Critchley v The State of Western Australia
[2013] WASCA 28
•11 FEBRUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CRITCHLEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 28
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 16 OCTOBER 2012
DELIVERED : 16 OCTOBER 2012
PUBLISHED : 11 FEBRUARY 2013
FILE NO/S: CACR 216 of 2011
BETWEEN: ROBERT DAVID CRITCHLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 828 of 2011
Catchwords:
Criminal law - Appeal against conviction - Admissibility of evidence - Whether the trial judge erred in permitting the State to tender a letter written by the appellant - Letter contained admissions against interest - Whether the admissions were voluntary - Whether the admissions were induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(c), s 30(4)
Criminal Code (WA), s 143
Police Act 1892 (WA), s 5, s 8, s 33L
Result:
Appeal allowed
Conviction quashed
Retrial ordered
Category: A
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr D Dempster
Solicitors:
Appellant: Timpano Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1
Commissioners of Customs and Excise v Harz [1967] AC 760
McDermott v The King [1948] HCA 23; (1948) 76 CLR 501
R v Bodsworth [1968] 2 NSWR 132
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
MARTIN CJ: This appeal was allowed, the conviction of the appellant quashed, and a retrial ordered for the reasons given by Buss JA, with which I agree.
BUSS JA: On 2 December 2011, the appellant was convicted, after a trial in the District Court before Stavrianou DCJ and a jury, on one count in an indictment.
The count alleged that on 15 January 2010, at Perth, the appellant attempted to pervert the course of justice by attempting to warn Jacob Marshall Hort that his mobile telephone was being lawfully intercepted, contrary to s 143 of the Criminal Code (WA).
The appellant appealed to this court against his conviction.
When the hearing of the appeal concluded on 16 October 2012, the court made, relevantly, the following orders:
(a)appeal allowed;
(b)conviction quashed; and
(c)there be a retrial.
The court said that reasons for decision would be published later. These are my reasons.
The internal police disciplinary investigation
The appellant was a police officer.
Between 27 April 2009 and 18 February 2010 he worked with the Telecommunications Intercept Unit (TIU) of the WA Police.
On 18 February 2010, the appellant, who then held the rank of senior constable, was stood down from all duties.
After an internal disciplinary investigation by the Internal Affairs Unit (IAU), it was alleged, amongst other things, that:
(a)On 25 May 2009, the appellant unlawfully accessed the details of Norberto Teixeira, Delio Assuncao Ximenex Teixeira, Semiao Teixeira, Adriano Marcos Teixeira and Adrian Marcos Teixeira on a police restricted access computer system.
(b)Between May 2009 and October 2009, the appellant used the police email system and internet facilities for inappropriate purposes.
(c)Between 15 September 2009 and 3 October 2009, the appellant unlawfully accessed the details of Jarrod Paul Stanley Boyle, Jarrod Boyle, Jarrod Jon Boyle, Jarrod Anthony Boyle and Gavin Boyle on a police restricted access computer system.
(d)Between 16 and 25 September 2009, the appellant unlawfully accessed the details of Stanley Teixeira on a police restricted access computer system.
(e)On 15 January 2010, the appellant engaged in corrupt conduct by alerting Mr Hort, who was a secondary target of a covert State Security Investigation Group (SSIG) operation, that a telephone service was subject to a telecommunications interception warrant. This alleged conduct was the subject of the count in the indictment.
(f)Between 26 and 30 January 2010, the appellant unlawfully accessed the details of 101 to 111 Fairway Circle, Connolly and Mark Barlow Turner on a police restricted access computer system.
(g)On 18 February 2010, the appellant was untruthful with IAU investigators by denying making a telephone call to a secondary target of 'Operation Scimitar' (Scimitar).
(h)On 31 March 2010, the appellant misled IAU investigators about accessing the details of Jarrod Anthony Boyle and Gavin Boyle on the police Incident Management System.
On 7 May 2010, Acting Detective Senior Sergeant Pargin of the IAU nominated the appellant 'for consideration of loss of confidence' by the Commissioner of Police (the Commissioner).
On 20 May 2010, the Assistant Commissioner of Police, Professional Standards, appointed Inspector Harris of the Ethical Standards Division to review the proposal by Detective Pargin that the Commissioner's loss of confidence process be initiated in relation to the appellant.
Inspector Harris carried out the review and recorded his findings and recommendation in a memorandum headed 'summary of investigation' and dated 10 June 2010.
The memorandum dated 10 June 2010
In the memorandum, Inspector Harris noted that the appellant was stood down from all duties on 18 February 2010 'following concerns regarding his integrity, honesty, and conduct specifically in relation to allegations that he' had:
(a)acted upon knowledge or information obtained by reason of his office; or
(b)acted corruptly in the performance or discharge of the functions of his office [2].
He said that in his view the evidence raised serious concerns about the appellant's honesty, integrity and conduct which were sufficient for the Commissioner to lose confidence in him [8]. He elaborated:
In particular, [the appellant's] conduct relating to the removal of highly sensitive information from his business area and subsequent telephone call to a secondary target of a covert operation being conducted by the SSIG is of concern [8].
Later in the memorandum, Inspector Harris described in greater detail the evidence obtained in the course of the investigation which, according to the investigators, formed a proper basis for an inference that the appellant had made telephone calls on 15 January 2010 at 12.22 pm and 12.33 pm:
[The appellant] was recorded on the City of Perth CCTV crossing Beaufort Street from the Francis Street phone box and entering Curtin House ground floor foyer at 12:29:41. [The appellant's] swipe access to the building is recorded at 12:34:21 on 15 January 2010. The four (4) minute time variation between the CCTV and access to the building was investigated and the swipe card access entry time to Curtin House was found to be correct.
The telephone call to the secondary target's number from the Francis Street telephone box was recorded as 12:33:36 and was for zero (0) seconds duration. The call recorded from the Stirling Street telephone box was recorded at 12:22:06 and was for sixty six (66) seconds duration and the TIU rosters indicate that [the appellant] was rostered to commence duty at 1300 hours on 15 January 2010.
The evidence demonstrates [the appellant] telephoned the secondary target on 15 January 2010 at 12:22:06 and was connected for a period of sixty six (66) seconds. Despite [the appellant] claiming the purpose of his call to the secondary target was to verify the number he had in his head was correct as he intended to give it to his step‑son and that he did not enter into a conversation with the secondary target, there is compelling evidence that an unknown male person with an accent, (believed to be Irish by the secondary target), did engage in a conversation with the secondary target and provide information that had the potential to significantly compromise a highly sensitive and covert operation [31] ‑ [33].
Inspector Harris expressed the view that, on the basis of the evidence gathered by the investigators, the appellant had acted 'without integrity in the performance of his duty, in a manner that is unbecoming of a police officer' [34].
It was emphasised by Inspector Harris that a criminal investigation had not been conducted into the allegations against the appellant. He said:
A criminal investigation has not been conducted into the allegation that [the appellant] acted corruptly by obtaining the telephone number of a secondary target in a covert SSIG operation from his duties at TIU and shortly after midday on 15 January 2010, he contacted that secondary target by telephone. During that call it is alleged [the appellant] provided information to the secondary target that was designed to alert the principal target of that covert operation that his telecommunications service was being intercepted.
The ongoing, highly covert nature of 'Scimitar' has not permitted the interview of the secondary target allegedly contacted by [the appellant] on 15 January 2010. The matters of criminality associated with the IAU disciplinary investigation will be further investigated at the conclusion of Scimitar and when there is no possibility for the operation to be compromised. It is likely that any criminal charges resulting from that further IAU investigation of [the appellant] will bring discredit to WA Police [76] ‑ [77].
A little later, Inspector Harris said that there was 'the potential for [the appellant] to face serious criminal charges emanating from an allegation that he acted corruptly on 15 January 2010 and attempted to compromise a highly covert SSIG operation' [83]. He added that the 'successful prosecution of these charges will bring considerable discredit to WA Police' [83].
Inspector Harris concluded that, on the available evidence, he was of the view that the appellant's behaviour raised serious doubts about his integrity, honesty and conduct which were sufficient for the Commissioner to lose confidence in him [86].
He recommended that the Commissioner consider issuing the appellant with a Notice of Intention to Remove (NOITR) [87]. According to Inspector Harris, the available grounds for issuing the NOITR included that:
On the 15 January 2010, [the appellant] engaged in corrupt conduct by alerting a secondary target of a covert State Security Investigation Group operation that a telephone service was subject to a telecommunications interception warrant [87(d)].
The Commissioner's NOITR
On 16 June 2010, the Commissioner sent the appellant a NOITR pursuant to s 33L(1) of the Police Act 1892 (WA) (the Act).
In the NOITR, the Commissioner said:
I hereby give you notice that I intend, in the absence of being persuaded otherwise, to recommend to the Minister for Police and Emergency Services that he approve your removal from the Police Force of Western Australia (WA Police).
I intend to take this action because I am not satisfied that your integrity, honesty, and conduct are of the standard expected and required of a member and necessary to maintain public confidence in WA Police. I have accordingly lost confidence in your suitability to continue as a member of WA Police.
The NOITR then stated that the Commissioner's loss of confidence in the appellant's suitability to continue as a member of the WA Police was 'based on the matters set out in the summary of investigation prepared by the review officer [that is, the matters set out in the memorandum dated 10 June 2010 prepared by Inspector Harris]', and, in particular, on certain things allegedly done by the appellant between 25 May 2009 and 31 March 2010 which were then enumerated. The things in question comprise the matters set out at [10] above, except for the allegation in [10(e)] above that on 15 January 2010 the appellant engaged in corrupt conduct by alerting Mr Hort that a telephone service was subject to a telecommunications interception warrant. However, that allegation, although not specifically enumerated, was a matter given prominence in Inspector Harris' memorandum.
The Commissioner said in the NOITR that he was enclosing 'a copy of the list of the materials that [he] examined and took into account in making [his] decision, and the documents referred to in that list, including the summary of investigation'.
The NOITR also stated:
(a)the appellant was 'invited' to respond to the NOITR by making a written submission within 21 days in relation to the grounds on which the Commissioner had lost confidence; and
(b)if the appellant chose to respond to the NOITR, the Commissioner 'strongly recommended' that he specifically address those grounds.
The appellant's response to the Commissioner's NOITR
By letter dated 9 July 2010, the appellant responded to the Commissioner's NOITR.
In his letter, the appellant admitted making two telephone calls from public telephone boxes on 15 January 2010. The letter states, relevantly:
H.It is alleged that on the 15th January 2010, I alerted a secondary target of a covert investigation (Operation Scimitar)
I admit to making a phone call to ascertain if I had the correct number, however I categorically deny actually speaking to any person on the phone.
I did try to ascertain if the telephone number I had in my head was correct, and this was accomplished by dialling the number. I was not aware that the male who answered the phone was a target of Operation Scimitar. I honestly believed the male was an associate. In any event I really wasn't thinking clearly about my actions.
However I do not have an Irish accent, and I have never met anyone in my life who has thought I sound remotely Irish. The Irish accent must be one of the most easily recognised accents in the world and I find it impossible to believe that anyone can make that mistake.
I stand by my statement that I did not speak to anyone.
I did make a 2nd call from a 2nd callbox believing that the first phone box was not working as the money just kept falling straight through the slot. I ask you the obvious question however, 'If I had made a call to alert a target, why would I go to a 2nd call box?'. This doesn't make sense and I categorically deny that this was my intention.
Further, I did not act on the information I had, and I certainly did not pass the number onto any 3rd party.
I have never acted corruptly in my police career and have always strived to be honest and hard working.
The commencement of criminal proceedings against the appellant
On 15 December 2010, the charge embodied in the count in the indictment was laid against the appellant.
The State's case at trial
The State's case at trial was that on 15 January 2010 the appellant dialled the number of Murray Holmes' mobile telephone from a public telephone box in Francis Street, Perth. Mr Holmes was a friend of Mr Hort. The appellant terminated this call before Mr Holmes answered. The appellant also went to a public telephone box in Stirling Street, Perth and dialled Mr Holmes' mobile telephone number. On this occasion, the appellant had a conversation with Mr Holmes for 66 seconds. During the call the appellant feigned an Irish accent and in effect warned Mr Holmes that Mr Hort's mobile telephone was being lawfully intercepted. The State called Mr Holmes as a witness.
The trial judge permitted the prosecutor to tender, over the objection of defence counsel, an edited version of the letter dated 9 July 2010 written by the appellant to the Commissioner. Absent the edited letter, in which the appellant admitted making two telephone calls from public telephone boxes in the vicinity of his work place (namely, Curtin House) on 15 January 2010, the State's case would have been entirely circumstantial.
The defence case at trial
Defence counsel did not give an opening address pursuant to s 143(2) of the Criminal Procedure Act 2004 (WA).
The appellant gave sworn evidence at the trial. His evidence was consistent with the version of events set out in the edited version of his letter dated 9 July 2010.
The ground of appeal
The sole ground of appeal alleges that the trial judge made a wrong decision on a question of law when he permitted the State to tender in evidence the edited version of the letter dated 9 July 2010.
On 6 April 2012, Mazza JA granted leave to appeal.
The ground of appeal: the trial judge's reasons for permitting the tender of the letter
At trial, defence counsel objected to the State tendering the edited letter dated 9 July 2010. The letter contained admissions against interest. It was submitted by defence counsel that the admissions were not made voluntarily. It was also submitted, in the alternative, that even if the admissions were made voluntarily the trial judge should, in the exercise of his discretion, exclude the letter.
The material before his Honour did not include Inspector Harris' memorandum dated 10 June 2010. His Honour did not conduct a voir dire. At the hearing of the appeal, this court received the memorandum pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).
The trial judge rejected defence counsel's submissions and disallowed the objection. He gave these reasons:
The commissioner's notice was not in the form of interrogatories or questions. The accused had the option to respond to the notice and chose to do so. There is no compulsion in the circumstances and I'm satisfied that his response by letter was voluntary. What is further submitted on behalf of the accused is that in the circumstances where the response of the accused was part of the disciplinary process it would be unfair to allow the evidence contained within the letter and response to be adduced. There is no suggestion of any unlawful conduct on behalf of the commissioner or other members of the WA Police Force which led to the accused writing this letter. The commissioner's notice was given pursuant to a process required by the Police Act (1892). Whether the accused responded or not was entirely a matter for him. He was not compelled to provide a response to the notice in the same way as he was required to answer the questions at interview. The offence the accused faces is serious. The accused is a serving police officer, wrote the letter in a free exercise by him of his right to respond or remain silent. The admission of the letter in the circumstances would not jeopardise the accused's right to a fair trial and I would not exercise my discretion to exclude the letter. Accordingly the application to exclude the letter is refused (ts 132).
The ground of appeal: the State's submissions
Before this court, the State sought to defend the trial judge's ruling on the basis of his Honour's reasons.
Counsel for the State submitted that the NOITR did not ask a question and certainly did not amount to interrogation. It merely invited a response as part of a disciplinary process. The appellant had the opportunity, but was not obliged, to respond. He chose to respond and also chose the terms of his response. The appellant's letter indicated that he had made the telephone calls in question but only to the extent that he had dialled the relevant number. He denied speaking to anyone.
According to counsel for the State, there was no error in his Honour's decision to allow the edited letter into evidence.
The ground of appeal: its merits
A confessional statement is not admissible unless it is voluntary. See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron & Gummow JJ).
The rationale for the rule excluding confessions that are not voluntary is a combination of the potential unreliability of an involuntary confessional statement and the common law privilege against self‑incrimination. See Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 18 (Deane J).
The word 'voluntary', in this context, does not mean 'volunteered'. Rather, it means 'made in the exercise of a free choice to speak or be silent'. See R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149 (Latham CJ, McTiernan, Webb, Fullagar & Kitto JJ).
It is a 'definite' (that is, precise or specific) rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority which is not removed before the statement is made. An inducement, for this purpose, includes a fear of prejudice or a hope of advantage exercised or held out by the person in authority. See McDermott v The King [1948] HCA 23; (1948) 76 CLR 501, 511 (Dixon J); Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [10] ‑ [13] (Gleeson CJ), [55] ‑ [64] (Gummow & Hayne JJ), [123] (Kirby J), [245] (Callinan, Heydon & Crennan JJ).
The concept of 'person in authority' refers to those persons who the confessionalist knows or believes (or, perhaps, to those persons who the confessionalist perceives, on reasonable grounds) have lawful authority to affect the course of the investigation of or prosecution for the relevant offence. See Tofilau [13], [45], [323].
Prior to the decision of the House of Lords in Commissioners of Customs and Excise v Harz [1967] AC 760, it was open to question whether there must be a connection between the inducement, on the one hand, and the actual or contemplated charge, on the other. See R v Bodsworth [1968] 2 NSWR 132, 138 (Herron CJ, Nagle & Lee JJ). However, in Harz, Lord Reid (Lord Morris of Borth‑y‑Gest, Lord Hodson, Lord Pearce and Lord Wilberforce agreeing) held that the rule that a confessional statement is not admissible if it was induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority applies equally where the inducement does not relate to the actual or contemplated charge as where the inducement does so relate (818 ‑ 821). See also Tofilau [283]; Heydon JD, Cross on Evidence, (8th Aust ed, 2010), [33640].
I am satisfied, in the present case, that the trial judge was in error in permitting the State to tender in evidence the edited version of the letter dated 9 July 2010. His Honour should have excluded the edited letter in accordance with the definite rule that a confessional statement cannot be voluntary if it is induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority. My reasons are as follows.
First, as at 16 June 2010, when the Commissioner sent the NOITR to the appellant, and as at 9 July 2010, when the appellant sent his letter in response, it was contemplated by the WA Police (including the Commissioner) that a criminal charge of the kind in fact brought on 15 December 2010 would or might be laid against the appellant. This is apparent from Inspector Harris' memorandum dated 10 June 2010 (in particular, the passages I have set out at [18] and [19] above) and the Commissioner's reliance on that memorandum. The appellant was a suspect as from 18 February 2010.
Secondly, by s 5 of the Act, the Commissioner is 'charged and vested with the general control and management of the Police Force' of Western Australia.
Thirdly, the Commissioner, by virtue of his functions under s 5 of the Act and his powers under s 33L of the Act, had lawful authority, subject to the procedure prescribed by s 33L, to recommend to the Minister that the appellant be removed under s 8 of the Act on the ground that the Commissioner did not have confidence in the appellant's suitability to continue as a member of the WA Police.
Fourthly, in the circumstances, the only reasonable objective inference is that the appellant, upon reading the Commissioner's NOITR, concluded, as was the fact, that:
(a)the Commissioner had already lost confidence in the appellant's suitability to continue as a member of the WA Police;
(b)the Commissioner intended, unless persuaded otherwise by the appellant, to recommend to the Minister that he approve the appellant's removal from the WA Police; and
(c)if the appellant wished to endeavour to persuade the Commissioner that he should have confidence in the appellant and that he should not recommend to the Minister that the Minister approve the appellant's removal, it would be necessary for the appellant to make a written submission to the Commissioner dealing with the matters set out in Inspector Harris' memorandum, including the allegation that on 15 January 2010 the appellant engaged in corrupt conduct by alerting Mr Hort that a telephone service was subject to a telecommunications interception warrant.
Fifthly, there is no doubt that, at the material time, the appellant knew or believed (or perceived, on reasonable grounds) that the Commissioner had lawful authority to affect the course of the investigation of a criminal charge of the kind in fact brought against the appellant on 15 December 2010 or the laying of such a charge.
Sixthly, in the circumstances, the Commissioner's NOITR constituted an inducement by the Commissioner, which was not removed before the appellant responded by his letter dated 9 July 2010, namely a fear of prejudice or a hope of advantage exercised or held out by the Commissioner. The relevant fear of prejudice was that the appellant would be removed from the WA Police unless he persuaded the Commissioner, in a written submission, that the Commissioner should have confidence in the appellant's suitability to continue as a member of the WA Police and the Commissioner should not recommend to the Minister that the Minister approve the appellant's removal. The relevant hope of advantage was that if the appellant made a written submission
which, from the Commissioner's perspective, dealt satisfactorily with the matters set out in Inspector Harris' memorandum, the Commissioner would or might not proceed in the manner described in the NOITR.
Seventhly, the edited letter dated 9 July 2010 contained admissions against the appellant's interest. Although the appellant volunteered the admissions in response to the Commissioner's 'invitation', the admissions were not voluntary in the relevant sense.
Accordingly, the trial judge made a wrong decision on a question of law, within s 30(3)(c) of the Criminal Appeals Act.
Counsel for the State did not submit that, if this court found that his Honour was in error in permitting the State to tender in evidence the edited version of the letter dated 9 July 2010, then no substantial miscarriage of justice had occurred, within s 30(4) of the Criminal Appeals Act, and the appeal should be dismissed. Indeed, counsel for the State expressly conceded that the proviso should not be applied (appeal ts 19). This concession was properly made. The appellant elected to give sworn evidence at the trial. If his Honour had excluded the edited letter, this ruling could reasonably and materially have affected forensic decisions made by defence counsel at the trial, including whether the appellant should be called as a witness.
MAZZA JA: I agree with Buss JA.
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