from a fanciful) risk that the jury would have drawn a material adverse inference against the appellant as a result of its having heard Detective Sergeant Clifton's evidence as to the alleged admission. The jury would not have understood the reference to '428'.
32 I will, however, assume, for the purposes of examining the merits of the ground of appeal, that there was a real risk that the jury would have
(Page 11)
- understood from Detective Sergeant Clifton's evidence that the appellant had admitted his guilt to a criminal offence in relation to the jewellery that was different from and less serious than burglary.
The merits of the ground of appeal
33 At the material time, the appellant was a 'suspect', as defined in s 115 of the Act.
34 The evidence in question given by Detective Sergeant Clifton was 'evidence of [an] admission by [the appellant]' within s 118(3) of the Act.
35 It was not suggested, either at trial or before this court, that the appellant made the admission before there were reasonable grounds to suspect that he had committed the offence of receiving. Section 118(4) of the Act therefore did not operate to make s 118(3) inapplicable to the admission.
36 Accordingly, by s 118(3), Detective Sergeant Clifton's evidence as to the admission was not admissible at the appellant's trial unless:
(a) the prosecution proved, on the balance of probabilities, that there was a 'reasonable excuse', as defined in s 118(1) of the Act, for the absence of an audio visual recording of the admission; or
(b) the court decided otherwise under s 155 of the Act.
37 I am satisfied on the balance of probabilities that, on the evidence at trial, there was a 'reasonable excuse', as defined in s 118(1), for the absence of an audio visual recording of the admission. The reasons for my satisfaction on this issue are these.
38 First, the appellant voluntarily made the admission immediately after Detective Sergeant Clifton had cautioned him and requested that he participate in a video-recorded interview. The appellant blurted out the admission, without warning. It was not made in response to a question from Detective Sergeant Clifton or anyone else. Detective Sergeant Clifton could not reasonably have anticipated that the appellant would or might make the admission or, indeed, any significant admission at that stage. It is apparent that at the material time Detective Sergeant Clifton did not intend to question the appellant about the offence other than in the course of a video-recorded interview. It is not practicable or feasible to produce an audio visual recording of each and every interaction between a police officer and a suspect, irrespective of the context or the circumstances. In the present case, the admission was made when it was
(Page 12)
- not 'practicable' (within par (a) of the definition of 'reasonable excuse') to make an audio visual recording of it.
39 Secondly, the appellant refused to participate in a video-recorded interview and, by necessary implication, did not consent to an audio visual recording being made of the admission (within par (c) of the definition of 'reasonable excuse').
40 Accordingly, in my opinion, if defence counsel had objected to Detective Sergeant Clifton's evidence as to the admission, then the evidence would have been admissible under s 118(3)(b)(i).
41 Further, I am satisfied, after taking into account the matters specified in s 155(3) of the Act, that the desirability of admitting the evidence of Detective Sergeant Clifton as to the admission outweighed the undesirability of admitting the evidence, within s 155(2).
42 In particular:
(a) As to s 155(3)(a), defence counsel did not object to the evidence being admitted.
(b) As to s 155(3)(b), the offence of receiving, in respect of which the evidence was relevant, is, without doubt, an egregious offence within the spectrum of offences created under the Code. This is demonstrated by the maximum penalty, which is, in general, 14 years' imprisonment. Also, the particular offending alleged against the appellant demonstrated significant criminality, as appears from the sentence of 3 years' immediate imprisonment imposed on him.
(c) As to s 155(3)(c) and s 155(3)(d), the evidence was obtained without any contravention of the Act by Detective Sergeant Clifton or anyone else. Section 118(3) is concerned with the admissibility of evidence at trial. It does not prescribe a norm of conduct.
(d) As to s 155(3)(e), the evidence had significant probative value. It was open to the tribunal of fact to conclude that the appellant, by the admission, was acknowledging, in substance, that he had been in possession of the jewellery, his possession was not innocent, and he (at least) reasonably suspected that the jewellery had been stolen. On this basis, the admission was inconsistent with the
(Page 13)
- appellant's defence of innocent possession and an intention to hand the jewellery to the police.
- (e) As to s 155(3)(f), defence counsel did not merely fail to object to the evidence being admitted. As I have mentioned, I infer that defence counsel initially agreed to the admission of the evidence pursuant to the forensic strategy that I have identified. See [24] above. Also, it was not suggested, either at trial or before this court, that Detective Sergeant Clifton had fabricated or was mistaken in his evidence as to the admission. The evidence was obtained in the circumstances I have described at [38] above, without any improper conduct or sharp practice. The only conclusion reasonably open is that Detective Sergeant Clifton acted honestly and reasonably in his relevant dealings with the appellant.
43 The factors I have identified, in considering the matters specified in s 155(3), militated in favour of admitting the evidence. The policy rationale for providing that, ordinarily, admissions by an accused that are not captured on an audio visual recording are inadmissible against him or her at trial (namely, avoiding the risk of fabricated or mistaken evidence by police officers alleging admissions by accused persons), militated against admitting the evidence. However, on the facts and circumstances of the present case, the desirability of admitting the evidence overwhelmingly outweighed the undesirability of admitting it.
44 Accordingly, in my opinion, Detective Sergeant Clifton's evidence as to the admission was admissible under s 155(2).
Conclusion
45 The trial did not miscarry as a result of the State having adduced evidence of the admission. The sole ground of appeal fails. The appeal must therefore be dismissed.
46 MAZZA JA: This is an appeal against conviction. On 6 August 2010, after a trial before Sweeney DCJ and a jury in the District Court in Bunbury, the appellant was convicted of one count of receiving a quantity of jewellery contrary to s 414 of the Criminal Code (WA). He was subsequently sentenced to 3 years' imprisonment.
Background
47 On 30 March 2011, leave to appeal against conviction was granted in respect of ground 10 of the appellant's grounds of appeal. All other
(Page 14)
- grounds were dismissed: Blum v The State of Western Australia [2011] WASCA 73 (Blum [No 1]). That ground of appeal concerns the evidence of the principal police investigator, Detective Sergeant Darren Clifton. The ground of appeal alleges that the trial judge erred in failing to exclude evidence of an alleged admission made by the appellant to Detective Sergeant Clifton which was not recorded by audiovisual means, contrary to s 118(3) of the Criminal Investigation Act 2006 (WA) (the Act).
48 An overview of the facts of the case was set out between [5] and [11] of Blum [No 1]. It is convenient to repeat those paragraphs:
Gregory and Diana Gell are a married couple, who owned and conducted a business called Australind Jewellers in shop premises in the south-west town of Australind.
Some time between 12 and 14 September 2009, the premises of Australind Jewellers were broken into and a large quantity of jewellery was stolen. Evidence was led at the trial that at least some of the jewellery was the property of Mr and Mrs Gell.
At about 10.55 pm on 19 September 2009, the appellant was apprehended by Constables Venning and Nicholls in Busselton in connection with a traffic matter. The police searched the vehicle which the appellant had been driving and found in the boot a bag containing jewellery that was later identified by Mr and Mrs Gell as being some of the jewellery stolen from their shop. They each testified to the effect that the jewellery belonged mostly to them, although some of it belonged to others who had left their jewellery at the shop for repair.
The appellant gave evidence. He testified that earlier on 19 September 2009, he went fishing at Wonnerup Beach. As he returned to his vehicle after he had finished fishing, he said that he came across a plastic bag partially buried in the sand. He examined the bag and saw that it contained a quantity of jewellery. He said that when he found it he remembered seeing something on television about a burglary at Australind Jewellers. He said in examination-in-chief 'I guess I ought to have known then what I now well know that it was stolen property': 5/8/2010, ts 87. In cross-examination he said:
When I examined it back at the vehicle I saw some tags and stuff on the items. Anyone in their right state of mind would believe that that was probably stolen property (5/8/2010, ts 102).
A little later in cross-examination he said:
After I obtained possession of the property I ought to have known that it was stolen property (5/8/2010, ts 103).
(Page 15)
- The appellant testified that his intention was at all times to take the jewellery to the Busselton police station, where he would report it and if it was ultimately unclaimed, he understood that it would be returned to him. However, before he had the opportunity to hand the jewellery in, he was arrested by the police.
At trial, the defence case was that the evidence led by the prosecution did not establish that Mr and Mrs Gell owned the jewellery found in the car. Further, the appellant did not have any dishonest intention with respect to the jewellery. His intention was to hand the jewellery over to the police for it to be dealt with properly.
Plainly, the jury by their verdict rejected this case.
Evidence of Detective Sergeant Clifton
49 Detective Sergeant Clifton testified that on the morning of 21 September 2009, he met with the appellant at the Bunbury police station, in company with another detective.
50 Without objection, the State adduced the following evidence from Detective Sergeant Clifton:
At that time did you caution [the appellant]?---Yes, I did. I advised him that I wished to speak with him regarding a burglary that had been committed at the Australind Jewellers as he'd been recently apprehended in possession of a large quantity of jewellery stolen during the burglary, and so I cautioned him, and by that I mean I told him he wasn't obliged to answer any questions if he didn't wish to, and then I asked him if he'd participate in a video recorded interview. He said to me, 'I'm not doing any interview, I'll plead guilty to 428 but I didn't do any burglary.'
Did you ask him any further questions?---Yes, I asked him if he was aware of the whereabouts of the jewellery not yet recovered from the burglary. The [appellant] swore at me. I again asked him the same question in relation to the outstanding jewellery but he continued to swear at me. I advised him that he was going to be charged in relation to this matter and then Detective Royal and I left the area: ts 80 - 81.
51 The words 'I'm not doing any interview, I'll plead guilty to 428 but I didn't do any burglary', constitute the admission which is the subject of the ground of appeal. Nothing was said to the jury about what was meant by '428'. Counsel and her Honour apparently regarded the reference to '428' as being a reference to the offence of possession of stolen or unlawfully obtained property, contrary to s 428 of the Criminal Code. This offence is a statutory alternative to receiving and carries a maximum penalty of 2 years' imprisonment and a fine of $24,000, considerably less than the maximum penalty for either receiving or burglary. Although the
(Page 16)
- jury may not have appreciated the meaning of the reference to 428 by the appellant, I will assume that the jury understood that the appellant was admitting guilt to a criminal offence which was different to and less serious than burglary.
The relevant statutory provisions
52 Section 118 of the Actrelevantly provides:
Admission in serious case inadmissible unless recorded
(1) In this section -
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
…
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
(a) the admission was made when it was not practicable to make an audiovisual recording of it;
(b) equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c) the suspect did not consent to an audiovisual recording being made of the admission;
(d) the equipment used to make an audiovisual recording of the admission malfunctioned.
(2) This section applies in respect of a suspect who is -
…
(b) an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.
(3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a) the evidence is an audiovisual recording of the admission; or
(b) in the absence of an audiovisual recording of the admission -
- (i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii) the court decides otherwise under section 155.
- (4) Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
53 Section 155 of the Act provides:
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.
54 There is no dispute that s 118 of the Act applied to the charge before the jury. It is accepted that what the appellant said to Detective Sergeant
(Page 18)
- Clifton was an admission within the definition of that word in s 118(1), and that it was not recorded by audiovisual means. Accordingly, the admission was not admissible unless there was a reasonable excuse for the absence of an audiovisual recording of it, or the provisions of s 155 of the Act applied.
The course taken at trial to the admission
55 The prosecutor did not seek leave, pursuant to s 118(3) of the Act, to adduce the evidence of the admission. However, as I have noted, the evidence was adduced without objection by the appellant's trial counsel. After the evidence-in-chief of Detective Sergeant Clifton concluded, but before he was cross-examined, Sweeney DCJ asked the jury to retire. In the absence of the jury, the following was said:
SWEENEY DCJ: … Ms White [the prosecutor], paragraph 7 [the paragraph of Detective Sergeant Clifton's deposition which contained the admission], was that the subject of discussion?
WHITE, MS: Yes, it was.
SWEENEY DCJ: You appreciate you needed the leave of the court to lead that evidence? Have you received it on some prior occasion?
WHITE, MS: No, I apologise. I didn't appreciate that.
SWEENEY DCJ: It's an admission of an accused not on video.
WHITE, MS: The counsel for the [appellant] said that his client would admit that, and I apologise. I didn't appreciate that I needed the leave of the court to do so.
SWEENEY DCJ: It's a pretty significant admission. Are you going to lead any evidence explaining what it means or [- - -]
WHITE, MS: No.
SWEENEY DCJ: I'm baffled, Ms White.
WHITE, MS: It was going to be an [- - -]
SWEENEY DCJ: How were you going to use this evidence?
WHITE, MS: It was going to be an area of cross examination, your Honour.
SWEENEY DCJ: So you're not relying upon this admission. Is that what you're saying?
WHITE, MS: No.
(Page 19)
- SWEENEY DCJ: Right, so you won't be putting to the jury that they should draw anything from that? It's purely been led to open it to the defence for cross examination?
WHITE, MS: Yes: ts 82 - 83.
56 Defence counsel was not called upon to comment by her Honour, but he voiced no disagreement with what the prosecutor had said. Defence counsel did not, as it turned out, cross-examine Detective Sergeant Clifton about the admission.
57 After Detective Sergeant Clifton completed his evidence, the prosecutor closed the State's case. The jury then retired to take their midmorning break. After an adjournment of approximately 30 minutes, but before the jury returned to court, this exchange took place between her Honour and defence counsel:
SWEENEY DCJ: Mr Joubert, just on the last point that I raised before when I sent the jury out, there was of course no cross examination the [- - -]
JOUBERT, MR: No.
SWEENEY DCJ: - - - piece of evidence. But it's clear there were discussions between counsel between counsel [sic] and that evidence was [- - -]
JOUBERT, MR: Yes, there were, but - and the discussions have been continuing and my understanding is that there will be no more mention of that matter of 428.
SWEENEY DCJ: Right, and I suppose if the jury ask a question about [it] we'll just deal with that when it happens.
JOUBERT, MR: Yes: ts 85.
58 Later in the trial, just before counsel gave their closing addresses, Sweeney DCJ confirmed with counsel that neither of them intended to make any comment about the appellant's alleged admission to Detective Sergeant Clifton. Her Honour expressed the view that the best thing was for nothing to be said about the matter. Neither counsel disagreed with this course. At no time did defence counsel seek to discharge the jury because of the evidence of the admission.
The ground of appeal
59 The ground of appeal asserts that her Honour made an error of law by failing to exclude the admission. In that form, the ground cannot
(Page 20)
- succeed. Because the evidence was adduced without objection, and with the apparent agreement of defence counsel, it cannot be said that her Honour made any error or wrong decision on a question of law: s 30(3)(b) of the Criminal Appeals Act 2004 (WA); and R v Soma [2003] HCA 13; (2003) 212 CLR 299 [42] (Gleeson CJ, Gummow, Kirby & Hayne JJ), [79] (McHugh J). The only basis upon which the appellant can succeed is if he establishes that the admission of the evidence constituted a miscarriage of justice: s 30(3)(c) of the Criminal Appeals Act.
Law relating to allegedly inadmissible evidence being admitted without objection
60 Where evidence is admitted without objection, it will be difficult for an appellant to establish a miscarriage of justice. This is because, generally, an appellant is bound by the way defence counsel conducted the trial: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8], [24] - [33], [43] and [102] - [104].
61 At least two issues arise when it is alleged that evidence adduced without objection gave rise to a miscarriage of justice. First, was the evidence admissible? Second, if it was inadmissible, was the failure to object for rational forensic reasons? When addressing this second question, this court is concerned with whether counsel's decision is capable of explanation on that basis. If the answer to either question is 'yes', there will be no miscarriage of justice: Oblak v The State of Western Australia [2007] WASCA 176 [6]; Zeiler v The State of Western Australia [2010] WASCA 227 [81]; and LBC v The State of Western Australia [2011] WASCA 201 [11].
Was the evidence admissible?
62 The prima facie position under s 118 of the Act is that evidence of an admission by a suspect is not admissible unless there is an audiovisual recording of the admission. The evidence will be admissible in the absence of an audiovisual recording if:
1. The prosecution proves on the balance of probabilities that there is a reasonable excuse for the absence; or
2. The court decides otherwise under s 155:
Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 [51] (McLure P, Buss JA agreeing).
(Page 21)
63 The definition of the expression 'reasonable excuse' in s 118(1) is not, in its terms or effect, exclusive. That is, there may be a reasonable excuse that does not fall within those matters referred to in the subsection: Wright v The State of Western Australia [55]. What is a reasonable excuse requires an examination of all of the circumstances relevant to the making of the alleged admission.
64 The effect of Detective Sergeant Clifton's evidence was that when he first met with the appellant on 21 September 2009, his initial purpose was to ascertain whether the appellant would answer questions about the burglary on Australind Jewellers and, if so, to discover if the appellant was prepared to consent to the interview being recorded on video. It is apparent that it was not Detective Sergeant Clifton's intention to question the appellant about the matter other than on video and there is nothing in his evidence to suggest that he had any expectation that the appellant would, at this point, make any admission.
65 There is no dispute that when the appellant was asked whether he would be interviewed on video he declined, but immediately after this refusal, and in a completely voluntary and spontaneous way, he made the admission. After that, the appellant emphatically declined to answer any more questions.
66 Having regard to all of these circumstances, I am of the opinion that there was a reasonable excuse for the absence of an audiovisual recording of the appellant's admission, and that the admission was admissible pursuant to s 118(3)(b)(i) of the Act.
67 My reasoning for arriving at this conclusion is as follows. Given the preliminary nature of Detective Sergeant Clifton's inquiry of the appellant, it was reasonable for his conversation not to be recorded by audiovisual means. Detective Sergeant Clifton was, after all, merely inquiring from the appellant whether he would be prepared to be interviewed on video. Having regard to the voluntary and spontaneous nature of the admission, there was no practical opportunity for the admission to be recorded by audiovisual means: s 118(1)(a) of the Act. Further, it is plain from the appellant's response to the questions posed by Detective Sergeant Clifton that he did not consent to an audiovisual recording of anything that he said: s 118(1)(c) of the Act.
68 Even if the evidence was not admissible under s 118(3)(b)(i) of the Act, it was admissible under s 155 of the Act. A court cannot admit evidence pursuant to s 155 unless it decides that the desirability of
(Page 22)
- admitting the evidence outweighs the undesirability of admitting the evidence. In considering this, the court must take into account the matters set out in s 155(3)(a) to (e), and (f) where a relevant matter is not otherwise referred to.
69 One of those matters is the probative value of the evidence: 155(3)(e) of the Act. However, s 155(4) provides that the probative value of the evidence does not by itself justify its admission.
70 Turning to the matters contained in s 155(3) of the Act, I note the following:
1. No objection was made to the evidence being admitted: s 155(3)(a).
2. The offence in respect of which the evidence is relevant is an offence of receiving. Its seriousness is indicated by its maximum penalty of 14 years' imprisonment. The facts of the alleged offence were serious in that they involved the appellant being found in possession of a considerable number of items stolen during a burglary on a shop, which were of considerable value: s 155(3)(b).
3. The failure to record by audiovisual means an admission is a serious matter. It is clearly in the interests of justice for admissions to be recorded in circumstances where the propriety of the procedure and what was said by a suspect can be accurately and independently verified. However, here, the propriety of what occurred and the fact that the admission was made and its terms are not disputed: s 155(3)(c).
4. The contravention of s 118 does not appear, on the evidence of Detective Sergeant Clifton, to have been either intentional or reckless: s 155(3)(d)(i).
5. The appellant's defence was that, although he knew that the items were likely to have come from the burglary of Australind Jewellers, he was intending to turn them into the police so that they could be returned to their rightful owner. This would have been a good defence with respect to either a charge of receiving, contrary to s 414 of the Criminal Code, or a charge contrary to s 428 of the Criminal Code. Therefore, evidence that the appellant admitted committing an offence under s 428 of the Criminal Code
- completely undermined his defence under s 414. Accordingly, it was highly probative evidence: s 155(3)(e).
71 In all these circumstances, it was, in my opinion, highly desirable for the evidence to be admitted. It went to a key issue in the trial. There was no doubt as to its accuracy, the absence of an audiovisual recording of it was not due to any impropriety on the part of the police and its admission would have caused no unfairness to the appellant. The desirability of the evidence being admitted was such that it outweighed the undesirability of its admission because it was not recorded by audiovisual means. For these reasons, the evidence was admissible pursuant to s 155. It was thus admissible pursuant to s 118(3)(b)(ii) of the Act.
72 Because the evidence was in fact admissible, whether under s 118(3)(b)(i) or (ii), the appellant has suffered no miscarriage of justice.
Forensic advantage?
73 In light of my conclusion as to the admissibility of the evidence, it is, strictly speaking, unnecessary for me to consider whether the appellant's trial counsel failed to object to the admission of the evidence for forensic reasons. Nevertheless, I wish to say something about this aspect of the case. It is not readily apparent what forensic advantage was sought to be gained for the appellant by the admission of the evidence. Neither of the parties to this appeal sought to adduce any affidavit from trial counsel, but as appears from the transcript, both trial counsel discussed the evidence before it was led and defence counsel wanted it led so that he could cross-examine Detective Sergeant Clifton on it.
74 What is clear is that once the admissibility of the admission was raised by Sweeney DCJ, defence counsel had a change of heart and decided not to cross-examine on it. Defence counsel was then content for the trial to proceed on the agreed basis that there would be no further mention made of the admission. Because the admission was in fact admissible, this course substantially advantaged the appellant, having regard to the damaging nature of the admission to the appellant's case. It may be that defence counsel understood this and thus his agreement to the admission not being mentioned again was forensically justified.
Conclusion
75 Her Honour did not make the error of law alleged in the ground of appeal. Further, the appellant suffered no miscarriage of justice by reason of Detective Sergeant Clifton's evidence of the admission. The ground of
(Page 24)
- appeal has not been made out. Leave to appeal has not been given on any of the other grounds of appeal. The appeal against conviction must be dismissed.
Order
1. The appeal against conviction is dismissed.
8
8
3