Carr v The State of Western Australia - [2006] WASCA 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CARR -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 125

CORAM: STEYTLER P
MCLURE JA
BUSS JA

HEARD: 13 MARCH 2006

DELIVERED : 13 MARCH 2006

PUBLISHED : 28 JUNE 2006

FILE NO/S: CCA 10 of 2005
CACR 15 of 2006

BETWEEN: MICHAEL JOHN CARR
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
File No  :INS 68 of 2004

Catchwords:

Evidence - Criminal trial - Admissions to police - Admissibility - Admissions videotaped without the consent of the accused - Criminal Code (WA), s 570, s 570D

Criminal Law - Sentence - Totality principle - Whether sentence manifestly excessive

Legislation:

Criminal Code (WA), s 392, s 570, s 570D

Sentencing Act 1995 (WA), s 89

Result:

Applications for an extension of time to apply for leave to appeal against conviction and sentence dismissed

Category: A

Representation:

Counsel:

Applicant: Mr T F Percy QC & Ms L M Timpano
Respondent: Ms C Barbagallo

Solicitors:

Applicant: D G Price & Co
Respondent: State Director of Public Prosecutions

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

Barnes v The State of Western Australia [2004] WASCA 258
Cleland v The Queen (1982) 151 CLR 1
Collins v The Queen (1980) 31 ALR 257
Duke v The Queen (1989) 180 CLR 508
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen (2004) 78 ALJR 616
McDermott v The King (1948) 76 CLR 501
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Nicholls v The Queen (2005) 219 CLR 196
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Broyles [1991] 3 SCR 595
R v Davidson and Moyle; Ex parte Attorney‑General [1996] 2 Qd R 505
R v Hebert [1990] 2 SCR 151
R v Lee (1950) 82 CLR 133
R v O'Neill [1996] 2 Qd R 326
R v Pallister (2002) 131 A Crim R 452
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159
R v Yates [1985] VR 41
Ridgeway v The Queen (1995) 184 CLR 19
Sikaloski v The Queen [2000] WASCA 387
The State of Western Australia v Wells [2005] WASCA 23
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153C; 29 March 1999

Case(s) also cited:

Bardsley v The Queen (2004) 29 WAR 338
Evans v Pelka [2005] WASC 240
Farmer v Reynolds, unreported; SCt of WA (Heenan J); Library No 980678; 25 November 1998
Gavin v The Queen (1992) 6 WAR 195
Kelly v The Queen (2004) 205 ALR 274
Milton v The Queen [2000] WASCA 25
Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985
Nicolakis v The Queen, unreported; CCA SCt of WA; Library No 7184; 30 June 1988
Norton v The Queen (2001) 24 WAR 488
Peck v The State of Western Australia [2005] WASCA 20
R v Dewhirst (2001) 122 A Crim R 403
R v Harling (1997) 94 A Crim R 437
R v Karger (2002) 83 SASR 135
R v Le (2004) 147 A Crim R 269
R v Marlow & Kelly (2001) 129 A Crim R 51
R v Miller [2001] WASC 81
R v Nilson [1968] VR 238
R v Roba (2000) 110 A Crim R 245
R v RothBeirne (2005) 156 A Crim R 101
R v Sarek [1982] VR 971
R v Tofilau (2003) 149 A Crim R 446
R v Vale (2001) 120 A Crim R 322
Van der Meer v The Queen (1988) 82 ALR 10

STEYTLER P: I agree with the reasons of Buss JA in relation to the refusal of leave to extend time for leave to appeal against conviction. They reflect my own reasons for that decision. As to the application for an extension of time for leave to appeal against sentence, my reasons for refusing that application are reflected in the judgment of McLure JA, with which I agree.
MCLURE JA: I agree with the reasons of Buss JA in relation to the refusal of leave to extend time for leave to appeal against conviction. I propose to state my own reasons for having refused an extension of time for leave to appeal against sentence. The facts are set out in the judgment of Buss JA and not repeated here unless required for an understanding of these reasons.
The applicant contended that the sentence of 6 years' imprisonment without eligibility for parole for one count of aggravated armed robbery was manifestly excessive because the sentencing Judge failed to apply the totality principle.
The applicant was aged 24 at the time he committed the offence. The circumstances of the offence were at the high end of the scale of seriousness. The applicant was armed, and menaced bank staff, with a firearm. The offence was committed on 8 April 2003. The applicant was sentenced on 20 January 2005 and the sentence was backdated to commence on 23 November 2004. He is eligible for release on 22 November 2010 when he will be aged 32.
Between 27 November 1997 and September 2004 the applicant had, save for several periods on parole totalling more than 20 months, been in prison for serious offences committed prior to November 1997. The offence the subject of this application was committed at a time when the applicant was on parole for a prior armed robbery in the same general location. However, at the time the applicant was sentenced in January 2005 he had completed all his sentences for prior offences.
The totality principle generally applies in situations where an offender is subject to more than one sentence; for example, where sentences are passed at the same time for a number of sentences or where the offender being sentenced is still serving a sentence for another or other offences at the time of sentencing. The first limb of the totality principle requires the Court to review the aggregate sentence to ensure that it is a just and appropriate measure of the total criminality involved in all of the offending. In addition, an aggregate sentence will offend the totality

principle if its effect is to impose on the offender "a crushing sentence": Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J; Johnson v The Queen (2004) 78 ALJR 616 at [22]. This is the second limb of the totality principle. The word "crushing" in this context connotes the destruction of any reasonable expectation of useful life after release: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153C; 29 March 1999 at 12 per Anderson J.

Further, there are limited circumstances where the totality principle can apply, at least by way of analogy, notwithstanding that sentences for prior offences have been completed. This may result where there is a delay, as a result of matters beyond the offender's control, between the commission of the offence and the imposition of the sentence for that offence: see Mill v The Queen (1988) 166 CLR 59; Barnes v The State of Western Australia [2004] WASCA 258. The rationale for the totality principle was explained by Anderson J in Vlek as follows (at 10):
" … [W]hen a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately … Furthermore … the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude … Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case."
In this case, the offence the subject of the application was committed whilst the applicant was on parole for an earlier offence of armed robbery. When the applicant was sentenced on 20 January 2005, the earlier sentences had been completed. The sentencing Judge found that the

applicant was not remorseful, that he had no desire to rehabilitate himself and that there was a high risk of him reoffending. I see no factual foundation for the application of the first limb of the totality principle. In the circumstances of this case there was no reduction in the need for punishment, denunciation and deterrence. Further, as the sentencing Judge noted, the applicant would still be a relatively young man after completing the current sentence and, if he came to see the error of his ways, would still be young enough to become a law‑abiding member of society. There is no factual foundation for a conclusion that the sentence was crushing. The claim that the sentence is manifestly excessive is without merit.

BUSS JA: On 25 November 2004, the applicant was convicted, after a trial in the Supreme Court before Jenkins J and a jury, of one count of stealing, with threats of violence, while armed with a dangerous weapon, namely a gun, and in company with another person, in contravention of s 392 of the Criminal Code.
On 20 January 2005 the applicant was sentenced to 6 years imprisonment without parole. The learned Judge ordered that the term of imprisonment commence from 23 November 2004.
The applicant applied to this Court for extensions of time to appeal against conviction and sentence. On 13 March 2006, after hearing oral argument, this Court dismissed the applications. These are my reasons for that decision. I dismissed the applications because, in my opinion, the proposed grounds of appeal were without merit. It was therefore unnecessary to consider whether the applicant's failure to apply within time for leave to appeal was explained adequately.

Summary of the State's case and the applicant's case at trial

The State's case at trial was that on 8 April 2003, the applicant and an unidentified co‑offender travelled to the South Perth branch of the Commonwealth Bank in a stolen motor vehicle. The co‑offender drove the vehicle and the applicant was a passenger. The applicant entered the premises, dressed in dark clothing and with his face obscured. The applicant, who was armed with a handgun, pointed the gun at a teller and demanded that she fill several bags with money. The teller complied with this demand and returned the bags, containing a total of $7750, to the applicant, who then left the premises and escaped in the stolen vehicle with his co‑offender.

The applicant's case at trial was that he was not involved in the offence.

The arrest of the applicant

On 30 July 2003 the applicant was arrested by police officers who were investigating the offence. Later that day, the police searched premises at 324 Epsom Avenue, Cloverdale, where the applicant had been residing with his mother. The search was videotaped.
After the search, the applicant was taken to the Kensington police station. At the station he was questioned by police officers. The conversation was recorded on videotape. The questioning commenced at 6.57 pm and concluded at 7.26 pm, and occurred in an interview room fitted with videotape recording equipment including microphones.
After the conversation in the interview room was completed, the police officers took the applicant to the "lockup" section of the police station. Shortly after entering the "lockup" section, the applicant initiated a conversation with the police officers. The applicant made comments which appeared to the police officers to indicate his involvement in the offence. The police officers responded by asking the applicant questions with a view to eliciting further information and admissions. The police officers knew, but the applicant did not know, that the "lockup" section was fitted with fixed surveillance cameras and microphones. The conversation in the "lockup" section was, in consequence, recorded on videotape.
The videotape of the conversation in the "lockup" section was relied on by the State and played to the jury at trial.

The transcript of the videotaped conversation in the interview room

The transcript of the conversation in the interview room was, relevantly for present purposes, as follows:
" … Okay. Michael, as I've … advised you this interview is going to be recorded on video. There's a camera through the window there, okay, and these two dots are microphones. They'll pick up what we're going to say so when you speak I ask that you just speak up fairly - - not loud but nice clear voice for us and don't tap the table. The time by my watch is, um, 7 pm, Wednesday the 30th of July, 2003. My name's Adrian Richards. This is Dave Shillingford. We're both Detective Senior Constables from the Kensington Detectives Office. …

…
Q. … Michael, we're here to interview you in regards to what you know about a bank robbery. …
…
… I need to ask you some questions in regards to a … bank robbery that we're investigating. Before I ask you any questions in regards to that I'm going to give you a caution and it's important that you understand it, okay, so at the end of it I'm going to ask you to repeat it back to me … In fact, I've already given you the caution before … but we'll just go over it once more, okay - -
A. Mm hm.
Q. - - for the purpose of the video and that is you're not obliged to say anything unless you wish to do so. Anything you do say will be recorded on the video and may be used as evidence in court. Can you please explain to me what you think this means?
A. Um - - that without my lawyer present - - um - - it um - - anything that I do say or could say could jeopardise my future - - well being. Um - - I don't wish to say anything about any bank robbery because I do not do anything like that. … I don't wish to say anything without my lawyer present anyway pretty much.
Q. No dramas. I was wondering if you'd just persist with me for a minute.
A. Yep.
Q. Um - - it sounds like you've basically got the gist of what I'm - what I'm talking about.
A. Yep.
Q. If I ask you a question do you have to answer it?
A. No.
Q. Okay. If you want to answer it can you answer it?
A. Um, if I want to I can yes.
Q. Okay. It's your choice, isn't it?
A. Yep.
Q. And if you answer it it's going to be recorded on the video. You understand that?
A. Yep.
Q. If you're charged this video may be played in court. Do you understand that?
A. Yep.
Q. And what - - what's that called?
A. (No audible response)
Q. The tape being played?
A. Um - - what's it called?
Q. Evidence?
A. Evidence, yeah.
Q. It's going to be evidence used against you.
A. Yep.
Q. Okay. So you understand that?
A. Yep.
…
Q. Okay. What I'm trying to get at is are you on - - are you with us at the moment? You can understand what we're talking about?
A. Yeah. Quite clearly.
Q. Okay. And you're quite happy just to continue on with this until I sort of explain to you what it's all about and, um - -
A. Yep.
Q. - - put a few things to you? Like - - like I said, it's up to you whether you want to answer those questions - -
A. Yep. Not a problem.
Q. - - okay, but I'm going to - - going to say a few things to you and it's up to you how you want to respond. Are you happy with that?
A. All right, mate. Yep.
…
Q. - - but have you got any knowledge in regards to a bank robbery that was committed at that bank on the 8th of April?
A. No, I don't have any knowledge.
Q. You can't tell me anything about any information in regards to that robbery?
A. No.
Q. Were you involved in it?
A. No, I wasn't.
…
… Is there any way you can provide us with an alibi as to someone else to who you might have been with on that day?
A. Um - I don't know. I'd have to speak to my lawyer about it. Um - - this is getting pretty heavy now. Um - - just leave these kind of questions as I don't have any - - I don't have an alibi at this time because I haven't thought about it or, um, anything like that. I'd have to speak to my lawyer as to any relevancies if I was to be put in place of someone that was supposed to be involved in this kind of stuff. Um - - …
…
Q. Well, at the moment we're on video. I'm giving you the opportunity to speak. Once again, I'll tell you you're under caution. You don't have to talk - -
A. Yeah, I know.
Q. - - but I'm still going to go through with these questions.
A. Yeah, that's fair enough.
Q. If you wish to hold off and talk to your lawyer, please do.
A. Yeah, I do.
…
Q. Okay. Thanks, Michael, for your time in answering your questions.
A. All right, thank you.
…
Q. … Is there anything you wish to add while you've got the chance while the tape's running that we've gone over or, um, we haven't gone over that you wish to talk about now while you have the opportunity?
A. No.
Q. Okay. All right. Well, if that's the case, um, we're going to finish the video. We've obviously got inquiries that still need to be completed.
A. Yes.
Q. Um - - if any charges happen further on down the track - -
A. Mm hm.
Q. - - a copy of this tape and the tape that was - - the interview that was done at the scene at the search warrant will be made available to you or your solicitor. Contact your solicitor, they'll need to contact us and we can provide one for you.
A. All right then. No worries.
Q. Okay. If that's all we've got to talk about we'll stop the video now. It's, by my watch, 7.29 pm. …"

The transcript of the videotaped conversation in the "lockup" section

In the transcript, "(R)" refers to Detective Senior Constable Richards, "(S)" to Detective Senior Constable Shillingford, and "(C)" to the applicant.
The circumstances and manner in which the applicant initiated the conversation in the "lockup" section are apparent from the following passage:
"…
(C) And how old are you?
(R) 30 at the moment.
(C) 30.
Tape briefly skips forward
(C) You don't look that old.
(S) Thanks
(C) What did the bank staff reckon when they conducted the interview with them? It was like he was the floor manager, he conducted the interview well. I wasn't very aggressive, was I? Very assertive actually. They would have said a professional, down pat, didn't lose .. didn't break stride or a sweat. Hey?
(R) That's right mate.
(C) Na, dead set or what. What about the [person] I turned around and caught hitting the buzzer?
(S) Did you catch someone?
(C) Caught him mate.
(S) Caught him?
(C) Yeah. He was on the ground going like this (demonstrates trying to activate the alarm by hitting under the lock‑up bench). He was on his knees (demonstrates pointing a gun) I said 'What are you doin?'
(S) Did ya swear at them at all?
(C) Na, be real, I just said this, this is all I said. It was like this. Hurry up I'm in a … hurry, I'm in a bit of a hurry, hurry up!'
(S) Didn't give them a note or anything?
(C) Nah, … I was fully masked up mate. I was lying back like that in the … car (demonstrates by bending back, imitating lying back) couldn't see …, the whole seat was flat, it's like, tell me when bro, like this jumped out..
(S) Still can't believe you went out with a … scrawny little … no hoper that hadn't done anything like that before. That's not professional.
(C) The thing is, this is what weighed it up. With all the jail he's done, which is plenty..
(S) The jail he's done?
(C) Yeah that's what weighed it up right, that's what weighed it all up.
…"

The voir dire on 21 June 2004

Prior to the trial, the applicant sought a ruling that the videotape of the conversation in the "lockup" section was not admissible in evidence. The applicant's application was heard by Wheeler J (as her Honour then was). The material before the learned Judge included, relevantly, the depositions, a transcript of the videotaped conversation in the interview room and a transcript of the videotaped conversation in the "lockup" section. Neither the applicant nor any of the police officers gave evidence before her Honour.

Wheeler J made the following observations (at T29):
"During the course of the search [at 324 Epsom Avenue, Cloverdale] and questioning [in the interview room at the police station] he was cautioned - or reminded of the caution a number of times. One of the matters which I'm told by way of submission from the bar table is that the counsel for the state counted 10 such occasions. That seems not to have been in dispute. It seems not to be disputed in any event that there were a number of such occasions. Although the precise form of the caution on each occasion is not before me, he was told in broad terms the two limbs of the caution; that is first that he was not obliged to answer, and secondly that anything he did say could be used in evidence against him."
Her Honour made further findings (at T29‑30) as follows:
"After the videotaped interview to which I have referred, the police officers then took him to the lockup for processing. I pause at that point to observe that he was in police premises with police officers who he knew were investigating this armed robbery and who had warned him on numerous occasions that what he said to them could be used in evidence. He began to speak about the offence of armed robbery. It is in my view very clear that he was speaking about this offence. He initiated the conversation by asking police effectively if the bank staff thought he was professional.
From that point on the police engaged him in a conversation without further caution. He told them a number of things, many details of the offence which were consistent with the statements of witnesses including that he had been lying down and [sic in] a car driven by a co‑offender previous to the robbery so that his disguise would not attract attention, that he was disguised by a garment over his head, that he caught a person trying to activate an alarm and so on. In my view although one might, having regard to the casual terms of the conversation, have doubt about some individual aspects of it, the entirety of the detail taken together makes it very clear that it is this particular offence that is being discussed."
Counsel for the applicant submitted to Wheeler J that the conversation in the "lockup" section was inadmissible under s 570D(2) of the Code in that the videotaped record of the conversation was not a record of an "interview", as defined in s 570(1). It was submitted, in essence, that an "interview" within s 570(1) requires a "formal interview" as distinct from a "casual conversation", and that the conversation in the "lockup" section was not a "formal interview". The learned Judge held that counsel's submission in relation to the proper construction of the term "interview", as defined in s 570(1), was without merit.
Counsel for the applicant also submitted to Wheeler J that the applicant should have been cautioned again when he began to speak in the "lockup" section, apparently about the offence. The learned Judge rejected this submission. Her Honour said (at T33‑34):
"… there is a strand of the submission which was put I think as firmly and put as high as it could be put by Mr Illari [counsel for the accused] which suggest that in the absence of a caution it may be that a person is speaking flippantly, repeating hearsay, perhaps mixing in elements of some other offence, or the submission in this case went so far as to suggests perhaps speaking of another offence altogether, but that seems to me to be impossible, or matters of that kind so that the reliability of what was said might be affected.
The difficulty with that submission here is that on its face the conversation is, as I have already observed, very detailed and one which tallies at very many points with the statements … of a number of witnesses to the offence so that reliability appears to be assured when one looks at the content and compares it with the subject of other depositions. The other difficulty with that submission, allied to the first, is that it relies upon speculation as to what may have been in the mind of the accused and it seems to me that it is not proper on an application of this kind when invited to exercise a discretion in favour of an accused person, when there are a number of competing possibilities, that I should form a view, without evidence, as to what may or may not have been in Mr Carr's mind at the time.
… the discretion to exclude which is relied upon at this point is that it seems to me, to put it broadly but adequately for present purposes, one to exclude evidence which is unfair in the sense that it is obtained by force, bribery, trickery or other improper conduct. There is plainly none of that present here. There had been a very large number of cautions, there had been an entirely proper interview process and at the conclusion of that an accused person, well aware of his rights, shows [sic chose] voluntarily to explain to persons he knew to be police officers, in detail, elements or aspects of the manner in which he had committed the offences, without prompting by them.
It is true that they maintained the conversation but to maintain a conversation initiated in those circumstances does not appear to me to be capable of being characterised as in any way unfair, and for those reasons I would not exercise my discretion to exclude the evidence of that conversation, either given orally by the police officers or in its recorded form."

The conduct of the trial

The applicant gave evidence at the trial. He denied being responsible for, or having any involvement with, the robbery alleged in the indictment.
The videotaped conversations with the applicant in the interview room and in the "lockup" section were tendered by the State. It relied primarily on the admissions made by the applicant in the "lockup" section. The State conceded, and Jenkins J directed the jury, that the jury could not convict the applicant unless it found that the admissions were true and reliable. The learned Judge summarised the State's case in her direction to the jury, as follows:
"The state says that you can be satisfied beyond reasonable doubt that it has proven its case. It says that your commonsense tells you that it is human nature that people do not confess to a crime unless they have in fact committed it. The state says that it is especially so that people don't confess to crimes to people in authority like police officers unless they have in fact done what they have said they have done.
The state says here you have videotaped proof that the accused has confessed to committing this crime. The state says that that is reliable and truthful evidence of his guilt and you should act on it to convict the accused.
However, the state says, acknowledging that there have been occasions where somebody has confessed to a crime that they didn't commit, it is appropriate for you to test his confession against the other proven facts to determine whether the accused's guilt is consistent with those objective facts.
In this respect, the state says that you should consider the eyewitness evidence. The state says it is substantially consistent with the confession made by the accused. The state says you should consider the photographs taken of the robber. The state says nothing in them indicates that the accused is not the robber. There's nothing in those photographs that is inconsistent with the accused's physical appearance. Rather, the state says that the physical appearance of the robber is similar to that of the accused and that is a matter which you're entitled to take into account.
Thirdly, the state says that you should consider the evidence that shoes very similar to the ones that the robber was wearing were found in the possession of the accused and a pair of tracksuit pants which appeared to be similar to ones that the robber was wearing were also found in the accused's possession.
Fourthly, the state says you should take into account the car located by Mr Cohen on the same evening - that is, I think the evening of 8 April nearby to the accused's mother's home where he says he was staying at the time. You should consider that that [sic] car, that is, Mr Cohen's car, substantially fits the description of one that was seen to be acting strangely in the vicinity of the bank earlier in the day around about the time of the robbery and the state says you should also consider the accused's demeanour in the police station lockup video. When I say "his demeanour", that is how he was acting, how he was talking.
The state says that there's nothing in there to indicate that he was making up a story or lying. On the contrary, the state says that he appears to be acting freely, voluntarily and in doing so freely and voluntarily confessing to something he had done. The state says that all these surrounding facts tend to support the accused's confession and should dispel any doubts in you [sic] minds as to whether the accused's confession is reliable and true.
The state says that the only evidence there is to the contrary is the accused's evidence. The state says that you should reject the accused's evidence because the other evidence in the trial shows it to be false.
In relation to the two questions posed by Mr Illari [counsel for the accused] as to how he was able to make that confession, the state says simply that there were too many coincidences about what the accused said and what in fact has been shown to be true by other evidence to be just pure coincidence. Those coincidences point to him being the offender. The state says that they include several matters upon which the accused himself says he wasn't told anything by the police.
As to why he would make up such a false story, the state says that his explanation is simply not believable. If freedom was his priority, then he wouldn't have made such a false confession. No one of the accused's intelligence and worldliness would make a false confession like this to the police unless it was true.
The state says that when the accused was speaking to the police in the lockup, he was speaking from his own knowledge with ego in the background. He was bragging or boasting about what he had done, believing that it could never be used against him. Basically he was speaking in an unguarded moment with the police and he was caught out being honest with them.
Also in relation to the accused's evidence the state says that in the official video record of interview the accused was prepared to lie to the police about his knowledge of South Perth, Angelo Street and the banks in that area. The state says he told these lies to protect himself, knowing that the video could be used in evidence and because he was prepared to lie to the police knowing that it could be used in a court, he is a person who should not be believed upon his oath. Members of the jury, the state says that for those reasons you should be satisfied beyond reasonable doubt of the guilt of the accused."
The learned Judge summarised the applicant's case in her direction to the jury, as follows:
"… the accused says that you should have more than a reasonable doubt as to whether the state has proved its case against him. The accused says that there are many aspects of the state's case that are unreliable or in which there are holes in the state's case. For example, the accused says that Sergeant Richards' evidence that the accused had made admissions to him in the car is simply unbelievable because if he had done so, Detective Richards would no doubt have questioned the accused about those admissions during the official record of interview. It just defies commonsense to believe that he would not have done that.
Secondly, the accused says there's a lack of evidence as to where Mr Cohen's car was in fact found after it was stolen. The accused says that there is insufficient evidence to prove that Mr Cohen's car was used in the robbery. The description of his car is not consistent with the description of the getaway car given by some of the witnesses.
The accused says that there are inconsistencies in the witnesses' descriptions of the robber and that there are differences between his physical characteristics and the physical characteristics of the robber as described by the eyewitnesses. He says there are inconsistencies between what he told the police in the lockup and the known facts; for example, how much money was stolen. He says that those inconsistencies are what you might expect if he was making up a story from bits of information that he had obtained from other places, rather than telling the truth about something he knew about.
The accused says that there is a lack of physical forensic evidence to connect him with the offence and that is certainly correct. The accused says that there's an insufficiency of evidence connecting the shoes and the tracksuit pants taken from him with the robbery. He also points to the fact that there were no guns, gloves, hammer, money or top found in his possession that are consistent with him being involved in the robbery. The accused says that for all these reasons, you should have a reasonable doubt as to whether the state has proved its case against him.
In respect of the lockup video, he says there are two issues that arise here. The first is: why would he implicate himself or dob himself in to the police if he in fact hadn't done the robbery? The second is: where did he get the information from to do so?
In respect of the first issue, he acknowledges he has a belligerent attitude towards the police and he wanted to tease them or to piss them off in circumstances where he believed that what he said would not be recorded and therefore could not be used against him. That is why he did it. His explanation, along with the other holes in the state's case, should cause you to have a reasonable doubt about his guilt.
As to the second issue, as to where he got the information from, he says he got it from the police photos or, sorry, I should say the bank photos that were shown to him by the police. He also got the information from what the police told him. Clearly there was a window of opportunity for the police or at least a couple of windows of opportunity for the police to tell him information about the robbery; that is, either in the car on the way back to the police station prior to the video record of interview or between the video record of interview and the lockup video.
He asks you to take into account that there are inconsistencies between what he told the police in the lockup video and what the witnesses said occurred, not only in respect to the description of the robber but also in relation to some of the other facts and in this respect he points not only to, for example, how much money was stolen but also in respect to who it was the robber threatened. He says or it seems from the lockup video that he says he threatened a male who was on the ground and he demonstrated that, trying to press the alarm; whereas there is no evidence before you to indicate that there was any male who was on the ground in the bank trying to press the alarm.
He also points out the fact that he did not know how many customers were in the bank and that is again evidence that he simply was not there. Members of the jury, he says that since he was released from prison in 2000 he has been on methadone. He has changed his ways. He has not been committing any offences and you can rely upon his evidence of [sic] oath when he says that he was not in this bank.
That evidence, together with the holes in the state's case, should cause you to have a reasonable doubt about his guilt and you should acquit him. …"
The learned Judge directed the jury in relation to the applicant's admissions in the "lockup" section, relevantly, as follows:
"If you are satisfied that what the accused said in the lockup was truthful and reliable, then you're entitled to accept the contents of his statements as evidence against him. If you find that his comments contain an admission of guilt of the offence of robbery and that the admission is true, then you are entitled to use it as evidence tending to prove his guilt of the offence.
Whilst people do not normally admit to an offence unless they have in fact committed it, there have been cases in which for various reasons people have made false confessions. It is for you, members of the jury, to consider the circumstances in which the alleged confessional material was obtained. What weight you attach to the confessional material depends upon all the circumstances in which you find it was made.
It's your right to give such weight to the alleged confessional material as you think is appropriate. You should therefore scrutinise the circumstances in which it was obtained with great care to find whether the admissions and confessions were made as alleged by Detective Richards and Sergeant Shillingford or as alleged by the accused. The circumstances in which the confessional material was obtained may be relevant to the accuracy and truthfulness of it. In this respect, you should remember of course that in relation to this evidence, as in respect to all other matters, the onus is on the state to satisfy you of its truthfulness and reliability."

Proposed grounds of appeal against conviction

The applicant's proposed grounds of appeal against conviction are these:
"1.The learned trial judge erred by admitting into evidence the informally videotaped conversation between police officers and the Appellant which took place at the Kensington police lock up on 30 July 2003.
PARTICULARS
(1)The conversation was inadmissible as it failed to comply with the provisions of sections 570 and 570D of the Criminal Code in that
(i)to be admissible any admission must be on videotape: s.570D(2); and
(ii)to be a 'videotape' for the purpose of the section the recording must contain an 'interview': s.570.
(2)The conversation between the accused and the police officers did not constitute an 'interview', as distinct from an informal conversation between police and suspect.
2.The learned trial judge erred [sic: in] failing to exclude the contents of the recorded conversation on the grounds that it had not been made voluntarily.
PARTICULARS
(1)The conversation between the police officers and the Appellant was not vitiated by any threat, coercion or inducement on the part of the police officers, but it was never made known to him that the conversation was being recorded on audio and video tape.
(2)In the context of the Appellant having a short time previously been formally cautioned for a formal interview which he was told was being video recorded, and having been advised that interview had been formally terminated, it could not be assumed that he:
(i)considered himself still subject to the caution;
(ii)would have elected to proceed with the conversation had he known that it was being recorded;
(3)For an admission to be voluntary the full circumstances relating to its reception including whether or not it is being recorded and is likely to be used in evidence needs to be known by the suspect.
(4)In circumstances where the Appellant had a short time earlier declined to make any admissions to the police in a formal interview situation involving a full caution and full knowledge that it was being recorded it could not be said that any subsequent admissions relating to the same investigation and recorded without his knowledge and without any further caution were voluntary.
3.The learned trial judge erred in failing to exclude the recorded conversation as being unfair.
PARTICULARS
(1)The Appellant repeats the particulars relied upon in relation to ground 2 above.
(2)Fairness is not limited to questions of 'bribery, trickery or improper conduct' nor to circumstances where an accused persons [sic] is unaware of his or her rights and the learned trial judge's observation to this effect was not correct.
(3)It was inherently unfair to admit the conversation in evidence against the accused in circumstances where he had a short time earlier declined to make any statement whatever when fully appraised [sic] of the circumstances of it being recorded and its potential to be used against him in evidence.
(4)The unfairness was compounded by:
(i)the active participation in questioning of the Appellant by the police who knew that a short time earlier he had made a conscious and informed decision not to make any 'on the record' statement in relation to the offence under investigation;
(ii)the fact that the Appellant had expressed a specific intention not to make any comment relating to the matter under investigation on the record without consulting his legal advisor; and
(iii)the fact that the Appellant did not simply volunteer information to the police officers and that a large proportion of the answers given were in response to questions asked by the police.
4.The learned trial judge erred in failing to exclude the recorded conversation as being contrary to public policy.
PARTICULARS
(1)The Appellant repeats the particulars relied upon in relation to grounds 2 and 3 above.
(2)In circumstances where the Appellant had been cautioned, interviewed and chose to exercise his right to silence and right to see a lawyer, a secretly taped informal conversation with officers unaccompanied by a further caution should be excluded on public policy grounds."

Proposed appeal against conviction: proposed ground 1

At the material time, s 570 of the Criminal Code provided, relevantly:
"(1)In this Part, unless the contrary intention appears ‑
…
'interview' means an interview with a suspect by ‑
(a)a member of the Police Force; or
(b)…
…
'suspect' means a person suspected of having committed an offence;
'videotape' means any videotape on which is recorded an interview, whether or not it is the videotape on which the interview was originally recorded.
(2)In this Part, a reference to part of a videotape includes a reference to the visible part and to the audible part of the recording on the videotape."
At the material time, s 570D of the Criminal Code provided, relevantly:
"(1)In this section ‑
'admission' means an admission made by a suspect to a member of the Police Force …, whether the admission is by spoken words or by acts or otherwise;
'serious offence' means an indictable offence of such a nature that, if a person over the age of 18 years is charged with it, it can not be dealt with summarily and in the case of a person under the age of 18 years includes any indictable offence for which the person has been detained.
(2)On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless ‑
(a)the evidence is a videotape on which is a recording of the admission; or
(b)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c)the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
(3)Subsection (2) does not apply to an admission by an accused person made before there were reasonable grounds to suspect that he or she had committed the offence.
(4)For the purposes of subsection (2), 'reasonable excuse' includes the following ‑
(a)The admission was made when it was not practicable to videotape it.
(b)Equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person.
(c)The accused person did not consent to the interview being videotaped.
(d)The equipment used to videotape the interview malfunctioned."
Section 570D was inserted into the Criminal Code by s 5 of the Acts Amendment (Jurisdiction and Criminal Procedure) Act 1992 (WA).
In Nicholls v The Queen (2005) 219 CLR 196 the High Court construed and applied s 570D (as it stood prior to the enactment of the Criminal Code Amendment Act 1999) in the context of a decision of a trial Judge to allow the reception of alleged admissions by an accused which were not recorded on videotape on the ground that there was a "reasonable excuse" within s 570D(2)(b) and (4) for the failure to videotape them.
Section 570D is directed at the problem of admissions to the police and the perceived problem of the police "verbal". In Nicholls, McHugh J said, at 237 ‑ 238 [98] ‑ [99]:
"… In Kelly v The Queen the problem of the police verbal was described as including (Kelly (2004) 218 CLR 216 at 233 [42] per Gleeson CJ, Hayne and Heydon JJ):
'the possibility of police fabrication and the ease with which experienced police officers can effectuate it, the frequent lack of reliable corroboration of the making of the statement, and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence.' (Footnote omitted.)
The broader problem of admissions to police includes not only possible fabrication of admissions or police perjury, but also problems associated with the perception, recording, recollection and transmission to the court of those admissions. It includes problems of pressure, coercion and oppression in relation to the making of the alleged admissions, and misunderstanding, inaccurate recording and misrecollection in relation to the perception, recording, recollection and transmission to the court of those admissions (See Kelly (2004) 218 CLR 216 at 225‑226 [22]‑[25], per Gleeson CJ, Hayne and Heydon JJ)."
See also the observations of Kirby J at 275 ‑ 277 [212] ‑ [217] and Gummow and Callinan JJ at 257 ‑ 258 [150] ‑ [157].
As McHugh J noted in Nicholls, at 240 [102], in s 570D the term "interview" is used only in subs (4). The other provisions of s 570D refer to "any admission", "the admission" or "an admission", but do not specify that the admission must be made during an "interview". Section 570D prescribes that no admission is admissible unless it falls within one of the three paragraphs in s 570D(2). The relevant exception, in this appeal, is par (a) which provides that:
"evidence of any admission by the accused person shall not be admissible unless … the evidence is a videotape on which is a recording of the admission".
In Nicholls, McHugh J construed "interview" in s 570D in considering the reasonable excuse exception in par (b) of s 570D(2). His Honour said, at 240 ‑ 241 [103] ‑ [105]:
"The natural meaning of 'interview' in s 570D is the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a 'serious offence'. It is unlikely that the Legislature in using the term intended it to mean each separate question and answer or statement made on a particular occasion, so that each such question and answer or statement constituted an 'interview'. It seems absurd to think that the Legislature intended the occasion of Coates's interrogation to constitute at least four separate interviews, consisting of two videotaped interviews and two unrecorded interviews during the toilet breaks.
A purposive construction also supports interpreting 'interview' to mean the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a 'serious offence'. Such a construction assists in having a record of the entire discussion between the police officer and the accused on a particular day at a particular place instead of records of parts of the discussion. In accordance with the policy of the section, it also reduces ‑ although it cannot eliminate ‑ the occasions for disputes between accused persons and police officers as to what was said in 'interviews', particularly interviews at police stations. A purposive construction also provides an incentive to police officers to have off-camera admissions recorded or at all events referred to when recording resumes.
Hence, by interpreting 'interview' to cover all exchanges between Coates and the police while he was under caution, s 570D applies to the times when filming was suspended. Because Coates did not withhold consent to the entire series of exchanges being videotaped, his refusal to consent to some of the exchanges being videotaped (if he did) did not fall within the meaning of 'reasonable excuse' as defined in s 570D(4)(c)."
The legislative purpose in enacting s 570D was to prohibit, subject to the exceptions in pars (a), (b) and (c) of s 570D(2), the reception at trial of unrecorded admissions by an accused to the police. It is necessary, in order to promote this purpose, that "interview" be construed broadly. An "interview" is not confined to a formal interrogation. In my opinion, "interview", within the definition of "videotape" and in the context of par (b) of s 570D(2), means any conversation between a member of the Police Force and an accused person in relation to an alleged offence. It includes an informal conversation initiated by the accused person.
In Nicholls, Gleeson CJ said, at 207 [9]:
"Section 570D(4)(c) assumes that the consent of a suspected person is necessary if the police are to videotape an interview. That assumption was not challenged in argument in this Court."
If, with great respect, s 570D(4)(c) makes that assumption (an issue which is not referred to in the other judgments in Nicholls and which does not require resolution in this appeal), s 570D does not prohibit the reception at trial of admissions by an accused person which are recorded on videotape in circumstances where the accused did not know that the admissions were being recorded, and therefore was not given the opportunity to consent or refuse to consent to the interview being videotaped. Section 570D does not, however, restrict or otherwise affect the general discretion of a trial Judge to exclude evidence of admissions obtained in those circumstances on the ground of unfairness or public policy. See Nicholls, where McHugh J observed, at 242 [108]:
"Moreover, even if the off‑camera statements constituted an 'interview' to whose recording Coates did not consent, the above circumstances made an overpowering case for the trial judge to exercise his general discretion concerning evidence unfairly obtained to exclude the evidence."
See also McDermott v The King (1948) 76 CLR 501 at 513 ‑ 515; R v Lee (1950) 82 CLR 133 at 148 ‑ 155; Ridgeway v The Queen (1995) 184 CLR 19 at 30 ‑ 31.
In my opinion, the applicant's contention that the conversation in the "lockup" section was inadmissible in that the conversation did not constitute an "interview", as defined in s 570(1), is misconceived. Proposed ground 1 of the proposed appeal against conviction is without merit.

Proposed appeal against conviction: proposed ground 2

In Lee, Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ approved the two imperative rules of the common law regarding confessional statements enunciated by Dixon J in McDermott. Their Honours said, at 144:
"These rules, stated in abbreviated form, are - (1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed. These two 'rules' are, of course, well established, but it is important, we think, in this case to observe that they seem to be not really two independent and co‑ordinate rules. There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character. It is implicit in the statement of the rule, and it is now well settled, that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible."
The justifications of the rule excluding confessions that are not voluntary are unreliability and the overbearing of the will of the person making the confession. See Cleland v The Queen (1982) 151 CLR 1, where Deane J said, at 18:
"The rational basis of the principle that evidence can only be received of a confessional statement if it be shown to be voluntary should be seen as a combination of the potential unreliability of a confessional statement that does not satisfy the requirement of voluntariness and the common law privilege against self‑incrimination."
It is necessary to examine the effect of the conduct by those in authority upon the will of a person making a confession to determine whether his or her will was overborne. As Brennan J observed in Collins v The Queen (1980) 31 ALR 257, at 307:
"So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused."
In R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at 171 [13], Brennan J summarised the approach of the Court in determining objections to the admissibility of a confession which is alleged to have been made involuntarily:
"In determining objections to the admissibility of a confession that is said to have been made involuntarily, the court does not attempt to determine the actual reliability of the confession. Rather, it assesses the nature and effect of any inducement to make the confession in order to determine whether the confession was made because the will of the confessionalist was overborne by the conduct of a person or persons in authority. That conduct may consist of a threat, promise or inducement made or held out by the person or persons in authority …"
The State bears the onus of establishing that a confessional statement is voluntary. During argument before Wheeler J on the voir dire, the applicant's counsel conceded that the admissions made in the "lockup" section were voluntary. In my opinion, that concession was properly made.
The applicant said at his trial that he initiated and continued the conversation in the "lockup" section for the purpose of "teasing" the police officers and "manipulating their minds", in the mistaken belief that the conversation was not being videotaped and in consequence could not be used against him. The applicant engaged in the conversation in the "lockup" section in the exercise of free choice. His will was not overborne. The notion of voluntariness, in this context, is concerned, in general, with the absence of compulsion, threats and promises. The applicant's mistaken belief was not induced by the police officers. In my opinion, his belief was not relevant to the issue of voluntariness, and did not make his admissions on that occasion involuntary.
Proposed ground 2 of the proposed appeal against conviction is without merit.

Proposed appeal against conviction: proposed grounds 3 and 4

The unfairness discretion and the public policy discretion overlap. It is therefore convenient to consider together proposed grounds 3 and 4 of the proposed appeal against conviction.
In Duke v The Queen (1989) 180 CLR 508, Brennan J examined the nature, scope and rationale of the unfairness discretion. His Honour said, at 513:
"The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded."
His Honour then said, at 513:
"Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification ‑‑ to name but some improprieties -- may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent."
Brennan J concluded, in this context, that the fact that an impropriety occurred does not, of itself, require that evidence of a voluntary confession procured in the course of the investigation must be excluded. It is necessary to evaluate the effect of the impropriety, in procuring the confession, in all the circumstances of the case.
In Swaffield; Pavic, Toohey, Gaudron and Gummow JJ explained, at 189 [52], the distinction between the purpose of the unfairness discretion and the purpose of the policy discretion. Their Honours said:
"The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The [policy discretion] focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest."
Toohey, Gaudron and Gummow JJ noted, at 196 [74], "that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues". Their Honours then added:
"The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen. It was held in that case that where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded. That overlapping is also to be discerned in the rationale for the rejection of involuntary statements. It is said that they are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable. That rationale trenches on considerations of fairness to the accused. And if admissibility did not depend on voluntariness, policy considerations would justify the exclusion of confessional statements procured by violence and other abuses of power."
Later, in Swaffield; Pavic, Toohey, Gaudron and Gummow JJ reviewed decisions of the Court of Appeal of Queensland (R v O'Neill [1996] 2 Qd R 326 and R v Davidson and Moyle; Ex parte Attorney‑General [1996] 2 Qd R 505) and of the Supreme Court of Canada (R v Hebert [1990] 2 SCR 151 and R v Broyles [1991] 3 SCR 595) in relation to conversations with an accused which were secretly tape‑recorded at the request of the police. Their Honours concluded, at 201 ‑ 202 [89] and [91] ‑ [92]:
"The Australian decisions generally have not expressed the relevant principles by reference to the informed choice spoken of in Canadian cases. At least in terms of voluntariness, they have tended to approach the matter in terms of an immunity from compulsion. The emphasis has been on whether duress has been brought to bear on the suspect, that is whether the will has been overborne in some way. That emphasis is well placed when voluntariness is at issue but it is too narrow when the exercise of discretion is involved.
…
… the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.
It is relevant to bear in mind the provisions of the Evidence Acts. Although, in general, the Commonwealth Act applies only in the external Territories and in proceedings in federal courts and courts of the Australian Capital Territory (ss 4, 5, 6), it has been substantially re-enacted in New South Wales. It may well be re-enacted in other States. It may be thought undesirable to have two streams, as it were, one legislative and the other judicial, the latter simply echoing the former or perhaps deviating from it. On the other hand there is no comparable legislative provision in Queensland and Victoria, the two States with which the Court is presently concerned. It is therefore appropriate to develop the common law in Australia in terms of a broad principle based on the right to choose whether or not to speak."

In my opinion, the facts which are of particular importance in evaluating proposed grounds 3 and 4, are these:
(a)During the search of the applicant's residence and during the videotaped conversation in the interview room, the applicant was "cautioned" on ten occasions. Although the caution was given in various forms, the applicant was informed, in substance, that he was not obliged to answer any questions, and that if he did answer, then anything he said could be used in evidence against him. It is apparent, from the transcript of the videotaped conversation in the interview room, that the applicant understood his right to silence. He answered some questions and declined to answer others. Prior to the conversation in the "lockup" section, the applicant had denied any involvement in the offence which the police officers were investigating.
(b)When the applicant initiated the conversation in the "lockup" section, he knew his rights (in particular, his right to silence). He also knew that he was on police premises and in the company of police officers who were investigating an armed robbery in company at the South Perth branch of the Commonwealth Bank on 8 April 2003. The applicant could have been in no doubt that the police officers suspected that he was involved in the commission of that offence. None of the police officers had masqueraded as the applicant's "friend" or "confidant". They were not "undercover operatives".
(c)The conversation in the "lockup" section was recorded by fixed surveillance cameras and microphones. They were permanent fixtures, and were not concealed.
(d)Although the applicant's admissions did not correspond precisely with the circumstances of the offence, as Wheeler J noted in her reasons, many of the applicant's statements were consistent with the evidence of witnesses to the armed robbery and other apparently reliable evidence relating to the offence. It is apparent that the applicant's admissions related to the offence with which he was subsequently charged.
The conduct of the police officers in maintaining and developing the conversation which the applicant initiated in the "lockup" section was not improper, and they were not obliged to administer another caution when the applicant commenced to make what were, apparently, admissions relating to the offence they were investigating.
The police officers were investigating a serious criminal offence. In the circumstances, upon the applicant choosing to speak, it was appropriate and in the public interest for the police officers to engage the applicant in conversation with a view to eliciting further information and admissions.
It is true that, during the videotaped conversation in the interview room, the applicant responded to some questions by stating, in substance, that he did not want to answer the question until he had spoken to his lawyer or without his lawyer being present. The applicant continued, however, during that interview to answer other questions without any impropriety on the part of the police officers, and in the knowledge of his right to silence.
In my opinion, an examination of the transcripts of, and other evidence relating to, the videotaped conversation in the interview room, and the conversation in the "lockup" section, indicates that neither the fairness discretion nor the public policy discretion required the exclusion of the conversation in the "lockup" section. It was not unfair to the applicant to allow that conversation to be adduced in evidence. Further, the applicant's admissions were not obtained at a price which was unacceptable, having regard to prevailing community standards.
Proposed grounds 3 and 4 of the proposed appeal against conviction are without merit.

Proposed ground of appeal against sentence

The applicant's proposed ground of appeal against sentence is this:
"The learned sentencing Justice erred in failing to reduce the sentence of imprisonment imposed on the Applicant in accordance with the totality principle, and the sentence imposed was thereby manifestly excessive as a result.
PARTICULARS
1.The Applicant was sentenced on 13 January 1998 for a number of offences including aggravated burglary, breach of bail and breach of ISO and CRO.
2.He was sentenced to a total of 33 months imprisonment commencing from that day and was made eligible for parole.
3.On 30 April 1998 the Applicant was sentenced for an offence of armed robbery.
4.He was sentenced to a term of 4 years imprisonment cumulative on his existing sentence and was again made eligible for parole.
5.He was first released on parole on 14 July 2000.
6.He was taken back into custody for 7 days on remand from 23 November 2000 to 29 November 2000.
7.He was required to serve a further 547 days of his sentence from 12 January 2001 to 12 July 2002, when he was again released on parole.
8.The present offence was committed on 8 April 2003. The Applicant was taken into custody on 31 July 2003 and served a further 77 days of his sentence before being granted parole again on 15 October 2003.
9.The Applicant was again taken into custody on 17 April 2004 and served a further 154 days of his sentence before being released on parole on 17 September 2004.
10.He was convicted on 23 November 2004 of the present offence and has been in custody since.
11.The Applicant is eligible for release on 22 November 2010 though he may subsequently need to serve any remaining parole days before being released.
12.The outcome of the present proceeding when viewed together with previous time spent in custody is that from 27 November 1997 (the date he was first held on remand for the 1998 offences) to 22 November 2010, the Applicant will have spent 3,937 days (approximately 130 months or slightly under 11 years) of those 13 years in custody.
13.The imposition of this term of imprisonment for an offender of the Applicant's age is effectively a crushing sentence.
14.The learned sentencing Justice erred in failing to have any, or any sufficient, regard to the total period of prison required to be served by the Applicant and whether the totality principles should have been applied.
15.The sentence of 6 years imprisonment in all the circumstances was accordingly excessive."
I have mentioned that on 20 January 2005 the applicant was sentenced to 6 years imprisonment without parole. The learned sentencing Judge ordered that the term of imprisonment commence from 23 November 2004.
The applicant was born on 27 May 1978. He was 24 years of age at the time of the offence. He is eligible for release on 22 November 2010. At that time he will be 32 years of age.
It is significant, in evaluating the sentencing process, that the offence was committed, as follows:
(a)the applicant was armed with a firearm;
(b)although actual violence was not used, the applicant traumatised the staff and customers of the bank by being armed with the firearm, pointing the firearm at a teller and abusing another employee of the bank;
(c)the applicant used a stolen motor vehicle in the course of committing the offence;
(d)the applicant stole $7750, none of which was recovered; and
(e)at the time of the offence the applicant was on parole: the offence for which he was on parole was an armed robbery in a similar location to the offence in question.
At the time of the offence, the applicant had a serious and significant criminal history. The learned sentencing Judge referred to various personal and other factors relevant to the applicant, and the offence, in determining the sentence. These factors included:
(a)the applicant was single and 26 years of age when sentenced;
(b)he lived with his mother and, apparently, his father (when his father was at home);
(c)the applicant's parents and other members of his family were supportive of him;
(d)he had a good relationship with his girlfriend, and that relationship had existed for approximately 12 months;
(e)the applicant ceased his schooling in Year 10, and had some experience as an unskilled worker;
(f)his previous convictions were associated with the heavy use of illicit drugs;
(g)it was possible that the applicant's use of drugs, and his need to obtain money to support his use of drugs, were motivating factors in the commission of the offence for which he was being sentenced;
(h)the pre‑sentence report indicated that the applicant's "urinalysis" results while he was on parole showed "continued and extensive" drug use;
(i)a psychological report indicated that the applicant's mood and behaviour were largely unstable and unpredictable;
(j)the psychological report also noted that the applicant had no remorse for his offending, and did not have any empathy for his victims; and
(k)the applicant was at a high risk of re‑offending.
In Miles v The Queen (1997) 17 WAR 518, the Full Court of the Supreme Court of Western Australia observed that the offence of armed robbery had become significantly more prevalent. Sentences had therefore been "firmed up". In The State of Western Australia v Wells [2005] WASCA 23, Wheeler JA (with whom Steytler P and Roberts‑Smith JA agreed) noted, at [4]:
"… at the date of Miles, the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, would be from 6 to 9 years (per Malcolm CJ at 521). Since the Sentencing Legislation Amendment and Repeal Act 2003 (WA), that range would, of course, be from 4 to 6 years."
The sentence of 6 years imprisonment was therefore within the range applicable to the offence in question.
The applicant does not suggest (nor could it be suggested) that the learned sentencing Judge was wrong in declining to make a parole eligibility order under s 89 of the Sentencing Act 1995 (WA).
The applicant's contention is that the learned sentencing Judge erred in failing to reduce the sentence of imprisonment in accordance with the totality principle and, in consequence, the sentence imposed was manifestly excessive.
In Postiglione v The Queen (1997) 189 CLR 295, McHugh J summarised the "totality principle", at 307 ‑ 308, as follows:
"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved (see Mill v The Queen (1988) 166 CLR 59 at 63). In Kelly v The Queen ((1992) 33 FCR 536, at 541) O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi (Unreported; Court of Criminal Appeal of SA; 20 April 1988):
'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged (R v Holder [1983] 3 NSWLR 245, at 260). Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences (Holder [1983] 3 NSWLR 245, at 260).
Recent decisions in the Court of Criminal Appeal (R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459) have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon ((1994) 71 A Crim R 459, at 466):
'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.'"
In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said, at 623 ‑ 624:
"To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59)."
In Sikaloski v The Queen [2000] WASCA 387, the applicant was convicted of 28 counts of receiving stolen goods. In the Court of Criminal Appeal, Kennedy J (with whom Wallwork and Parker JJ agreed) held, at [14], that the sentencing Judge failed to have regard to sentences which the applicant was already serving, and therefore failed to apply the totality principle to all the sentences; that is, to those presently being served as well as to those about to be served.
In R v Pallister (2002) 131 A Crim R 452, the applicant was charged with various offences and was refused bail. When he was tried for those offences in the District Court, he was acquitted. The question in issue in the Court of Criminal Appeal was whether the time which the applicant had spent in custody awaiting trial on those offences should be taken into account in determining the sentence to be imposed on him for other offences in respect of which he had pleaded guilty. Anderson J (with whom Wallwork and Wheeler JJ agreed) said, at 457 ‑ 458 [28]:
"It would seem to me, however, that the fact that the respondent has been in custody for a lengthy period until shortly before the hearing of this appeal should be taken into account as a relevant circumstance, even although the matters in respect to which he spent time in custody were quite unrelated to the offence in respect of which he is now to be re‑sentenced. It is perhaps a rather unusual case. The charges that were preferred against him and in respect to which he was refused bail, were tried in the District Court. He was acquitted of all charges and discharged from those indictments only a few days before the hearing of the appeal. He therefore presents as a person who spent approximately seven months in custody awaiting trial on charges in respect to which he was found to be not guilty. I think that considerations of mercy require this hardship to be taken into account in re‑sentencing for these offences. Another basis for adjusting the sentence downwards on account of this time spent in custody is that suggested in Palmer [1999] WASCA 253 - the Court is entitled to exercise clemency in the context of ensuring that there is no sense of injustice that might prejudice the respondent's efforts at rehabilitation."
Plainly, the facts of Pallister were unusual, and bear no resemblance to the facts of the case before this Court. The applicant has not spent any time in custody in relation to charges for which he has been acquitted.
Senior counsel for the applicant was asked, in the course of argument, this question:
"By the time [the applicant] was sentenced was it the case that he had served the whole of the 33‑month term of imprisonment and the whole of the 4‑year term of imprisonment that were imposed in 1998?"
Senior counsel answered:
"As I understand it. I stand to be corrected but I think that is our mutual position, that that was the case."
When the learned sentencing Judge sentenced the applicant, on 20 January 2005, he had served his earlier sentences. The effect of her Honour's order, that the 6 years imprisonment without parole commence from 23 November 2004, was that the applicant had served his "remaining parole days" concurrently with the new sentence.
The learned sentencing Judge was aware of the applicant's age and the total period he had spent, and would spend, in custody. Her Honour said:
"In respect to your prior criminal record, you have a very poor record of offending. You were on parole for another armed robbery when you committed this offence. … At the time you were sentenced for that offence you were told that the four‑year sentence you received was a comparatively lenient one and that if you did not avail yourself of future opportunities to live an offence‑free life in the community you could expect very long terms of imprisonment …
…
With respect to the criteria referred to in section 89 of the Sentencing Act of most relevance is that this is the second bank robbery you have committed at the same set of shops and this one was committed whilst you were on parole, apparently still owing parole days in relation to the first armed robbery.
…
I have … decided not to grant you eligibility for parole. In making this decision I have also taken into account that when you are released you will still be a relatively young man. …"
It is true that, when the applicant was sentenced on 20 January 2005, he had served substantial terms of imprisonment in consequence of his prior offending. That fact, and the applicant's status as a relatively young adult of 24 years at the time of the offence, were relevant to the sentencing process. The learned sentencing Judge took into account those and other considerations personal to the applicant.
In my opinion:
(a)The totality principle did not apply to the applicant in that, when her Honour sentenced the applicant, he was not currently serving a sentence for any other offence.
(b)The totality principle did not apply, by analogy, to the applicant in that the offence for which her Honour sentenced the applicant was committed when he was on parole for an earlier offence (and was not committed prior to his being sentenced for the earlier offence). There was no delay between the date on which the applicant committed the offence for which he was being sentenced by her Honour and the date of imposition of that sentence in consequence of matters of the kind referred to in Mill v The Queen (1988) 166 CLR 59 at 63 ‑ 67.
Further, and in any event, the sentence imposed by her Honour was not, in the context of the applicant's age and the total period he had spent and would spend in custody, a "crushing" sentence; it cannot be characterised as destroying any reasonable expectation of useful life after release. See R v Yates [1985] VR 41 at 48.
The sentence which the applicant received was not manifestly excessive.
The proposed ground of appeal is without merit.

Conclusion

For these reasons, I dismissed the applications for an extension of time to apply for leave to appeal against conviction and sentence.