ERASITO v Shipard - [1999] WASCA 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: ERASITO -v- SHIPARD [1999] WASCA 132

CORAM: McKECHNIE J

HEARD: 28 JULY 1999

DELIVERED : 28 JULY 1999

FILE NO/S: SJA 1231 of 1998

BETWEEN: STUART ERASITO
Appellant
AND
MONICA ANNE SHIPARD
Respondent

Catchwords:

Evidence - Video record of interview - Voluntariness - Discretion to exclude on grounds of unfairness - General principles

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Appellant: In person
Respondent: Ms C J Thatcher

Solicitors:

Appellant: In person
Respondent: State Crown Solicitor

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

Farmer v Reynolds, unreported; SCt of WA; Library No 980678; 25 November 1998

Case(s) also cited:

Bayly v Vaughan [1989] VR 364
Cleland v The Queen (1982) 151 CLR 1
McDermott v the King (1948) 76 CLR 501

McKECHNIE J : On 30 May 1998 the appellant was involved in an incident with his then girlfriend in the bathroom of their flat. During the course of the incident the appellant, it is alleged, struck the complainant. The incident was not reported to the police until 18 July 1998 and on 10 August 1998 police interviewed the appellant on video. It is that interview which is the subject of this appeal.
On 3 December 1998 the appellant stood trial on a charge of unlawful assault. It was a short trial and the learned Magistrate heard from two civilian witnesses - the complainant and another person - who in the event did not add materially to the evidence, and to the interviewing officer.
When the interviewing officer came to give her evidence, an objection was made to the video record of interview on the basis that it was involuntary or, alternatively, that it ought to be excluded in the exercise of a discretion. The Magistrate held that the video was voluntary and that there was no basis to exclude it.
The appellant did not give evidence and the trial proceeded. The defence, however, did rely upon what was said upon the video. At the conclusion the Magistrate considered the evidence and said:
"… I have two conflicting versions. At the end of the day I am simply unable to reach a conclusion that the complainant's version should be preferred and the defendant's rejected … the defendant is entitled to a version most favourable to him".
The Magistrate reached the conclusion that the appellant struck the complainant. The question then posed is: Was the blow with the backhand to the side of the face authorised, justified or excused? The Magistrate considered the question of provocation and the question of self-defence and was satisfied beyond reasonable doubt that the prosecution had negatived each of those defences. He found the charge of assault proven in relation to one blow to the side of the face and fined the appellant $500.

The grounds of appeal

The grounds of appeal read as follows:
"(a)The Learned Magistrate erred in law in allowing the video taped record of interview to be led in evidence on the basis that;
(i)both an inducement and threat was made to the applicant to participate in the interview and, in any event, in all of the circumstances it was unfair to admit the video."

The contents of the video tape: voluntariness

I have viewed the video record of interview and can summarise it this way: At the commencement there was a caution given. The appellant indicated that he was nervous, that he wished to speak to a solicitor and that he did not want to speak at the time. The officer accepted that and told him on many occasions that he was not obliged to speak.
After some time when the appellant had indicated that he did not wish to speak at that stage the police said: "We have to weigh up what we have got and we are going to charge you." The appellant then asked to think about the matter for five minutes and did so.
At the recommencement of the interview he indicated then that he would speak. He was again cautioned and the police officer withdrew the charges relating to the incident. As to that the learned Magistrate said:
"The question is; did that constitute a threat or inducement to the defendant to then answer any further questions? In the broadest sense it may be seen as an inducement, but it's still a matter for the defendant. He had been advised that he could be silent, but he would be charged in the absence of any other information, or he could give a statement and possibly avoid prosecution. He had a choice. It was not an inducement in the sense that if you give a statement you will not be charged, or probably not be charged. In my view, the statement in that sense was voluntary."
I am of opinion that the material which followed was, in a relevant sense, voluntary. That is because I consider that the appellant indicated clearly that he knew he had a choice whether or not to speak. The operative thing upon his mind was the police officer's decision to charge him. He thought about that and then decided that he would give his side of the story. The police withdrew the statement that they would charge him then and he thereafter proceeded to be interviewed and to answer in a way which I find to be without duress and without threat or influence.
In the circumstances the police had a statement from the complainant and a statement from another person. In the absence of anything which would rebut a prima facie case or the credible evidence they held, the police had a clear discretion to charge. The decision to charge was not an inducement. For that reason the ground insofar as it relates to voluntariness fails.

The exercise of discretion

The second ground relates to the exercise of discretion. A court always has the power to reject a confession which is otherwise admissible in the exercise of a discretion based generally, but not always, on principles of fairness or impropriety or unlawfulness of conduct.
An important consideration, although not the only consideration, is the reliability of the confessional material. The nature of the charge may also be important. It is unwise to close the categories about which one might say unfairness can arise in a particular case, because rejection of a confession is a discretionary exercise and must be exercised on a case by case basis.
In the present case his Worship referred to a decision of Heenan J in Farmer v Reynolds, unreported; SCt of WA; Library No 980678; 25 November 1998 quoting the passage which concludes:
"… Is there anything in the circumstances which would affect its reliability so as to place in jeopardy the accused's right to a fair trial?"
The Magistrate then continued:
"In the present case I do not think that is the case. I rule that the video is admissible."
The reliability of the confession is an important consideration, but it is not the only consideration. I now return to the facts of this case. In this case the incident occurred on 30 May 1998. Complaint was not made to the police until 18 July 1998. The interview was not conducted with the appellant until 10 August 1998. In the scheme of things this was a minor assault, which is not to deny its seriousness in the particular aspect.
What happened in the record of interview is, first of all, that there was a caution and then the police officer asked:
"Are you happy to explain to me your side of the story what happened on that particular night?"
The answer:
"I am quite nervous at the moment. I have come to the appreciation (sic) without prior knowledge of the meeting and it makes me very nervous and I can't think straight and I'm not sure what's.….I know it's regarding the incident which is why I am here but I am not sure what is happening legally or if any charges have been put against me or something of that sort."
It is then explained that there were no charges but the police had received a complaint. He said:
"I am not prepared to talk about the incident tonight for the reasons of implicating myself in any way and things happened on both sides. things happened to me as well as to Vanessa."
It was indicated again that he was not being charged and that it was to be recorded and he said:
"Yes, and if I don't have to speak I would prefer not to speak."
The officer said:
"Well that's your choice. It's just that we were saying, it's for you to put forward your side of the story …"
And then referred to the statements that she had and said:
"We are not saying we are charging you now, we are just saying it's your opportunity to put forward your side of the story."
The appellant then said:
"I will put forward my side of the story. I haven't had time to prepare what I am putting forward … If I don't have to I would prefer not to … Like I say I am nervous and I can't think straight … Yes, I remember it very clearly … Because I am nervous and I can't say.….mainly because I am nervous and I need to relax …"
The officer indicated there were no problems and asked if he was prepared to speak in 10 or 15 minutes. There then comes this passage. In response to that invitation, the appellant said:
"I would prefer not to. I would like to talk to you maybe tomorrow if that's okay."
The police officer said:
"Well, we're sort of dealing with it now."
"Well, I'm sorry. I really don't want to talk to you."
"What difference is tomorrow going to make."
"I would prefer to speak to a solicitor first. I feel something's happening and I've just got to protect myself. I am not aware of procedures and I am not aware …"
"But you know the incident I am talking about don't you?"
"I know it yes and I am prepared to talk to you later but right now I don't want to talk to anyone without speaking to a solicitor first."
"No problems. That's your choice. That's not problem."
"I will report other things that have happened. Maybe I'll do it tonight, maybe I will do it tomorrow."
At that point, the appellant was advised that he would be being charged. That led to what I have previously explained in relation to his reconsideration of his position.
I said earlier that it is important not to lay down prescriptive rules as to the exercise of discretion, and there will be many areas where unfairness may arise and where the balance will be in favour of the admission of material on general public policy grounds. There will be other areas where unfairness will arise which has an effect on the fair trial of the person charged.
In this case there was no particular urgency in dealing with the matter. There will often be occasions where the police, in order to protect members of the public or investigate a crime promptly, will be required to interview persons forthwith and make decisions at that time.
This is not one of those cases. There was no pressing urgency. There had been a great delay between the time of the incident and the first complaint to the police and a further delay between the complaint and the interview. That is not to criticise the police for delay. No doubt they have many matters to investigate. But the point is that there was nothing which would indicate that the appellant was a present danger to the complainant or to anybody else if time were to be given to him.
He had indicated very firmly that he did not wish to speak that night but that he would consider speaking the next day. I am quite unpersuaded that the interests of justice would have been in any way affected if he had been listened to and if the police officers had held off making any decision whether or not to charge him before giving him the opportunity of consulting a solicitor and composing himself for an interview.
The fact is that they appeared to wish to deal with it on that night and while they did not importune him to speak, once he had indicated that he did not wish to speak they decided they would then and there lay charges. A delay would not have hindered the overall investigation and would not have been a risk to the public. The absence of a delay in this particular case renders the admission of the video record of interview into evidence, in all the circumstances, unfair to the appellant.
For that reason, I would uphold the ground of appeal. Although the record of interview was subsequently used by counsel for the appellant to support his case, nevertheless once an exhibit, such as the video record of interview is admitted, it is very difficult to say that there has been no substantial miscarriage of justice.
Therefore, I will allow the appeal and set aside the conviction.
I have given consideration as to whether I should send the matter back. Although it was a minor matter it did involve an aspect of domestic violence. There is a reasonable prosecution case against the appellant and I consider that it is appropriate that I direct that the matter be remitted to the Court of Petty Sessions to be dealt with according to law. Whether or not the prosecution choose to proceed is a matter for their discretion in the circumstances.
I note that in effect the Magistrate acquitted the appellant of some of the blows which were allegedly struck and the so‑called choking, so the issue is whether or not there was a single blow to the side of the complainant's face and if there was, whether the prosecution could negative provocation or self‑defence.