Cotchilli v The State of Western Australia - [2008] WASC 103

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: COTCHILLI -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 103

CORAM: McKECHNIE J

HEARD: 8 APRIL 2008

DELIVERED : 10 APRIL 2008

PUBLISHED : 3 JUNE 2008

FILE NO/S: IND BRO 99 of 2007

BETWEEN: DEREK COTCHILLI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Voluntariness of interview - Whether interview should be excluded - Criminal Investigation Act 2006 (WA) - Effect of breach - Words and phrases 'detained on reasonable suspicion' - Delegation of power

Legislation:

Criminal Investigation Act 2006 (WA), s 12, s 137, s 138
Criminal Procedure Act 2004 (WA), s 98

Result:

Interview admissible

Category: A

Representation:

Counsel:

Applicant: Mr L Carter, Mr J Kelly & Mr M Gumbleton
Respondent: Mr K P Bates & Ms F M Clare

Solicitors:

Applicant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)

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

O'Hara v Chief Constable of Royal Ulster Constabulary (1997) 1 All ER 129

McKECHNIE J: The applicant ('accused') applies for orders excluding the video record of interview on the grounds that it is involuntary or, alternatively, that it would be unfair to admit it.
I will not repeat what I said in the case of Neil Bundamurra in relation to the test of involuntariness but that can be taken and incorporated into these matters. Suffice to say simply that I have had the benefit in advance of legal submissions by both parties in writing.

The Criminal Investigation Act 2006 (WA)

The Criminal Investigation Act came into operation on 1 July 2007 and profoundly altered the legal landscape. In relation to interviews, police acquired power to arrest and detain suspects for the purpose of interview. To balance those powers, suspects obtained important rights. So much is not in dispute.
What is in dispute is whether the accused had those rights explained to him and whether there were reasonable suspicions for his arrest.

What happened at Balgo?

Both Senior Constable Ingram and Senior Constable Ripp gave evidence that the accused was arrested by Ripp outside the general store and conveyed back to the Balgo Police Station. According to Ingram, Ripp said:
'The detectives in Halls Creek need to speak to you about some matters. You're under arrest for suspicion of committing sex offences. You will need to come back to the Balgo police station and then to Halls Creek to speak to the detectives. I won't go into detail about those matters as the detectives have all the details.
…We will go back to Balgo first and then through to Halls Creek. You can make a phone call to anyone or contact a lawyer, if you wish'. The accused was asked if he understood and said yes. (ts 11)
According to Ripp (ts 30 ‑ 31)
I said, 'Hey, Derek. You know me, eh? I need to have a chat with you … I'm placing you under arrest. I require you to travel back to Halls Creek where you can have a conversation with detectives there. I won't go into details but the detectives know all about it'. (ts 30 ‑ 31)
Ripp said he told him it was 'For sex offences'.
At (ts 31):
I said that he could ring anyone he wanted to and then a lawyer if he wished. I asked him did he understand that and he said yes.
Neither police officer made a note of this short conversation. They were first asked to make a statement in March 2008. They denied collaborating on the statements. Each swore that they located the accused outside the general store, as I have said.
The accused's evidence on this point is different. The accused said that he was picked up at his cousin's house and they said they would take him to the station. He was not told he was under arrest, nor was he told if he wanted a lawyer.
At the Balgo Police Station, Ingram said he recorded matters into the police custody system. Because he was unable to access his H‑drive at Balgo, he used the regimental number of a Balgo officer to access the system. He asked a number of standard questions, entering in the answers as he proceeded. One question was, 'Do you want the ALS contacted?' Answer, 'No'. 'Do you want ALS to represent you?' Answer, 'No'. These were recorded and tendered in evidence as part of DH1 as a screen dump of the relevant page.
The accused's evidence is that at Balgo Police Station he was told that he was under arrest by the computer man. This is a reference to another officer working on a computer. He was asked:
Is the computer man a different man to the police who took you to the station?---No. He is definitely another one.
Did the computer man tell you what you were under arrest for?---No. Might be. (ts 74)
He denied that any officer at Balgo Police Station asked if he wanted to speak to a lawyer. I am conscious of the difficulties that face Indigenous persons giving evidence and also that some Indigenous persons may tend to defer to authority, offering answers they think are expected, rather than the truth. This applies of course in court and in interviews with police. The answers that I have set out were not obtained by leading questions.
I have considered the fact that the police officers' evidence is unsupported by a contemporaneous note, at least so far as the conversation they say occurred at the store. The matter is not easy to evaluate but the probabilities are that the encounter took place as described by the police. It would be a natural thing for Ripp to advise the accused that he was under arrest and for what.
The explanation given by Ingram as to the entry in the computer under a different officer's regimental number is not in the circumstances implausible.
Accepting, as I do, the computer entry that the question about the ALS was asked, I consider that this reflects on the accused's memory of the matters and questions. At other times, even making allowances for the difficulties of giving evidence, I am of opinion that the accused's memory of what occurred in the encounter is not sufficiently reliable for me to act upon it.
Ingram said that he processed the accused into custody, reading him out standard questions from a computer screen and making the appropriate entries, and exhibit DH1 is the result. It is probable that events proceeded as the police officers testified. On return to Balgo station one officer notified the Halls Creek detectives while the other officer processed the accused.
Under s 138 of the Criminal Investigation Act the accused has a right to a reasonable opportunity to communicate or to attempt to communicate with a lawyer. Ripp was unaware of the detail of the Criminal Investigation Act, of his obligations and of the accused's rights. Nevertheless, albeit by happenstance, I find the probabilities are that he sufficiently complied with the Criminal Investigation Act, particularly advising the accused for what he was arrested and offering the opportunity to communicate with a lawyer. Even if his memory is faulty on this point, I find that Ingram did it shortly after and in the circumstances that it was as soon as reasonably practicable.
In the course of argument I touched upon some of the textual issues arising in div 5 of the Criminal Investigation Act, particularly s 137 and s 138. One issue is whether the police are obliged to inform a person of a right to communicate with a lawyer or to afford them that right should the person seek it. The resolution of that may turn on a construction of the word 'opportunity'. I flag this as a possible future issue, but on the facts as I have found in this case the issue does not arise.
I consider that, at the latest, the interview by Ingram processing the accused constitutes a reasonable opportunity to communicate with a lawyer - an opportunity which was declined. The accused was then taken from Balgo to Halls Creek with a stop on the way. There is a dispute about whether he was given a meal beforehand. Ingram says he was given a detainee meal, namely, a pie. The accused denies this. I do not find that the presence or absence of a meal affected the record of interview in a material way.
There is a difference of account between the accused and the police as to whether he was placed in a lockup at Halls Creek, then taken to the interview room, as the police assert, or whether, after going to the toilet, the accused was taken directly to the interview room. Nothing appears to turn on this, although I note the room used did not seem to be a regular interview room and may have taken some time to set up.

Detained on reasonable suspicion

The accused, through counsel, challenges the arrest or detention in two ways. First, it is submitted that Detective Sergeant Doyle relevantly had no reasonable suspicion. Next, it is submitted that he did not ensure that the officer to whom he delegated the power, Ripp, performed the duty. The Criminal Investigation Act s 12 provides:
(1)An officer may delegate the performance of a power of the officer under the Act, other than this power of delegation, to another officer.
(2)If an officer delegates the performance of a duty imposed on the officer by this Act to another officer, he or she must ensure the other officer performs the duty.
I deal first with reasonable suspicion. In the course of his evidence‑in‑chief the following occurs between the examiner and Detective Sergeant Doyle:
And also on the video that we have just seen you indicated there in your questioning of the accused, 'I've received your name, okay, I've got the name of a girl, and then later we've spoken to a couple of your friends, okay, and they've told us about something that's happened.' Are you able to tell the court how you came to be aware of Mr Cotchilli's connection with some sex offences with this particular complainant, Natalia Timms?---I can't recall exactly. It would have been through speaking with other I suppose persons of interest or witnesses. It would have been communicated to me at some point in time. (ts 49)
What may constitute reasonable grounds for suspicion was the subject of a decision in O'Hara v Chief Constable of Royal Ulster Constabulary (1997) 1 All ER 129. This case can be accepted as laying down the principle subject to one important qualification. The Prevention of Terrorism Temporary Provisions Act of 1984 and 1989 under consideration in that case did not contain the delegation power similar to that in the Criminal Investigation Act, s 12. Lord Hope of Craighead said:
[T]he test which s 12(1) of the 1984 Act has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised. (138 ‑ 139)
In a concurring judgment Lord Steyn said:
Certain general propositions about the powers of constables under a section such as s 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip‑off from a member of the public may be enough (see Shaaban Bin Hussien v Chong Fook Kam [1969] 3 All ER 1626 at 1631, [1970] AC 942 at 949). (2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers (see Hussien's case). (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive discretion to arrest or not as Lord Diplock described it in Holgate-Mohammed v Duke [1984] 1 All ER 1054 at 1059, [1984] AC 437 at 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers. (134)
Extrapolating the principles set out to the position under the Criminal Investigation Act, a reasonable suspicion must be personally in the mind of the delagor ‑ in this case Doyle. The general words of s 12 allow an officer who holds a reasonable suspicion to delegate the power of arrest to another officer who may not hold any suspicion. This is the essential difference with the United Kingdom. So it is in this case that the focus of attention must be in Doyle's belief, not Ripp's. That is a matter of fact.
From viewing the video record of interview it is clear that Doyle did have information available to him concerning the possible commission of an offence by the accused. In my opinion, taking all matters into consideration, he had reasonable grounds for suspecting that an offence may have been committed by the accused.
I turn to the second submission by the accused to ensure the other officer performs the duty. It is argued by Mr Carter:
The evidence that is available tends to support an absence of reference to any communication between Detective Doyle and the other police in respect of ensuring that Mr Ripp performed his duty in the language of section 12(2).
…
If Doyle delegates to Ripp the arrest he must ensure that Ripp, the arresting officer, complied with his responsibilities under section 138, one would have thought, but there is nothing. (ts 99 - 100)
Doyle said that he spoke to Ripp:
I asked him to locate the accused person … to detain him as a suspect for sexual offences against children. (ts 47)
In cross examination he said:
I don't recall exactly what I asked Mr Ripp. I asked him under the CIA Act to be arrested or detained to be spoken to in relation to sexual offences. (ts 50)
He said that he had not recorded the conversation exactly but his evidence is:
I communicated to him in no uncertain terms that he was to be detained as a suspect or arrested, whichever word you want to use.
Ripp's evidence was:
He asked me - if I went out if we saw Derek to arrest him and bring him back into Halls Creek.
Did Detective Doyle say what he was to be arrested for?---Yeah. He was under suspicion for sex offences. (ts 30)
What Doyle delegated was his power under s 182 to arrest on reasonable suspicion. It is obvious Ripp performed this delegated power because the accused was arrested and brought to Doyle's presence for the purpose of interview. Upon arrest an accused person automatically attracts certain rights under the Criminal Investigation Act, including rights under s 137 and s 138 in the present case. Officers have certain duties and arguably Doyle, as the officer in charge of the investigation, had particular duties under s 138(3).
In the circumstances, I have found that if those duties were delegated to Ripp, they were performed. However, the absence of their performance does not lead to the conclusion that an officer in Doyle's position failed to ensure the officer performed the duty. The duties under s 137 and s 138 are different duties from the power under s 128(2). That delegated power to arrest was duly performed. As a consequence, I do not consider this submission has substance.
I turn to the question of an interpreter. The evidence of Ingram is that during the period he was stationed at Balgo on relieving duties or as an over strength officer he had frequent contact with the accused and formed the view that he was able to speak and comprehend English. Ripp had known him for one month at that point and formed a similar view.
It is undeniable that English is not the accused's first language. That is not the issue. The issue is whether he is capable of comprehending and communicating in English. During the cross‑examination of Doyle, a portion of an earlier video record of interview during 2003 was played. I have also of course watched the video record of interview in this case. I have watched the accused giving evidence, both in‑chief and under cross‑examination.
It is clear that in court the accused's comprehension and ability to communicate is below that demonstrated on the video records of interview. I do not consider that the accused is in any way shamming in his evidence in court. The natural stress for any person, but particularly an Indigenous person, giving evidence in a court is sufficient explanation for the difference.
However, his comprehension in court can be contrasted with what I hold to be an adequate understanding of English and sufficient comprehension to be able to participate in an interview. The lack of an interpreter does not affect the fairness or voluntariness of this interview, nor does it in my opinion render it unfair. In my opinion the accused had sufficient command of English to be able to communicate.
I turn now to the record of interview. In written submissions counsel for the accused points to a lack of understanding of the first and second limb of the caution, an undermining of the right to silence and resort to what is described as trickery. That is a summary only of written and oral submissions, also the effect of some parts of the cross‑examination.
I have viewed and reviewed the record of interview with these criticisms of it in mind. The record of interview must be seen as a whole and I emphasise 'seen'. It is insufficient to rely solely on the transcript and the defence of course does not submit that I should. The point is that words on a printed page do not convey the manner in which dialogue proceeded, the tone of the statements by the interviewer and interviewee and non-verbal communication. For example, on several occasions the accused interrogatively raises an eyebrow for clarification.
As I have said before, a judgment about the voluntariness of a recorded interview is in part impressionistic, without diminishing the burden of proof. In context, I consider the accused displays an understanding of both limbs of the caution and thereafter speaks with that understanding in a way that is voluntary.
I think that the offering of an interview friend in the circumstances was inadequate but after careful consideration I have concluded that this did not affect the voluntariness of the interview, nor do I consider it amounts to a sufficient reason to exclude the interview in the exercise of discretion.
In conclusion, for the reasons I have expressed, on the balance of probabilities the interview is voluntary and therefore admissible, and I decline to exercise my discretion to exclude it.