Churnside v The State of Western Australia - [2015] WADC 26

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: CHURNSIDE -v- THE STATE OF WESTERN AUSTRALIA [2015] WADC 26

CORAM: BOWDEN DCJ

HEARD: 13 MARCH 2015

DELIVERED : 16 MARCH 2015

FILE NO/S: KAR IND 44 of 2014

BETWEEN: BOYDEN CHURNSIDE
AND
THE STATE OF WESTERN AUSTRALIA

Catchwords:

Admissibility of video record of interview - Accused an arrested suspect - Questioned during the VROI about an additional offence the police suspected him of committing without being advised he was suspected of committing that offence

Legislation:

Criminal Investigation Act 2006

Result:

Video record of interview ruled inadmissible

Representation:

Counsel:

Accused: Mr R Owen
The State of Western Australia : Ms J Boots

Solicitors:

Accused: Aboriginal Legal Service of Western Australia (Inc)
The State of Western Australia : State Director of Public Prosecutions

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

Bunning v Cross (1978) 141 CLR 54
JWRL (a child) v The State of Western Australia [2009] WASC 285
Mukevski v The State of Western Australia [2010] WASCA 138
R v Dalley (2002) 132 A Crim R 169
R v Ireland (1970) 126 CLR 321
R v Swaffield (1998) 192 CLR 158
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; (2007) 174 A Crim R 183
Wright v The State of Western Australia [2010] WASCA 199

BOWDEN DCJ: The accused is charged with unlawfully doing grievous bodily harm, between 1 January 2014 and 28 February 2014, to Ms Alexander, with whom he was in a family and domestic relationship.
The issue to be determined is the admissibility of the video record of interview between police officers and the accused.

A brief overview of the facts

The accused and Ms Alexander had been in a family and domestic relationship for approximately six years.
It is alleged that on a date unknown between 1 January 2014 and 28 February 2014, they had been drinking together at their residence in Wickham when an argument occurred and the accused picked up a small wooden stick and approached Ms Alexander, hitting her with the stick on the nose. It is alleged the stick connected with her right eye, causing it to bleed and occasioning immediate discomfort to Ms Alexander. The accused shortly thereafter hit Ms Alexander on the back with a shovel and went to bed.
Ms Alexander did not seek medical treatment or report the matter to the police.
On 28 April 2014, Ms Alexander was treated at hospital for another injury allegedly inflicted by the accused. Whilst at the hospital she received treatment for her right eye and the medical diagnosis was that she suffered a permanent loss of vision to that right eye.

The admissibility of the video record of interview of 28 April 2014

The evidence

Constable Moore

Constable Moore was a most impressive witness. He gave his evidence in a straightforward, frank and forthright manner.
He said that on 28 April 2014 whilst on duty with acting Sergeant Koks, they attended an address at Wickham in relation to a domestic violence incident at approximately 8.20 am.
Ms Alexander was bleeding from a cut to her lip. The accused was arrested as an arrested suspect for the offence of aggravated assault occasioning bodily harm as a result of what Ms Alexander told acting Sergeant Koks had occurred that day.
The accused was placed in a police vehicle and taken back to the police station where he was put in a holding cell.
Ms Alexander was taken to the hospital and whilst at the hospital she revealed to Officer Koks a separate incident being the subject of the indictment currently before the court. Constable Koks obtained a written statement from her in respect of that injury and spoke to the doctor and confirmed Ms Alexander's eye had been injured.
Officer Koks returned to the Roebourne police station and she either discussed or showed the written statement to him. The officers decided to interview the accused in respect of both matters.
Officer Moore admitted he would normally advise the accused not only of the offence for which he was an arrested suspect but also for those offences he was suspected of committing before commencing a video record of interview and thought he had done so. He accepts he overlooked advising the accused he was suspected of committing the offence currently before the court.
The officer produced as exhibit A the VROI.

The video record of interview (VROI)

The VROI show that insofar as the offence for which the accused was arrested he was properly afforded his rights under s 138 of the Criminal Investigation Act 2006 (CIA) at the time of his arrest.
At the commencement of the VROI the accused was told by the officers:
Its, its, its, um we need to speak with you about what happened earlier on today.
The officers proceeded to interview the accused about the 28 April 2014 offence. However, approximately 29 minutes into the 37‑minute interview, the officers said to the accused:
There was something else that happened, um, I think it was a couple of weeks ago Sarg?
…
A couple of months ago, let me just find it in the statement, oh she didn't given an exact date but it was this year sort of thing …
…
So it was this year, 2014, so a couple of months ago, um, she said that you guys got into another fight and um, and you and you hit her, do you remember what she's talking about.
The officers then proceeded to question the accused about the incident giving rise to the current indictment (the additional offence).
The defence object to those answers being used at the trial on the basis that the police suspected the accused of having committed the offence of aggravated grievous bodily harm prior to the commencement of, or during the interview, and failed to afford to him his s 138(2) rights of being informed he was suspected of committing that offence when he was being interviewed.
The defence also points out that s 139(3) was not complied with because the accused, as an arrested suspect having been detained for the purpose of being interviewed, must be detained in the company of an officer and not in a lockup or other place of confinement, unless the circumstance makes it impracticable to do so.
The defence points out that the accused was placed in a holding cell and there was no evidence that circumstances made it impracticable for him to be detained in the company of an officer.
The defence say the VROI is therefore inadmissible pursuant to s 154(2) of the CIA and that the prosecution are unable to satisfy me of the s 155 criteria that would otherwise authorise its admission into evidence.
The State argue that if the CIA was breached it was only a technical breach and the accused was properly cautioned and given all his other CIA rights and the reliability of the admissions made were not affected and in light of the seriousness of the offence and the technical nature of the breach and that as any breach was simply an oversight by the officer amounting to no more than carelessness, I should permit them to lead the VROI.

Section 138(2)(a) CIA

Section 138(2)(a) comprises two aspects, that is, that the accused has a right to be informed of the offence for which he has been arrested and any other offence he is suspected of having committed.
It is accepted by all that the accused was informed of the offence for which he had been arrested and it is accepted by the State that the police did not inform the accused 'explicitly' that he was suspected of committing the aggravated grievous bodily harm.

Was the accused suspected of committing the aggravated grievous bodily harm offence at the time of, or during, the VROI?

Constable Moore admitted that he suspected the accused of committing the offence currently before the court before he commenced the VROI. He was the officer in charge of the investigation.

When should an accused be advised that he is suspected of committing an offence?

There is no requirement under s 138(2)(a) that the accused be advised of the offence he is suspected of committing prior to the interview being commenced or continued.
Pursuant to s 137(3)(b) an obligation is imposed on the officer in charge of the investigation to afford that right as soon as practicable after the accused's arrest. This is to be contrasted with the rights under s 138(2)(b) (caution) and s 138(2)(d) (interpreter) which provide that the accused is entitled to be informed of those rights before the interview.
However, in Wright v The State of Western Australia [2010] WASCA 199 the court, when dealing with s 138(2)(c), stated:
The practical effect of the obligation in s 138(3)(c) to inform the suspect of his right to communicate with a lawyer as soon as practical after arrest would ordinary require the information be provide prior to interviewing the suspect.
Similarly, I consider that an accused arrested for one offence and suspected of committing an additional offence should ordinarily be informed that he is suspected of committing that additional offence prior to being interviewed about that additional offence, particularly when the police intend to use the same interview to question the accused about the arrested offence and the additional offence.
I accept that during the interview the police read to the accused Ms Alexander's statement which forms the basis of the alleged aggravated grievous bodily harm and provide details of where the assault happened and how it is alleged to have occurred, the weapon used, who was present and the nature of the injury. However he was never told that he was suspected of having committed that offence.
There is no practical reason for that not being done in this case. It would have taken the police officers less than a minute to do so. It does not impose an onerous obligation on police officers.
I find that there was a failure of the officer in charge of the investigation to inform the accused as soon as practicable in the circumstances of the offence that he was suspected of having committed and there has been a failure to comply with s 138(2)(a). Accordingly, under s 154(2) the VROI is not admissible unless the State satisfies me that I should exercise my discretion to admit it into evidence pursuant to s 155.

The s 155 CIA discretion

Section 155(2) enables a court to admit the VROI if it is satisfied that the desirability of admitting it outweighs the undesirability of admitting the evidence.
Essentially the defence say that the gravity of the crime the accused was suspected of committing heightens the seriousness of the contravention by the officers. They say that if the accused was informed of the more serious charge it is likely that his attitude would have changed as to exercising his rights and he would have either declined to answer questions or sought legal advice.
The defence further say that an arrested suspect should be given every possible opportunity to exercise their rights and the law should uphold those rights to ensure false convictions are not obtained and the burden of proof does not move from the prosecution to the accused.
The prosecution say on any fair reading of the interview the accused was told that what he was saying was being recorded and could be used in evidence against him and was provided with details of where the assault happened, how the assault occurred, the weapons used, who was present and the injuries sustained and continued to answer questions as he had throughout the interview.
After considering the interview in its entirety there is absolutely nothing that could lead the court to conclude that the accused would have exercised his right to silence or would have requested to speak to a lawyer even if told that he was suspected of committing the additional offence.
In exercising the s 155 discretion the court must take into account a number of factors which include:
(a)Any objection to the evidence being admitted.
I note the accused objects to the VROI being admitted.
(b)The seriousness of the offence in respect of which the evidence is relevant.
Aggravated grievous bodily harm is a serious offence and this is not disputed by the defence. It carries a maximum penalty of 14 years' imprisonment. The public interest in the conviction and punishment of those guilty of a crime is entitled to greater weight in the case of crimes of greater gravity (R v Dalley (2002) 132 A Crim R 169 [7], (Spigelman CJ). The seriousness of the offence is, however, just one of the factors to consider.
(c)The seriousness of any contravention of the act in obtaining the evidence.
It is a serious contravention because the accused was not informed of a matter which the legislation specifically provides that he should have been. Police must be aware of the importance of conducting investigations in accordance with the law.
(d)Whether any contravention of the Act in obtaining the evidence:
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact.
It is conceded by the accused that there is no evidence that either of the officers intentionally contravened the Act.
Nor do I consider that the contravention was reckless. Recklessness involves officers understanding that there is a risk a result may occur and yet continuing onwards irrespective of that risk.
Nor do I consider that it arose from an honest and reasonable mistake of fact.
It seems to me that it was result of carelessness. The police officers simply erred. He thought he had told the accused he was suspected of committing the offence but in fact had not.
(e)The probative value of the evidence.
I accept the reliability of the evidence obtained has not been affected. This is a matter of considerable significance which favours the admission of the evidence. Although a significant factor, it is not the only factor to consider. There are cases where reliable admissions have been excluded in the exercise of the discretion: JWRL (a child) v The State of Western Australia [2009] WASC 285.
I accept the probative force of the evidence, is high. This is also a significant but not determinative factor which favours the admission of the evidence. The probative value of the evidence is high because it is capable of being construed by the jury as a full 'admission' of the elements of the offence.
The probative value of the evidence by itself does not justify the admission: s 155(4).
(f)Any other matters the court thinks fit.
The officers could have easily complied with the legislative requirement. It would have taken them less than a minute. It does not impose an onerous obligation on police officers.
Not one of the above factors is given primacy over other factors. It is a matter of considering all the factors together.
It is clear the accused was advised of his right to speak to a lawyer at the time of his arrest and at the commencement of the VROI. He was properly cautioned. I have found there was no deliberate or intentional act on the part of the police to deny him his rights and that he answered all questions voluntarily and those answers were reliable. The offence is clearly serious.
However it is of fundamental importance on a serious charge such as an aggravated grievous bodily harm that the accused be told that he is suspected of having committed that offence before he is interviewed about that offence. This is not a case where the police are suddenly confronted with a set of circumstances that lead them to have suspicions about the accused. They already had the complainant's statement, knew she had received medical treatment and knew they were going to question the accused about the additional offence. Contemporary concepts of fairness require that an accused be advised of the offence he is suspected of committing before he is interviewed about that offence.
If the police wish to use one interview, as they are entitled to do, to cover both the offence for which the accused is an arrested suspect and an additional offence that they suspect he has committed then they should inform the accused that they suspect him of committing that additional offence before they question him about it.
Alternatively, as is often the case, they should finish the interview covering the offence for which he is an arrested suspect and commence a fresh interview for the offences he is suspected of having committed after advising him he is suspected of having committed that offence and explaining his CIA rights.
The police control the questions asked and determine which offences are the subject of the interview and whether they conduct one or two interviews. They must ensure that the accused is afforded his right to be informed of the offence he is suspected of committing as soon as practicable, which in this case meant before he is interviewed about that offence. The need to ensure this occurs is high. There is nothing in any argument advanced by the State that leads me to exercise my discretion to admit the evidence.

The common law discretion

If I am wrong in this conclusion that there was a contravention of the CIA then the common law general discretion enables a court to exclude evidence where it would be unfair to the accused to admit the evidence or where considerations of public policy lead a court to conclude it is unacceptable to admit that evidence or where its prejudicial value outweighs its probative value: R v Swaffield (1998) 192 CLR 158; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; (2007) 174 A Crim R 183. The onus is on the accused to persuade me to exercise the discretion in his favour.
The accused relies on the 'unfairness' and 'public policy' discretions.
The unfairness discretion looks at the question of whether it would be unfair to the accused to use this evidence against him. It is primarily concerned with the accused's ability to obtain a fair trial. It does not directly involve looking at the question of whether the interviewers acted unfairly.
The factors to consider in the exercise of this discretion cannot be developed in the abstract but take their meaning from the circumstances of the case: Bunning v Cross (1978) 141 CLR 54 (77); Mukevski v The State of Western Australia [2010] WASCA 138 [22].
These factors involved in considering the exercise of the discretion are those factors I have referred to in exercising the CIA discretion.
The accused argues that if he had have been told of the more serious offence that he was suspected of committing, he may have exercised his right to contact a lawyer and he may have made no admissions. I reject this submission.
With respect, it is obvious from viewing the VROI that the accused man was happy to talk to the police in the knowledge that what he said was being recorded and would be used in evidence against him. As previously stated, I do not believe that the accused would have exercised his right of silence or that the answers made by him are unreliable.
Any unfairness is, in my opinion, a result of the failure of the police to advise the accused of the additional offence he was suspected of committing. This really is more an issue of public policy.
The unfairness discretion can and often does overlap with the exercise of the public policy discretion which involves striking a balance between the public interest in placing the court in possession of all relevant admissible evidence and ensuring that law enforcement officers do not act unlawfully.
The court must balance the competing considerations of not encouraging evidence to be obtained by inappropriate means and the public interest in protecting individuals from unfair treatment with the desirable goal of bringing convictions to wrongdoers: R v Ireland (1970) 126 CLR 321; Bunning v Cross.
I accepted that the accused was properly cautioned in relation to the 28 April offence. He was told that he was being interviewed about that offence.
In my opinion it is against public policy for the police to commence an interview by saying to an accused they want to talk 'about what has happened earlier today' in respect to an offence for which the accused is an arrested suspect and then after approximately 30 minutes, discuss an additional offence occurring months previously and not tell him he is suspected of committing that additional offence.

It would have been a simple matter for the police to tell the accused he was suspected of committing that offence. Alternatively, as I have said, they could have ceased this interview and commenced a completely new interview dealing specifically with the additional offence and explained all the accused's CIA rights.
I consider the public policy reasons are so compelling that the accused has satisfied me that it would be against public policy in these circumstances to admit into evidence that part of the interview relating to the offence currently before the court.