Bradshaw v The State of Western Australia
[2006] WASCA 41
•15 MARCH 2006
BRADSHAW -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 41 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:115/2005 | 16 DECEMBER 2005 | |
| Coram: | MCLURE JA PULLIN JA MURRAY AJA | 15/03/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | PETER MICHAEL BRADSHAW THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Videoed confessional evidence Whether voluntary and admissible Whether to be excluded in the exercise of discretion Comment by trial Judge on evidence Whether caused a miscarriage of justice Turns on own facts |
Legislation: | Nil |
Case References: | Fox v Percy (2003) 214 CLR 118 RPS v The Queen (2000) 199 CLR 620 Tsigos v The Queen (1965) 39 ALJR 76 B v The Queen (1992) 175 CLR 599 Broadhurst v The Queen [1964] AC 441 Cleland v The Queen (1982) 151 CLR 1 Domican v The Queen (1992) 173 CLR 555 MacPherson v The Queen (1981) 147 CLR 512 McDermott v R (1948) 76 CLR 501 R v Hsing (1984) 12 A Crim R 196 R v Hulse (1971) 1 SASR 327 R v Lao (2002) 137 A Crim R 20 R v Lee (1950) 82 CLR 133 R v Thompson [1893] 2 QB 12 Wendo v The Queen (1963) 109 CLR 559 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BRADSHAW -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 41 CORAM : MCLURE JA
- PULLIN JA
MURRAY AJA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
File No : IND 929 of 2003
Catchwords:
Criminal law and procedure - Videoed confessional evidence - Whether voluntary and admissible - Whether to be excluded in the exercise of discretion - Comment by trial Judge on evidence - Whether caused a miscarriage of justice - Turns on own facts
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Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Applicant : Simon Watters
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Fox v Percy (2003) 214 CLR 118
RPS v The Queen (2000) 199 CLR 620
Tsigos v The Queen (1965) 39 ALJR 76
Case(s) also cited:
B v The Queen (1992) 175 CLR 599
Broadhurst v The Queen [1964] AC 441
Cleland v The Queen (1982) 151 CLR 1
Domican v The Queen (1992) 173 CLR 555
MacPherson v The Queen (1981) 147 CLR 512
McDermott v R (1948) 76 CLR 501
R v Hsing (1984) 12 A Crim R 196
R v Hulse (1971) 1 SASR 327
R v Lao (2002) 137 A Crim R 20
R v Lee (1950) 82 CLR 133
R v Thompson [1893] 2 QB 12
Wendo v The Queen (1963) 109 CLR 559
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1 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Pullin JA and Murray AJA. I agree that the appeal should be dismissed.
2 I agree, generally for the reasons given by Murray AJA, that the applicant has not established that the Judge on the voir dire erred in concluding that the applicant's confessional statements made in the video record of interview were made voluntarily or in refusing to exclude the evidence on the ground of unfairness. The applicant's case was primarily based on the claim that the voirdire Judge erred in accepting the evidence of the police officer over that of the applicant. Credibility findings are not conclusive. However, they can only be set aside in limited circumstances (Fox v Percy (2003) 214 CLR 118) which were not established in this case.
3 As to ground 2, the High Court authorities to which Murray AJA refers establish that a trial judge is entitled to comment, and comment strongly, on factual issues provided the jury is clearly told it is for the jury and the jury alone to decide the facts. Of course, a judge can identify matters that may legitimately affect their judgment about the credibility of a witness without going the further step, as the trial Judge did in this case, of expressly stating his conclusion as to the credibility of the witness. However, there is no appealable error because the jury can have been left in no doubt that the question was solely for them.
4 PULLIN JA: The first ground of appeal concerns the admissibility of the video-recording of an interview conducted by the police on 1 January 2003. Murray AJA has set out in his reasons the circumstances leading up to the interview. The issue on this first ground involves the question about whether the learned trial Judge should have preferred the evidence of the appellant rather than that of the police.
5 The reason why it is necessary to closely scrutinise the evidence of the police is because police are often adept at giving evidence, an accused person will often not be so and it is not unheard of for police on some occasions to say what they consider necessary in order to obtain a conviction. In making this comment, I do not intend to adversely reflect on Detective Flatman or on anything said by Detective Clarkson.
6 A difference in the evidence of two witnesses requires a choice to be made about who should be believed, and it is now well-recognised that while demeanour of a witness is a relevant method of assessing credibility, it is much more reliable to make a choice based on other
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- evidence, particularly evidence contemporaneous with the incident in question.
7 In this case the issue is about what was allegedly said by Detective Flatman to the appellant before the video-recorded interview. The differences in the accounts of Detective Flatman and the appellant about what happened requires consideration to be given to the video record of interview which took place after the alleged conversation.
8 If the appellant had been threatened, then the way the appellant behaved in the video-recorded interview may be examined to see if there were any signs that he was acting under the pressure of something said to him by Detective Flatman. If the appellant was confessing to a crime he says he did not commit, or was making admissions that he did not wish to make, then something may appear from the video-recording which helps to corroborate the appellant's account of his earlier conversation with Detective Flatman. In this case the appellant was not in fear of any violence to his person. He alleges that the threats were that he could not see a lawyer, that he could not go home and that the only place he would be going would be to gaol.
9 I have watched the video and I detect no reluctance in his manner other than a reluctance to speak about the subject of family or emotional problems which appear to have prompted his action in lighting the fire. Indeed, it is that subject which appears to have been the subject of conversation before the interview because there is a reference by Detective Flatman to the subject having been discussed before the video-recorded interview took place.
10 I agree with Murray AJA that this ground of appeal should be dismissed for the reasons he gives.
11 As to the second ground, I agree with Murray AJA that this should also be dismissed. I would add however, that the more critical a trial Judge is about the evidence of an accused person, the greater the importance of the Judge's instruction to the jury members that the evidence they choose to believe is a matter for them. This type of instruction is often given by a Judge at the beginning of a summing-up. In my view, if a Judge is very critical of the evidence of an accused, it would be advisable for the Judge to repeat, at that time, that the assessment of the accused's evidence, and whether the accused is to be believed, is a task for the jury and that the Judge's comments are not binding on the jury.
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12 MURRAY AJA: This was an application for leave to appeal against two convictions for wilful damage or destruction of property by fire, the form of offence commonly known as arson. The offences concerned a house which was set on fire and damaged on 1 January 2003, causing the destruction also of a deep freezer, vacuum cleaner, washing machine and various other items which were in the house. The offence in question is that defined by the Criminal Code (WA), s 444.
13 The applicant was convicted after a trial by a jury in the District Court on 29 June 2005. On that day he was sentenced to 16 months imprisonment for damaging the house, and 8 months imprisonment to be served concurrently for the destruction of the property, which constituted the second offence. Eligibility for parole was ordered and parole therefore became available on 29 February 2006. Originally there was before the Court an application for leave to appeal against the severity of the sentences, but that was abandoned.
14 The application for leave to appeal against conviction rests principally upon a decision made on the voir dire at a directions hearing held in October 2004 before a Judge of the District Court who was not the trial Judge, but which ruling was, of course, adopted by the trial Judge so that the trial proceeded upon the basis of the ruling so made.
15 The question concerned the admissibility of confessional statements made during the course of a videoed record-of-interview. If admissible, because established by the State on the balance of probabilities to be voluntarily made, the applicant's contention was that the evidence should be excluded in the exercise of discretion by the Judge on the ground that its admission would be unfair in all the circumstances.
16 The complaint made by the grounds of the application is not that the Judge made any error of law in dealing with the matter, but that, in effect, the Judge erred in fact when he was persuaded that the confession was voluntarily made and, in the alternative, that he erred in the exercise of his discretion by failing to exclude the material from the evidence. It must be recognised that in seeking to demonstrate error in that way, absent any error of law and absent any allegation of specific error in the exercise of the Judge's discretion, the applicant assumes an enormous burden of persuasion. In this case, in my opinion, he entirely failed to discharge that obligation.
17 The issues of fact raised on the voir dire were essentially simple. It appears that the name of the applicant was originally brought to the
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- attention of investigating police by an email received by one Det Clarkson from a fireman on the morning after the fire occurred. The fireman said that he had spoken to the applicant at the scene of the fire. He was thought to be a witness. Det Clarkson went to his home address and after a brief discussion with the applicant there took him back to the Armadale Detectives Office.
18 She obtained a witness statement from him. In it he denied involvement in the commission of the offences. As part of her investigation, Det Clarkson took a copy of the applicant's criminal history from the computerised record system. That revealed a conviction for arson in 1997. The records consulted by Det Clarkson also enabled her to print out the method used by the applicant in the commission of the 1997 offence. She thought it bore similarities to the method used in the commission of the offences currently under investigation.
19 Later, and while the applicant remained at the police station, she gave a copy of the criminal record and the other document to a more senior officer, Det Flatman. He read those documents and the statement of the applicant and went into the witness room where the applicant was waiting alone. There was a discussion between them, with only the two men being present, which was not recorded on video, that equipment being located elsewhere in the Detectives' Office. It is what occurred during this period which was the foundation for the allegations that the subsequently taken videoed interview, where confessional statements were made by the applicant, was involuntary or ought to be excluded in the exercise of discretion.
20 Flatman's evidence was given before that of the applicant because, of course, it was for the prosecution to persuade the Judge on the balance of probabilities that the confessional statements were made voluntarily. Flatman denied that any impropriety of the kind specifically put to him had occurred when he was alone in the witness room with the applicant. He said that he had questioned the applicant about the arson offence. The applicant's responses were originally abrupt, but after some little time, Flatman said he felt that he was building up something of a rapport with the applicant, who ultimately "blurted out" that he had been responsible for setting the fire, contrary to what he had said in his statement. Flatman then stopped that process of questioning, realising that he had a suspect before him, and he resumed it with the video operating and with the agreement of the applicant recorded in that way.
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21 I have said that Flatman denied the allegations of impropriety put to him for the applicant. Those allegations were supported by the applicant's evidence on the voir dire. He said that after he had made the statement to Det Clarkson and she left the room, Flatman came in and commenced to challenge him about the truth of his statement, which Flatman told him contained material of a confessional kind. The applicant said in evidence that Flatman put to him his record and his conviction in 1997 for arson, and suggested to him that his method of operation on that occasion was the same as that used on the occasion under investigation.
22 The applicant said that he told Flatman that he did not want to talk to him, but he wanted to go home. He said that Flatman responded that the only place the applicant would go was to gaol. He said he asked for a lawyer, and that was roughly refused, Flatman saying he did not deserve one. He said that Flatman said that the only way he would get out of there was if he agreed to be recorded on video, confessing to the arson offences. The applicant's evidence was that Flatman said that unless that occurred he would rip up the original statement. Flatman said that unless on the video the applicant said what Flatman told him to say, he would go straight to gaol. Careful perusal of the video gives no support to the suggestion that the answers given by the applicant were other than voluntarily provided.
23 That was all the evidence given on the voir dire. As to admissibility, if the Judge accepted the evidence of Flatman, supported in part by Clarkson, his Honour would be entitled to find that voluntariness was established on the balance of probabilities. His Honour could not accept that evidence, particularly the evidence of Flatman, without rejecting as a truthful account the evidence given by Bradshaw. The Judge's reasons were given briefly and ex tempore. In my opinion, the matter required no different treatment.
24 His Honour commenced by referring to the issues raised on the voir dire. He stated correctly, in terms in respect of which there is no complaint, the legal tests and the onus in relation to both admissibility and the exercise of the discretion to exclude. It is clear that the Judge focussed first upon whether or not the evidence of the applicant was to be rejected as a truthful account. He said that was a decision to be made having regard to the nature of the evidence given by the applicant, the evidence given by the two police officers, the comparison of all that evidence with that provided by the video record-of-interview, and the internal consistencies and probabilities of the various accounts.
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25 His Honour started with the video record. He said, as I have said, that it provided no evidence that the applicant had been overborne or the subject of aggressive police behaviour, threats, duress or inducement. He made no complaint. The applicant appeared relaxed. He joked with the officers. He volunteered information which could only be known by a person involved in the events. His Honour concluded that the videotaped record-of-interview was clearly supportive of the proposition that what he said was said voluntarily.
26 Turning to the statement provided earlier, the Judge said that it contained no admissions, as the applicant must have known. It therefore made no sense for Flatman to make the statements about tearing it up, attributed to him by the applicant.
27 Overall, it is clear from his Honour's reasons that he regarded the evidence of the two police officers as being consistent one with the other, and sensible in terms of the nature of the investigation, the way the applicant was first treated as a witness, and how their view of his role changed until they regarded him as a suspect. The reasons for that change of view made sense to the trial Judge. And finally, his Honour observed that "it is a rational response by an accused person to police investigators making known to them that there were others who were telling a different story, that the person changes from someone who maintains innocence to being someone who accepts guilt."
28 Taking the view of the facts that his Honour did, it was not surprising that he also concluded that there was nothing in what had occurred which would justify the exercise of his discretion to exclude the evidence on the grounds of unfairness. I can see nothing in any of this material to establish error in the Judge's decision about admissibility or in his Honour declining to exercise his discretion to exclude the evidence.
29 As to the question of voluntariness and admissibility, the ground of the application does no more than rehearse, again, the arguments put unsuccessfully to the trial Judge. They depend upon acceptance of the evidence of the applicant and rejection of that of the police officers. I find those arguments no more convincing than did his Honour the Judge who dealt with the issue at first instance.
30 As to the exercise of the discretion, it is put that the error lay in the unfairness established by the discussion Flatman had with the applicant "off video", the lack of any direct evidence other than his confession capable of linking the applicant to the commission of the offence (it is
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- admittedly the case that without that confessional evidence there was only a weak circumstantial case), what is put as the prejudicial effect of the video record-of-interview as opposed to its probative value, and the circumstances surrounding the making of the video record-of-interview.
31 The first matter raised again depends upon a version of the facts rejected by the Judge. The second matter raised, the nature of the circumstantial case otherwise available to the prosecuting authorities, seems to me to be irrelevant. Having viewed the video record-of-interview, it is nonsensical to suggest that it has a probative value which is substantially outweighed by its prejudicial effect. The probative value lies in the admissions made. The prejudicial effect of those admissions is directly comparable to their probative value. Finally, nothing was put to support the proposition that there was any unfairness in the circumstances surrounding the making of the video record-of-interview. I would not uphold this ground of appeal.
32 There is a second ground which complains that a miscarriage of justice was occasioned when the Judge commented "in an inappropriate and highly inflammatory manner about evidence called by the applicant at trial".
33 When charging the jury, his Honour reminded them of the evidence of a Mrs Parker. This witness saw the incident when the house was set on fire. According to her, it occurred when skylarking teenagers set off fireworks on New Years Eve. The applicant is an adult. He would not readily have fitted the description given by Mrs Parker of the persons she said she saw cause the fire. When mentioning her evidence during the course of his summing up, the trial Judge said:
"Speaking for myself, I found it completely surprising that this witness, who claimed to have seen what was obviously a crucial incident on the night in question, should have kept this information to herself for many years and, even knowing a person had been charged with the offence, still kept it to herself without approaching the police. I find that absolutely incredible. My feelings of course are not relevant in this trial. You must assess her testimony and come to your own view as to how you are to approach it and what view you have of it."
34 The comment did two things. It certainly made quite clear the view of the trial Judge about the evidence of Mrs Parker, but in addition, and importantly, it reminded the jury that it was their view of the evidence and
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- the witnesses which was crucial to the decision-making process upon which they were about to engage. In so doing, his Honour reinforced what he had to say at the commencement of his charge, which included the observation that the facts were for them, what his Honour said about the facts did not bind the jury in any way, they were free to accept or reject such evidence as they thought proper, and it was their task alone to determine the facts and to arrive at what they considered to be the appropriate verdicts.
35 In my opinion, complaints of this type are too frequently made about the comments upon the facts made by trial Judges. In making such comments, the Judge performs the function entrusted to the trial Judge by the Criminal Procedure Act 2004 (WA), s 112, which relevantly provides:
"… the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice."
36 In my opinion, the interests of justice are served when, in commenting upon the evidence, the Judge identifies for the jury matters or considerations which may legitimately affect their judgment about whether to accept or reject the evidence given by a witness. The comments by his Honour on this occasion went no further, while leaving the matter squarely within the responsibility of the jury.
37 In talking generally about the instruction to be given by trial Judges in criminal trials, the majority of the High Court, in RPS v The Queen (2000) 199 CLR 620, at 637, set out succinctly what was required of the Judge. At [42] their Honours added:
"But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give a jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues."
38 In the footnote to that last sentence, their Honours referred, as an example, to Tsigos v The Queen reported in a note in (1965) 39 ALJR 76. Reference to that note reveals a comment of much greater strength adverse to a witness than the comment made by the trial Judge in this case. The judge in that case said:
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- "On the evidence before the court it is my duty to tell you that you will be flying in the face of the oath you took, namely to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape from the verdict of murder or manslaughter."
39 It is of interest, of course, because although Tsigos was decided in 1965, their Honours, in RPS, used it as an example of strong comment of an appropriate kind in 2000. The law has not changed.
40 For us in this jurisdiction, the touchstone remains the interests of justice. I am strongly of the view that jury is entitled to have a judge identify, if appropriate in strong terms, matters affecting the credibility of a witness to which the jury may give attention in making their decision about the evidence they accept and reject. What was said by his Honour the trial Judge on this occasion is not only not established to have been wrong, but in my opinion, it was clearly right and appropriate that the comment should be made.
41 It follows from the above that I would refuse the application for leave to appeal.
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