Brott v The State of Western Australia - [2016] WASC 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BROTT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 300

CORAM: FIANNACA J

HEARD: 17 MAY & 29 JUNE 2016

DELIVERED : 4 AUGUST 2016

PUBLISHED : 29 SEPTEMBER 2016

FILE NO/S: INS 36 of 2016

BETWEEN: SHAUN DOUGLAS BROTT
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Application to exclude electronic record of interview - Voluntariness - Discretionary exclusion - s 138 and s 140 Criminal Investigation Act 2006 (WA) - Reasonable opportunity to speak to lawyer - Turns on its own facts

Legislation:

Criminal Investigation Act 2006 (WA), s 138, s 140, s 154 and s 155

Result:

Electronic record of interview held to be admissible

Category: B

Representation:

Counsel:

Applicant: Mr D A Fort
Respondent: Ms J F Boots (17 May 2016) & Mr N R Cogin (29 June 2016)

Solicitors:

Applicant: Fort Legal
Respondent: Director of Public Prosecutions (WA)

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

Browne v Dunn (1893) 6 R 67 (HL)
Collins v The Queen [1980] FCA 82; (1980) 31 ALR 257
Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508
Ibrahim v The King [1914] AC 599
Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
The State of Western Australia v Gandy [No 2] [2015] WASC 386
The State of Western Australia v Heijne [No 2] [2009] WASC 408
The State of Western Australia v Smith [2010] WASC 279
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
FIANNACA J:

The application and the outcome

Shaun Douglas Brott has been charged on indictment with one count of aggravated burglary (Criminal Code (WA) s 401(2)(a)) and one count of stealing (Criminal Code s 378) alleged to have been committed on 1 August 2015 in Clarkson, and one count of aggravated armed robbery (Criminal Code s 392) alleged to have been committed on 4 August 2015 in Clarkson. The proceedings in respect of that indictment are pending in this court.
In the course of the investigation that resulted in the charges, the accused was interviewed by police. An audio‑visual recording was made of the interview. During the course of the interview, the accused made admissions, at least in respect of the offence of aggravated armed robbery. The State intends to rely on those admissions at trial, and proposes to tender the recording in evidence.
The accused challenges the admissibility of the interview on the ground that the admissions were not made voluntarily. In the alternative to that ground, the accused has sought the exclusion of the interview, in the court's exercise of its discretion, on the grounds that it would be unfair and/or against public policy to admit it. As will become apparent, those grounds rely on factors that are also relied on in respect of the issue of voluntariness, together with other factors concerning police obligations under the Criminal Investigations Act 2006 (WA) (CIA).
As I understood the submission made on behalf of the accused in respect of the involuntariness ground, it was that, in proceeding at all with an interview in the circumstances in which the accused found himself, including his personal circumstances, and in persisting with questioning him when the accused indicated he did not wish to comment, the police acted in an overbearing way, and the accused's will was in fact overborne, so that he did not truly exercise a free choice to speak or remain silent. The relevant circumstances were:
1.his age (he was 18);
2.his level of intellect;
3.the fact that he had had little opportunity for sleep and was very tired (the interview having taken place at 3.33 am);
4.the fact he had been held in custody for a lengthy period; and
5.the fact that he had indicated a desire to speak to a lawyer.
However, during final submissions, the accused's counsel conceded that the argument in respect of involuntariness was 'a long bow to draw', having regard to the evidence in the proceedings, and the 'real thrust of [the accused's] application is on the grounds of unfairness',[1] although he did not abandon the involuntariness ground.[2]
[1] ts 186.
[2] ts 200.
The accused's contention in respect of the unfairness ground is that the combination of the factors referred to above placed the accused at a significant disadvantage in exercising his judgment about whether to persist with his request for a lawyer and whether to answer questions, and it would be unfair to allow the State to rely on his admissions in evidence in those circumstances, even if the court is satisfied the admissions were made voluntarily. The public policy ground relied on an alleged cutting of corners by the police in the keeping of records in respect of the accused's request for a lawyer and the approval of an extension of his detention, and the contention that it was against public policy to interview the accused at about 3.30 am, given his age, background and physical condition.
Initially, the application appeared to rely also on contraventions of the CIA as a basis for exclusion of the evidence under s 154(2) of that Act. It is not in dispute that the accused's admissions were obtained by the police in the purported exercise of powers under the CIA. A contravention of the requirements for the exercise of those powers would render the evidence inadmissible under s 154(2), unless the court decides to admit the evidence under CIA s 155. The application appeared to rely on two contraventions. First, that the admissions were obtained during a period in which the detention of the accused was not authorised under the CIA, in that the accused was detained for a period longer than six hours without authorisation under s 140(4)(b) of the CIA. Secondly, that the accused, as an arrested suspect, was denied a reasonable opportunity to communicate or attempt to communicate with a legal practitioner after he had requested to do so, contrary to his entitlement under s 138(2)(c) of the CIA.
In opening submissions, counsel for the accused appeared to leave open the possibility that the accused would rely on a contravention of the CIA as a basis for exclusion of the evidence. In final submissions, he disavowed any reliance on s 154(2) of the CIA, but continued to rely on an argument that the accused had been denied a reasonable opportunity to communicate or attempt to communicate with a legal practitioner as a basis for exclusion of the accused's admissions either on the ground of involuntariness or on the ground of unfairness. He also relied on an argument that the police had not complied strictly with the provisions of the CIA in respect of the extension of the accused's detention as a basis for exclusion of the accused's admissions on unfairness and public policy grounds.
Given the potential for s 154(2) of the CIA to have application, having regard to the accused's arguments, and notwithstanding the approach taken by his counsel in final submissions, I have considered the admissibility of the evidence under that provision. The State was given an opportunity to address the issue of admissibility on that basis, and did so.
The application was heard on 17 May 2016 and 29 June 2016, at which time I reserved my decision.
I have come to the conclusion that the interview is admissible and that it should not be excluded in the exercise of discretion. In order to enable the proceedings in respect of the indictment to progress without inordinate delay, I delivered my decision on 4 August 2016 and gave brief reasons at that time, with detailed reasons to follow. These are my reasons.

The alleged offences

The facts alleged by the State in respect of the burglary and stealing offences are that, after having an argument with his neighbour in Tufnell Lane, Clarkson, either late in the evening of 31 July 2015 or early in the morning of 1 August 2015, the accused and a co‑accused, Burns, decided to break into that neighbour's house. Burns removed a number of tiles from the roof of the house and gained entry into the house through the ceiling space. He then went to the front door and let the accused in. The accused then stole a number of items from the house, taking them to his house at 6 Tufnell Lane.
The facts alleged by the State in respect of the aggravated armed robbery offence are that on 4 August 2015 the accused and others decided to order pizza from a Domino's Pizza store, with the intention of taking the pizzas without paying when they were delivered. The order was placed with the Domino's Pizza store in Mindarie for delivery to an address in Santa Clara Crescent in Clarkson. The complainant, who worked at the Mindarie store, was asked to deliver the pizzas to that address by vehicle around 5.30 pm.
Upon arrival at the address, the complainant noticed three people outside. One of them was the accused. When the complainant approached the three about the pizzas, it became apparent that they did not have cash to pay for the pizzas. The complainant returned to his car to call the store to enable payment to be made over the telephone. It is alleged that, at that point in time, the accused produced a knife and demanded that the complainant hand over his money, as well as the pizzas. The two co‑offenders left the area with the pizzas, whilst the accused made further demands of the complainant that he hand over his personal property. After stealing property from the complainant, the accused returned home to 6 Tufnell Lane, where police located him a short time later and arrested him.

Arrest and interview

The accused was arrested at approximately 6.30 pm on 4 August 2015. Apart from being arrested on suspicion of having committed the aggravated armed robbery, he was also arrested on an existing warrant. He was conveyed to the Joondalup Police Station where he underwent the usual administrative processing and was placed in a holding cell while police continued with their search of the property at 6 Tufnell Lane and interviewed the two other suspects. He was eventually interviewed by detectives at Joondalup Police Station on 5 August 2015, commencing at 3.33 am. During the interview, the accused initially gave an account denying the commission of the offences and purporting to provide him with an alibi. When he was informed that one of the other suspects had given an account that implicated him, he answered 'no comment' for a substantial period of time, but eventually made admissions in respect of the aggravated armed robbery and circumstances surrounding the alleged burglary.

The law

In The State of Western Australia v Gandy [No 2],[3] Corboy J identified and discussed comprehensively the principles applicable on an application of this kind, going to the issues of voluntariness, the 'fairness discretion', exclusion for public policy reasons and s 154(2) of the CIA. I respectfully adopt his Honour's analysis at [68] ‑ [73] (voluntariness), [78] ‑ [83] (fairness discretion) and [44] ‑ [52] (CIA provisions), all of which is broadly relevant to the issues in this application. For convenience, I will outline the key principles. It is also necessary for me to emphasise some aspects of the authorities that are of particular relevance to the circumstances of this case.

(a) Voluntariness

[3] The State of Western Australia v Gandy[No 2][2015] WASC 386.

An admission made by an accused person out of court is not admissible in evidence unless it was made voluntarily, that is, 'made in the exercise of a free choice to speak or be silent'.[4] This has been referred to as 'basal voluntariness' and is concerned with confessions made under compulsion.[5] An admission is not made voluntarily if the will of the accused has been overborne as the result of a threat, duress, intimidation, persistent importunity or sustained or undue insistence or pressure from a person in authority, or as a result of a promise held out to the accused by such a person.[6] If there is evidence that the accused's statement was preceded by an inducement, such as a threat or promise, held out by a person in authority, then it is not voluntary unless the inducement is shown to have been removed.[7]
[4] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149.
[5] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 417 [47], 420 [60] (Gummow & Hayne JJ).
[6] Lee (144); Tofilau (420 ‑ 421) [60] (Gummow & Hayne JJ).
[7] Lee (144).
While the justification for the rule is that a confession obtained in such circumstances is 'deemed so unreliable as a class that it should not be available for consideration'[8] as a matter of policy, its application depends on the nature and effect of any inducement.[9] The issue under this head of exclusion is not the propriety of police conduct, but the effect of police conduct in all the circumstances on the will of the accused. The court must have regard to the age, background and psychological condition of the accused person and the circumstances in which the confession was made.[10]
[8] Tofilau (418) [53] (Gummow & Hayne JJ).
[9] Ibrahim v The King [1914] AC 599, 610 ‑ 611(Lord Sumner); R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 168 [11] (Brennan CJ).
[10] Collins v The Queen [1980] FCA 82; (1980) 31 ALR 257, 307 (Brennan CJ).
However, as was pointed out by Gummow and Hayne JJ in Tofilau:
The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made. Nor is that conclusion required (and without more being shown the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.[11]
[11] Tofilau (421) [63] (Gummow & Hayne JJ).
The onus is on the prosecution to establish, on the balance of probabilities, that a confession was made voluntarily, that is, that it was not induced by the conduct of a person or persons in authority in a manner referred to above.[12]

(b) Exclusion of voluntary admissions in the exercise of discretion

[12] Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559.

A confession that is held to have been made voluntarily may nevertheless be excluded in the exercise of a trial judge's discretion. In Swaffield the High Court identified three categories of cases in which that might occur:
(a)where it would be unfair to the accused to admit evidence of the admission;
(b)where evidence of the admission should be excluded on public policy grounds;
(c)where the prejudicial effect of the evidence outweighs its probative value.
The purpose of the fairness discretion is to protect the rights and privileges of the accused person; the purpose of the discretion to exclude an admission on public policy grounds is to protect the public interest; and the purpose of the discretion to reject evidence where its prejudicial effect outweighs its probative value is to guard against a miscarriage of justice.[13]
[13] Swaffield (189) [52] (Toohey, Gaudron & Gummow JJ).
Where an admission has been made voluntarily, it is for the accused to establish, on the balance of probabilities, that evidence of the admission should be excluded on the ground of unfairness. The issue in respect of unfairness is not whether the accused has been treated unfairly, but whether the reception of the admission would be unfair to the accused in the conduct of his or her trial.[14] In determining that question, the reliability of the admission, in light of the circumstances in which it was obtained, will always be a factor to be considered, but it is not the sole factor, and there may be cases in which an otherwise reliable account will be excluded due to other factors, such as illegality or impropriety on the part of law enforcement officers.[15] In that context, the fact that no confession might have been made if the investigation had been properly conducted is a relevant factor.[16]
[14] Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232.
[15] R v Williams (1992) 8 WAR 265, 273 ‑ 274 (Rowland & Owen JJ); The State of Western Australia v Smith [2010] WASC 279 [9] (Hall J).
[16] Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508, 141 (Toohey J), referred to in R v Williams (273) (Rowland & Owen JJ).
However, as was pointed out in R v Williams:
Such other factors must, of course, go to the issue of relevant unfairness, that is, unfairness of such a nature whether procedural or substantive, as might jeopardise the right of the accused to a fair trial. It would follow that in the face of a confessional statement found to be reliable, the onus on the accused of establishing the relevant unfairness is necessarily high.[17]
[17] R v Williams (273 ‑ 274) (Rowland & Owen JJ).
Further, the following observations of Hall J in The State of Western Australia v Smith are apposite in the circumstances of this case:
Questioning by police is not to be regarded as unfair merely because it is persistent nor is there any impropriety in a police officer indicating that the truth of an answer is not accepted because it does not accord with earlier answers given by the accused or with what others have said …
Where a suspect during the course of an interview indicates a wish not to answer a question or to participate further in the interview, interviewing officers are entitled to ask further questions to clarify the accused's position.[18]
[18] Smith [10] ‑ [11].
In considering whether to exercise the discretion, the court is required to weigh the factors that are said to give rise to unfairness against the public interest in placing otherwise relevant and admissible evidence before the jury, so that those who commit serious offences may be brought to justice. The weighing of the public interest is relevant to the exercise of discretion whether exclusion is sought on the basis of unfairness or on the basis of public policy. The weight to be given to the public interest will vary according to 'the heinousness of the alleged crime and the reliability and unequivocalness of the alleged confessional statement'.[19]
[19] Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 203 (Deane J).
The separate nature of the public policy ground of discretionary exclusion was explained by Deane J in Pollard v The Queen in the following passage (referred to by Corboy J in Gandy [No 2] [82]):
[T]he principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct.[20]
[20] Pollard (203).
The nature and the seriousness of any non-compliance by law enforcement officers with the law or some applicable judicially recognised standard of propriety is an important consideration. As Corboy J pointed out in Gandy [No 2],[21] there is a spectrum of such conduct that may come under consideration, as was recognised by Deane J in Pollard, and the likelihood of exclusion of a confessional statement obtained as a result of such conduct will depend on where the conduct falls in that spectrum. For instance, accidental or isolated breaches will not ordinarily result in the exclusion from evidence of a voluntary confessional statement on public policy grounds, particularly if the alleged offence is serious. On the other hand, 'a course of conduct on the part of the law enforcement officers which involved a deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice' would ordinarily result in exclusion on public policy grounds.
[21] Gandy [No 2] [82].

As will appear below, if the breach of a statutory requirement is under the CIA, so as to engage the provisions of s 154(2) of that Act, the interview containing the admissions will be inadmissible, although the court has a discretion under s 155 to admit the interview if satisfied of certain conditions. Obviously, in such circumstances, the considerations referred to in the preceding paragraph that would favour discretionary exclusion of evidence on public policy grounds would also militate against the discretionary admission of that evidence under s 155.

(c) Criminal Investigation Act

In assessing the potential application of the exclusionary provisions of the CIA, it is convenient to start with the statutory power that was being exercised by the police when they interviewed the accused, and their obligations in exercising that power.

The statutory power under which the interview was conducted

The accused was detained under s 139 of the CIA. That section applies to an arrested suspect, which term is defined to mean, relevantly, 'a person who is under arrest having been arrested under section 128 … on suspicion of having committed an offence but who has not been arrested under an arrest warrant'.[22] Although the evidence in this case was that there was a bench warrant in existence for the accused's arrest on another matter, he was arrested in respect of the present offences under s 128, on suspicion of having committed a serious offence.
[22] Section 139(1) of the CIA.
Section 139 goes on to provide as follows:
(2)A police officer or a public officer may detain an arrested suspect in custody after the suspect is arrested for the purposes of -
(a)doing a search under section 133 or 135; and
(b)investigating any offence suspected of having been committed by the suspect; and
(c)interviewing the suspect in relation to any offence that the suspect is suspected to have committed; and
(d)deciding whether or not to charge the suspect with an offence.
…
(4)The detention of an arrested suspect must be in accordance with section 140.
(5)The detention of an arrested suspect in contravention of section 140 is not unlawful if it occurs due to circumstances that are not reasonably foreseeable.
Relevantly for the purposes of this application, s 140(3) of the CIA provides that the detention of an arrested suspect must not exceed six hours from the arrest of the suspect unless a further period has been authorised under s 140(4)(b). Subsection (4) provides that, at any time during the six hours immediately following a suspect's arrest on suspicion of having committed an offence:
(a)an officer involved in investigating the offence may apply to a senior officer for an authorisation under paragraph (b); and
(b)on such an application, the senior officer may authorise the detention of the suspect for a further period of not more than 6 hours if the officer is satisfied that detention of the suspect for the further period is justified.
'Senior officer' is defined in s 140(1) to mean, relevantly for present purposes, 'a police officer who is, or is acting as, a sergeant or an officer of a rank more senior than a sergeant … who is not involved in the investigation of any offence that the suspect is suspected of having committed'.
Section 140(2) provides that the detention of an arrested suspect is justified if the detention:
(a)is for a purpose referred to in section 139(2); and
(b)is for a period that is reasonable having regard to the factors in section 141.
The factors to be taken into account under s 141, for the purposes of s 140, include the following factors that are relevant to this application:
(d)the time needed to interview any other people who are suspected of being involved in an offence suspected of having been committed by the suspect;
(e)the time needed to transport the suspect from the place where he or she was arrested to a place where appropriate facilities are available to conduct an interview or any other investigation;
(f)the time needed by an officer to assess relevant material or to take any other steps to prepare to interview the suspect;
...
(m)the time needed to complete any of the matters, or any matter reasonably connected with the matters, in section 139(2).
Finally, in terms of the power to detain, and relevant to this application, s 140(5) provides as follows:
(5)If under subsection (4)(b) a senior officer authorises the detention of an arrested suspect for a further period -
(a)the senior officer must make a written record of the authorisation and -
(i)the name or a description of the arrested suspect to whom it relates; and
(ii)the further period authorised; and
(iii)the date and time of the authorisation; and
(iv)the reasons for the authorisation;
and
(b)if practicable the senior officer must give the applicant a copy of the written record; and
(c)the further period commences at the end of the 6 hours immediately following the suspect's arrest.
It can be seen from the above outline of the statutory provisions concerning the detention of an arrested suspect, that one of the purposes for which such a suspect may be detained is to be interviewed in relation to any offence he is suspected to have committed. In Wright v The State of Western Australia,[23] it was held that the interview of an accused in such circumstances occurs in the purported exercise of the power of detention under s 139. Therefore, in interviewing the accused in this case, the police were acting in the purported exercise of the power of detention in respect of an arrested suspect.

The accused's rights as an arrested suspect and the obligations imposed on the police
[23] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1.

As an arrested suspect, the accused had certain rights under s 137 (which are not relevant for present purposes, but include the right to a reasonable opportunity to communicate or attempt to communicate with a relative or friend to inform that person of his or her whereabouts) and s 138(2). Under s 138(3), the police had obligations relating to those rights.
Section 138(2) provides that 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; and
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner.
Section 138(3) provides that:
The officer in charge of the investigation[24] must, as soon as practicable after the arrest of an arrested suspect -
(a)inform the suspect of his or her rights under s 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under s 137 and subsection (2).
[24] Section 12 of the CIA provides that an officer may delegate the performance of a function of the officer under the CIA, other than the power of delegation, to another officer. In such circumstances, the delegating officer must ensure that the other officer performs the duty.
Section 138(4) provides that an officer 'may refuse an arrested suspect his or her right to communicate or attempt to communicate with a person if the officer reasonably suspects that the communication would result in' certain specified events that, in general terms, concern the integrity of the investigation and evidence. By referring to communication with 'a person', it is clear the provision was intended to apply to both the right to communicate with a friend or relative under s 137 and the right to communicate with a legal practitioner under s 138(2)(c).
In Wright, McLure P (with whom Buss JA agreed) was of the view that s 138(2)(c) is not the source of any duty imposed on police.[25] Section 138(3)(a) is the source of the duty on police in relation to the suspect's right under s 138(2)(c), and that is a duty to inform the suspect of his right to communicate with a lawyer. The obligation on police under s 138(3)(b) to 'afford' a suspect his 'other rights' does not apply to the right under s 138(2)(c).[26] However, the police must not prevent an arrested suspect who wishes to exercise that right from doing so,[27] which in effect would mean that he must be given a reasonable opportunity to do so.
[25] Wright (9) [29] (McLure P, Buss JA agreeing).
[26] Wright (9 ‑ 10) [29] (McLure P, Buss JA agreeing).
[27] Wright (10) [30] (McLure P, Buss JA agreeing).
Blaxell J, in the same case, agreed that, on a proper construction of s 138(3)(b), it did not apply to the arrested suspect's right under s 138(2)(c), but concluded that, although s 138 is silent on the duty of an officer when a suspect expresses the wish to exercise one of the rights of communication, on a proper analysis of the provisions of that section, in the absence of any reasonable suspicion under s 138(4), 'the officer then detaining the arrested suspect is obliged to afford the suspect that right' if a suspect makes a request to exercise the right.[28] In that regard, his Honour differed from the view expressed by McLure P that s 138(2)(c) is not the source of any duty imposed on police.
[28] Wright (34) [164] (Blaxell J).
I consider I must follow the majority view in Wright on this point, as expressed by McLure P. However, it seems to me that if an arrested suspect is denied a reasonable opportunity to communicate or attempt to communicate with a lawyer when he has requested to do so, it would make little practical difference whether the denial is constituted by a failure to comply with an obligation to 'afford' the right (for instance, by failing to provide the means of communication) or by an act or omission that prevents the suspect from exercising the right.
What is clear, in my opinion, is that s 138(4) identifies the only circumstances in which a police officer can refuse an arrested suspect the right to communicate or attempt to communicate with a legal practitioner. It is also clear that the issue of timing in respect of the entitlement under s 138(2)(c) is affected by the words 'reasonable opportunity', rather than the qualification 'as soon as practicable after the arrest' that applies to the obligations under s 138(3).
In Wright, McLure P said that what constitutes a reasonable opportunity will depend on the particular facts and circumstances of each case.[29] Her Honour then said:
The next issue is whether the opportunity to communicate must be prior to interview. Construing s 138(2)(c) in its broader context, there is no such requirement. There is no express provision to that effect nor can such a requirement be implied having regard to pars (b) and (d) of s 138(2), both of which expressly provide that the right be afforded prior to interview. The omission in s 138(2)(c) is explicable on the basis that under s 138(2)(b) a suspect must be cautioned before being interviewed as a suspect. The caution (that the suspect does not have to say anything but anything he does say would be recorded and may be given in evidence) sufficiently protects the interests of the suspect. A suspect who wishes to communicate with a lawyer, will be aware that he is not obliged to answer any questions. Further, the practical effect of the obligation in s 138(3)(a) to inform the suspect of his right to communicate with a lawyer as soon as practicable after arrest will ordinarily require that the information be provided prior to interviewing the suspect.[30]

Section 154 and s 155
[29] Wright (10) [32] (McLure P, Buss JA agreeing).
[30] Wright (10) [33] (McLure P, Buss JA agreeing).

Section 154(2) CIA provides that:
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.
The effect of s 154(2)(d) is that, where the evidence is not admissible because of s 154(2)(b), the provisions of s 155 are engaged to give the court a discretion to admit the evidence if certain requirements are met. The relevant provisions of s 155 state:
(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.
It can be seen that factors that are relevant to the discretionary exclusion of otherwise admissible evidence on public policy grounds at common law are also relevant to the discretionary admission of otherwise inadmissible evidence under s 155.[31]
[31] See the analysis of Blaxell J in this regard in Wright (36 ‑ 37) [176] ‑ [181].
Section 154(2) applies to the accused's admissions in his interview with the police while he was an arrested suspect, and to the audio‑visual record of the interview, because they are things relevant to the offences with which he is charged and were obtained in the purported exercise of a power conferred by the CIA (the power to detain an arrested suspect under s 139(2)).[32] The requirements under s 138 and s 139 of the CIA are requirements in relation to exercising the power under s 139(2), for the purposes of s 154(2)(b).[33]
[32] Wright (8) [20] (McLure P, Buss JA agreeing), (35 ‑ 36) [166] ‑ [174] (Blaxell J).
[33] Wright (8) [21] (McLure P, Buss JA agreeing), (35 ‑ 36) [166] ‑ [174] (Blaxell J).
In Wright, McLure P (with whom Buss JA agreed) identified the principles applicable to the operation of s 154(2) in conjunction with s 138 insofar as it relates to an accused's right under s 138(2)(c) to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner.[34] They were summarised by Corboy J in Gandy [No 2].[35] They include the principles to which I have already referred concerning the proper construction of s 138, but it is convenient to repeat them in this context. For present purposes, the principles are:
(a)For the purposes of s 154(2)(b), the requirement that must be satisfied by the police in respect of the accused's right under s 138(2)(c) is to inform the accused of that right as soon as practicable after the arrest.
(b)What is 'as soon as practicable after the arrest' is a matter of fact to be determined in the circumstances of each case.
(c)Similarly, if the accused wishes to take advantage of that right, what constitutes a 'reasonable opportunity' is also a matter of fact to be determined in the circumstances of each case, including the suspect's access to the means to communicate. The reasonableness of an opportunity to communicate with a legal practitioner will be assessed from the time the accused was informed of his or her right to communicate with a lawyer.
(c)Section 138(3) does not impose an obligation on a police officer to provide an arrested suspect with any facilities (for example, a telephone or telephone directory) which are reasonably necessary for the suspect to take advantage of the entitlement.
(d)However, a police officer must not by any act or omission prevent the suspect from exercising his or her entitlement.
(e)Once a police officer has discharged the duty of informing an arrested suspect of his or her right to communicate with a lawyer, the onus is effectively cast on the suspect to exercise the right if he or she so desires; there is no duty on the police to cease questioning the suspect.
[34] Wright (7 ‑ 11) [15] ‑ [34].
[35] Gandy [No 2] [51] ‑ [52].
In my opinion, it follows from McLure P's analysis in Wright that, unless s 138(4) applies, if an arrested suspect is refused or denied (by any act or omission on the part of the police) a reasonable opportunity to communicate or attempt to communicate with a lawyer when they have requested to do so, that would amount to a contravention of a requirement of the CIA in relation to exercising the power to detain the suspect under s 139 for the purposes of interview, because s 138, including the entitlement under s 138(2)(c), is such a requirement.[36] Therefore, the provisions of s 154(2)(b) would apply if it is alleged, as it is in this case, that there was such a denial and that admissions were then obtained from the accused while he remained in custody as an arrested suspect.

(d) The relationship between the common law and the provisions of the CIA

[36] Wright (8) [21] (McLure P, Buss JA agreeing).

In the introductory section of these reasons I referred to the fact that the accused has sought to rely on alleged police conduct which, if established, would appear to constitute a contravention of requirements under s 138 and s 139, but has not sought to rely on s 154(2), instead submitting that the conduct is relevant to the issues of voluntariness and discretionary exclusion of the interview on the basis of unfairness and public policy. It is necessary, therefore, to consider the relationship between the common law and the provisions of the CIA. The issue was addressed by McLure P in Wright:
It is necessary at this juncture to address the relationship between the common law and the provisions of the Act. The only relevant provision is s 7 of the Act which provides:
'(1)Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2) If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3) If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.'
There is no common law right equivalent to s 138(2)(c) although requests to speak to a lawyer are relevant to the voluntariness or fairness of a record of interview: Mackenzie v The Queen[37] (at [65]).
Section 7 does not make express reference to the statutory consequences of a failure to comply with the statutory duty. There is clearly no express or implied exclusion or modification of the common law relating to the voluntariness of confessional evidence.
The position in relation to the discretion to exclude on the grounds of unfairness or public policy is not as clear. If the only matter relied on was a contravention or contraventions of the Act, there must be no scope for the application of the common law discretion. That may also be so if all matters relevant to the exercise of the common law discretion were relevant to the statutory discretion in s 155. However, it is unnecessary to answer that question in this case.[38]
[37] Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451, 465 ‑ 466 [65] ‑ [66] (Wheeler J, Malcolm CJ & McLure J agreeing).
[38] Wright (13) [45] ‑ [48].

Although the question raised by her Honour was not resolved, it seems to me, consistent with her Honour's observations, that the accused's request to speak with a lawyer may be relevant to the issues of voluntariness and the fairness of the interview, but any contravention of s 138 is to be dealt with under s 154(2) and s 155. Similarly, it seems to me that any contravention of s 139 is to be dealt with under those provisions. A consequence of that approach is that, if the admissions are otherwise admissible, the onus is on the accused to establish, on the balance of probabilities, that there has been a contravention of s 138 or s 139. However, if a contravention is established, the interview would be inadmissible unless the court were satisfied that the interview should be admitted, having regard to the provisions of s 155. The burden of persuasion under s 155 would then fall on the State and, to the extent that the decision turns on disputed issues of fact, the State must prove those facts on the balance of probabilities.[39]
[39] Wright (39) [188] (Blaxell J).
The manner in which the accused's request to speak to a lawyer may be relevant to voluntariness and the fairness of an interview was explained by Wheeler J in Mackenzie v The Queen. Her Honour noted that it is 'the disregarding of such a request' that 'will often mean that it will be unfair to an accused person to admit in evidence an interview which has taken place in the absence of a legal practitioner'.[40] That, of course, would bear on the discretion to exclude the interview. In respect of voluntariness, her Honour intimated that where an accused indicates he would like to speak to a lawyer before he continues with an interview, a question as to the exercise of the accused's right to silence (ie whether they truly spoke in the exercise of a free choice) may arise.[41]
[40] Mackenzie v The Queen (465) [65].
[41] Mackenzie v The Queen (465 ‑ 466) [66].

The evidence at the hearing

The State tendered the audio‑visual recording of the interview conducted on 5 August 2015 (the interview) (exhibit 1). It also tendered audio‑visual recordings of four other interviews in which the accused had participated with police for other matters during 2015, being:
1.an interview on 2 February 2015 (exhibit 7);
2.and interview on 4 June 2015 (exhibit 8);
3.an interview on 11 July 2015 (exhibit 9); and
4.an interview on 21 July 2015 (exhibit 10).
It relied on the introductory parts of those interviews, in which the accused indicated his understanding of his rights. The relevant parts are identified in a table tendered by the State which refers to specific times shown on screen and the pages in the transcript of the interview in each case (exhibit 14).
The State called six witnesses at the hearing, being five police officers who were involved in the investigation of the offences with which the accused is charged and a further police officer who was involved in the approval of an extension of the period for which the accused was detained in custody.
Detective Senior Constable Ian Jeffrey and Detective Senior Constable James Borovina conducted the interview with the accused. Neither of them had any dealings with him before the interview. They were not involved in the earlier police activities at the premises where the accused was arrested.
Detective First‑Class Constable Luke Wehrmann and Detective Sergeant Bruce Bowers were involved in the arrest and initial detention of the accused. Detective Sergeant Bowers made the arrest.
Sergeant Timothy Moran also attended the scene. He was the principal investigating officer in respect of the aggravated armed robbery offence. He made the request for the accused's detention to be extended for the purposes of the police being able to conduct an interview with him.
Detective Senior Constable Lachlan McKeen McLetchie was involved in approving the extension of the detention of the accused.
Finally, the State tendered a number of extracts from journals and notebooks of some of those officers, and printouts of electronic records kept of the accused's custody.
The accused also gave evidence at the hearing.
It is necessary for me to outline the evidence relevant to the issues on the application. It is convenient to start with the contents of the interview.

The interview

The interview commenced at 3.33 am on Wednesday, 5 August 2015.
At the start of the interview, the accused is sitting upright and has his arms folded. From time to time he rubs his face. He also stretches, scratches his head and drinks from a can of soft drink (Coke). I note that both of the interviewing detectives also stretch at times during the interview.
While the accused appears to be tired, he appears to be alert and paying attention to what is being said to him throughout the interview. His speech is somewhat mumbled and might even be described as sounding a little slurred at times, but that appears to be a characteristic of his normal speech, which I noted when he gave evidence in the proceedings, prompting a request from me that he speak more clearly.
In answer to preliminary questions, the accused:
1.gave his name, date of birth and address;
2.said he got up to year 8 at school and that he could read and write;
3.said that he understood everything that had been said by the interviewer so far;
4.said he was not affected by alcohol or on any medication;
5.agreed that early the previous evening he had been told he was under arrest on suspicion of aggravated armed robbery and had been informed of his rights, including the right to speak to a lawyer.
When asked if he had exercised those rights, the accused answered 'yes', but it was clear from further answers that he had not. I note at this point that on the last occasion he had been interviewed for another matter, on 21 July 2015 (exhibit 10), the accused had also answered 'yes' when asked if he had exercised his rights. When clarification was sought, he confirmed that he had not spoken with anyone. It is apparent that the accused sometimes has difficulty understanding the question when he is asked if he has exercised his rights, but I do not consider that any conclusion can be drawn from that about his ability to understand what his rights are and his ability to exercise those rights. In my opinion, other answers given by the accused and his conduct generally during previous interviews and the interview conducted on 5 August 2015 show that he does understand the nature of his rights and has the capacity to exercise those rights, in particular his right to silence.
Given the significance of the accused's request to speak with a lawyer and the issue of whether he was given a reasonable opportunity to do so, it is appropriate to set out in full the discussion during the interview that immediately followed the preliminary questions. What follows is from the transcript of the interview, which the parties accepted to be accurate. There is one exception to the accuracy of the relevant portion of the transcript which I have identified in viewing and listening to the interview and have noted at the appropriate juncture. The following exchange took place:[42]
[42] Transcript of audio‑visual recording 5 August 2015 (AVR), pages 3 ‑ 5.
DET JEFFREY: And a lawyer, you've got a right to speak to a lawyer as well.
BROTT: Yeah. Well, I wanted to speak to a lawyer earlier. I got, I asked for one earlier.
DET JEFFREY: You asked for one earlier?
BROTT: Yeah. Before I entered any of this.
DET JEFFREY: Yep.
BROTT: I did, but I didn't get no lawyer.
DET JEFFREY: Okay. So do you want to speak to a lawyer?
BROTT: Mmm, yeah.
DET JEFFREY: It might be a bit tricky.
DET BOROVINA: Twenty-four hour lawyer?
DET JEFFREY: Yeah.
DET BOROVINA: You, you might be able to find one if you just Google twenty-four hour lawyer.
DET JEFFREY: We might be able to.
DET BOROVINA: Yeah.
DET JEFFREY: Yep. Alright.
BROTT: Well, no. Then [indistinct] I'll, I'll proceed with it.
DET JEFFREY: Well - - -
BROTT: Get this over and done with.
DET JEFFREY: No. You don't have to. Obviously, you don't, I mean, I'm getting to that bit next, that you don't have to speak to us. Alright. But, um, um, and it's up, it's up to you if you talk to us or not and you don't have to answer our questions. But, um, ah, if you want to speak to a lawyer there's, we can, we can try and, we can pause the interview and just try and, um, try and get someone for you to speak to. Um, it's not a problem.
BROTT: Alright then.
DET JEFFREY: Yeah?
BROTT: Yeah.
DET JEFFREY: You want to try that? Alright. Hmm?[43]
[43] The original transcript shows 'Nuh?', but that is not what is heard on the audio‑visual recording. Detective Jeffrey directs the last question to Detective Borovina, who appears to be about to say something, which he then does.
DET BOROVINA: In any event we'll get ya, we can't, we can't, we'll just have to try and look for a twenty-four hour lawyer. So we'll just Google it.
DET JEFFREY: Yeah.
DET BOROVINA: Because we don't have any lawyer, I don't know a lawyer that'll be available - - -
DET JEFFREY: At 3:30 in the morning. Nah.
DET BOROVINA: At 3:30 in the morning.
DET JEFFREY: Mmm.
DET BOROVINA: But we can, if you, if that's what you want to do, we'll - --
BROTT: Well, can, um - - -
DET BOROVINA: We'll, we can try that.
BROTT: Nah.
DET BOROVINA: I'm not saying that we're going to get you one but we'll, well, we can try it.
BROTT: Yeah. Nah.
DET BOROVINA: Do you want us to do that? We can just Google twenty-four hour lawyer and give you the phone and you make the call -
BROTT: Nah. It's alright.
DET BOROVINA: And you speak to someone.
BROTT: Nah. I don't think I'll bother doing that.
DET BOROVINA: Why?
BROTT: Well, because it'll take too long.
DET BOROVINA: Oh.
BROTT: And -
DET BOROVINA: It's entirely[44] up to you.
BROTT: Yeah. Nah. Let's get this over and done with.
DET JEFFREY: Okay.
BROTT: It'll be quicker.
DET JEFFREY: Alright. Well, those, okay. If you, if you're not going to try, if we're not, not going to try now that right is, is ongoing. Okay. So, you know, if you decide in half an hour or ten minutes that you, that you want to stop, just let us know and if you want to speak to a lawyer then or whatever you can try. Okay.
BROTT: Mmm.
[44] The original transcript shows 'right', but that is not what is heard on the audio‑visual recording.
The written word does not convey the full flavour of the exchange. It was submitted on behalf of the accused, in effect, that the officers were giving lip service to the intention to provide the accused with an opportunity to contact a lawyer, but their conduct was calculated to dissuade the accused from such a course by emphasising the unlikelihood of successfully contacting a lawyer at that time of the night. Particular emphasis was placed on Detective Jeffrey's comment, 'It might be a bit tricky', and the comment by both officers that they did not know a lawyer who would be available at 3.30 in the morning. As I understood the argument, it was not being suggested that the officers deliberately wanted to deny the accused his right to speak to a lawyer, rather, that they considered it inconvenient and made that very apparent. It seems to me that the distinction is of no significance in the circumstances of this case.
In my opinion, in context, the officers' comments come across as stating the obvious in a manner that suggests genuine doubt that a lawyer could be found at that time, but the offer to enable the accused to Google a 24‑hour lawyer was conveyed in an equally genuine manner. Further, there is nothing in the manner in which the last statement was made by Detective Jeffrey, informing the accused that he could stop the interview at any time to speak to a lawyer, that would suggest he was being disingenuous.
After the accused indicated that he wished to continue, he was cautioned in the usual manner and he was able to explain the caution in words that indicate he understood his right to silence and the fact that a recording of the interview could be used in court proceedings.[45]
[45] AVR, pages 5 ‑ 6.
When asked what he had been doing the previous afternoon, he initially declined to say, answering 'no comment'. However, he then went on to give an account in which he described going to Joondalup to catch up with a friend in the morning, and being at home with his friends, Gabby, Josh (who is Burns) and Nick, in the afternoon, watching a DVD and relaxing. He said a couple of Josh's friends had come around. When asked if he knew anything about pizzas, he said, 'Nuh', and then 'No comment'. However, he then went on to give an account of seeing Gabby with 'a couple of guys' when he went outside to get a folder from the garage, after he had been relaxing, and that one of the males ran through the house. He gave a detailed description of the male, including what he was wearing, and said he did not like him. He gave reasons for that. He said that he then went into Gabby's room to watch a movie and eventually went to sleep in his bedroom before he was woken by the police. This part of the interview, commencing with the initial question about what he was doing and concluding with the arrival of the police, takes approximately 30 minutes.[46]
[46] AVR, pages 6 ‑ 32.
It seems to me that the implication from the accused's account in that part of the interview was that any offence that may have been committed was committed by others, including the male he disliked. However, he was then told of what Gabby had told police when she was interviewed.[47] Gabby was one of the other suspects. That account commenced with a statement that at about 5.30 the accused had gone with her to the Clarkson train station and had telephoned a pizza company. When asked if he had anything to say in relation to that, the accused said, 'No. No comment'.[48] As further parts of Gabby's account were put to the accused, he mainly answered 'no comment', at one stage specifically saying, 'I'm not gonna say anything'.[49] There is then the following exchange:[50]
[47] AVR, page 33.
[48] AVR, page 33.
[49] AVR, page 34.
[50] AVR, pages 35 ‑ 36.
DET BOROVINA: I have evidence in the form of a statement to say that you have left the house today with Gabby and Josh. Do you have anything to say about that, because you say that you didn't leave the house with Gabby today? I've spoken to Gabby and Gabby says that you left the house with her.
BROTT: Oh, fucking. Nuh, I can't lie. Yeah. That was me.
DET BOROVINA: Pardon?
BROTT: It was me. I can't fuck, I [indistinct]
DET BOROVINA: That was you?
BROTT: Ah, Nick tried get me to lie. Fuck it.
DET BOROVINA: Who's getting you to lie?
BROTT: Ah, Nick.
DET BOROVINA: Nick's getting you to lie?
BROTT: Yeah. So [indistinct] say nothing [indistinct] we had no food in the house, nothing. Nothing really, fucking, nothing really, fucking. Yeah. Just everyone was hungry, hadn't eaten for almost three days - - -
DET BOROVINA: Right.
BROTT: And no one had no money. So, yeah.
DET BOROVINA: So what you're saying is it was you?
BROTT: Yep.
From that point on in the interview, the accused answered questions, giving his account of what had occurred. He admitted having placed the order for the pizzas from the train station and having used a different address to his own for delivery to avoid police coming to his house. He said that Josh and Gabby were involved in the offence. He said he waited for the delivery at the address he had given and that he 'mugged' the complainant, when he arrived with the pizza. He admitted being armed with a knife in his 'bum bag'. He said he told the complainant to hand over the pizza and showed him the handle of the knife. He denied otherwise using the knife. When told that the complainant alleged the accused was wielding the knife, held the tip towards the complainant and grabbed him by the shoulder, the accused denied those things, giving the following answers:
BROTT: I, I didn't pull it out, like, 'cause there was cars going past.
…
BROTT: I didn't even have the knife out [indistinct] no, no. I didn' t even have that knife out [indistinct] he's talking a bit of shit there. I didn't fucking pull the knife out.
…
BROTT: [indistinct] that's bullshit. I, I wasn' t even gonna, I wasn't even gonna touch him with that knife.
…
BROTT: I [indistinct] pull it up, pull it out. I was just going to scare, I was just going show it so I can scare him.
…
BROTT: 'Cause he's talking shit.
…
BROTT: He's exaggerating [indistinct]
…
BROTT: [indistinct] he's talking shit. He's over- exaggerating the fucking story.
When the complainant's account is being described, the accused can be seen to be paying close attention. At the point where he says, 'That's bullshit', he uses a firm tone and appears to be more alert.
The accused admitted stealing the pizzas, some money and a mobile telephone from the complainant. He then went on to answer further questions about what happened after the offence was committed, but it is not necessary to go into any further detail for the purposes of the application.
The accused was then asked about the earlier burglary offence.[51] It is sufficient to say that he admitted being involved in a burglary on his neighbour's house, but that he remained outside as a lookout and it was his cousin who stole property from the house, although he subsequently bought from his cousin the television that had been stolen. He said the offence was committed because of a grievance he had against his neighbour as a result of damage she had caused to his front door. When explaining the grievance the accused becomes quite animated in his tone.
[51] AVR, pages 54 ‑ 61.
At the end of the interview, the accused gave the following answers to the usual questions confirming the interview was given voluntarily:
DET JEFFREY: Um, Shaun, um, has this interview been conducted of your own free will?
BROTT: What do you mean?
DET JEFFREY: Oh, has anybody forced you to do this interview?
BROTT: Nuh.
DET JEFFREY: Nuh. Um, have you been threatened at all to do this interview?
BROTT: Nuh.
DET JEFFREY: Have you been promised anything by us or anybody to, to participate in the interview?
BROTT: Nuh.
DET JEFFREY: Nuh. Do you have any complaints about the way the interview was conducted or about the way you've been treated by the police today?
BROTT: Nuh.
It can be seen that the accused sought clarification when he did not understand a question. Otherwise, there is nothing about the manner in which he answered those questions to suggest he did not understand or was simply answering to be compliant.

Consideration of the evidence of witnesses in the application

It is next convenient to outline the accused's evidence, as it provides the basis for the submission that the accused made requests to speak with a lawyer before he was interviewed, and that he was not afforded an opportunity to do so when he made those requests. One would also expect that, if it is submitted on behalf of an accused that his admissions were not made voluntarily, there would be support for that in the accused's evidence, when he has chosen to give evidence. It is important to note, however, that, as the prosecution bears the onus of establishing that the admissions were made voluntarily, the accused gave evidence after the witnesses called by the State. As I will note later, this has significance in considering the accused's evidence concerning the persons to whom he said he wished to speak with a lawyer.

The accused's evidence

(a) Evidence‑in‑chief

The accused gave evidence that he was born on 19 June 1997 and that he left school when he was 13 years old, in year 8. He said that he could read and write English, but 'not that good'.[52] When asked if he had been able to understand 'all the phrases and words being used in this courtroom', he answered, 'No'.[53]
[52] ts 147.
[53] ts 147.

He said that at the time of his arrest, he was in his bedroom at the house where he was living at 6 Tufnell Lane. The police came into his room and handcuffed him on his bed. They then took him to the dining room where he sat at the table with a police officer in attendance at all times. The police then took him to the Joondalup police station. On the way, he told the police that he wanted to see a lawyer, but he could not recall which police officer he asked. Although he could not recall exactly what the police officer said, the accused's evidence was that he was told by the police that they would look for a lawyer for him.
He said that at the Joondalup police station he was placed into a holding cell where he was still handcuffed before he was subjected to the usual processing procedures, including the taking of his personal details. He said that the person who conducted those procedures was an officer with 'red stripes on his shoulders'.[54] That description corresponds with a custody officer who is an auxiliary officer.
[54] ts 144.
The accused said that he asked the custody officer who was 'processing' him for a lawyer, and that the custody officer said that he would look for one for the accused.[55] The clear implication from the question and answer was that the request was made while he was undergoing the procedures with the custody officer.
[55] ts 144.
The accused said that he was then put into a holding cell 'to relax really'.[56] He had a mattress and a thin blanket, and he lay there and got a few hours' sleep. When asked if anyone came to check on him, he said:
If I can recall I seen an officer come at least twice.[57]
He said it was the same officer with the red stripes from the front desk.
[56] ts 144.
[57] ts 144.
The accused said that he could 'sort of' remember being taken to the interview room. He said that when the police came to collect him, he was awake, but getting to the point where he was about to go to sleep.
The accused was referred to the contents of the interview, the recording of which had been played in court. He said that when he was asked during the interview if he had exercised his rights, he did not know what it meant, and he just said 'yes'. He remembered saying that he wanted to speak to a lawyer. He said that the reason he told the police later in the interview that he wanted to proceed was because he was tired. He said he could not recall having been interviewed in the early hours of the morning on any previous occasion, but I note that the interview of 4 June 2015 (exhibit 8) was in fact conducted at 3.43 am.
The accused said that he understood that if he wanted to speak with a lawyer, the interview would stop. He said that he decided to proceed because it was 3 o'clock in the morning, he was tired, he did not want to waste time and he just wanted to get it over and done with.[58] He said that he expected he would get bail.

(b) Cross‑examination

[58] ts 146 ‑ 147.

In cross‑examination, the accused said that he got two hours' sleep about an hour after he was placed in the cell. He said he woke because 'it was cold'.[59] The accused's answers to questions about how much sleep he had had before he was arrested were inconsistent. Initially he agreed that he had 'got a good night's sleep the night before', but then said he did not sleep the night before because he was still recovering from a two-week binge using methylamphetamine and cannabis.[60] The inconsistency may have been due to a misunderstanding by him of the first question he was asked about the subject, in that he may have thought the reference to 'night before' at that stage was to the period immediately before the time at which he was interviewed, which was in the early hours of the morning. I would not regard the apparent inconsistency as a basis for rejecting his claim that he had had little sleep in the days leading up to the interview. Ultimately his evidence was that he slept for a couple of hours the night before he was arrested.
[59] ts 148.
[60] ts 149.
The accused agreed that he knew he was in trouble when being interviewed by the police. He said he thought he 'might be able to get out of it', and he agreed that was why he told them an untruth.[61] That was a reference to the false story he initially told the police in the interview in which he suggested the offender in respect of the aggravated armed robbery offence may have been another person who had come to the house.[62]
[61] ts 150.
[62] ts 148 ‑ 149.
The accused agreed that he knew the police were going to stop the interview and allow him to contact a lawyer, if that was what he wanted, but he reiterated that the reason he wanted to proceed with the interview was that he was tired.[63] The following exchange then took place:
Well, if they had stopped the interview there and then you could have gone back to the cell and slept?‑‑‑I didn't know that.
Well, you knew they were going to stop the interview, though, didn't you?‑‑‑Yes.
And that you would be returned to the cell. You knew that, didn't you?‑‑‑Yes. But all I wanted - I didn't know that I wasn't allowed to have - I was - I didn't have to do the video interview. So that's why I thought I will just do it now to get it over and done with.[64]
[63] ts 150.
[64] ts 151.
Although the last answer is somewhat confusing, I understood the accused to be saying, in effect, that he believed a video interview would be conducted in any event, even if the police stopped to enable him to contact a lawyer. However, the accused appeared to draw a distinction between his understanding as to whether a video interview would be conducted in any event and his understanding that he was not obliged to answer questions. This was apparent in the following exchange, immediately after the exchange to which I have just referred:
Well, you understood the police to tell you that you were entitled to a lawyer?‑‑‑Yes.
And you understood that you didn't have to answer their questions?‑‑‑Yes.
Because at times you didn't answer their questions, didn't you?‑‑‑No. I didn't.
You answered no comment?‑‑‑Yes.
So you knew that you were entitled to do that?‑‑‑Yes.
And you knew that from what the police had told you?‑‑‑Yes.[65]
[65] ts 151.
The accused was then asked specifically about his decision to take part in the interview, rather than wait to receive legal advice:
And so you made a conscious decision to participate in the interview, or to tell the police - answer the police questions because you thought you could tell them a story that would not implicate you, or would not make you stay in jail; is that right?‑‑‑Yes.
And so rather than wait to get some legal advice which the police were offering you, you decided you could tell the police the story that you invented and you would get bail quicker or be released; is that right?‑‑‑Yes. That is true.
And it was only when you realised that your friends had told the police what had happened that you decided to tell the truth?‑‑‑Yes. That is true.
So you made a conscious decision, didn't you, not to have the services of a lawyer?‑‑‑Yes.
Even though you knew you could?‑‑‑Yes.[66]
[66] ts 151.
While there was a degree of complexity to some of the questions asked of the accused in that passage, I am satisfied that he understood he was being asked whether he had deliberately made the choice not to pursue his request to speak with a lawyer, and he agreed that was the case. I am also satisfied he understood it was being put to him that the reason he made that choice was because he thought he could invent a story (which was exculpatory) and that he would be released from custody sooner. Again, he agreed with that proposition.
I am mindful of the accused's limited education and his difficulty with comprehending some of the things said during the hearing. However, he asked for clarification when he did not understand, and there was nothing about his demeanour to suggest he did not understand the propositions to which I have just referred.
Finally, the accused gave the following answers to questions in cross-examination that went to the issue of voluntariness:
Then, in the interview when you told the police what had happened you told them the truth, didn't you?‑‑‑Yes.
It wasn't a case that they forced you to say stuff that you didn't want to say?‑‑‑What do you mean by that?
Well, they didn't force you to say stuff that was untrue?‑‑‑No.
And you didn't feel threatened by the police at any stage, did you?‑‑‑Not at the time of the interview.[67]
[67] ts 151 ‑ 152.
Apart from giving evidence earlier about the circumstances of his arrest, from which it could be inferred that he felt intimidated by the number of police and the fact that he was handcuffed, there was no direct evidence from the accused that he was threatened at any stage by the police or that he felt threatened by them. In any event, his answer to the last question to which I have referred made it clear that he did not feel threatened at the time of the interview.

Evidence of police officers

I will outline the evidence of the police officers, as relevant to the issues in the application, according to the chronology of the events.

(a) Arrest of the accused and informing him of his rights

Detective Wehrmann[68] and Detective Sergeant Bowers[69] both gave evidence that they received information concerning the armed robbery on 4 August 2015 and attended the scene in Clarkson together. Their inquiries led them to the accused's home in Tufnell Lane, where other officers were also present. Having gained entry to the house, they located the accused lying in bed in the front bedroom. Detective Sergeant Bowers arrested the accused.
[68] ts 37 ‑ 38.
[69] ts 53 ‑ 55.
Detective Sergeant Bowers said that when he entered the bedroom he told the accused that he was under arrest for aggravated armed robbery. The accused did not move at first. Detective Sergeant Bowers formed the view that the accused was feigning being asleep. He noticed there was some sweat on him. After a number of requests the accused sat up and then stood up, and Detective Sergeant Bowers placed handcuffs on him.[70]
[70] ts 54.
Detective Sergeant Bowers said that he then informed the accused of his right to silence and his rights under s 137 of the CIA, as well as the right to speak to a lawyer.[71] Detective Wehrmann confirmed that the accused was informed of his rights, but said that the right to communicate with a family member or a friend was suspended at that stage, as the police had yet to ascertain who else was in the house of interest to the investigation.[72] He made a notation in his day book to signify that the accused was informed of his rights. That notation reads '137/138'.[73] By reference to the times recorded for when the accused was arrested, which was at 6.30,[74] and when the house was 'cleared' (ie it was checked for other persons), it would appear the rights were administered between 6.30 pm and 6.36 pm. A note was made by Detective Wehrmann at 6.36 pm that the accused's right to make a telephone call was suspended by him at that time, because there were 'outstanding' persons of interest.[75] A note at 6.40 pm records that a second person of interest, namely Burns, was located, and that the accused declined to make a telephone call to a family member.[76]
[71] ts 54.
[72] ts 38 ‑ 39.
[73] ts 46 ‑ 47 (cross‑examination); exhibit 2B.
[74] ts 43 (Wehrmann).
[75] Exhibit 2A; ts 41.
[76] Exhibit 2A; ts 41.
The evidence of both Detective Wehrmann and Detective Sergeant Bowers was that the accused was taken into the living area of the house where he sat on a chair and remained in the company of Detective Wehrmann.[77] That was for approximately one hour.[78] He then left for Joondalup Police Station with officers who have not been identified in the proceedings. None of the officers who gave evidence was with the accused during the transfer to the station.
[77] ts 39 ‑ 40 (examination‑in‑chief, Wehrmann), ts 51 (cross‑examination, Wehrmann) and ts 55 (Bowers).
[78] ts 40.
Detective Sergeant Bowers said that when the accused was informed of his rights, he said nothing in relation to those rights, but he claimed that the police had the wrong person and that he did not know why he was being arrested.[79] Detective Wehrmann said that, during the time he was with the accused, he did not say that he wished to communicate with a lawyer.[80] He said he would have made a note of it and informed Detective Sergeant Bowers, if the accused had indicated that wish.[81] He refuted the proposition in cross‑examination that the accused might have asked to speak to a lawyer, but that he, Detective Wehrmann simply did not record it.[82] As will be apparent from my outline of the accused's evidence above, he did not say that he had asked any police officer to speak with a lawyer before he was transferred in a vehicle to Joondalup Police Station. Detective Wehrmann was not with the accused at that stage.

(b) Extension of period of detention and delay before interview

[79] ts 55.

[80] ts 42.

[81] ts 43.

[82] ts 49.

As to the extension of time for the detention of the accused, the evidence about that came from Sergeant Moran (who was a detective at the time of the investigation) and Detective Senior Constable McLetchie. Detective Sergeant Bowers was cross-examined about it,[83] but it is clear from the written records (albeit, as will emerge, not the usual electronic record) that he was not involved in that process. Therefore, while Detective Sergeant Bowers accepted in cross‑examination that, from time to time, he may have approved a request for an extension of detention despite having been involved in the arrest of someone, that evidence has no bearing on what happened in this case.
[83] ts 58 ‑ 59.
Detective Sergeant Bowers gave evidence that Detective Moran and two uniformed officers were at the house at the time of the arrest of the accused, and that he assigned responsibility for the investigation to Detective Moran, although he, Detective Sergeant Bowers, continued with the investigation in a supervisory role in assigning particular investigative tasks.[84]
[84] ts 57.
Sergeant Moran gave evidence that he arrived at the accused's house around 6.35 pm and that the accused left the scene around 7.35 pm.[85] He made entries in his journal[86] of his attendance and the accused's conveyance to the police station, but they do not show the precise times of each event. However, the approximate times can be inferred from the entries at 6.35 pm and 7.40 pm.
[85] ts 61.
[86] Exhibit 13.
Sergeant Moran left the scene at 10.30 pm and arrived at the police station at 10.40 pm.[87] At some stage he became aware that there was an outstanding warrant for the accused's arrest for failing to comply with a bail undertaking, and he executed that warrant, although he could not say at what time.[88] The warrant, which is exhibit 6, is endorsed to say that it was executed by Detective Sergeant Bowers at Clarkson at 6.30 pm on 4 August 2015, which is when the accused was in fact arrested on suspicion of his involvement in the offences the subject of the present indictment. However, it is signed by Sergeant Moran on 5 August 2015. While it would appear that the warrant came to light after the accused was already in custody, and it is correct that he was taken into custody when he was arrested at his home in Clarkson, the 'Execution Details' on the warrant have the potential to be misleading in suggesting that he was arrested under the warrant.[89] In any event, the obligation of the police under the warrant was to bring the accused before the Magistrates Court as soon as was reasonably practicable. It did not authorise his detention for the purpose of being interviewed for the present offences. In that regard, his detention was pursuant to his arrest on suspicion of the aggravated armed robbery. Section 140 of the CIA applied. That was accepted by the State, and evidence was adduced about the manner in which an extension of the detention was sought.
[87] ts 63.
[88] ts 64; exhibit 6.
[89] The Custody Handover Summary (exhibit 3) lists the charges at the time of the accused's admission to the lockup at the Joondalup Police Station as including two breaches of bail, as well as the aggravated armed robbery and aggravated burglary offences. However, as was outlined earlier, the evidence of Detective Sergeant Bowers was that he informed the accused he was being arrested for aggravated armed robbery.
Custody records were tendered in the form of a Custody Handover Summary[90] and a Custodial Event record[91]. The Custody Handover Summary contains an entry at 00:19 on 5 August 2015 which reads, 'Review Suspect Detention'. The Custodial Event record contains an entry for 'Detention Review' at the same time and identifies the reviewer as Gary Williams, a senior police officer, North West Metro District Control. It shows that an extension of the detention was granted until 6.30 am.
[90] Exhibit 3.
[91] Exhibit 4.
Sergeant Moran initially gave evidence on 17 May 2016. On that occasion he said that he was the person who applied for the extension of detention beyond the first six hours (which would have expired at 12.30 am, 5 August 2015), and that he made a verbal request for the extension to Detective Sergeant Williams.[92] He referred to the North West Metropolitan District Control Centre electronic running sheet, a printout of which was tendered as exhibit 5. There is an entry in that document at 2355 which reads:
TPC from Det S/C MORAN regarding custody extensions for arrested suspect BURNS, Joshua and BROTT, Shaun. Due to A/Det/Sgt McLETCHIE being unable to review suspect detention A/Det/S/Sgt WILLIAMS PD was entered on the custody admissions.
[92] ts 69.
Having referred to that entry, Sergeant Moran again stated that he made the application to Detective Sergeant Williams. However, it transpired he was mistaken about that. The matter was clarified at the hearing held on 29 June 2015.
Detective Senior Constable McLetchie gave evidence that he was the Acting Detective Sergeant at the relevant District Control Centre on the night of 4 August 2015 and in the early hours of 5 August 2015.[93] He said he received a telephone call from Detective Moran who requested an extension of the detention of the accused for a further six hours from 12.30 am to 6.30 am. He said he attempted to put the extended detention on the computer system, but it did not recognise his higher duties status, so he spoke to Acting Detective Senior Sergeant Gary Williams about it, and the latter entered the extension on the custody system.[94] A sample copy of the form that would ordinarily be generated for the purposes of an extension under s 140(4) CIA was tendered as exhibit 12. The form requires the purpose of the extension to be specified. The form completed by Acting Detective Senior Sergeant Williams in this case was not produced. In any event, no document in respect of the extension was given to either Detective Moran or the accused.
[93] ts 119.
[94] ts 120.
Detective McLetchie made a note in his notebook (police journal) about the telephone call from Detective Moran and updated the electronic running sheet, to which I referred earlier.[95] A redacted copy of the relevant pages of Detective McLetchie's journal[96] was tendered. It recorded that at 11.55 pm he received a telephone call from Detective Moran for the extended detention of both the accused and Burns, and that it was 'done' at 12.20 am until 6.30 am 'for further interview'. Detective McLetchie said that Detective Moran was called, on the number for his police car, at 12.25 am to inform him that the extended detention was granted.[97]
[95] ts 120, 122 ‑ 124; exhibits 5 and 11.
[96] Exhibit 11.
[97] ts 124 ‑ 125.
In cross‑examination,[98] Detective McLetchie said he had a vague memory of the incident; he was relying on his notebook and the running sheet. He said he was aware of the factors that needed to be considered in granting an extension of detention. He outlined a number of those factors. He said that while he was told the extension was needed for further interviews of the accused and Burns, he was not given any specific reason why the interview of the accused had not been conducted earlier, although he was aware that in investigations of this nature it may take some time before the police are in a position to interview a suspect. He had experience in such investigations.[99]
[98] ts 126 ‑ 130.
[99] ts 130 (re‑examination).

I am not able to determine, therefore, on the balance of probabilities, that he made two requests as described by him in evidence or that he was told that a lawyer would be found for him. Nor am I able to make any finding about precisely what the accused said to indicate his wish to speak with a lawyer.
The Custody Handover Summary recorded that the accused departed from the scene for Joondalup Police Station at 7.35 pm, arrived at the station at 7.48 pm, and was admitted into the lockup at 8.09 pm.[133] The procedures referred to earlier as 'processing' by the custody officer occurred between 8.13 pm and 8.18 pm, when he was transferred to a cell and given a blanket. There is no record that the accused requested to speak to a lawyer. Of course, as the accused's counsel has submitted, the absence of a record may simply confirm that the police disregarded his request. However, it does seem curious that the accused would consider it necessary to make the request of the custody officer while he was being processed, as he said in evidence, if only a short time earlier in the vehicle, while being transferred, he had made the same request of a police officer who said they would look for a lawyer for him.
[133] Exhibit 3, pages 5 ‑ 6.
Further, the accused gave evidence that he had some recollection of the custody officer doing a cell check. The first physical cell check was at 8.49 pm, and the Custodial Event record[134] notes that the accused was awake at that time. There was no suggestion from the accused, in his evidence, that he enquired as to progress in respect of his request, which one might have expected if it had been a pressing issue for him. I do not ignore his age, but, consistently with my earlier finding, I consider he had sufficient confidence to raise such a matter if it was on his mind. The note for the next physical cell check at 9.11 pm records that the accused was asleep, and, as I outlined earlier, that observation was then made consistently during further cell checks until he was collected to be interviewed.
[134] Exhibit 4.
As I noted earlier, in discussing the legal principles, McLure P pointed out in Wright that, for reasons she explained by reference to the relevant statutory provisions, there is no requirement under the CIA that the opportunity for an arrested suspect to communicate with a lawyer must be prior to interview.[135] Because I am not able to make any finding about the specific circumstances in which the accused indicated his wish to speak with a lawyer before the interview, I cannot determine whether the inaction by the police in that regard (if indeed there was inaction) could properly be characterised as a refusal or denial of a reasonable opportunity for him to communicate or attempt to communicate with a lawyer. In any event, even if the inaction was to be regarded as an omission that prevented the accused from exercising his right, the omission was rectified during the interview before the interviewing officers embarked on any questions about the alleged offences. He was informed again of his rights and, when the accused indicated initially that he did wish to speak with a lawyer, the police offered him the opportunity to find and contact a lawyer. Despite the fact that some concerns were expressed about the ability to find a lawyer at that time of the night, I am satisfied that their offer to enable the accused to find a 24‑hour lawyer by searching the internet was conveyed in a genuine manner.
[135] Wright (10) [33].
I do not accept the submission made on behalf of the accused that the tenor of the demeanour of the two officers in that part of the interview was such as to impress on a person in the accused's circumstances, having regard to his age and the fact that he had been in custody for a lengthy period, that to attempt to find a lawyer at that time would be pointless, and to influence him to proceed with the interview. That is not the impression I have from the audio-visual recording. I accept the evidence of Detective Jeffrey that his initial reaction simply reflected an appreciation that 3.30 am is not the most desirable time to try to contact anyone, but that he did have previous experience with contacting lawyers in the early hours of the morning. I also accept the evidence of Detective Borovina refuting the proposition that he knew there was no chance of finding a lawyer at that time. In any event, the accused did not say during the relevant exchange in the interview that he thought it would be hopeless. He said that it would take too long, and that it would be quicker if they '[got] it over and done with'.
Ultimately the accused made a conscious decision not to attempt to contact a lawyer, because he simply wanted to get on with the interview. Even after he chose to proceed, he was told by Detective Jeffrey that he could stop the interview at any time to speak to a lawyer. As I have already found, there was nothing about the manner in which he conveyed that information to the accused that would suggest he was being disingenuous.
Having regard to the absence of any statutory requirement that the accused have the opportunity to which he is entitled under s 138(2)(c) before an interview, and to all of the circumstances I have described, I am not satisfied that the accused was denied a reasonable opportunity to communicate with or attempt to communicate with a lawyer. Therefore, I am not satisfied that there was a contravention of a requirement of the CIA in that regard for the purposes of s 154(2).

Relevance to voluntariness and fairness of the interview

Relying on the same evidence I have outlined in the preceding section, I am satisfied that any failure by the police to act on the accused's earlier request to speak with a lawyer did not affect his decision to answer questions when he chose to do so. He was given the opportunity to contact a lawyer before questioning about the alleged offences commenced; he chose not to; he indicated he understood the caution; and he in fact chose not to answer some questions. In my view the following remarks of Wheeler J in Mackenzie are apt in the circumstances of this case:
In any event, knowing as he apparently did that a lawyer was 'an option', the appellant spoke about the offences. In all of the circumstances, I do not accept the submission that this was a case in which the appellant had unambiguously expressed the view that he was not prepared to proceed until he had spoken to a lawyer, nor was it a case in which the Superintendent set out to deny him legal advice or to distract him from taking that course. I would not therefore regard those 'requests', and the way in which they were treated, as going either to voluntariness or to the fairness of the interview.[136]

(f) CIA - authorisation of extension of period of detention

Submissions
[136] Mackenzie (466) [69].

In relation to the extension of the period of detention, counsel for the accused again relied on what would be a contravention of the requirements of the CIA in police exercising the power of detention under the Act, but disavowed reliance on s 154(2). However, as I consider that s 154(2) would apply if there was any such contravention, I will deal with the arguments in that context first.
The manner in which the accused's case was conducted initially appeared to raise whether authorisation had been obtained at all in accordance with the CIA for the extended period of detention. However, by final submissions, counsel's argument was that there was no written record of the authorisation or the reasons for it. He argued that a notation in a notebook or journal, or on a running sheet, was not a written record for the purposes of the CIA. Therefore there was a contravention of the requirements of the CIA (namely, s 140(5)(a)) in relation to the exercise of the power of detention pursuant to which the accused was interviewed and his admissions were obtained. Although counsel did not address this specifically in his final submissions, his cross‑examination of Sergeant Moran and Detective McLetchie also raised as an issue the fact that a written record of the authorisation was not provided to Sergeant Moran, in contravention of s 140(5)(b) of the CIA.
The State submitted that, on the evidence, there was no breach of the requirements in the CIA for the extension of the accused's detention beyond six hours. The evidence of Sergeant Moran that he applied for and was granted authorisation of an extension of time by a senior officer who was not involved in the investigation of the offence, namely Acting Detective Sergeant McLetchie, is uncontradicted. In fact, it is supported by the notes made by Moran and McLetchie, and the notes made by McLetchie, as the authorising senior officer, are a sufficient record for the purposes of s 140(5)(a) of the CIA, covering all of the matters that needed to be recorded.
The State submitted that it was not practicable for the senior officer (McLetchie) to give the applicant (Moran) a copy of the written record because he could not generate the piece of paper that the Police Department has standardised for that purpose. So, there was no contravention of the requirements of s 140(5)(b).

Findings

On the basis of the evidence of Sergeant Moran and Detective McLetchie, and the records made by them, I am satisfied of the following facts. I will refer to them by their titles at the relevant time.
An application was made by Detective Senior Constable Moran to Acting Detective Sergeant McLetchie by telephone at 11.55 pm (about 35 minutes before the initial period of six hours would have expired) for authorisation of the detention of the accused for a further period of six hours after the initial six hours for the purpose of conducting an interview. His status as an acting sergeant meant that McLetchie was a senior officer for the purposes of the CIA. He was not involved in the investigation of the relevant offence, so he was an officer to whom the application for the extension could be made. The extension was authorised by McLetchie and that was communicated to Moran orally by telephone at 12.15 am, before the initial six hours had expired. McLetchie was not able to generate the standard computer form for such extensions because the computer system did not recognise his acting status. He made a note in his journal. An entry was also made in the District Control Centre running sheet at 11.55 pm, although that entry did not refer to the purpose of the extension.
The CIA does not provide that the written record must be in any particular form. In the circumstances of this case, given the unexpected problem with the computer system, the note made by Acing Detective Sergeant McLetchie in his journal in combination with the running sheet was a sufficient written record for the purposes of s 140(5)(a) of the CIA. The notes recorded:
1.the fact of the authorisation (referred to as 'extended detention' and 'custody extension'), identifying the applicant as 'Tim Moran' and 'Detective Senior Constable Moran';
2.the name of the arrested suspect, referred to as Shaun Brott;
3.the further period authorised, that is until 0630 (ie 6.30 am);
4.the date and time of the authorisation, the time being specified in McLetchie's journal as 0020 (ie 12.20 am), the application having been made at 11.55 pm; and
5.the reasons for the authorisation, namely 'for further interview'.
Therefore, all of the requirements of s 140(5)(a) were met.
Neither a copy of the relevant page in McLetchie's journal, nor a copy of the relevant page of the running sheet, was provided to Detective Senior Constable Moran, although he made an entry in his own journal of the approval having been granted by Acing Detective Sergeant McLetchie. I am satisfied that, in the circumstances, it was not practicable for McLetchie to provide Moran with a copy of the written record, for the purposes of s 140(5)(b).
Therefore, I am not satisfied that there was any contravention of the requirements of s 140.
If I am wrong about whether it was practicable for Acting Detective Sergeant McLetchie to give a copy of the written record to Detective Senior Constable Moran, the significance of any failure to do so, in terms of whether the exercise of the power of detention thereafter was in contravention of a requirement of the CIA, requires consideration of why it is necessary for the senior officer to provide the applicant with a copy of the written record. No doubt, it provides the applicant with the security of proof of the authorisation of the extension, in the event that the continued detention of the suspect is questioned. However, there is no requirement that the approval of the extension of a suspect's detention is to be communicated to the suspect. As the State put it, the purpose of the written record is as an evidentiary trail, as opposed to a piece of information for the assistance of the person in custody. It is difficult to see, therefore, how non‑compliance with the requirement that the senior officer provide the applicant with a copy of the written record could have any bearing on the admissibility of an interview conducted during the extended period of custody.
However, assuming that it would render the admissions made by the accused inadmissible under s 154(2), for the purposes of s 155 I would consider the contravention to be of a minor and inconsequential nature, such that the desirability of admitting the evidence would outweigh the undesirability of admitting the evidence.

(g) CIA - s 155 - discretion to admit

Submissions

The State submitted that, if the court finds there was a contravention of the requirements of the CIA affecting the admissibility of the interview, then the court should nevertheless admit the evidence pursuant to s 155 because the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In particular the State submitted that the offence is serious and the probative value of the evidence is high. It submitted that the seriousness of the contravention requires a consideration of what impact it has had; in other words, what prejudice did it result in? It pointed out that the accused conceded there was not a deliberate ploy by the police to deny the accused an opportunity to contact a lawyer or avoid the requirements concerning the extension of the accused's detention. The State submitted further that there is no evidence to suggest the contravention, whether in respect of s 138 or s 140, was intentional or reckless, but the court could be satisfied on the basis of the police conduct of the matter overall that it was neither.
In summary, the State submitted that, when one looks at the surrounding circumstances, this is not a case in which police were avoiding their statutory obligations.
Counsel for the accused did not address the criteria in s 155 specifically, because he maintained he was not relying on s 154(2).

Conclusions

As I have already stated, I am not satisfied that there was a contravention of the requirements of the CIA. However, even if there was, and it could be said that the evidence was obtained improperly because the accused had earlier been denied the opportunity to speak with a lawyer, I consider that the interview should be admitted in any event under s 155(2) of the CIA, as the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In coming to that conclusion, I accept the submissions made by the State in respect of the factors in s 155, as outlined above, both in relation to any request to speak with a lawyer and any contravention of the provisions of s 140 of the CIA concerning the making and provision of a written record of the authorisation to extend the period of detention. In relation to the provisions of s 138, I have had regard to the fact that the accused was ultimately given the opportunity to contact a lawyer during the course of the interview.
Consequently, even if a contravention of the CIA had been established, I would admit the interview.

(h) The discretion to exclude for unfairness or public policy reasons

Submissions

In the section headed 'Identifying the issues', I have set out the accused's argument for exclusion of the evidence of admissions on the basis that it would be unfair to admit the interview. Counsel submitted that it was the entirety of the matters to which he had referred which bear upon the discretion to exclude the interview on this ground.
In arguing that the interview should be excluded on public policy grounds, counsel for the accused referred to the need for strict compliance with statutory rules as 'this gives certainty to the process and confidence in the community that everyone is being treated equally and fairly'. He argued that the court cannot be seen to condone or encourage improper conduct of investigating officers. He argued that impropriety must be assessed by having regard to the accused's circumstances.
Of course, all of that may be accepted as reflecting the fundamental bases for the public policy discretion. It begs the question, however, of whether the accused was in fact relying on impropriety. I dealt with the inconsistency in that regard earlier.
The argument made by the accused's counsel seemed to be summed up in this passage:
People that were involved in this investigation … in my submission, have probably got to the point where their adherence to the letter of the law in respect to these matters falls a little bit short. And as I said, it's not saying that they're doing anything deliberately unfair or to deliberately bring about a specific result. But perhaps due to the pressure that the police service is under, perhaps it's due to the workload, whatever it is, letter of the law approach in dealing with matters has not been dealt with correctly and, in my submission that coupled with the level of intellect and the personal circumstances of my client, bring about the issues that were referred to. That it may indeed be unfair to admit that.
It can be seen that public policy considerations and unfairness were being dealt with together.
Counsel suggested that there was a tendency to cut corners and take shortcuts. When asked to identify what corners were cut, counsel referred again to the failure to keep a proper written record in respect of the extension of detention because the computer was not functioning properly. Another matter relied on was the fact that there is no record anywhere of the accused asking for a lawyer. I have found, on the balance of probabilities, that the accused had made an earlier request for a lawyer, but whether a record would be expected of that might depend on the precise nature of the request and the circumstances in which it was made, matters about which I have not been able to make findings.
A final matter relied on by the accused's counsel as going to public policy was the fact that the police interviewed the accused at 3.30 am. It was submitted, in effect, that this was something the community would regard as inappropriate, having regard to the accused's age.
The State submitted that, in relation to the unfairness discretion, the court must have regard to what material effect any complaints about the interview had on the accused so as to render the admission of the interview unfair. Those matters are largely dealt with above, in respect of the accused's personal attributes and the circumstances in which he came to be interviewed. As for the time of the interview, the State submitted that the fact the accused was not questioned immediately after his arrest was perhaps to his advantage, because he was given time to settle and to get some sleep, bearing in mind he claimed to have had very little sleep in the period leading up to his arrest. The State also submitted there was nothing about the actual interviewing style to suggest it was inappropriate, such as to trigger the unfairness discretion.

As for the public policy considerations, the State reiterated that the police were not deliberately avoiding their statutory obligations or acting recklessly in that regard. It submitted that the seriousness of the aggravated armed robbery, involving the use of a knife, weighs the public interest against discretionary exclusion of the evidence, when compared against the relatively minor nature of any breach of the police obligations.

Conclusions

I have already made findings about evidentiary matters that go to the exercise of the exclusionary discretion. I have also already expressed conclusions about whether specific factors, such as the accused's personal attributes, his tiredness, the time he spent in custody and his request for a lawyer lead to the conclusion that the admission of the interview into evidence would be unfair. They do not.
The offences, especially the aggravated armed robbery, are serious. The probative value of the admissions is high. They appear to be reliable. As was noted in R v Williams, in the face of a confessional statement found to be reliable, the onus on the accused of establishing the relevant unfairness is necessarily high.[137] That onus has not been met by the accused.
[137] R v Williams (273 ‑ 274) (Rowland & Owen JJ).
In relation to the public policy considerations, I do not accept that the police cut corners in this case. While it is necessary for police to be mindful of the vulnerability of young suspects and the possibility that interviewing them in the early hours of the morning, or at any time when they are fatigued, may have an adverse impact on such an interviewee's judgment and reliability, I do not consider that in the circumstances of this case, as I have found them, the circumstances of the accused's interview could be regarded as offensive to community sensibilities or contrary to its expectations of proper police conduct.
I note, specifically, that the fact the police persisted with questions when the accused declined to answer some questions, and the fact they indicated they did not accept his account, because of the account given by Gabby, are not matters that lead to the conclusion that the interview was unfair or against public policy.[138]
[138] Smith [10] - [11].
Ultimately, the public policy ground is concerned with the maintenance of the legal structure of our society and the integrity of the administration of criminal justice. In my opinion, neither is in jeopardy having regard to the manner in which the investigation was conducted in this case as it relates to the interview of the accused.
I am not satisfied that I should exercise my discretion to exclude the interview.

Conclusion

For the reasons given above, the audio‑visual recording of the accused's interview is admissible and the accused's application for exclusion of the evidence in the exercise of discretion is refused.