Errey v The Queen
[2001] WASCA 75
•15 MARCH 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: ERREY -v- THE QUEEN [2001] WASCA 75
CORAM: PIDGEON J
WALLWORK J
WHEELER J
HEARD: 14 SEPTEMBER 2000
DELIVERED : 15 MARCH 2001
FILE NO/S: CCA 127 of 2000
CCA 128 of 2000
BETWEEN: JOHN GORDON ERREY
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Wilful murder - Evidence - Accused at trial admitted the killing but claimed self defence - Confessional evidence admitting the killing - Whether made freely and voluntarily - Cross-examination in interview to the extent that fingerprints found were inconsistent with accused's initial account - Extent to which cross-examination renders a statement involuntary - Extent to which cross-examining a suspect is unfair - Whether sufficient evidence to establish an intent to kill
Criminal law and procedure - Sentencing - wilful murder - Sentence of life imprisonment with minimum term 19 years - 23 year old offender - Forced entry into residence and strangling deceased - Sentence confirmed
Legislation:
Nil
Result:
Leave to appeal against conviction and sentence refused
Representation:
Counsel:
Applicant: Mr P J M Sullivan
Respondent: Mr R E Cock QC & Mr A S Derrick
Solicitors:
Applicant: Paul Sullivan
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
B (A Child) v Potts (1992) 59 A Crim R 136
Cleland v The Queen (1982) 151 CLR 1
Duke v The Queen (1989) 180 CLR 508
McDermott v The King (1948) 76 CLR 501
R v Evans (1962) SASR 303
R v Ireland (1970) 126 CLR 321
R v O'Neill [1988] 48 SASR 51
R v Swaffield (1998) 192 CLR 159
Van der Meer (1988) 62 ALJR 656
Case(s) also cited:
Collins v The Queen (1980) 31 ALR 257
Erasito v Shiphard [1999] WASCA 132
Garrett v The Queen [1999] WASCA 169
K v R, unreported; CCA SCt of WA; Library No 980275; 22 May 1998
Kenneally v The Queen, unreported; SCt of WA; Library No 980284; 27 May 1998
Lauritsen v The Queen [2000] WASCA 203
Lowndes v The Queen (1999) 195 CLR 665
M v The Queen (1994) 181 CLR 487
Ngoc Hien Bui v The Queen, unreported; CCA SCt of WA; Library No 980271; 22 May 1998
Oldham v The Queen [1999] WASCA 304
R v Lemsatef [1972] 2 All ER 835
Sherratt v The Queen [2000] WASCA 112
PIDGEON J: The applicant, following a trial, was found guilty of a charge alleging that on or about 2 February 1999 he wilfully murdered Robert William David Collard. He is seeking leave to appeal against both his conviction and sentence. The first ground of appeal claims that his Honour erred in reaching the view that confessional statements made on video records of interview had been made freely and voluntarily. There are further grounds relating to the strength of the evidence and as to whether it established an intent to kill.
Crown Case
The deceased lived alone in an upstairs unit in Hay Street, West Perth. On 3 February his elder brother returned from a trip abroad, phoned the deceased, but received no answer. At first the brother was not worried as there were many reasons for the deceased not to be at home. He made further attempts and by Friday, 5 February, 1999, he had become very concerned. He contacted a friend of the deceased, Mr Ralph, who had also been trying to contact the deceased. They went to his unit in the late afternoon of 5 February. The front entrance to the unit had a wooden door and a fly wire door. Next to the front entrance was a servery hatch of the type similar to a breakfast hatch in older style motels with both an outer door and inner door. The brother opened the outer door of the servery and found three unread newspapers. The brother shouted through the servery but obtained no response. He reached through the servery as he knew where to find the keys. He and Mr Ralph entered and they found in the bedroom the naked body of the deceased lying on his stomach, face down on the bedroom floor. They then notified the police.
The body was in a state of decomposition making it impossible to determine the cause of death. It was estimated that the death had occurred some days earlier. The post‑mortem report said that the severity of decomposition was such as to severely hamper assessment. The Crown case was, having regard to a pool of blood and other marks, that the body had been shifted from the lounge room, where there was a pool of blood, into the bedroom. The next matter noticed at the time was that there was evidence to suggest that someone had broken into the unit by taking a fire extinguisher, normally kept outside the unit, and using it to strike and open the inner servery door. The fire extinguisher was found inside the lounge room. The inner servery door was broken and there were paint marks on it corresponding to the fire extinguisher. Fingerprints taken from inside the servery and from the fire extinguisher corresponded to the applicant.
Shortly after 2 February the applicant spoke to an acquaintance of his in Mandurah, Mr Andy Howell. The applicant told him he had killed Mr Collard by crushing his windpipe. Mr Howell said that the applicant told him he had strangled the deceased with his hands and the applicant then gave a demonstration as to how he did it.
On 12 February 1999 the investigating officers saw the applicant and conducted a long video record of interview, which is the subject of the principal ground of appeal. The applicant initially told the investigating officers that he had not seen the deceased in the previous three weeks. He had gone to the flat, but the deceased was not home. The officers, however were aware of what Mr Howell claimed the applicant had said and of the finger prints found. They put this to the applicant, who ultimately said that he strangled the deceased, but was acting in self‑defence.
Applicant's Case
The applicant's defence was that he did attempt to strangle the deceased and knock him out by blows, but he was acting in self‑defence as the deceased was attempting to kill him with a knife.
The applicant gave evidence and said he was operating as a male prostitute and inserted advertisements in the paper. The deceased answered one of these and, as a result, they met. The applicant said that this was some six to 12 months before the death. He said that they then became friendly. The applicant said that the first time he met the deceased he was paid for his services, but later the deceased helped him out and provided meals. He then gave evidence as to his last meeting with the deceased. He said he had returned by bus from Kununurra and decided to visit the deceased. He went to the deceased's unit at about 2am in the morning, but there was no response to his knocking. He knew the deceased was in ill health so he considered he should investigate further and decided to break into the unit. He did this by taking the fire extinguisher and he considered that if he gave the inner door of the hatch a knock with the fire extinguisher, it would open. He used the extinguisher to knock off the inner door. He looked through the hatch and saw the deceased coming towards him. The deceased opened the door. The applicant said that he said to the deceased, "I didn't mean to break in, I've only come here for accommodation. I thought you were sick Robert, I was concerned about you. Don't want any trouble or anything. I was just a bit concerned. I just need a place to crash out for the night." The applicant said that he then told the deceased he would hang the fire extinguisher back up on the hook, but the deceased said, "No bring it in." He then entered with the fire extinguisher.
The applicant described to the jury how the deceased, by using a knife, made a life‑threatening attack on the applicant. The deceased was saying, "I'll kill you, I'll kill you." The applicant said he thought the only thing he could do would be to put pressure on the deceased's throat and he did this describing to the jury what he did. This did not stop the deceased. The applicant said that he felt he was going to be stabbed so he put more pressure on the throat using the same hand. He said to the jury, "Believe me, I went for the knockout in the end but I didn't even think about the knockout till later." He then said that he remembered hitting the deceased on the side of the head and felt that he could have knocked him out. He said he put more pressure on. He hated seeing the deceased choke, but he did not know what to do. He said he pulled the deceased's arm off and then "I went smack, smack in the side of his head". He then demonstrated two punches with a clenched fist. He said his intention was to knock the deceased unconscious. He said that as a result of the blows the deceased was knocked unconscious. He was asked if he checked the deceased for life signs and he replied, "After knocking him out, him going on the floor, making a noise. I think it was after I had a drink of water. I went down and tested his pulse, you know couldn't feel anything."
The applicant said that he did not want the lady next door to see him through the servery window. He then took the deceased by the feet and dragged him into the bedroom. The applicant said that he then took some beer and some clean clothes out of the deceased's wardrobe and some cigarettes. He also stole $30 out of the drawer. He said he was not interested in anything further, but just wanted money as social security. He then left and went to the railway station. He said he did later speak to Mr Howell about it and gave him a similar account, namely that he acted in self‑defence.
Questions arising on the video recorded interview
The Crown sought to admit into evidence the video tapes of an interview between investigating officers and the applicant which took place on 12 February 1999. They were objected to on the basis that the interview was not a voluntary one. The trial Judge (Parker J) conducted a voir dire to determine this question and to determine whether he should exercise his discretion to exclude any part of them.
The evidence on the voir dire showed that at the time of the interview the applicant was a patient in a psychiatric ward in the Fremantle Hospital. He agreed to accompany the investigating officers to Curtin House on the morning of 12 February 1999. His Honour heard evidence from the psychiatrist who had interviewed the applicant the day before that he was fit to be interviewed. He also heard evidence from the investigating officers, from a consuting psychiatrist called by the crown and from the applicant.
His Honour found that the applicant went voluntarily with investigating detectives to their offices in Perth from the psychiatric ward of the Fremantle Hospital. He had been admitted there late on 9 February, having been brought by police from Mandurah following an unrelated incident, which in the evidence consisted of a breach of a restraining order and an incident involving assault. His Honour said that whilst he had been assessed by a psychiatrist after his admission, his only treatment was one small dose of two types of medication on admission and a small dose of one of those types of medication the next night. In each case the medication was to calm him and help him sleep. His Honour said the affect was slight and of short duration. The police made enquiries with the medical staff at the hospital before they approached the applicant and no objection was raised. His Honour then referred to the evidence of the psychiatrist who had examined him the day before and he referred in detail to evidence from Dr Patchett, the psychiatrist at the Graylands Hospital. His Honour said that he was satisfied, in particular by the evidence of Dr Patchett, that the applicant was not suffering from any form of mental illness at the time of his interviews by the police and had a good and adequate comprehension of the purpose and nature of the interview process and was well able to understand what was put to him, and to gather his own thoughts in response to questions and to communicate them in answer.
His Honour excluded a small portion of the interview but admitted the major portion. He gave, at the conclusion of the hearing, detailed reasons for reaching the view he did. The first ground of appeal claims that his Honour erred in finding that the statements admitted had been made voluntarily. The ground contains a number of particulars in support of this proposition. In order to deal with the matters raised in the ground it is necessary to set out in some detail what occurred at the interview. I shall set it out in detail in order to determine whether or not the interview could be said to be a fair and proper one and whether or not there was unfairness in cross examination by putting to the applicant evidence in the detectives possession.
Commencement of interview
The interview commenced in Curtin House at 10.30am on 12 February. It was conducted by Detective Sergeant Mills and Senior Detective Mirapodi. The interview stopped shortly afterwards as the video recording equipment gave trouble, but it resumed at 10.44 am. It was explained to the applicant that he was not required to take part in the interview unless he wished to and that anything he said could be used in evidence. It is clear and not contested that he understood this. The caution was repeated when the interview commenced again at 10.44 am. The interview was transcribed and there is a transcript in the appeal book. I shall refer to the pages of the transcript as a means of giving an estimate as to its length and the time when certain things occurred, as this method was used in the grounds of appeal and by the trial Judge. The transcript started when the interview recommenced at 10.44 am and it continued for 63 pages when the applicant went to the toilet. This was at about 11.45 am. There was no specific question relating to the offence itself until p 43 of this transcript. The questions until then were questions whereby the interviewing officers were ascertaining how the applicant met the deceased, what had earlier occurred, and as to the applicant's lifestyle generally. There were no leading questions and the applicant was talking freely explaining his lifestyle. It was ascertained that the applicant referred to the deceased as Rob. Detective Sergeant Mills said they were trying to find out as much as they could about him because that is the job they had been given to do. The applicant then answered a lot of personal questions as to the sexual activity that had been taking place between them. He was asked to give, and gave, a detailed description of the unit in which the deceased was living. He had, a short time before the alleged happening, gone to Kununurra to work. He said that he had returned from Kununurra about three weeks ago and he remained in the city looking for work. He was asked, and answered (T/S first tape 43):
"Q.Have you seen Rob in the last 3 weeks?
A.No.
Q.No, not at all?
A.No.
Q.Okay."
This was the first lie. The applicant told the jury that he was present fighting the deceased in self defence when the deceased died and this was estimated to have occurred on 2 February. The questioning then went back to what had occurred prior to his leaving for Kununurra and on his return. The applicant said that he saw a woman who lived in the unit next door to the deceased. He said that he saw her when he got back from Kununurra and he then said, "That's when I knocked on Rob's door and no‑one was home." He said this occurred at about 2.00 am. He was then asked to give more details of this and he said he knocked on the box, knocked on the door and he then went down and went to sleep on a bench in the park. He had asked the lady next door if he could sleep there and she told him that she would not let him in.
The next significant questioning related to the fire extinguisher and was as follows (T/S first tape 50):
"Q.All right. Out the front of Rob's place on the wall is a fire extinguisher.
A.Mm hm.
Q.Okay? Have you ever had reason to pick up that fire extinguisher?
A.No. I had no reason whatsoever.
Q.Okay. As I said to you right from the start, I'm being upfront with you - -
A.Mm hm.
Q.- - and telling you everything that I know. Okay?
A.Mm hm.
Q.That fire extinguisher was found inside Rob's flat.
A.Mm hm.
Q.Okay? With your hand prints on it.
A.Right. Right.
Q.Can you tell me how that could have happened?
A.Yep, well, I did - - I was holding - - I was on the - - the fire extinguisher. I had me hands on it.
Q.Why?
A.Why? Because I wanted - I wanted to bloody sit there and I was going to use it.
Q.For what?
A.Just to use it.
Q.Okay.
A.That's all I was going to do. Just to spray it.
Q.Can you tell me how it got inside Rob's flat?
A.I can't tell you that. I cannot tell you that.
Q.Okay. That fire extinguisher was used to break the door off.
A.Right.
Q.The inside of Rob's flat.
A.Okay.
Q.The position of your hand prints would indicate that it's been used - -
A.Mm hm.
Q. - - to break the door off.
A.Well, I didn't - -
Q.Mate, if - -
A.I didn't - -
Q.If you broke the door off, you broke the door off.
A.But I didn't break no door off. I didn't break no door off. Simple as that. I grabbed the thing, right.
Q.When - - when - -
A.I was actually worried about Rob because Rob's meant to be home. I'm knocking and knocking and knocking. He's - - he's meant to be there, right. I was going to do it, and I left it there, and that's all I did. I left the fire extinguisher right where it was."
He was again asked about his intention in taking hold of the fire extinguisher and he said he used it to bang and bang as he was worried through the deceased being sick. It was then said to the applicant (AB52):
"Q.Okay. As I said to you, we're not - - we're not trying to trick you or - -
A.No, I understand.
Q.I'm giving - -
A.I understand. I understand.
Q.I'm giving it to you straight up. Okay?
A.Somebody's - - somebody's come along and done the deed, and it's not me.
Q.Well, done - - done what?
A.Well, somebody else has got Rob and done - - done whatever they did to him. It's not me, and that's all I know.
Q.No, but what I'm trying to find out is - - is what happened to him. Okay?
A.Yep, that's fine.
Q.When - - when you've been to the flat, how has he opened the flat up?"
This account again on his own later admission was false as he told the jury that he used the fire extinguisher to break a servery hatch door and at the deceased's request had taken it into the unit.
There followed further discussion with neutral questions and the applicant said he had intended to spray the fire extinguisher so somebody would come and ask what was going on. The applicant said that there were a lot of murderers about that could have committed the offence. He then denied that he did this murder or any of the other murders, including "the Claremont people". The applicant said that he was "a nice bloke". It was at this point that the detective broached the next subject of the possibility of the hatch being broken and of the applicant being inside. He said to the applicant that if it was the case that the applicant broke the hatch off to see if the deceased was alright, there would be no problem. To this the applicant said, "But I didn't." The detective said: (AB55)
"Q.Okay. The next thing - - all right, well, we'll go down the track a little bit further. Inside the flat, when the police arrived, okay, they found - - we found a number of glasses, tumblers and stuff, and things like that, obviously with your fingerprints on them."
The applicant replied that he had been drinking there, but said that it was a long time ago. The detective replied that he had spoken to some people in the adjoining flats. He commenced to tell the applicant what these people said, but the applicant interrupted him and said, "I did see Rob once more. Sorry I forgot about that." The officer then said to him, "No, no, sweet, mate, go for your life." The applicant then said he did see the deceased and the deceased said to him, "I thought you'd be back." There was a further discussion where it was put to him that he would not have done anything wrong if he broke the hatch for the purpose of seeing if the deceased was alright. The applicant again repeated that he was banging on the door, but did not touch the hatch. The officer then said that the adjoining owners heard serious thumping "like the hatch being broken". The applicant replied, "Good on them - that's all I can say good on them."
The officer said that he was looking for an explanation as to how the fire extinguisher ended up in the flat. The questioning continued: (T/S 58)
"A.Right, and you've got to think about that one, don't you?
Q.Okay. Well, that's why if I don't ask the questions I'm not going to know the answer, am I?
A.That's right. And how many murderers have been going around Perth? How many - -
Q.Mate - -
A.How many people knew Rob and - -
Q.At - - at - - at this point in time I haven't said anything about Rob being murdered, have I?
A.Mm hm.
Q.The only thing that I've said to you is that he's dead."
The questioning continued and the applicant said it looked shocking for him and the officer replied, "It doesn't look shocking at all, because you might be able to tell me, yeah I might have broken the hatch in trying to get in to see if he was okay." The applicant replied that he did not do so and the officer said, "Well they're the things that I've got to clear up with you about time and place." He was then asked if he was shown a photograph of the outside of the unit, could he tell them where he placed the fire extinguisher and he replied he could not. They then offered to get him a cigarette, they asked him if he wanted "a brew" and he replied, "No thanks I'm alright", but he asked to go to the toilet and shortly after that he was taken to the toilet. This occurred at 11.45am.
When he returned there was some inconsequential conversation and the officer said, "Let's get back to business eh?" and the applicant said, "Yes." The officer said, "sort it out" and the applicant said, "Yes." They then said they were organising "a brew for him". There followed conversation on general matters and it returned to the deceased's homosexual activity. They said that they were asking questions about the applicant because the officer said, "I'm trying to get to know him." The following conversation occurred which I shall set out which confirms the voluntary nature of the interview at this time: (TS67)
"Q.Okay. Like I said, I'm trying to get to know him.
A.Oh, you're right, Tom, you're right. Go for it. Just keep - -
Q.And - -
A.- - the questions rolling, yeah.
Q.And - -
A.I've got no problems with that.
Q.No, no, that's - - that's good, because it's - - it's helping me, because obviously there are a lot of things that are unanswered that - - that I need to find out.
A.Sure, mate."
This general conversation went on to p 73 of the transcript when the officer came back to what happened at 2.00 am and the fact that the applicant was having difficulty remembering where he put the fire extinguisher. The applicant said he thought he left it up on the hook and did not see anyone else around, but it was again pointed out to him what the others had heard and he said that it could have been him. He was there by himself. He was asked to describe how he went there and was asked if he remembered seeing the lady the next day and he described what happened the next day. There was then considerable conversation asking him to describe his activities around town and his going down to Mandurah, and the reasons why he went to hospital. The questioning went back to the earlier activities between the applicant and the deceased, and again in this area there were no questions that could be regarded as cross‑examination.
This continued until p 91 of the transcript. Detective Sergeant Mills asked, "Now the last time, the very last time that you saw him, tell us what happened?" The applicant described a meeting which he said occurred at lunchtime when he told the deceased what had happened to him in Kununurra and when he asked the deceased for more money. He said he had a cup of coffee in the afternoon and did not stay the night. He described in detail what happened at the meeting and said that they did not have sex. There were then questions on the sexual activity generally and the personal habits of the deceased.
Detective Sergeant Mills then asked the applicant about his activities with Mr Andy Howell of which there was a general discussion. Mr Howell was the witness who said that the applicant told him he had strangled the deceased. The detective told the applicant that he had a statement from Mr Howell. The applicant was asked to describe the place that he was in when Mr Howell opened the door. Detective Mills then said, "Here's a memory test for you, do you reckon you can draw the inside of that place for me?" The applicant attempted to describe the place and what went on there. A considerable time was then spent in his describing the place. During this time the applicant was offered cigarettes. There were questions about what people were wearing. Detective Sergeant Mills then put to the applicant what it was claimed he told Mr Howell, who was known as Andy. The following were the questions asked and answered: (TS144 first tape)
"Q.- - did you tell Andy that you'd killed a bloke called 'Collard'?
A.No, no. I didn't. I said that Collard - - 'I've heard on the grapevine that Collard's been' - -
Q.What - - what grapevine?
A.Oh, just been - - people have been telling me that he's dead.
Q.Who? These are things I've got to find out.
A.Yeah, yeah. People around town. You know, places I've stayed at. Some people - people around town I've met.
Q.But - -
A.And I'd been talking about the murders and all that.
Q.Yep.
A.And they're saying, 'Yeah, such and such has died' and some - - another person's died and everyone's getting let off from court.
Q.I'll tell you exactly, John, what Andy's told me, okay?
A.Mm hm."
The officer then read out portions of Mr Howell's statement. There was then said: (TS145)
"Q.Oh - -
A.And he's putting it - - me - - what he's doing, he's putting it onto me. Andy's wanted, but not only that, he's wanted for murders if you find out.
Q.John. All I can say to you, okay, is exactly how I've been told the story, all right.
A.Yeah. So he's swinging it onto me.
Q.Well, the difference being, and we've discussed this already is the fact that your fingerprints are inside the unit.
A.Well - -
Q.They're inside the fire extinguisher that was used to get into the unit.
A.Yeah, but don't forget, I did touch the fire extinguisher. I was in with Robert. Andy's wanted for murder. Andy was the one that brought up the conversation, blah, blah, blah.
Q.He tells me - -
A.Not just that - - that - - Randall's - - Randall's wanted too.
q.Okay. But he tells me, all right, that you're the one who said to him and to Kenny, 'I killed him'.
A.No, that's wrong, that's false.
Q.Okay. He describes how you said that - - that you'd done it, that you put your hands - - and I got him to show me, and he said, 'Look - - '
A.Yeah, look, that's fine.
Q.'I put his - - put my hands and I squeezed him and it was one the ground.'
A.That's fine. If he wants to go that way - -
Q.Well, I suppose, did you do that?
A.No, I didn't. And you want to look at them, what Andy - - what Andy - - "
The applicant then gave reasons why Mr Howell was setting him up. The applicant asked why would he want to hurt anybody that has treated him so well. The following then occurred: (TS147)
"Q.There may be a number of reasons, John, that - - that something like that could happen. What I'm wanting to know is did you go back to his flat and find him dead?
A.No, I didn't. Didn't find anyone dead.
Q.Okay."
The applicant then went on to explain that Mr Howell was a homosexual. Detective Sergeant Mills then said: (TS147)
"Q.Let's go back to Rob, all right? What I want to know is did you go back and find him dead?
A.No, I didn't. I honestly didn't.
Q.Are you sure?
A.I'm positive. Absolutely positive, sir.
Q.Because the circumstances - - the circumstances surrounding what the people have heard at 2 o'clock in the morning - -
A.Yeah, that's - -
Q.- - with the fire extinguisher.
A.Mm.
Q.And I just want to know, did you get into the flat and find him dead?
A.No, I didn't get into no flat. Why would I want to - -
Q.Are you sure?
A.I'm positive.
Q.Well, you did want to find out about him because you told me - -
A.I knocked on - - knocked on his door and - -"
Detective Sergeant Mills later said:
"It seems to me that if you've gone there thinking, when he hasn't answered the door that maybe there was something wrong with him, it seems to me a perfect - - a perfectly logical and reasonable thing to do to try and get into the flat to see if the bloke's okay."
The Detective asked a number of questions as to what occurred at what the applicant said was his last meeting with the deceased following his return from Kununurra. It included a discussion on smoking marihuana. The applicant was asked to describe again what happened when he returned at 2.00 am and picked up the fire extinguisher, and then on the applicant's account, he was then giving, went to sleep downstairs. He was asked to describe what he was doing for the rest of that day. He was then asked whether he opened up the servery hatch when he knocked on it and the applicant replied he did not open it up. He was asked if he had opened it before and he said he had opened it on an earlier occasion and found nothing there. At that stage the video tape ran out and the applicant wished to go to the toilet again. He was taken to the toilet and a new video tape inserted. The questioning stopped at 1.37 pm.
Resumption of interview at 1.40pm (2nd tape)
The interview resumed three minutes later. It commenced with the applicant being given some cigarettes and a general discussion on cigarettes. The applicant explained that the cigarettes kept him calm. Detective Sergeant Mills said that they were there to listen and to listen to what he had to say. He said to the applicant, "You've got no problems with that?" and the applicant replied, "No, no you guys are … you guys are great I'm happy as Larry you know in a box."
Detective Sergeant Mills then put to the applicant something that had not been discussed before, namely that the applicant's fingerpprint was found on the door inside the servery hatch, this being the door which had been broken open by the fire extinguisher. This was known as paint from the fire extinguisher was on this door. The detective introduced the subject by saying to the applicant that at 2.00 am he went to the unit and had banged on the hatch. The applicant was asked, "Did you do anything else?" The applicant replied that he knocked on the flyscreen door, he then grabbed the fire extinguisher, but was pretty sure he put it "back on its perch". He was again asked, "Did you open the hatch?" and he said he did not open it. He was asked a number of questions to show that he had never reached into the hatch. The questions continued (T/S 6 - second tape):.
"Q.Can you explain to me why your fingerprints - -
A.Mm hm.
Q.- - are on this door?
A.On that door? Well, basically, I did bang on that door - -
Q.No, you can't now tell me something else because now you're just starting to twist it around, okay?
His answers prior to that were that he had never banged on the inner door.
A.No, I'm not really twisting it because I didn't break anything, and you said it was broken, and I didn't break anything, so I knocked on that to get the - - wake up - -
Q.John, your fingerprint, okay, is on that hatch, all right? Now this is a scenario that I'm going to put to you, okay?
A.Mm hm.
Q.That in fact you've taken the fire extinguisher - - listen to me, and listen very carefully; it's important, okay?
A.Mm.
Q.Because as I said to you from the start I'm laying all the cards on the table for you to get you to comment about it, okay?
A.There's nothing to comment about.
Q.Well, you've picked up the fire extinguisher off the wall.
A.Mm hm.
Q.Okay? Sure, you've gone and banged on the door and the window and all those sorts of things - -
A.Right, so - -
Q.- - we know that, because other people have told us.
A.Mm hm.
Q.Okay?
A.Right.
Q.During that banging and calling out to Rob, you've taken the fire extinguisher, then you've put it straight through - -
A.No, I didn't - -
Q.- - into the flat.
A.I didn't.
Q.Your fingerprints are on here?
A.Mm hm.
Q.You've then got into the flat, okay?
A.I didn't get into no flat.
Q.Listen to me. Listen carefully.
A.Yeah, I'm listening.
Q.You got into the flat and you've gone in and you've confronted Robert about something?
A.No, no.
Q.From there he's ended up dead?
A.Nuh, don't agree with you, sorry.
Q.Why?
A.It's not me.
Q.Everything that has occurred so far, okay, during this conversation; every time you're confronted with a fact about the way that the situation has evolved, you've changed your mind.
A.Why would I admit banging that door - I banged the inside of the hatch - when you've already told me it's been broken into, and I'm saying - - I'm more or less saying, 'Shit, I'm the one that got in. I'm the one that murdered him.' So I wouldn't - - I didn't take it that far, did I? But now you're - - now I'm - -
Q.Did I say at any stage that you'd murdered him?
A.Well, if - - If I would have gone your way you would have had me in a bloody nutshell before I even done it, and I didn't go that far. That's what I'm saying. The - - "
The applicant referred to a fight with Andy Collard. Detective Sergeant Mills said, "Why have you told Andy that you killed somebody called Collard?" The applicant replied that he did not. The following then occurred: (TS9 - second tape)
"Q.No, listen to my question.
A.I'm not after any gain. I'm not after any gain. I'm not lying.
Q.Listen to my question, okay?
A.Mm.
Q.You've told somebody - - and this is the scenario: you've told somebody that you've killed a man named Collard, okay? Just listen to me.
A.Yeah, I'm listening to it, but I'm still nodding me head, aren't I?
Q.From there, okay, I've asked you the question. Now the thing that you've got to gain by telling a lie is that you're saying, 'No, I didn't do that'?
A.That's right. I'll go to court. You can have me fucking for 10 years. I don't give a shit. You've been screwing me - -
Q.I'm not - -
A.Look, they screwed me with the army, they screwed me in the police force, they're screwing me now. You may as well bloody get it over and done with; shoot me in the backyard.
Q.We want the truth, John.
A.I'm not - -
Q.No, no, no, John, we - -
A.I'm telling you the truth. I'm telling youse the truth. I did not do it.
Q.No you're not - -
A.I am . I'm certainly not screwing you about anything.
Q.From minute one - and I've never met you before. I've seen you around town in the last 10 days or so, but from minute one I've laid it on the table with you about where we're going, okay?
…
Q.What I want to know is if you did get into the flat - - just listen to me.
A.Mm hm.
Q.This is really important.
A.Mm, sure it's important, really important in that - -
Q.If - - if you got into the flat, okay, and Rob was already dead, did you move his body?
A.No, I didn't move his body. I didn't even get into the flat.
Q.You still haven't explained to me how your fingerprint is on the inside hatch.
A.Well, you figure it out for yourself.
Q.Well, I can't. that's why I'm asking you.
A.Well, I've been in the kitchen. I've been feeling the - - around the microwave. I've been felling what's this, is there a door, is there a handle to it? No, it's just a piece of wood.
Q.I asked you specifically before - -
A.I made coffee, I made Milo I done this and read the papers.
Q.Yeah, okay. I asked you specifically before, okay - -
A.Mm hm.
Q.- - about whether or not you had any reason to handle the hatch, to touch the hatch at any time, and you told me, 'I've never touched the inside servery hatch.'
A.That's right, because you told me it's broken into."
The questioning continued on these lines and then reverted to how his fingerprint was found on the glass and the applicant explained that he had been drinking with him earlier. He was then asked questions whether they had had an argument. The applicant said there never was an argument and "I haven't broken into no hatch". The questioning continued as follows: (TS17 - second tape).
"Q. Well, your fingerprint - -
A.Yeah - -
Q.- - has been found on the inside hatch.
A.You're going over the same old ground.
Q.Yeah, because you haven't - - you haven't answered the question or satisfied - -
A.I've answered.
Q.- - or satisfied me with the truth about it, that's all, and that's why I have got to keep asking the question about it.
A.Yeah, well, we'll just keep playing the merry‑go‑round.
Q.Well, it's not really a merry‑go‑round really, is it, because - -
A.It is, it's exactly a merry‑go‑round, and you'll find out in 2 hours' time.
Q.Your fingerprint hasn't been found on the inside of the hatch.
A.Right.
Q.It has been found on the outside of this - - in the hatch.
A.Right.
Q.Trying to push it open.
A.Right.
Q.Why?
A.Because I've wanted to get in.
Q.Why did you want to get in?
A.To find out if he was all right.
Q.Exactly.
A.Right.
Q.And what I'm saying to you is, and this is a perfectly reasonable thing to say - -
A.Yes.
Q.That you're concerned about him.
A.Yes.
Q.There's no doubt about that.
A.Yes.
Q.You obviously care a fair bit about him - -
A.Yes.
Q.He seemed - - from what I found out about him he seemed like a reasonable sort of bloke.
A.Yes. Perfect.
Q.Okay? You're trying to get in to see if he's okay.
A.Right.
Q.True?
A.Yes, quite true, yeah."
He was then asked questions whether he took the fire extinguisher inside and he was told that an outsider heard someone say, "Rob are you there are you all right." They heard at the time a bang consistent with the fire extinguisher breaking the hatch.
He asked the applicant again if he went into the flat and found the deceased dead and he said he did not. They repeated the question, and he was asked again, "Why did you tell Andy that you had killed him?" There was then a series of questions of what he said to Mr Andy Howell and the applicant said that he said to Mr Howell words to the effect, "Do you know that Collard is dead?" The detectives then asked him how he knew that the deceased had died. At that stage the deceased's body had not been found. The applicant explained how he had heard it around the town.
Requests for a lawyer
The applicant said there were a lot of crooked people about and "I'm not saying youse guys are" to which the detective said, "Don't start using that as an excuse John - don't start blaming anyone - no no don't go using that as an excuse ‑ because it's not the truth." He then said, "John now is the time to lay all your cards - - on the table" to which the applicant replied that he had laid all the cards on the table and he said, "I've told you exactly the truth." The following then occurred this being the first request for a lawyer: (TS43 - second tape)
"Q.Because each time - -
A.I've - - I didn't kill him and - -
Q.Each time I've asked you - -
A.I'd rather see a lawyer. I'll see a lawyer right now.
Q.I've asked you, okay - -
A.It's getting to that stage I've got to see a lawyer.
Q.That's something that we can certainly discuss, but there's something that I've got - -
A.I want it discussed.
Q.Yeah, I want to clarify with you - -
A.Otherwise you'll end up bashing the shit out of me for nothing.
Q.Nobody's going to lay a hand on you and nobody has, have they?"
There was then a short discussion as to how he was being treated and there followed the second request for a lawyer: (AB44)
"A. No, you guys have been good, no, I knew that; no, no problems here.
Q. What I'm -
A. What I'm trying to explain to these people, that I am a little bit scared. I'd like a lawyer.
Q. Yeah, what I'm asking you though is if - - and I've asked you before, and I want you to think about the question. Did you go to his flat and something happened where you've killed him?
A. No.
Q. Did you go to his flat and find him already dead?
A. No.
Q. Then how can you go and tell somebody that you've killed the bloke and it's not public knowledge?
A. Well, I've got some new for you. It was public knowledge. Somehow it became public knowledge. I heard it on the grapevine - on the grapevines - and I do - - I can pick up people's feelings. I can pick up people's thoughts."
They then asked him what he was told about Collard being killed and as to how he knew he was dead. It was put to the applicant that the only way he could have told Howell that the deceased had died was if the applicant had some involvement in it. The applicant denied this. Detective Sergeant Mills then said to the applicant, "Whether you found his body." The applicant then said he was told this at Fremantle. He then made a further request for a lawyer. Parker J ruled that the interview from that point until the break could not be admitted.
In that part of the interview which was not admitted into evidence the applicant made four further requests for a lawyer and the interview was stopped at 2.40 pm and steps were taken to contact the law firm the applicant had mentioned.
55 minute break. Attempts to obtain a lawyer
During the 55 minutes break that followed the applicant was given something to eat. Detective Sergeant Nugent, the officer in charge of the inquiry, rang the firm nominated by the applicant and was told that that firm no longer dealt with criminal matters. They referred Detective Sergeant Nugent to another criminal lawyer who was taking on their work. He rang them. This lawyer, Mr Andrews, was with a client at the time but said he would ring back. He did ring back and said he was unable to attend. The applicant was told this
Parker J said that he satisfied on the balance of probabilities on the evidence that the police made genuine and reasonable efforts to obtain a lawyer from the firm identified by the applicant and they kept the applicant informed of what they were doing. The next matter that is apparent is that the applicant had made it clear that he could not pay for the services of a lawyer, so in these circumstances it would appear to me to be difficult, if not impossible, to obtain one. It was not suggested of the detectives in cross‑examination that there was anything more that they could do or anyone else whom they could contact and I would not consider on the evidence that there was anything more they could do.
Resumption of interview after 55 minute break - third tape - Applicant states he does not wish a lawyer
During the break the applicant asked Detective Mirapodi questions as to what would happen if a person admitted to killing another, but was acting in self defence. The detective indicated that he could not answer hypothetical questions and such a discussion would have to be on the video. Detective Sergeant Mills reached the view that he considered that there was something the applicant wished to say. He asked the applicant if he wished to resume the interview and the applicant replied that he did. The interview resumed at 3.35 pm. Detective Sergeant Mills again cautioned the applicant and told the applicant that he was not obliged to say anything or to do anything unless he wished to and that what was said would be recorded on the video and could be used in court. The applicant was asked again to explain in his own words what this meant and he said, "whatever I say can be held against me in a court of law." The detective then said, "but you also understand you don't have to say anything if you don't want to" and the applicant replied, "yes but I do want to say everything." The following was then said in respect of a lawyer: (TS3 - third tape).
"Q.Okay. Previously, we had a long discussion about Bob Collard - -
A.Mm.
Q.- - and his death.
A.A good friend of mine, yes.
Q.Yep. Towards the end of that discussion you told me that you wanted to speak to a lawyer?
A.Yes.
Q.Okay. Since then we've had another short discussion in which you told me a whole pile of things - -
A.Yes.
Q.Before we go any further, do you still want to talk to a lawyer or have a lawyer present while we have this discussion?
A.No, I don't.
Q.You - - you happy?
A.I'm happy.
Q.With that? Okay. Now, just for the purpose of where we're going now, you haven't changed your mind because I've threatened you or - -
A.No. No.
Q.- - or hit you or - -
A.No. Not at all. You've been great.
Q.- - made any promises to you or anything like that?
A.You haven't made any promises you just - - I'm just telling you what I'd like - -
Q.Are you comfortable - -
A.Very comfortable with things.
Q.All right. You think that we're all on the same page here?
A.Now I think we're all on the same - - same team.
Q.Okay. That's fair enough. All right. Let's go back to what happened at Rob's flat.
A.Sure.
Q.Just, in your own words - -
A.Mm hm.
Q. - - take your time. If there's anything that I need to ask you, I'll just jump in and ask you."
The applicant then in his own words, without any prompting, gave an account of what happened in the deceased's unit. This account corresponded to what he said in evidence. The only interruptions were by the detective to keep the continuity. There was nothing in the nature of cross‑examining or challenging what he said. The applicant explained that he did go to the unit, was concerned when there was no answer and thought that the deceased may be dead. He explained how he picked up the fire extinguisher and broke the door of the servery hatch and how he entered. He then described how the deceased attacked him with a knife and the applicant responded by strangling the deceased and striking his head. It is accepted that there was no material difference between what the applicant then said and his evidence.
When he finished giving this description the interview continued by the detective asking the applicant about his earlier life when he went to school and then his earlier activities with the deceased. In this area they were accepting what he said. They later reverted to some details about the knife that was in the deceased's hand. They asked for details of what he took from the flat, including money. Again they were accepting what he said in that area. The questioning then reverted to what he was thinking of when he was choking the deceased. They asked him whether he rang the police and he replied he did not. They then asked him to describe in greater detail how he choked the deceased and the applicant replied, "hard as I bloody well could." They then asked what hands he was using and he originally said two hands and this time he said he kept changing the hands. They asked more details as to where he hit the deceased, how he hit him and what the applicant saw happen. There were then a number of questions requesting greater detail about the fight. Towards the end of the interview he was asked that if they went back to the flat would he be able to show them certain things, including where the fire extinguisher was and he said he was agreeable to do that. He was then asked if he was happy with the way he had been treated and he said he was extremely happy and that there were no complaints.
He was then asked: (TS82 - 3rd tape)
"Q.Okay. Once again I'll just go back to this bit about the lawyer. You were happy to do all of these things without having a lawyer present, of your own free will?
A.That's right, sir, by my own free will."
The interview concluded at 4.48pm.
Interview at the unit
At 6.55 pm they then went to the unit and the applicant showed them certain things. The fourth video was taken of this. He was again told that he was not obliged to take part in it unless he wished to and there was no question raised that what was said at this stage was voluntary.
Whether interview when admissions were made was voluntary.
I consider the critical question was properly identified by Parker J and that was whether despite the applicant's initial requests for a lawyer, did he later decide of his own free will to proceed with the interview. His Honour gave the following reasons for reaching the view that the interview was voluntary (AB 140)
"In this time I am satisfied that the accused raised in a hypothetical way the question of the consequences of a death caused by way of self‑defence in the presence initially of one of the interviewing detectives and as he progressed, two of them.
I am also satisfied on the balance of probability that in time he reached a decision, unprompted by the investigators, that it was in his interests to give the police an explanation which admitted his involvement in the death being investigated and provided a foundation for a defence of self‑defence. I am satisfied by the evidence as to these events and by what occurred when the interviews recommenced. It is recorded on video that the accused readily, freely and voluntarily proceeded even though the efforts of the police to secure the legal advice he requested had been unsuccessful. In this I have paid close attention to the accused's demeanour in evidence and as revealed on the video. In my finding the accused's participation thereafter was free and voluntary throughout. Indeed it was eager and willing."
In my view the evidence strongly supports these conclusions. When the interview resumed the applicant was again given the appropriate warnings and was asked to repeat them back. He acknowledged that he was not required to say anything if he did not want to. I have set out expressly his very words where he said he did not want a lawyer to be present and this was repeated at the end of the interview. The only conclusion open is that what was said during this time was said voluntarily.
He admitted to carrying out the attack on the deceased when the deceased died but he claimed he was acting in self defence. It cannot be claimed that these were unreliable admissions as they were his defence and he swore to the jury that they were true. It was in the applicant's interest to say what he said at that stage because that would add to the credibility and consistency of what was later said to the jury.
Whether detectives earlier cross-examination was unfair.
Particular 1.4 claims that the applicant was cross‑examined by interviewing officers who questioned him until what was considered appropriate responses were given. There was cross examination prior to the 55 minute break when the applicant made no admissions and was adhering to an untrue story. There was no cross examination after the 55 minute break. The applicant gave the new account in his own words this being the account which he told the jury was true. The earlier account would have relevance to show that the applicant was initially giving a false account.
The cross examination consisted of the interviewing officer putting to the applicant evidence in the officers possession to show that the account the applicant was then giving could not be true. I would consider, on first principles that this can be done so long as it does not get to the stage of being oppressive or unfair. It would deprive detectives of much of their power of effective investigation to assert to the contrary.
There is little authority on the question. Brennan J (as he then was) referred to the matter in Duke v The Queen (1989) 180 CLR 508 at 513. His Honour said:
"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. 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. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."
I do not consider that his Honour was saying that investigating officers can never ask leading questions and, in particular, that they are not able to put to a suspect evidence in their possession to show what the suspect is maintaining is incorrect. Brennan J's comments were made in the context of unfair questioning as certain types of cross‑examination can be unfair and oppressive. I consider that the essential question is whether this particular questioning was unfair or oppressive. If an admission were obtained as a result of a leading question then that would be one of the factors to examine to see if the admission was a reliable one.
I consider that the interview of the applicant up until the time he commenced asking for a lawyer must be judged as being perfectly fair and in no way oppressive. It was clearly voluntary as the applicant had been given and had repeated back the standard warnings. He said in his evidence on the voir dire that he knew he could desist at any time. The officers by asking the questions they did at that stage were doing no more than putting to the applicant evidence which they had and which showed that what he had hitherto been maintaining must be false. If it is known, as it is now known, that what the applicant was then saying was false, then the fact that he was uncomfortable and at times in a difficult situation in maintaining the false story, would not make the questioning oppressive. It is the inevitable result of maintaining the false story. Although some of the propositions were put to the applicant with some persistence and with some repetition they were nevertheless put with courtesy. The questions were not of an offensive nature. The propositions put were propositions consistent with the fingerprints and other evidence the police had. The repetition, when it occurred, was interspersed with other discussion. The question was not repeated immediately after it was asked.
There is a further factor present which would justify the type of questions The applicant at this stage alluded to the fact that other persons he mentioned may have done the killing. The officers would be justified to fully test the applicant's proposition that he was not in the unit in order to avoid unnecessary suspicion falling on other people.
Whether portion of earlier interview after first request for a lawyer should have been admitted
His Honour considered that the intrview remained a voluntary one after the first request for a lawyer but the situation changed after the second request. His Honour's reasons for reaching the view that it remained voluntary after the first request were (AB138)
"Having considered closely his evidence and that of the investigators and their demeanour in this respect and having studied closely the video at around this time in the end I am satisfied that the accused mentioned the lawyer at this point to deflect or delay the questioning while he gave his explanations more thought and that initially he was able to do so and did not persist in his request for a lawyer and freely and voluntarily continued with the interview, even though he well knew he was able to stop at any time and to refuse to answer any questions and that he need not proceed until he could consult a lawyer."
I consider that it was open to his Honour to reach this view. His Honour examined the video closely and referred to the applicant's evidence on the voir dire said he knew that he could cease to answer the questions at any time.
In any event, the applicant did not say anything of significance between the time he first asked for a lawyer and the second request when his Honour excluded the remainder of the evidence up until the break.
Remaining particulars claiming the interview was not a voluntary one
Ground 1.1 said that the applicant had been living rough and had not eaten properly prior to being interviewed on the video. He agreed in his evidence on the voir dire that he had been fed in hospital and was given what he wanted in respect of food, cigarettes and drink during the interview. The evidence does not support this ground.
Ground 1.2 refers to the length of time of the three interviews and concludes, "He was therefore overwhelmed by the duration and intensity of the interview." His main difficulty was in the period prior to the 55 minute break when he was maintaining a false story. Much of the time at this stage was spent on general matters and not sensitive matters. After the break he was giving his account in his own words and was not being pressed. The interview ended prior to 5.00 pm. The visit to the unit at 7.00 pm was a separate exercise where he was demonstrating what had occurred. He clearlly was not overwhelmed. He maintained his denials prior to the break. After the break he gave his account in his own words, this being the account which he told the jury was true.
Particulars 1.7 and 1.8 refer to the fact that the applicant was taken from the psychiatric section of the Fremantle Hospital and was in a fragile mental condition which made him more vulnerable to police pressure. I have referred to the fact that his Honour heard evidence from psychiatrists as to the applicant's fitness and I have set out his Honour's findings. They were open on the evidence and supported by the way the applicant answered questions.
Sufficiency of evidence
Ground 2 claims that the evidence did not establish that the cause of death was as a result of an act of the applicant. It is claimed that the cause of death could not be determined by a post‑mortem examination. The doctor conducting the examination could not rule out heart attack or liver problems, nor could he say that death was caused by strangulation. The ground claims that the evidence of Mr Ralph, a friend of the deceased, showed that the deceased had health problems and other problems arising from an excessive consumption of alcohol. It is claimed in the ground that the applicant would be entitled to an acquittal by reason of this. This position was not maintained at the hearing of this application for leave. It was conceded that on the applicant's evidence as to what he did to the deceased the jury must infer that the applicant directly or indirectly caused the death and this is clearly so. It is maintained however that if asphyxiation by strangulation is not established on the evidence then there would be insufficient evidence to show intent. Ground 7 claims that there was insufficient evidence relating to intent. It was argued that as the doctor could detect no evidence to show signs of asphyxiation, it could not be said that the cause of death was strangulation.
Dr Cadden said (AB240) that the relevance of the decomposition is that it will lose the signs that one would rely on to make a conclusion that asphyxia had occurred. He then indicated the signs on which he would rely and concluded by saying there is nothing by way of finding that excludes asphyxia or makes it impossible.
I consider that having regard to the applicant's evidence as to the way in which he said he strangled the deceased and the fact that the deceased appeared lifeless following this, that it was a strangulation or a combination of strangulation and the heavy blows to the head. It would be open to the jury to conclude it was either or both which caused the death of the deceased. The jury could properly infer an intent from the acts of the applicant. There is, in addition the evidence of what he said to Mr Andy Howell.
Ground 3 claims that the evidence of Mr Howell was tainted in that he admitted that he had consumed "mind‑altering substances" and there was a general claim that his evidence was unreliable. It is now common ground between the applicant and Mr Howell that the applicant told Mr Howell that he had strangled the deceased. The difference in the evidence is that the applicant said that he told Mr Howell that he did it in self‑defence, whereas Mr Howell said that that was never said to him. Mr Howell was asked specifically in cross‑examination, "Is it not the position that the accused said to you that he acted in self‑defence and that the other person had a knife and he had to fight him off" and he replied, "No, it was never said to me." The matters raised in the ground of appeal so far as they relate to Mr Howell's evidence are matters entirely for the jury. They were matters which were put to Mr Howell in cross‑examination. He said in cross‑examination that he had not consumed alcohol that day. He was asked whether he had any "mind‑altering substances" that might have affected his recollection and he replied, "I've smoked cannabis before." He was then again asked whether it was not possible that the applicant could have said he acted in self‑defence and Mr Howell replied, "Definitely didn't say it." He was then asked, "So don't you consider that your judgment might have been impaired by what you had imbibed, what you had taken?" to which he said, "No." This was entirely a matter for the jury's judgment and no basis has been put forward for this Court to pass a judgment on Mr Howell's evidence.
Grounds 6 and 7 refer to the fact that although it was known to the investigators at the time they completed the records of interview that the accused was claiming his acted in self‑defence, no steps were taken to see if either of the two knives in the house had the deceased's fingerprints. The applicant in his evidence referred to only one knife being used and later referred to his seeing another knife, but said this had not been used. Each knife belonged to the deceased and were in his kitchen so there would be a high probability that they would have the deceased's fingerprints in any event no matter what occurred.
Ground 4 claims that one of the Crown witnesses, who lived in an adjoining flat, said that she was awoken by voices, but said in her statement they were not arguing. This could not be seen as a ground of appeal and would take the matter no further. Similar remarks apply to ground 5 which said that Dr Patchett's evidence was to the effect that the accused could comprehend the situation and had described to him a self‑defence situation. He said this to Dr Patchett after he had said it to the police. The proposition in ground 5 would not amount to a ground of appeal and would have no probative value.
I would dismiss the appeal against conviction.
Appeal against sentence
As the applicant was convicted of wilful murder, his Honour was required to impose a sentence of either strict security life imprisonment or life imprisonment. His Honour imposed the latter sentence, namely, a term of life imprisonment. It was necessary for his Honour to set a minimum period of at least 15 years and not more than 19 years that the applicant must serve before being eligible for release on parole. His Honour fixed the term at 19 years.
The applicant was born in 1966. He has had a number of convictions in Courts of Petty Sessions and in 1993 appeared on indictment in the Supreme Court where he was convicted of armed robbery. He was placed on probation for 2 years and there were no convictions during that period.
The facts on which his Honour based the sentence were that the applicant met the deceased some six months earlier and this was in response to the advertisement the applicant put in the newspaper that he was available as a male prostitute. His Honour said that in the intervening months, he and the applicant had been together three or four times and that the applicant had visited the deceased's unit more than once. His Honour said, "I am not persuaded by your accounts, however, that there ever developed between you and Mr Collard any close personal relationship."
His Honour said that in the second half of January 1999 the applicant went to Kununurra to work on a banana plantation. The deceased helped the applicant with some money and his Honour considered that the deceased hoped that that would be the last he saw of the applicant. The applicant, however, returned from Kununurra within a week and was living largely from handouts and slept wherever he could find a bed. His Honour found that the applicant went to the deceased's unit unexpected and uninvited, wanting to be allowed to stay the night. The applicant, on arrival at the unit, knocked but the deceased did not answer. His Honour found that the applicant was determined to sleep the night in the unit and decided to try and force an entry. His Honour rejected the applicant's account that he wished to enter the unit to see if the deceased was alright. His Honour said that the applicant took the fire extinguisher which had been hanging on the wall in the public passageway and he used it to bash the inner door of the hatch of the servery until it gave way. He said that he was satisfied that the applicant knocked the inner door out of the wall into the kitchen. His Honour said it was not clear whether the applicant then reached in and obtained the key or whether the deceased came from his bedroom and opened the door. His Honour said, "In either event the front doors were open and you barged your way in overcoming Mr Collard's clearly expressed reluctance to let you in." His Honour said that he was satisfied that there was a loud exchange at the front door which was heard by a neighbour. His Honour was also satisfied that the applicant entered the unit carrying the fire extinguisher and rejected the explanation that he did this at the deceased's insistence. His Honour said, "I am satisfied Mr Collard was naked when you forced your way past him into the flat ignoring his refusal to admit you." His Honour said that he formed the view that after a little time a fight developed between the two in the lounge room immediately inside the front door. His Honour said that while he had reservations about the honesty of the applicant's account, he considered himself required to accept in the applicant's favour that the deceased picked up a small kitchen knife. His Honour said that the reason for the deceased doing that would be clear. He was no physical or emotional match for the applicant's aggressiveness and he was trying to get the applicant to leave the unit. The applicant was determined to stay. His Honour was satisfied that the applicant was able to knock the knife from the deceased's hand and that he threw the deceased onto the lounge chair. He considered that on and off the applicant throttled the deceased, mostly with both hands grasped around the lower neck and that at times he punched the deceased to the head and continued to do this for a prolonged period, much longer than the three, four or five minutes suggested by the applicant in his evidence. His Honour said, "During this time you forced him to the floor where you knelt over him, throttling him and punching him." His Honour rejected the suggestion that the deceased said he intended to kill the applicant. His Honour said, "I am also satisfied on the evidence that you were so angered by Mr Collard's natural reluctance to have you stay and his picking up of the knife that you attacked initially in a self‑centred anger but realised quickly that if he lived to tell the story, you would be likely to be reported to the police and you decided that you must kill him to be sure that this did not happen." His Honour then said: (AB471)
"Your thoughts were entirely for your own welfare and you gave no thought to Mr Collard as you deliberately pressed on, long after he had been disarmed, throttling him mostly with both of your hands until there was no longer any sound from his body. In my finding, he died from asphyxia on the lounge floor in front of the lounge chair in the position where his blood from the blows to his head was found on the carpet.
You then sought to dislodge both his arms by pulling on them. You considered they were connected in some way to what you described as his evil soul and you then dragged his naked body into the bedroom to prevent it being seen through the kitchen window; that is, to avoid detection. You then took a pen and drew a line across the heart area of his chest, in your words to write off his heart.
Then you had a bath and slept until the midmorning in the bed in the bedroom with Mr Collard's body lying on the floor in the position where his blood was found. In the morning I am satisfied from the medical evidence you rolled over the body so that it was face down, where it was found some days later on 5 February when Mr Collard's brother checked on him.
In the morning you showered, went through Mr Collard's possessions, put on his underwear, a shirt, jeans and shoes of his, put your own clothes in a shopping bag, took money, cigarettes and beer belonging to Mr Collard and left the unit, leaving the doors locked behind you. You put the shopping bag with your clothes in it in a rubbish bin away from the unit and eventually found your way to Mandurah where you had some acquaintances and where your parents lived.
I'm satisfied that you skilfully lied to the police, initially to deny any involvement in Mr Collard's death and you adjusted your story quickly whenever you saw that the police had evidence of some matter or other and eventually realising that the police had discovered too much, including your fingerprints at the unit and what you had said to an acquaintance at Mandurah, you then gave a further version of events which admitted your involvement in Mr Collard's death but presented it as a matter of self‑defence.
In your evidence in this court, I am also satisfied that you skilfully and dishonestly refined your account to further strengthen the case for self‑defence and to support the view that at no time did you intend to kill Mr Collard. Your evidence in this court and all that has been said by you about Mr Collard's death in the past, makes it extremely obvious that you feel no remorse whatever for what befell Mr Collard. You continued to see yourself as the wronged party because he wouldn't let you stay the night and because you now find yourself before this court.
Much of your conduct was bizarre. The jury heard the evidence of two psychiatrists who saw you within a short time of Mr Collard's death when you were referred by the court or by two courts. I am particularly impressed by the evidence of Dr Patchett as to his assessment of your condition. This was the result of 6 days intensive investigation and assessment at Graylands Hospital between 13 and 19 February last year.
I accept his opinion that you were not suffering from any psychiatric illness or mood disorder and that while you had some strange ideas, they were in accordance with your own particular beliefs and were not delusional.
I also accept that while you were earlier, particularly in 1989, diagnosed as schizophrenic or suffering from schizo‑affective disorder, this was not the case and your symptoms at that time were the consequence of your drug abuse. In particular, as the doctor said, amphetamines and marijuana can produce symptoms which are indistinguishable from those conditions.
I note from the evidence that you were still using at least marijuana at Mandurah after Mr Collard's death. I accept from Dr Patchett's evidence that you have a personality disorder which, among other things, makes you particularly aggressive and self‑centred."
The ground claims that the sentence is manifestly excessive and induces a sense of shock for a number of reasons which are set out. The first weakness to the ground so expressed is that the sentence imposed was the lesser of two possible sentences. The question is whether his Honour erred in respect of the minimum sentence.
The first particular to the ground claims that his Honour was wrong in saying that there was no close relationship between the applicant and the deceased. The ground said that there was evidence that they had engaged "in social interaction". It would be difficult to determine what the phrase "any close personal relationship" really means. I do not consider that what his Honour said was a factor that would influence the fixing of a minimum term. The situation would have been no better had there been a very close personal relationship.
The second particular claims that his Honour should have concluded that there was no forced entry and there was no damage to the doors. The evidence showed that the inner servery door had been forced open and the evidence also showed that this was a means of obtaining the keys to the house. This is quite sufficient to support a forced entry. The evidence of neighbours would indicate that the deceased was unwilling to let the applicant in.
The next particular claims that no adverse inference can be drawn against the applicant from the fact that the deceased was naked. The particular states that the reason why the deceased was naked was because the deceased and the applicant had on previous occasions slept together. In my view his Honour did not draw any adverse inference. He was doing no more than referring to what actually occurred.
The next particular claims that his Honour erred in concluding that the applicant killed the deceased because he was afraid he would report him to the police. If this were treated as an aggravating factor, there would then be a question as to whether or not this had been proved beyond reasonable doubt. I do not consider his Honour treated it as an aggravating factor, particularly as the lesser head sentence was imposed. I do not see it as a factor affecting the minimum term. The killing would be equally as bad whether it were done for a motive such as this or for stealing or for no motive at all.
The final particular states that the court ought to have taken into account the applicant's relative youth. The applicant was 32 years old at the time of the killing and it could not be said in those circumstances that there was any mitigation arising from youth. In particular, he was not a first offender and no mitigation could be seen in his antecedents.
I would see this as being a killing in the upper range. The deceased had previously assisted the applicant, but despite this the applicant, with the aid of a fire extinguisher, started to break into the house and when he got into the house subjected the deceased, in his own home, to a savage attack. It could be said at the very least that it was a case bordering on the possibility that the appropriate penalty was strict security life imprisonment. This was not imposed, but the very nature and circumstances of the killing were such that would call for a higher minimum term. There was no mitigation. The applicant was capable of overpowering the deceased and retreating from the unit and there is nothing present to justify the type of attack made on the deceased.
The trial Judge, after hearing all the facts and circumstances, reached the view that the appropriate minimum term was the maximum under the lesser head sentence and I do not consider it has been shown that he erred.
I would refuse leave to appeal against both the conviction and sentence.
WALLWORK J: On 18 May 2000 Mr Errey was convicted of the wilful murder of Mr Collard after a trial at which he had pleaded not guilty. He was sentenced to life imprisonment. The minimum term of imprisonment before he will be eligible for parole was fixed at 19 years. He now applies for leave to appeal against the conviction and sentence.
Before he was arrested and charged, Mr Errey was questioned for a very long time by police officers. The first question which arises on this application is whether the video record of interview in which he participated should have been admitted into evidence, entirely or in part. That raises two subsidiary questions, the first being whether the interview was voluntary and the second, whether part or any of the interview should have been excluded pursuant to the discretion to exclude admissions which have been unfairly obtained.
Whether statements were voluntary
The question of whether a statement has been made voluntarily was discussed in R v Swaffield (1998) 192 CLR 159. At 168 Brennan CJ said:
"In McDermott v The King (1948) 76 CLR 501 at 511‑512 Dixon J spelt out the rules by which voluntariness was determined. These rules were adopted by a unanimous court in R v Lee (1950) 82 CLR 133 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 a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure….'"
Brennan CJ repeated what he had said in Cleland v The Queen (1982) 151 CLR 1 at 18. His Honour said:
"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, focusing 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 the case upon the will of the particular accused."
Prior to the applicant being interviewed by the police officers, he had been an in‑patient at the Fremantle Hospital to which hospital he had been referred from the Peel Health Campus. A psychiatrist, Dr Bailey, gave evidence on the voir dire that the applicant had been in the Fremantle Hospital from roughly 9 pm on 9 February 1999 until he was taken from that hospital by police officers on the morning of 12 February 1999.
Dr Bailey had examined the applicant on the morning of 11 February 1999. At that stage he had assessed the applicant as having a "probable relapse of a schizo-affective disorder", but that he was capable of understanding court procedures, police interviews and "implications of these". Dr Bailey said he thought that when he had examined the applicant on 11 February the applicant was capable of understanding the interview process and was mentally fit to be interviewed by police. Dr Bailey knew that in 1989 the applicant had been diagnosed as a chronic schizophrenic. On his diagnosis the applicant was a "schizo‑affective type schizophrenia, chronic with acute exacerbation".
Dr Bailey said that the applicant had delusions of grandeur and persecutory delusions regarding parents, police and God, but nevertheless he was still able to understand what was going on around him and to appreciate the significance of court proceedings and an interview. He said that the exact form of his paranoia about the police was not actually described to him and it was not something that he went into in great detail.
It is against that background that the voluntariness of the video interview conducted on 12 February 1999 should be assessed.
At 10.45 am on 12 February, after a false start due to a machine malfunctioning, the applicant was interviewed at Curtin House by a Detective Sergeant and a Senior Detective. He was cautioned. He then told the police that he had met the deceased, who had allegedly been murdered, about 6 months previously as a result of an advertisement which the applicant had placed in the paper. The advertisement had led to consensual sexual activity. The applicant had visited the deceased at his flat about three or four times. They had become friends.
Initially the applicant told the interrogating officers that he had not seen the deceased in the previous three weeks. He had gone to the deceased's flat and knocked on the door, but the deceased had not been home. That had been about 2 am "about two weeks ago". He was questioned about that visit.
The applicant told the police officers that prior to being admitted to the Alma Street Clinic, he had been at Mandurah where he had stayed for a couple of days. He was then questioned about a fire extinguisher at the deceased's flat and whether he had touched it. The applicant said he had not. He was then told that it had his hand prints on it. He was cross‑examined about that and whether he had used it "to break the door off". He denied doing that. He was then cross‑examined about his fingerprints being inside the flat. He then admitted that he had seen the deceased "once more". He was then asked how the fire extinguisher had ended up in the flat with his fingerprints on it. The applicant told the officers that he had not killed the deceased: "So that's all I can say".
About one hour after the questioning had commenced, and at 11.45 am, the applicant was taken to the toilet. The video interview was then resumed and the questioning continued. The applicant was further questioned about the fire extinguisher and events at the time of his 2 am visit to the deceased's flat. He was asked about his visit to Mandurah. He was asked whether he wanted something to eat "…or if you want to keep talking, because obviously I have got 50 million questions to ask…." The applicant said: "Lets go for it. Keep asking."
The applicant was asked about his advertisement in the paper for male company. He was questioned about his association with the deceased. The applicant told the officers he "probably only saw him all up four times". He was asked concerning how they would meet one another. The questions then returned to "the very last time that you saw him". The applicant said that that would have been "basically a day or two after Kununurra,…" He was asked about the layout in the flat and about the relationship between the deceased and himself. He was asked questions concerning how much money the deceased had and "did he have a wallet?" He was asked whether he had ever asked the deceased for money. The officer told him "We're here all day to listen … we want to listen to you as long …." The applicant said: "All right. That sounds OK. Long as its not all day. You know. Bloody hell".
The applicant was informed by the questioning officer that "we are trying to … give you as much information as we can and to find out as much as we can about the poor bloke". He was told that was all they were trying to do and that was all it was about.
The questioning continued. The applicant was further questioned about the 2 am visit and the banging on the door of the deceased's unit which neighbours had heard. The applicant was then again taken to the toilet. The questioning resumed after that concerning the 2 am visit. That resumption of the interview was at 1.42 pm which was approximately three hours after the questioning had commenced. The applicant was asked why his fingerprints were on the inside of a hatch into the flat. He was told by the police officer that he could not "now tell me something else, because now you are just starting to twist it around. OK". It was put to him that he had got into the flat. He denied that. It was put to him that he had got into the flat and confronted the deceased about something "and he's ended up dead". The applicant said "It's not me."
It was then put to the applicant that "Every time you're confronted with a fact about the way that the situation has evolved, you've changed your mind. It was put to him that he had said to Andy that he had killed somebody. He said he did not "actually" murder Rob. He did not know what had happened to him. He did not tell Andy he had killed someone called Collard. He was asked what "Andy had to gain". The applicant said he was not lying. He was then cross‑examined. He said to the officer questioning him "You've been screwing me. The officer said that they wanted the truth. He said he was telling them the truth. He did not do it. The officer said: "No you're not."
The applicant said that he did not get into the flat. He did not "find him dead and move the body". He was further cross‑examined. It was then put to him that he had gone there and had an argument with the deceased and "he's died". The applicant denied that. He was then cross‑examined about the fingerprint. He was told that he had not satisfied the officer with the truth "and that's why I have got to keep asking you the question about it".
The applicant was then told that the extinguisher was found inside the flat. He was further cross‑examined and was told he was "falling down in his explanation". He was told he was trying to shift the blame. He was further cross‑examined and asked why did he "say to Andy that you killed the bloke". He was asked about hitting Andy at Mandurah and then after he had explained that, he was asked: "When you spoke to Andy about the bloke dying, what did you exactly say to him?" The applicant said: "I says basically, you know, I just said 'I got him'. Let's just say I put myself up there. That was all I said". He was asked how he knew that Rob was dead and he said "It was already out". He was further questioned about what he had said to Andy. Some of the contents of Andy's statement were again put to him. He said "I just said basically I got Collard and killed him". He said that he had big‑noted himself. But he said he had not killed the deceased. He was further questioned and asked where he had heard that Mr Collard was dead. He said "Fremantle Pubs".
A little further on in the interview it was put to the applicant that the only person who would say that Mr Collard was dead was "somebody who had seen him dead". He was then further questioned and told that whereas he had told someone on Saturday that he had killed Mr Collard, that information about Mr Collard being dead had not been released until Sunday morning. The applicant then said that Andy had told him about it. He was further questioned.
The applicant was cross‑examined. He was told not to use "that as an excuse". He then said he had not killed the deceased. He asked to see a lawyer. He was told that that was something "we can certainly discuss but there's something that I've got …." The applicant said: "I want it discussed".
The applicant again asked to see a lawyer. He was again asked if he had killed Mr Collard. He denied it. He was further cross‑examined. It was put to him that he had had some involvement with the death. He denied that.
The applicant asked for a lawyer for a third time. He was ignored. He was further questioned. He again denied killing the deceased. He was further questioned and cross‑examined.
The applicant asked for a lawyer for the fourth time. He was again ignored. He asked for a lawyer for the fifth time and was told to sit down. He asked a sixth, seventh and eighth time for a lawyer and was then told "I'm going to go and get you one".
The applicant was asked which lawyer he would like to contact. He mentioned a firm of solicitors and asked "Are they still there?" He was told they were. When he asked were they the best, he was told that the officers could not tell him that. He then asked "Yes, but you guys must be able to recommend a good one for me". He was told they would not recommend anyone. He then said "Right. I think - well because I haven't got no financial backing, D'Allessandro go on. If they win the case they collect." He said he would "go for them". The police said "We'll try and organise it for you".
At that time it was 2.40 pm, approximately four hours after the interview had commenced. He was told "We'll certainly organise a lawyer and he can come and talk to you." The recording ended there.
After about one hour, at 3.35 pm, the questioning commenced again.
On the voir dire at the trial a different Detective Sergeant was asked how the resumption of the interview had come about. He said that he had been one of the supervising officers. It had been his role to generally oversee and supervise the inquiry. He said he had been monitoring the video interview and at a certain point [this was after the applicant's eighth request for a lawyer] he had knocked on the door. [My words in brackets]. He said that after the video interview had ceased at 2.40 pm he had made some inquiries and had ascertained that D'Allessandro had changed their name. They were then called D'Angelo & Associates. He had telephoned that firm. When he had spoken to that firm, they had informed him that they no longer acted on criminal matters. They had suggested that he contact a criminal lawyer who had taken that side of their work. He had done that. That lawyer had advised the Detective Sergeant that he was with a client at the time and to call back. He had subsequently telephoned back. The officer said that he had then been advised that the lawyer was unable to attend. He had then advised the applicant of that.
When the Detective Sergeant was asked "what was the response to you advising him?" he said: "He accepted that. He understood it. He made no further requests for a lawyer and agreed to continue the interview."
The Detective Sergeant who had conducted the interview until that time, told the Judge on the voir dire that the efforts to find a lawyer as requested by the applicant had been left to other police officers, one of whom is the one I have just referred to. The officer who had conducted the inquiry was asked:
"During the course of the break though, was there some interchange or talk between the accused and yourself?"
He said:
"Between both Detective Marrapodi and myself at various stages during the break".
He said it had been a general conversation for a period of time whilst efforts were being made to find a lawyer.
At some time during that period, apparently the applicant was putting scenarios to Detective Marrapodi about what would happen if a person had done something like killing Mr Collard and what would happen to him. Detective Marrapodi had told the applicant that he would not comment on hypothetical situations and that if they were going to discuss the matter further it would have to be on video.
The Detective Sergeant said that when they told the applicant that the lawyer was not available: "By that point of time Mr Errey had reached a point of time where he obviously had something he wanted to tell us."
The interview had then recommenced. That interview ended at 4.48 pm, approximately six hours after the commencement of the first video interview.
It is apparent from the transcript of the interviews that during the time the police were making efforts to contact a lawyer for the applicant, the applicant was kept in the interview room, except when he went to the toilet (ts 96).
In R v Evans (1962) SASR 303, Napier CJ, Mayo and Chamberlain JJ at 306 said:
"In view of what has happened in the present case, it is apparent that there are police officers who are under some misapprehension as to their duty, and we think that the time has come for this Court to say, quite bluntly, that it is not permissible for a police officer to persist in interrogating a person in custody beyond the point at which they intimate the desire to say nothing or no more. It is, we think, a fortiori, that the questioning ought to stop when the suspect declines to speak save in the presence of his solicitor."
In this case the police officers kept the applicant in the interview room while they made, what in my opinion, were insufficient attempts to obtain a lawyer for him. They had discussed matters with him during that time. He had agreed to continue the interrogation after they had failed to obtain a lawyer for him. It is relevant that the applicant was not a person in good mental health.
In my view, from the contents of the video interview, it is fair to say that the police officers had found the applicant's fingerprints inside the flat. They knew he had told someone down in Mandurah that he had killed a Mr Collard. They had continued to question and importantly to cross‑examine him after he had told them that he had not killed Mr Collard. After he had first asked for a lawyer he could have been arrested or a lawyer should have been obtained for him through the Legal Aid authorities.
At the trial at the conclusion of the voir dire the learned trial Judge said:
"Towards the end of the first interview, during the second videotape, however, when the accused was temporarily experiencing some difficulty with the line of questioning he said words to the effect 'I'd rather see a lawyer and it is getting to that stage when I've got to see a lawyer'. The transcript of the videotape is at pages 43 and 44 and the accused added 'I'm a little bit scared. I'd like a lawyer'. There were other such references at this point."
The learned trial Judge continued:
"The interviewers did not stop at this stage but after some general discussion continued with their questioning without making any effort to contact a lawyer. There are two critical issues drawn up by the particular circumstances in which this occurred. Whether the accused was genuine in his request and whether despite it, he decided of his own free will to proceed with the interview despite his repeated initial request. Having considered closely his evidence and that of the investigators and their demeanour in this request and having studied closely the video at around this time, in the end I am satisfied that the accused mentioned the lawyer at this point to deflect or delay the questioning while he gave his explanations more thought, and that initially he was able to do so and did not persist in his request for a lawyer and freely and voluntarily continued with the interview even though he well knew he was able to stop at any time and to refuse to answer any questions and that he need not proceed until he could consult a lawyer."
The learned Judge continued:
"In making this finding I am well conscious of the accused's evidence about his mental state at the time and also the inconsistency of some of his evidence on these issues. Having continued on, however, the police questioning came to a direction with which the accused was not at ease and once again he requested a lawyer - transcript page 47. Despite this the question continued. I am not persuaded from this stage that he continued with the video entirely of his free will and voluntary choice. I am concerned that his wishes may have been to a degree at least overborne. I would not admit therefore into evidence what then transpired at the point where he requested again to see a lawyer at page 47 of the transcript to the second question at the top of page 55.
What then follows where he identifies the lawyer he wishes to consult should in my view be admitted and there is nothing further of any materiality to the end of that interview which followed almost immediately after. A break followed of almost an hour. In this I am satisfied on the balance of probabilities on the evidence that the police made genuine and reasonable efforts to obtain a lawyer from the firm identified by the accused and that they kept the accused informed of what they were doing. I am also satisfied that no request to use the phone or check the telephone directory was made. In this time I am satisfied that the accused raised in a hypothetical way the question of the consequences of death caused by way of self‑defence in the presence initially of one of the interviewing detectives and as he progressed, two of them."
His Honour was satisfied that thereafter the applicant had reached a decision, unprompted by the investigators, that it was in his interests to give the police an explanation which admitted his involvement in the death and provided a foundation for the defence of self‑defence.
The reference by his Honour to the applicant attempting "to deflect or delay the questioning while he gave his explanations more thought" probably arose from the evidence of the Detective Sergeant who was monitoring the interview from another room. On the voir dire when asked about the time the applicant had first indicated that he wanted to see a lawyer, the Detective Sergeant said:
""He made a couple of requests from memory for a lawyer. I took them as merely attempts to deflect the questioning at the time. When I was satisfied that indeed he was seriously requesting a lawyer, that's when I moved immediately to knock on the door to interrupt the interview which actually coincided with Detective Sergeant … breaking the interview at the same time."
When the Detective Sergeant was further pressed on this matter and it was pointed out that the interview had continued for some time after the applicant had requested a lawyer, he answered:
"If you take that in its context and as I was monitoring the interview, I took those earlier requests for what I believed to be merely trying to deflect the interviewers. I didn't take them as sincere requests. Later on he actually stood up and made it quite clear that indeed he did want a lawyer and that's when I made the decision to interrupt the interview and I am happy with that decision."
I comment here that the applicant had been told to "sit down" after he had asked for a lawyer for the fifth time. He then asked three more times for a lawyer.
The notion that the applicant was merely be trying to deflect the questioning of police interviewers by asking for a lawyer, is not a judgment which should be left in the hands of interviewing police officers. Once a suspect in an interview like the one in question requests to see a lawyer, that interview, in accord with the law, should stop. He should not be questioned and most importantly, not be cross‑examined after that time.
In my view, in this case, after the applicant had requested to see a lawyer on the first occasion, the voluntary part of the interview was over. In any event, the almost continual cross‑examination of the applicant during the video interviews prior to when the applicant first requested a lawyer, should have resulted in them being excluded on the ground of the unfairness of the process.
The question of unfairness was discussed by Brennan CJ in Swaffield (supra). At 174, Brennan CJ quoted Mason CJ in Van der Meer (1988) 62 ALJR 656 at 662 where his Honour said:
"The police conduct of the interrogation was such as to make it unfair to use the latest statements made by Ayloffe and that made by Storhannus against them. Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made."
Brennan CJ went on to say:
"Later in Duke v The Queen (1989) 180 CLR 508 at 513 I expressed the view that the fairness discretion should not be confined to the exclusion of confessions where reliability is doubtful: 'R v Lee attributes a broader scope to that discretion. 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 … trickery, misrepresentation, omission to inquire into material facts less 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 free choice to speak or be silent … The effect of the impropriety and procuring the confession must be evaluated in all the circumstances of the case'." (My underlining)
His Honour then quoted Barwick CJ in R v Ireland (1970) 126 CLR 321 in connection with the nature of the unfairness which justifies the exclusion of a confession which is voluntary and apparently reliable. Barwick CJ said amongst other things:
"Whenever such unlawfulness or unfairness appears, the Judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."
When discussing the question of unfairness, Brennan CJ said at 178:
"To characterise that disadvantage as 'unfair', the conduct which produced the confession must be of such a nature and degree that no suspect in the confessionalist's place ought to be subjected to it. That judgment must be made by reference to either a controlling statute or public policy."
His Honour continued at 181:
"If the focus is on the conduct of the law enforcement officers, the issue can be sharply delineated: is the confession, albeit voluntarily and apparently reliable, to be admitted in the public interest or is to be excluded in the public interest because of the conduct by which it was obtained? In answering this question the weight to be given to the competing factors would depend on the nature of the charge and the circumstances of the case."
His Honour continued at 182:
"If the confession is voluntary and apparently reliable, the only unfairness to an accused in admitting his confession against is that he was induced to make the confession by conduct which is contrary to statute or to public policy. For example, if a confession is obtained in breach of an important statutory directed to law enforcement officers or by their deliberate or reckless disregard for the law or for proper standards of conduct, the public interest may require the rejection of a voluntary and apparently reliable confession."
Toohey J said in Duke v The Queen (1989) 180 CLR 508 at 526-527:
"In the present case a relevant factor to consider in the exercise of the discretion is whether the confession was obtained while the applicant was held in unlawful custody and whether it would thereby be unfair to him to admit the confessional evidence."
I am aware that after the lawyer did not attend on the applicant, the applicant was further interviewed by the Detectives and made the most damaging admissions in which he admitted killing the deceased, allegedly in self‑defence. In my view, in all the circumstances, those admissions were not made voluntarily.
I would allow the appeal and order a new trial on the grounds that damaging admissions made by the applicant were allowed into evidence contrary to law.
The second ground of appeal can be dealt with briefly. It is based on the proposition that the cause of Mr Collard's death was allegedly not established.
The cause of death could not be medically established due to the decomposition of the deceased's body. However asphyxia was not excluded as a possible cause of death. There was no evidence of disease in the deceased's lungs or trauma to the skull or heart attack. The deceased's brother had given evidence that he had seen the deceased on 6 December approximately two months before his death and that the deceased was healthy and cheerful.
It is not necessary that a medically qualified person certify the cause of death for a charge of unlawful killing to be proved. For example, evidence could be given which conclusively established that A killed B without a doctor being called to give evidence. It is not advisable in this case to comment further on this ground due to the uncertainty at this stage as to what the evidence could be at a new trial.
The third ground of appeal has to do with the evidence of Mr Howe. It was argued that Mr Howe's evidence was tainted in that he had admitted that he had consumed mind‑altering substances prior to his conversation with the applicant in which the applicant allegedly told him that he had strangled the deceased. Mr Howe was cross‑examined about having smoked cannabis before the alleged conversation and admitted that it may have affected his recollection of what was said. It is said in the ground of appeal that Mr Howe's evidence was unreliable. That was a jury question. In my view this ground of appeal should not be sustained.
The next ground of appeal is that the Crown witness Mrs Zowada gave evidence of having been awakened by voices of the men. She had said that they were not arguing.
The significance of the evidence of Mrs Zowada for the Crown was that it had indicated that the deceased man was alive when he had been spoken to by the applicant. The Crown's submission was that its significance was for the jury to assess. That submission should be accepted and the ground is not sustained.
Grounds 5, 6 and 7 are not really grounds of appeal and are comments on the evidence and should not be sustained.
It is not necessary in the circumstances to deal with the notice of application for leave to appeal against the sentence which was imposed
upon the applicant in view of the opinion which I have expressed that there should be a new trial.
WHEELER J: I am generally in agreement with the reasons of Pidgeon J, which I have had the advantage of reading in draft. I wish to add some brief comments of my own in relation to the question of cross-examination of the accused, and in relation to the question of whether his initial requests for a lawyer were "genuine".
The asking of questions which would be asked during the course of cross-examination, such as the putting to the person being interviewed of facts which appeared to be inconsistent with the account he gave, does not necessarily have the result that an interview is unfair so as to require its exclusion. The prohibition on "cross-examination" at the interview stage is properly understood as a prohibition on questioning which involves undue pressure or persistence, or which is designed to break down the answers of the accused to questions put by the police to which they had received unfavourable replies, or which convey disbelief in, or ridicule of, the answers already given by the interviewee: see B (A Child) v Potts (1992) 59 A Crim R 136 at 139-41 per Ipp J, McDermott v The King (1948) 76 CLR 501. It will often be appropriate for an interviewing officer to put to the interviewee information which contradicts parts of the account given by the interviewee: R v O'Neill [1988] 48 SASR 51. Indeed, a failure to put to an interviewee information inconsistent with the account which he gives, may in itself be unfair as tending to deceive or entrap.
The learned trial Judge in this case formed the view that there was in the course of this questioning no intimidation or undue pressure applied to the appellant. In my view, the mere fact that the police in this case put to the appellant matters inconsistent with portions of the account which he gave, and returned on occasion to those aspects of his initial account which appeared to them to be unsatisfactory, is not sufficient to render the questioning oppressive or unfair, so as to attract the exercise of the discretion to exclude it. Nor, in my view, can it be suggested that the manner of questioning was such as to render the admissions made during the course of the interview, involuntary.
The matter of the applicant's request to see a lawyer has occasioned me more difficulty. On one reading, the reasons of the trial Judge (which were necessarily brief, being delivered immediately following the voir dire, and at a time when there was concern whether the trial could be completed within time) might be read as suggesting that the question which concerned his Honour was whether the request made by the
appellant to see a lawyer was "genuine" in the sense that it was made out of a desire to obtain legal representation rather than a desire to terminate or deflect questioning. If that were so, it would, in my view, be the wrong question to ask. The motive of a person being interviewed for declining to answer questions is plainly irrelevant, in the sense that the right must be respected whatever the source of the desire to exercise it. Similarly, if a person being interviewed indicates that they do not wish to answer questions without consulting a lawyer, it matters not whether the request is a genuine one in the sense that there is some issue in relation to which they desire legal assistance, or whether it is prompted by a desire to obtain relief from questioning which the person is having difficulty in answering. In either case, the exercise of the right must be respected.
In the present case, however, the applicant's initial indication that he wished to see a lawyer was somewhat ambiguous. The remark that it was "getting to that stage" when he had to see a lawyer could be understood as indicating either a desire not to speak further until a lawyer had been consulted, or merely a "thinking aloud" which reflected the applicant's increasing doubts about whether it was desirable to continue participation in the record of interview and his first tentative thoughts that he might terminate it.
It appears that the applicant and the police were then somewhat distracted by the concern which the appellant said had caused him to seek a lawyer, which was that they would otherwise "end up bashing" him. There was some discussion of that issue. It was in that context that he said that he was "a little bit scared" and would like a lawyer. It would have been open to his Honour in my view to reach the conclusion that the conversation at that stage was directed not to the question of whether the applicant wished to answer further questions without consulting a lawyer, but was directed to the question of whether the applicant was likely to be ill-treated by the police. Understood in that way, it may well have been seen as no more than a different way of expressing the concerns about previous ill-treatment at the hands of the police, which the applicant had used at other points during the course of the interview in order to deflect the conversation away from discussion of the death of the deceased.
It seems to me more likely, having regard to the entirety of the record of interview, and to the way in which his Honour approached it, that his Honour's finding that the applicant mentioned the lawyer to "deflect or delay the questioning" was intended to express a conclusion that the request for the lawyer was, properly understood, and in the context of what had preceded, understood by all those present not as a request that questioning cease and that a lawyer be obtained, but as another way of raising the issue of possible ill-treatment which had been raised by the applicant on other occasions in order to deflect the course of questioning.
The question whether the applicant was "genuine" in his request for a lawyer was, then, not the appropriate question to ask but nor, it seems to me, was it the question which his Honour eventually answered. In any event, as Pidgeon J has pointed out, nothing said by the applicant after the initial requests for a lawyer and before the portion of the interview which Parker J ruled inadmissible, appears to have been of significance, having regard to the earlier account given by the applicant, and having regard to the account finally given by him.
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