EYO v The State of Western Australia
[2019] WASCA 129
•28 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EYO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 129
CORAM: BUSS P
MAZZA JA
PRITCHARD JA
HEARD: 22 FEBRUARY 2019
DELIVERED : 22 MARCH 2019
PUBLISHED : 28 AUGUST 2019
FILE NO/S: CACR 216 of 2018
BETWEEN: EYO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STONE DCJ
File Number : IND [X] 27 OF 2017
Catchwords:
Criminal law - Appeal against conviction - Conviction after trial - Indecent dealing with a child under the age of 13 years - Inciting a child under the age of 13 years to engage in sexual behaviour - Admissibility of video record of interview - Whether interview voluntary - Whether caution understood - Whether interview should have been excluded in exercise of the unfairness discretion - Anunga guidelines - Judgment of acquittal or retrial
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(b), s 30(3)(c), s 30(5)
Criminal Code (WA), s 320(3), s 320(4)
Criminal Investigation Act 2006 (WA), s 138(2)
Result:
Leave refused on grounds 1 and 3
Leave granted on ground 2
Appeal allowed
Convictions set aside
Judgments of acquittal entered
Category: B
Representation:
Counsel:
| Appellant | : | J Gullaci & K Heath |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Aboriginal Legal Service |
| Respondent | : | The Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
EM v The Queen [2006] NSWCCA 336
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Gudabi v The Queen (1984) 1 FCR 187
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kelly v The State of Western Australia [2017] WASCA 221
MIH v The Queen [2007] NSWCCA 199
Pearce v The State of Western Australia [2014] WASCA 156
R v Anunga (1976) 11 ALR 412
R v Edelsten (1990) 21 NSWLR 542
R v Kyriakou (1987) 29 A Crim R 50
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
Simon v The Queen [2002] WASCA 329; (2002) 134 A Crim R 414
The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68
Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10
Webb v The Queen (1994) 13 WAR 257
REASONS OF THE COURT:
On 22 March 2019, this court made the following orders:
1.Leave to appeal is granted on ground 2.
2.Leave to appeal is refused on grounds 1 and 3.
3.The appeal is allowed.
4.The convictions are set aside.
5.Judgments of acquittal are entered.
The court said that it would deliver its reasons for these orders at a later time. These are our reasons.
The appellant was charged in the District Court on indictment with two offences. Count 1 alleged that on 26 April 2017, at a specified country town (the Town), the appellant indecently dealt with J, a child under the age of 13 years, by touching his groin, contrary to s 320(4) of the Criminal Code (WA) (Code). Count 2 alleged that on the same date and at the same place as count 1, the appellant incited J, a child under the age of 13 years, to engage in sexual behaviour, contrary to s 320(3) of the Code.
On 21 June 2018, the appellant was found guilty of both offences by a jury and was duly convicted of them.[1] On 29 August 2018, the appellant was sentenced to 2 years' immediate imprisonment on each offence, to be served concurrently. Thus, the total effective sentence was 2 years' immediate imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 11 January 2018.[2] This appeal was commenced approximately 2 months out of time thus an extension of time was required. On 7 December 2018, an urgent appeal order was made.[3] On 21 January 2019, the application for an extension of time within which to appeal was granted.[4]
[1] ts 299.
[2] ts 323.
[3] WAB 6.
[4] WAB 5.
The appeal was heard on 22 February 2019. By the time the appeal was heard, the appellant had served the entire non‑parole portion of his sentence.
The appellant relied upon three grounds of appeal as follows:
Ground 1.
The appellant was denied procedural fairness when the trial judge refused the application for an adjournment [of the trial], preventing the appellant from obtaining, prior to trial, verification by another expert interpreter/translator as to the accuracy of Mr Nanala's interpretation/translation of the [D]jaru portion of the police interview from [D]jaru to English.[5]
Ground 2.
The trial judge erred in admitting the appellant's record of interview into evidence.
Ground 3.
The verdicts of guilty were unreasonable or could not be supported, having regards to the evidence led at trial, as the jury must have entertained a reasonable doubt as to the veracity and reliability of the complainant's evidence.
Particulars:
(a)the complainant's evidence was internally inconsistent, relevantly contradicted and inherently improbable in multiple material respects;
(b)it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty given the evidence.
[5] This ground was amended at the hearing of the appeal on 22 February 2019; appeal ts 36 - 37.
The focus in the hearing of the appeal was upon ground 2.[6] As this ground has been upheld, the convictions set aside and judgments of acquittal have been entered, it is unnecessary to address grounds 1 and 3.
[6] Appeal ts 37 - 43; 51 - 58.
Background
The State's case at trial, as expressed by the prosecutor in her opening address to the jury, may be summarised in this way.
The complainant, J, was 12 years of age at the time of the offences. He lived in a house in the Town, along with his two younger brothers, his mother, S, and her then partner, M.
On the night in question, S had gone out to visit her mother. On the way home, S ran into M. M told S that one of his relatives was at S's house, looking after J and his brothers. The appellant is M's uncle.[7]
[7] ts 48.
While S and M were away from the house, J watched cartoons in his mother's bedroom. The appellant stumbled into the bedroom and laid down next to J on his mother's bed. The appellant then touched J's groin area and, specifically, his penis, on the outside of his clothing (count 1). The appellant then allegedly told J to 'suck him off'. J refused this demand. The appellant then got up from the bed and left the room (count 2).[8]
[8] ts 48.
S made her way back to the house. There she saw the appellant, whom she knew, leaving the bedroom with a beer in his hand. When she walked into her bedroom, J immediately told his mother what 'the man' had done to him. S then remonstrated with the appellant, after which she told M what J had said to her. The police were called, but, by the time they arrived at the property, the appellant had gone.[9]
[9] ts 48.
The following day, 27 April 2017, J participated in a child witness interview (the CWI).[10] In the CWI, J described what happened and gave a description of the offender, but did not name the appellant as that offender.
[10] ts 48 - 49.
At trial, the State sought to prove the element of identity by a combination of the evidence of J, S and M, and by statements made by the appellant in a video record of interview (VROI) with police.
The defence case
The appellant elected not to give evidence or to adduce any evidence at the trial.[11] Based on the way in which the trial was conducted, the defence case was that J was an unreliable historian and that the jury could not be satisfied beyond reasonable doubt, based on his evidence, that he had been indecently dealt with or that someone had incited him to engage in sexual conduct as alleged. However, even if the jury accepted J's evidence on these matters, the State could not prove beyond reasonable doubt that the appellant was the offender.
[11] ts 241.
The VROI
On 23 May 2017, the appellant was arrested by Detective Senior Constable Timothy Oldfield. Detective Oldfield advised the appellant of his right to consult with a lawyer and seek legal representation. He was also told that he had the right for a friend or relative to be advised of his whereabouts.[12]
[12] ts 235.
At some point prior to the VROI, arrangements were made for the appellant to speak by telephone to a lawyer from the Aboriginal Legal Service of Western Australia (ALS). The appellant's first language is Djaru, although it is clear he has some basic competency in English. The appellant specifically requested that a Djaru interpreter, Robert Nanala, assist with the VROI as his interpreter. As it turned out, Mr Nanala was in the Town at the time and he attended the Town police station to assist in the interview.[13] Prior to the commencement of the VROI, Marcus Dyason, a lawyer employed by the ALS, sent a letter by facsimile to Detective Oldfield, dated 23 May 2017. Omitting the formal parts, the letter is as follows:
We understand that you are part of a police investigation into an offence(s) of alleged indecent dealings with a child committed at [the Town]. We note that you have sought that our client participate in an interview and answer questions regarding his knowledge, if any, of the circumstances surrounding the commission of the offence(s).
We have supplied [the appellant] with legal advice. On the basis of that advice, [the appellant] has provided clear and unequivocal instructions that he wishes to exercise his right to silence. He does not wish to participate in a police interview. He declines to provide a written statement to the police. He will not answer questions about the matter. In short, he does not wish to enter into any discussion with the police, at all.
[The appellant] has provided instructions that he has limited comprehension of English. Jarru [sic] is his preferred language and the only language [the appellant] is truly comfortable conversing in. If an interview is to proceed [the appellant] will need the aid of a Jarru interpreter.
Our client has also instructed us that he wishes to exercise his right to legal representation. In particular, he asks that from this point on all police communications be directed to us at first instance and that he be accompanied by a lawyer from the ALSWA in any and all future dealings with the police.
We trust you will abide by our client's decision to remain silent. And we reserve the right to tender this correspondence to the court in any proceedings concerning the admissibility of any confessional evidence obtained from our client in the face of his position as explicitly set out above.
[13] ts 236.
The facsimile header to the document indicates that the letter was sent to Detective Oldfield at 2.29 pm on 23 May 2017. In his evidence on a voir dire, which was held to determine the admissibility of the VROI (and which we will discuss later in these reasons), Detective Oldfield acknowledged receiving the letter, but said he could not recall if he received it before or after he interviewed the appellant.[14]
[14] ts 70.
The VROI commenced at 3.29 pm on 23 May 2017. The interview took place at the Town police station. Present at the interview were Detective Oldfield, another detective who is only referred to by his first given name John, the interpreter Robert Nanala, and the appellant.[15]
[15] WAB 42 - 43.
After introductions, the appellant was asked by Detective Oldfield about his background and his ability to speak in English. Over the course of the interview, some of Detective Oldfield's questions were not interpreted into English by Mr Nanala and were answered in English by the appellant. However, some of the questions were interpreted by Mr Nanala into Djaru. Some of what Mr Nanala said to the appellant in Djaru was not interpreted back into English. Where that occurs the bracketed words (not in English) appear:[16]
[16] VROI ts 2 - 4; blue green AB 43 - 45.
DET TIM: Alright. [Appellant's name], I'll just advise you that this interview is now being recorded.
THE APPELLANT: Yeah.
DET TIM: So there's microphones on the table and, ah, a camera up there behind that bit of glass.
INTERPRETER ROBERT: There is microphone there in the middle of the table, and a TV up there.
INTERPRETER ROBERT: Yeah. Yeah, brother, no problems.
THE APPELLANT: Yeah, good, aye, yeah.
DET TIM: Okay. This is John, I'm Tim. We're detectives from [name of a town].
THE APPELLANT: Yeah, yeah.
DET TIM: Okay. And we've come up here to investigate an offence.
INTERPRETER ROBERT: These are two detectives from [name of a town].
INTERPRETER ROBERT: They just want to talk, detective, they from [name of a town].
THE APPELLANT: Yeah.
INTERPRETER ROBERT: Yeah.
DET TIM: Alright. The time on my watch now is 3:29 PM?
THE APPELLANT: Yeah.
DET TIM: And today is the 23rd of May 2017 and we're at [the Town] Police Station. Just for the tape, [appellant's name], can I get your full name?
THE APPELLANT: [Appellant's name].
DET TIM: And what's your date of birth, [appellant's name]?
THE APPELLANT: Oh, twenty‑second of the second, '73.
DET TIM: Okay. And your current address?
THE APPELLANT: Oh, [indistinct]
DET TIM: Okay. But you're staying [in the Town] right now? In the backstreets is it?
THE APPELLANT: Yeah. For a, yeah, for a while. And I'm probably going home tomorrow.
DET TIM: Okay. Um, what level of education have you reached or what year at school did you finish?
THE APPELLANT: Oh, ten.
DET TIM: Can you read and write English?
THE APPELLANT: Ah, not much.
DET TIM: Not much. Okay. Because you've indicated to us you speak another language, okay, and you've told us it was Djaru.
THE APPELLANT: Yeah.
DET TIM: Um, you've requested Robert by name?
THE APPELLANT: Yeah.
DET TIM: Um, who's also an interpreter for the Kimberley Interpreting Service is that right?
THE APPELLANT: Yes.
DET TIM: Okay. Robert, do you normally have a spiel that you say to explain what you do? Or - - -
INTERPRETER ROBERT: Yes. So, alright, my name's Robert Yanalla [sic]. I work for KIS. Before KIS I used to work on my own, freelance. Then I, then I got employed by KIS 2008. Then they've given me a job and I've done some more further training which I've done. And I'm a qualified, um, interpreter.
DET TIM: Okay.
INTERPRETER ROBERT: Originally from Balgo, I live in Halls Creek 'cause I've got a partner in Halls Creek.
DET TIM: Okay. Ah, so I explained to you before the interview as well, that [appellant's name] obviously got a good level of English.
INTERPRETER ROBERT: Yeah.
DET TIM: He is happy to speak to us sometimes in English. Um, but other things he probably will want to, to go through with you. So it's up to you guys how you want to work that. But I think, um, it's, yeah, more about making sure that [appellant's name] understands everything than - - -
INTERPRETER ROBERT: Yeah. Alright.
DET TIM: Okay.
INTERPRETER ROBERT: We are going to talk Djaru and if detectives use high and big English that is when I will break it down into Djaru and detectives are going to take it slowly.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English) You tell me, you tell me slowly.
THE APPELLANT: Yeah.
INTERPRETER ROBERT: Yeah. Alright.
DET TIM: So, [appellant's name], and Robert as well, if at any time during this interview, I say something that you don't understand, okay.
THE APPELLANT: Yeah.
DET TIM: Or, Robert, if you don't understand what I've said, just stop me and let me know and we'll try and explain it better, okay.
INTERPRETER ROBERT: You have to understand what the detectives are saying, if they are going too fast then you need to tell them to pull up and say it slowly.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: (Indistinct)
DET TIM: Have you understood everything we've asked you so far?
THE APPELLANT: Yeah.
DET TIM: Or have you understood everything that Robert's explained so far?
THE APPELLANT: Yeah. I [indistinct] but I understand.
DET TIM: Yeah?
THE APPELLANT: Yeah.
DET TIM: Okay. So you understand everything that's happening right now?
THE APPELLANT: Yeah, yeah.
DET TIM: Okay. So, have you had any alcohol today?
THE APPELLANT: No.
DET TIM: Okay. Have you had any drugs or medication today?
THE APPELLANT: No.
DET TIM: Do you have any injuries or illnesses?
THE APPELLANT: No.
As required by s 138(2) of the Criminal Investigation Act 2006 (WA), Detective Oldfield then sought to administer to the appellant the caution to the effect that the appellant had the right not to answer any of the questions put to him by the detectives, but, if he chose to answer any questions, those answers would be recorded and may be used in evidence. This part of the interview is in these terms:[17]
[17] VROI ts 5 - 8; blue green AB 46 - 49.
DET TIM: And I have advised you that you are under arrest on suspicion of indecently dealing with a child under thirteen.
THE APPELLANT: Yeah.
DET TIM: Okay. Do you understand that?
THE APPELLANT: Yeah.
DET TIM: Alright. Indecent dealing means touching a child in a like, a sexually inappropriate way.
THE APPELLANT: Oh - - -
INTERPRETER ROBERT: (Not in English)
INTERPRETER ROBERT: That is like touching a child between the legs.
THE APPELLANT: No, um, I went to the house and - - -
DET TIM: Oh, no, I'll explain some more rights to you first, okay, [appellant's name]?
INTERPRETER ROBERT: Hang on [appellant's name], detectives are going to say more.
INTERPRETER ROBERT: (Not in English)
DET TIM: Okay. So, I also, you also have the right to speak to a lawyer.
THE APPELLANT: Yeah.
DET TIM: Okay. Have you spoken to a lawyer?
THE APPELLANT: Yeah.
DET TIM: Yeah. So we phone Aboriginal Legal Services?
THE APPELLANT: Yeah.
DET TIM: And they've given you some advice?
THE APPELLANT: Yeah. They told me to say that every word you say, say no, the other word that they told me was say no.
DET TIM: Okay. I don't need to know the advice that they gave you, that's alright, [appellant's name]. That's your advice that they gave you.
THE APPELLANT: Yeah.
DET TIM: Okay. You don't have to answer any questions, though, okay?
THE APPELLANT: Yeah.
DET TIM: Alright. So that's prob - , I imagine that's along the lines of what they've told you, that you don't have to speak to us at all.
THE APPELLANT: Yeah.
DET TIM: Alright. And that's, that's exactly right. You don't have to talk to me.
THE APPELLANT: Yeah, yeah.
DET TIM: You don't have to answer any questions.
THE APPELLANT: Yeah.
DET TIM: Okay. Um, but if you do chose [sic] to answer any questions, okay, understand that we're recording you.
THE APPELLANT: Yeah.
DET TIM: Okay. So anything you say will be recorded and can be used in evidence in court.
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
INTERPRETER ROBERT: Your lawyer talked to you and said to you if are willing to talk to these two policemen it's up to you. And also if you don't want to talk to these two policemen it's up to you. Also we are live on TV.
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: Alright.
DET TIM: Okay. So you understand you don't have to speak to me today?
THE APPELLANT: Nah.
DET TIM: Okay. Whose choice is it if you speak to me?
THE APPELLANT: Ah - - -
DET TIM: Sorry?
THE APPELLANT: My choice is I don't want to talk.
DET TIM: Yeah.
THE APPELLANT: Yeah.
INTERPRETER ROBERT: Your right.
THE APPELLANT: Yeah.
DET TIM: Yeah.
DET JOHN: I'd just do the full caution process through the interpreter, I reckon. Like, he can repeat the whole thing. Yeah, I reckon his understanding back through him.
DET TIM: Alright. Do you want to repeat it and I'll read it through?
THE APPELLANT: Yep, yeah.
DET TIM: So I advise you you're not obliged to say anything unless you wish to do so.
INTERPRETER ROBERT: (Not in English)
INTERPRETER ROBERT: Do you want to talk and give evidence to these two police.
THE APPELLANT: Yeah.
INTERPRETER ROBERT: (Not in English)
INTERPRETER ROBERT: Do you want to give any words to the police. Yes or no.
THE APPELLANT: (Not in English)
THE APPELLANT: No.
DET TIM: And anything you do say or do will be recorded and may be given in evidence.
INTERPRETER ROBERT: (Not in English)
INTERPRETER ROBERT: Do you want to talk to the two policemen? (there is no Djaru equivalent word for evidence).
THE APPELLANT: (Not in English)
THE APPELLANT: No I don't.
DET TIM: Okay. You can answer some questions and not others, do you understand?
INTERPRETER ROBERT: (Not in English)
INTERPRETER ROBERT: If you are willing to talk to these two policemen it is up to you.
THE APPELLANT: (Not in English)
THE APPELLANT: I'm saying nothing.
INTERPRETER ROBERT: (Not in English)
THE APPELLANT: (Not in English)
DET TIM: Okay. So do you have to talk to me today, [appellant's name]?
THE APPELLANT: Nah.
DET TIM: No. And if you don't want to talk to me, do you know what you'll say.
THE APPELLANT: Yeah. I don't want to speak.
DET TIM: Yeah.
THE APPELLANT: Yeah.
DET TIM: That's fine. Do you have any? Nup, so, yeah.
INTERPRETER ROBERT: That's what I just said to [appellant's name] in, in Djaru.
DET TIM: Yeah. Language.
INTERPRETER ROBERT: Yeah.
DET TIM: Yep. That's okay, yep. Alright. Are you happy with that there? [Appellant's name] understands his languages.
DET JOHN: You understand that if you don't want to say anything ‑ ‑ ‑
THE APPELLANT: Yeah.
DET JOHN: You just tell us you don't want to say anything.
THE APPELLANT: Yeah. I don't want to say anything.
DET JOHN: Oh, okay. (emphasis added)
Shortly after Detective Oldfield began asking the appellant about the events of 26 April 2017, the following exchange took place in English:[18]
[18] VROI ts 11; blue green AB 52.
DET TIM: On 26 of April, so just about a month ago now.
THE APPELLANT: Yeah.
DET TIM: Okay. What do you know about that?
THE APPELLANT: Well I, I went in there and I was, I was drunk and I went in and, um, told [M] to come out and [indistinct] and I went out and went to the, um, [indistinct]
DET TIM: Yeah. So you remember being there?
THE APPELLANT: Yeah. I remember being there.
DET TIM: Yeah.
THE APPELLANT: On them other thing, like, this lawyer told me to, you know. The lawyer tell me to say no - - -
DET TIM: Oh - - -
THE APPELLANT: Those words, yeah.
DET TIM: Okay. Um, so you remembered what happened inside the house?
THE APPELLANT: Oh, I was drunk and - - - (emphasis added)
The appellant proceeded to inform the detectives that, after going inside the house, he laid down in a room. He then got up and walked away.[19] He said that he was drunk when he was in the house. He admitted that there were children there, but he did not know their names. He said that the children were watching TV. The appellant told the police officers that he lay down in the lounge room.[20]
[19] VROI ts 11; blue green AB 52.
[20] VROI ts 12; blue green AB 53.
The appellant told the police officers that when he went out of the house he saw M, who told him to 'piss off'. The appellant said that he then went to the 'dry out centre'.[21]
[21] VROI ts 12 ‑ 13; blue green AB 53 - 54.
At one point, Detective Oldfield put to the appellant the allegations made by J, to which the appellant responded, 'Oh, that's stupid, aye.' The appellant said that he had no recollection of touching J's penis or telling J 'to suck his dick'.[22]
[22] VROI ts 14 - 15; blue green AB 55 - 56.
The appellant told Detective Oldfield that on the day in question he had been drinking beer and wine. He said that he drank, he thought, 'four cans of beer' and that he shared a bottle of chardonnay.[23] In response to Detective Oldfield's questions about how drunk he was, the appellant said he 'was pretty smoked'.[24] The other detective also asked the appellant questions about what occurred in the house. The appellant agreed that he was in the same room 'where the kids were watching the TV'.[25] The appellant gave a somewhat confused account of where he slept in relation to the children. Eventually, he told the police that he was sleeping on the left of the bed he was on and that the children were sleeping on a different bed.[26]
[23] VROI ts 16; blue green AB 57.
[24] VROI ts 17; blue green AB 58.
[25] VROI ts 20; blue green AB 61.
[26] VROI ts 20; blue green AB 61.
Towards the conclusion of the interview, this exchange took place:[27]
[27] VROI ts 22 - 23; blue green AB 63 - 64.
DET TIM: Um, we'll do a formal assessment of the evidence. Um, so we'll speak to our boss about it and decide what we're going to do. So you're still under arrest, you still have to stay here, okay, [appellant's name]?
THE APPELLANT: Yeah.
DET TIM: Okay. So you're not free to go? Um, but once we've done that, an assessment will advise you if you're being charged or not, okay. Um, if you are charged we can give you a copy of this interview. Um, if you ask or if a lawyer asks and we'll give it to them up to fourteen days after they ask, okay.
THE APPELLANT: Can I have a copy?
DET TIM: You can ask for a copy if you get charged, okay.
THE APPELLANT: When am I, when am I going to court?
DET TIM: Um, I'll talk to my Sergeant as to whether you need to go to court or not, okay. Um, so if you do need to go to court we'll tell you and we'll give you the paperwork to tell you what day and time, okay.
THE APPELLANT: Yeah.
DET TIM: Alright. Um, have you got any questions at all?
THE APPELLANT: Nah.
The voir dire
On 19 June 2018, a voir dire was held to determine the admissibility of the VROI. Counsel for the appellant submitted that the VROI should be excluded because it was involuntary or in the exercise of the trial judge's discretion.
It was submitted on behalf of the appellant that the VROI was involuntary because the appellant did not understand the caution that was administered to him. Defence counsel did not submit that the appellant's will had been overborne,[28] but submitted that, citing the guidelines laid down by Forster J in R v Anunga[29] (Anunga guidelines), once the police had been told, first in the letter from the ALS and then on several occasions in the VROI itself, that the appellant did not wish to answer further questions, the interview should have been terminated.[30]
[28] ts 103.
[29] R v Anunga (1976) 11 ALR 412, 414 ‑ 415.
[30] ts 103 - 108.
Defence counsel's submissions on unfairness focussed upon the prosecution's late decision to adduce the VROI at trial, as a result of which it is alleged that the defence were, in effect, precluded from obtaining an independent translation of the portions of the VROI in which the interpreter speaks Djaru to the appellant.[31]
[31] ts 120 - 121.
In the voir dire, the State adduced evidence from Detective Oldfield, but not the detective identified only as John. In the course of examination‑in‑chief the VROI was tendered (exhibit 1).[32] So too was the letter from the ALS to Detective Oldfield dated 23 May 2017 (exhibit 2).[33]
[32] ts 71.
[33] ts 73.
Detective Oldfield testified in examination‑in‑chief that, on 23 May 2017, he arrested the appellant in the vicinity of the bus terminal at the Town. He said that he and the appellant were able 'to communicate mostly effectively at the scene'.[34] Detective Oldfield said that he cautioned the appellant and advised him of the right to contact a lawyer and a relative or friend. The appellant asked for his sister to be called and to let her know that he had been arrested. Detective Oldfield said that he attempted to contact the appellant's sister, who lived in Halls Creek, but 'we couldn't get a hold of her'.[35]
[34] ts 69 - 70.
[35] ts 70.
Detective Oldfield said that he contacted an office of the ALS and that the appellant spoke to somebody from that office on the phone.[36] It appears that the appellant's conversation was in English.
[36] ts 70.
Detective Oldfield testified that, after speaking to the appellant about his 'level of English' at the lockup in the Town, the appellant indicated that he would like an interpreter present (the appellant's first language being Djaru) and specifically requested Mr Nanala to act in this capacity.[37]
[37] ts 70.
Detective Oldfield said that Mr Nanala happened to be in the Town that day and arrangements were made for him to be brought to the police station 'to sit in on the interview'.[38]
[38] ts 71.
The prosecutor referred Detective Oldfield to the letter from Mr Dyason of the ALS. Detective Oldfield said that his understanding was that, notwithstanding the contents of the letter, he was allowed to conduct a VROI with the appellant.[39]
[39] ts 72 - 74.
Detective Oldfield's cross‑examination was brief and focused on the letter from the ALS, particularly the statement in the letter that the appellant did not wish to 'do an interview'.[40] When Detective Oldfield was asked whether he saw the letter before the interview, he was unable to say whether he had seen it or not.[41]
[40] ts 75.
[41] ts 75.
In the voir dire, Mr Nanala testified that Djaru was one of the Aboriginal languages he spoke. He said that he worked at what was then called the Kimberley Interpreting Service and that he was a NAATI‑qualified interpreter. He is one of only two interpreters in Western Australia able to translate from Djaru into English.[42]
[42] ts 77 - 79.
Mr Nanala testified that he understood the appellant when he spoke in Djaru[43] and that his interpretation from Djaru into English 'was correct'.[44]
[43] ts 81.
[44] ts 82.
In cross‑examination, Mr Nanala denied making mistakes in his interpretation of any statements made by the appellant in Djaru.[45]
[45] ts 83.
In re‑examination it was elicited from Mr Nanala that there was no word in Djaru for the English word 'investigate'.[46]
[46] ts 91.
The appellant did not give evidence in the voir dire, nor did he call any other witness.[47]
[47] ts 91.
In the prosecutor's submissions in support of the tender of the VROI, and without objection from defence counsel, the appellant's 26‑page criminal history was tendered in evidence on the voir dire (exhibit 3).[48]
[48] ts 95 - 96.
Late in the afternoon of 19 June 2018, the learned trial judge gave ex tempore reasons for admitting the VROI into evidence.[49] His Honour found that the VROI was voluntary and that it would not be unfair for it to be admitted into evidence.[50]
[49] ts 132 - 147.
[50] ts 144, 146.
His Honour made extensive reference to the content of the VROI. In deciding that the VROI was voluntary, his Honour found that:
(1)While there was no Djaru word for the English word 'investigate', based on the appellant's 26‑page criminal history, the appellant would have understood that he was to be questioned by police about the matter for which he had been arrested.[51]
(2)His Honour referred to a number of passages in the VROI in which the appellant acknowledged that he understood that he did not have to answer any questions put to him by the detectives, as well as those portions of the VROI where the appellant said words to the effect that he did not wish to answer any questions or that he had been advised by his lawyer not to answer any questions.[52]
(3)Based on the answers the appellant gave in the VROI, his Honour said that he was satisfied, on the balance of probabilities, that the appellant understood the legal advice that he had been given and that he had a right to remain silent. In concluding that the interview was voluntary, his Honour said:[53]
… what I can say is I am satisfied on the balance of probabilities that he understood his right to silence and he understood the nature of the police interview and that he - his will was not overborne by continued questioning, particularly in circumstances where he had requested the particular interpreter that was there, questioning was over a very short period of time, some 26 minutes, and, from what I observed of his demeanour during the playing of the interview, there was nothing to indicate that his will was overborne by being pressured or persistent questioning or anything of that nature.
[51] ts 136.
[52] ts 138 -143.
[53] ts 144.
His Honour then addressed the question of whether the VROI should be excluded in the exercise of his discretion. In doing so, he addressed defence counsel's submission that there was no independent interpretation of the Djaru portions of the VROI.[54] His Honour held that, in the absence of any evidence suggesting that Mr Nanala's interpretation of what was said was inaccurate, there was no basis to exclude the VROI on discretionary grounds.[55] His Honour briefly considered whether he should exclude the VROI 'on the basis of unfairness'. In this regard, his Honour observed that the appellant 'throughout the interview … demonstrated an understanding and an appreciation of what he was being asked and what his rights were'.[56] His Honour illustrated this point by observing that, towards the end of the interview, the appellant himself asked for a copy of the interview and when he was going to court, in English, without being prompted. His Honour further observed:[57]
There are none of the usual factors. I have seen no evidence of duress, intimidation or pressure, and so I decline to exclude the interview on the basis of unfairness.
[54] ts 144.
[55] ts 146.
[56] ts 146.
[57] ts 146.
Ground 2
Ground 2 alleges that the trial judge 'erred in admitting the appellant's record of interview into evidence'.
It was submitted on behalf of the appellant that the VROI should have been excluded on the basis that it was involuntary or, in the alternative, its admission was unfair to the appellant and contrary to public policy.
On behalf of the respondent, it was submitted that the trial judge did not err as alleged. The appellant understood the caution and voluntarily answered the questions of the investigating officers. Further, there were no features of the VROI which justified its exclusion on discretionary grounds.
The relevant law
The relevant legal principles in relation to the admission or exclusion of confessional statements were described by Buss P, Beech JA and Hall J in their joint judgment in Kelly v The State of Western Australia. While lengthy, it is appropriate to quote it in full:[58]
[58] Kelly v The State of Western Australia [2017] WASCA 221 [34] - [48].
It is a fundamental common law requirement that a confessional statement must be voluntary. See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron & Gummow JJ).
It is presumed that a confessional statement is voluntary if there is nothing to suggest that it is involuntary. See Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452, 457 (Barton J). If the issue of voluntariness is raised, the State bears the onus of establishing, on the balance of probabilities, that the statement is voluntary. See Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572 ‑ 573 (Taylor & Owen JJ). The nature of voluntariness, and the applicable test in determining whether a confession is voluntary, were explained by Gibbs CJ and Wilson J in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 519. See also McDermott v The King [1948] HCA 23; (1948) 76 CLR 501, 511 (Dixon J); R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149 (Latham CJ, McTiernan, Webb, Fullagar & Kitto JJ); Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [10] ‑ [13] (Gleeson CJ), [45], [55] ‑ [64] (Gummow & Hayne JJ), [123] (Kirby J), [245], [283], [323] (Callinan, Heydon & Crennan JJ).
If a confessional statement is not voluntary, it is not admissible in the State's case. Subject to the Criminal Investigation Act, if a confessional statement is voluntary, it is prima facie admissible. It is unnecessary to refer to the provisions of the Criminal Investigation Act. They are not relevant in the present case.
If a confessional statement is voluntary, it may nevertheless be excluded by the court in the exercise of discretion. The basis on which this residual discretion is exercisable has been examined by the High Court in numerous cases including Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1; Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; and Swaffield.
An accused who asserts that a voluntary confession was improperly or unfairly obtained or should, on some other recognised basis, be excluded bears the onus of proving facts that would justify an exercise of the residual discretion in his or her favour. See Lee (152 ‑ 153); Wendo (565); MacPherson (519 ‑ 520); Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [115] (Blaxell J).
In Swaffield, Toohey, Gaudron and Gummow JJ noted that the first basis for excluding a confessional statement is that the statement is not voluntary. However, even if the statement is voluntary, it may be rejected, in exercise of the residual discretion, on one or more of three other grounds (which their Honours described as the second, third and fourth bases):
The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice [52].
Toohey, Gaudron and Gummow JJ said in Swaffield that 'it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues' [74]. Their Honours added:
The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen ((1982) 151 CLR 1. See also Foster v The Queen (1993) 67 ALJR 550; 113 ALR 1). It was held in that case that where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded. That overlapping is also to be discerned in the rationale for the rejection of involuntary statements. It is said that they are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable (See Sinclair v The King (1946) 73 CLR 316 at 335, per Dixon J, referring to R v Warickshall (1783) 1 Leach 263 [168 ER 234] and R v Baldry (1852) 2 Den 430 at 445 [169 ER 568 at 574]. See also Cleland v The Queen (1982) 151 CLR 1 at 27 ‑ 28; R v Scott (1856) 1 Dears & Bell 47 at 58 [169 ER 909 at 913-914]). That rationale trenches on considerations of fairness to the accused. And if admissibility did not depend on voluntariness, policy considerations would justify the exclusion of confessional statements procured by violence and other abuses of power [74].
Toohey, Gaudron and Gummow JJ observed in Swaffield that it followed, from the fact that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues, that:
The wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion. Particularly is that so in relation to improprieties calculated to cause the making of an untrue admission. It may be expected that improprieties calculated to have that effect will often impact on the exercise of a free choice to speak if that notion is given its full effect. However, it will not necessarily be so in every case [76].
See also Wright [115].
In R v Ireland [1970] HCA 21; (1970) 126 CLR 321, Barwick CJ referred to circumstances where police officers have procured evidence of facts or things by means that are unlawful at common law or by statute:
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 hand 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 (335).
In Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, Stephen and Aickin JJ made these comments about Ireland:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration (74 ‑ 75).
Stephen and Aickin JJ stressed in Bunning v Cross that police officers should not be at liberty to disregard statutory provisions enacted for the protection of the individual:
Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty … [T]he courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non‑compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law (77 - 78).
In Cleland, Deane J added the concept of 'impropriety' as a factor to be weighed in the balance in exercising the public policy discretion (20).
In Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, Deane J cited what had been written by Stephen and Aicken JJ in Bunning v Cross. His Honour then said:
As that passage makes plain, the principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process (202 ‑ 203).
See also Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 41 ‑ 42 (Mason CJ, Deane & Dawson JJ); Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 [31] ‑ [36] (Brennan CJ), [97] ‑ [105] (McHugh J).
More recently, in Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403:
(a)French CJ, Kiefel, Bell, Gageler and Keane JJ said the rationale for the public policy discretion 'is not so much a concern with fairness to the defendant as with the public policy of not giving the appearance of curial approval to wrongdoing on the part of those whose duty is to enforce the law' [26]; and
(b)Nettle J said that the exclusionary basis of the public policy discretion is grounded in the public policy that 'it is better that a possibly guilty accused be allowed to go free than that society or the courts sanction serious illegality or other serious impropriety on the part of officials in gathering the evidence with which to convict the accused'. His Honour added that the discretion 'has less if anything to do with fairness to the accused than with protecting societal norms' [63].
In R v Clarke (1997) 97 A Crim R 414, Hunt CJ at CL (Smart J & Howie AJ agreeing) said in the context of the unfairness discretion:
It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent (Smith [1964] VR 95 at 97; Lavery (No 2) (1979) 20 SASR 430 at 460; O'Neill (1988) 48 SASR 51 at 56). It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence (cf Wilson [[1981] 1 NZLR 316] at 324) (419).
See also Pearce v The State of Western Australia.[59]
[59] Pearce v The State of Western Australia [2014] WASCA 156 [33] ‑ [43].
As in Kelly, in the present case, there was no challenge to the admissibility of the VROI based on any infringement of the Criminal Investigation Act 2006 (WA).
In the exercise of the unfairness discretion, the reliability of the confession is a relevant but not a determinative consideration. A reliable confession may nevertheless be excluded due to other factors. Where an interview is both reliable and voluntary, an accused bears a high onus to establish that the unfairness discretion should be invoked.[60] The appellant does not allege that the statements made in the VROI were unreliable.
[60] R v Williams (1992) 8 WAR 265, 273 ‑ 274.
The appellant attended school to the end of year 10. Djaru is his first language. According to the letter sent to Detective Oldfield by Mr Dyason, of the ALS, on 23 May 2017, Djaru is his preferred language and 'the only language [the appellant] is truly comfortable conversing in'.[61] In the VROI, the appellant said that he could not read and write very well. While it is clear from the VROI that the appellant speaks basic English, his understanding of more complex English is limited. The appellant sought, and was given, the services of an interpreter. The VROI reveals that the services of the interpreter were mostly required at the initial part of the interview when the caution was administered.
[61] Blue green AB 15.
Where a suspect is an indigenous person, such as the appellant, the Anunga guidelines may apply. The Anunga guidelines indicate what is required by way of fairness when an indigenous person is being questioned by police.[62] They do not have the force of law in Western Australia and are not absolute, but, in appropriate circumstances, they give a very good indication of what ordinarily would be regarded as a fair interrogation.[63] The basic principles embodied in the Anunga guidelines remain as relevant today as when they were first formulated in 1976. However, the application of the guidelines must reflect changes in social conditions and values, and community standards and expectations. See Gudabi v The Queen.[64] Breaches of the Anunga guidelines may be relevant to an assessment of the voluntariness of confessional evidence given by an Aboriginal person and the exercise of the unfairness discretion.[65]
[62] Webb v The Queen (1994) 13 WAR 257, 259.
[63] Webb v The Queen (266). See also Simon v The Queen [2002] WASCA 329; (2002) 134 A Crim R 414 [34].
[64] Gudabi v The Queen (1984) 1 FCR 187, 199.
[65] As to voluntariness, see The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68 [162].
In Anunga, Forster J described the guidelines in these terms:[66]
[66] Anunga (413 - 415).
I preface this statement of guidelines by pointing out that Aboriginal people often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express. Even with the use of interpreters this problem is by no means solved. Police and legal English sometimes is not translatable into the Aboriginal languages at all and there are no separate Aboriginal words for some simple words like 'in', 'at', 'on', 'by', 'with' or 'over', these being suffixes added to the word they qualify. Some words may translate literally into Aboriginal language but mean something different. 'Did you go into his house?' means to an English‑speaking person, 'Did you go into the building?', but to an Aboriginal it may also mean, 'Did you go within the fence surrounding the house?'. English concepts of time, number and distance are imperfectly understood, if at all, by Aboriginal people, many of the more primitive of whom cannot tell the time by a clock. One frequently hears the answer, 'Long time', which depending on the context may be minutes, hours, days, weeks or years. In case I may be misunderstood, I should also emphasize that I am not expressing the view that Aboriginal people are any less intelligent than white people but simply that their concepts of certain things and the terms in which they are expressed may be wholly different to those of white people.
Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?
Bearing in mind these preliminary observations which are based partly upon my own knowledge and observations and partly by evidence I have heard in numerous cases I lay down the following guidelines. They apply, of course, to persons who are being questioned as suspects:-
(1)When an Aboriginal person is being interrogated as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person's language should be present, and his assistance should be utilized whenever necessary to ensure complete and mutual understanding.
(2)When an Aboriginal is being interrogated it is desirable where practicable that a 'prisoner's friend' (who may also be the interpreter) be present. The 'prisoner's friend' should be someone in whom the Aboriginal has apparent confidence. He may be a mission or settlement superintendent or a member of the staff of one of these institutions who knows and is known by the Aboriginal. He may be a station owner, manager or overseer or an officer from the Department of Aboriginal Affairs. The combinations of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the 'prisoner's friend' be someone in whom the Aboriginal has confidence, by whom he will feel supported.
(3)Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand you do not have to answer the questions?' Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this. The problem of the caution is a difficult one but the presence of a 'prisoner's friend' or interpreter and adequate and simple questioning about the caution should go a long way towards solving it.
(4)Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. Anything in the nature of cross‑examination should be scrupulously avoided as answers to it have no probitive [sic] value. It should be borne in mind that it is not only the wording of the question, which may suggest the answer, but also the manner and tone of voice which are used.
(5)Even when an apparently frank and free confession has been obtained relating to the commission of an offence, police should continue to investigate the matter in an endeavour to obtain proof of the commission of the offence from other sources. Failure to do this, among other things, led to the rejection of confessional records of interview in the cases of Nari Wheeler and Frank Jagamala.
(6)Because Aboriginal people are often nervous and ill at ease in the presence of white authority figures like policemen it is particularly important that they be offered a meal, if they are being interviewed in a police station, or in the company of police or in custody when a meal time arrives. They should also be offered tea or coffee if facilities exist for preparation of it. They should always be offered a drink of water. They should be asked if they wish to use the lavatory if they are in the company of police or under arrest.
(7)It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness or drunkenness or tiredness. Admissions so gained will probably be rejected by a court. Interrogation should not continue for an unreasonably long time.
(8)Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal states he does not wish to answer further questions or any questions the interrogation should not continue.
(9)When it is necessary to remove clothing for forensic examination or for the purposes of medical examination, steps must be taken forthwith to supply substitute clothing.
We observe, in relation to guideline 8, that while interviewing officers are generally entitled to ask further questions to clarify an accused's position and to determine whether a refusal applies to all questions or only a particular topic, it has been held that the position may well be different where a lawyer acting for a client whose first language is not English tells police in clear terms that his or her client does not wish to answer any questions.[67]
[67] See Gibson [174].
Ground 2 appears to invoke s 30(3)(b) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act), which provides that this court must allow an offender's appeal against conviction if, in its opinion, the conviction should be set aside because of a wrong decision on a question of law by the judge.
In its terms, the ground does not invoke s 30(3)(c) of the Criminal Appeals Act, which provides that this court must allow the appeal if, in its opinion, there was a miscarriage of justice. However, s 30(3)(b) may overlap in some circumstances with s 30(3)(c). See AK v The State of Western Australia[68] and Gassy v The Queen.[69]
[68] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [47], [86].
[69] Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [19].
We have already set out the legal principles in relation to the admission or exclusion of confessional statements. We note that, in R v Swaffield,[70] Toohey, Gaudron and Gummow JJ said that it was not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues.[71]
[70] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159.
[71] R v Swaffield [74].
In R v Edelsten,[72] the Court of Criminal Appeal of New South Wales (Carruthers, Allen and Badgery‑Parker JJ) said, in reviewing the exercise of the common law discretion to reject evidence on the grounds of prejudice outweighing probative value, unfairness, and the evidence being unlawfully or improperly obtained, that there are two fundamental matters.
[72] R v Edelsten (1990) 21 NSWLR 542.
First, it is not sufficient for the appellant to persuade the intermediate appellate court that it would, if called upon to do so, have exercised the discretion differently. The appellant must demonstrate error by the trial judge in accordance with the well‑known principle set out in House v The King.[73] That is, that the trial judge ignored relevant considerations, or relied upon irrelevant matters, or made an error of fact or of law; further or alternatively, on the facts which the trial judge found or should have found, the trial judge's discretion could not have been properly exercised except in favour of exclusion of the evidence.[74]
[73] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[74] R v Edelsten (552).
Secondly, to the extent that the exercise of the discretion to exclude evidence rests upon the existence of a particular state of fact, the onus is on the accused to establish that state of fact on the balance of probabilities. The discretion is a discretion to exclude otherwise admissible evidence and not a discretion to admit such evidence.[75] See also MIH v The Queen[76] and R v Kyriakou.[77]
[75] R v Edelsten (552).
[76] MIH v The Queen [2007] NSWCCA 199 [53].
[77] R v Kyriakou (1987) 29 A Crim R 50, 57.
It has been suggested that the House v The King principles may not wholly govern appellate review of the exercise of a discretion of a trial judge to exclude otherwise admissible evidence in a criminal trial. In particular, it has been suggested that the appellate basis of miscarriage of justice in s 30(3)(c) of the Criminal Appeals Act means that, if an intermediate appellate court considers that the evidence should have been excluded in the exercise of the unfairness discretion and it is reasonably possible that the failure to exclude the evidence affected the verdict, the ground of appeal should be upheld: see EM v The Queen.[78] In our opinion, it is unnecessary to deal with this point, having regard to the manner in which ground 2 is formulated and the manner in which counsel for the appellant put his submissions.
[78] EM v The Queen [2006] NSWCCA 336 [56].
In the present case, the critical issue in the context of ground 2 is whether the trial judge made a wrong decision on a question of law in that his Honour decided, contrary to law, that the State should be permitted to tender as part of its case the appellant's VROI with the police. The trial judge will have made a wrong decision on a question of law if he made an express material error of the kind referred to in House v The King in deciding, in the exercise of his discretion, not to exclude the interview; further, or alternatively, if the only reasonable conclusion open to the trial judge was that it would be unfair to the appellant to permit the State to tender the VROI.
Ground 2 - has error been established?
It is clear from his Honour's ex tempore reasons that he formed the view that the appellant understood that he was not obliged to answer the questions of the interrogating police officers. His Honour arrived at this conclusion based on a combination of factors, including the answers the appellant gave to questions put to him by the investigating officers, whether or not those questions were interpreted into Djaru by Mr Nanala, and having regard to the appellant's extensive criminal history. As his Honour put it:[79]
He is no stranger to the criminal justice system.
It's not as though he walked straight out of the desert and had never met white policemen before. With his criminal history, he would have met many, many police officers, attended many, many courts, and been represented by many different lawyers. He would be well accustomed to what police officers usually do as a job.
[79] ts 136.
Having viewed the VROI, and seen and heard the appellant's answers to the questions put to him by the police, including those that were interpreted into Djaru, we think that his Honour did not err in finding that the appellant understood that part of the caution which informed him that he was not obliged to answer the questions put to him by the interrogating police officers. This is because, not only did the appellant answer in the affirmative that he understood that he did not have to answer the officers' questions, but on several occasions asserted that he did not wish to do so.
However, in arriving at this conclusion, we respectfully take a different view to the primary judge as to what may be inferred from the appellant's extensive criminal history. While it may be accepted that the appellant has frequently come into contact with police officers, courts and lawyers in the past, we would not, in the absence of evidence on the issue, make any assumption about the appellant's understanding of the whole of the caution. This is especially so in this case when it is apparent from the VROI that it took some time and a considerable number of questions to explain the caution, at least the part of the caution which informed him that he did not have to answer any questions by the interrogating officers.
Acceptance of the proposition that the appellant understood that he did not have to answer the questions put to him by the interrogating officers does not inexorably lead to the conclusion that the VROI was admissible. There remains to be considered whether the appellant's repeatedly expressed choice, in the ALS letter and in the interview, not to speak was respected by the police officers and whether the appellant understood that part of the caution which informed him that any answers he gave may be given in evidence. We will deal with the latter issue first.
The caution that a police officer is obliged to give to an arrested suspect has two limbs. The first limb is that the suspect has the right not to answer any questions put to him or her by police. The second limb is that, if the suspect answers any question, the answer may be given in evidence. The importance of the second limb of the caution is to ensure that the suspect understands the effect or consequence of answering any question put by police. Comprehension of the second limb of the caution is as important as comprehension of the first limb.
In the present case, it is clear that the investigating officers did not explore with the appellant his understanding of the second limb of the caution. Their attention was focussed on the appellant's understanding of the first limb. When Detective Oldfield told the appellant 'we're recording you … so anything you say will be recorded and can be used in evidence in court', Mr Nanala interpreted that statement for the appellant as 'Also we are live on TV', an interpretation which plainly does not reflect the content of the second limb of the caution.
Later in the interview, Mr Nanala asked the appellant, in Djaru, 'Do you want to talk and give evidence to these two police?' to which the appellant answered, 'Yeah'. However, as Mr Nanala noted, there is no Djaru equivalent word for the word 'evidence'. Further, when Detective Oldfield repeated the second limb of the caution in the following terms 'anything you do say or do will be recorded and may be given in evidence', Mr Nanala interpreted that to the appellant by asking him 'Do you want to talk to the two policemen?'. Again, this interpretation does not reflect the content of the second limb of the caution.
In the course of oral argument before this court, counsel for the respondent emphasised the exchange set out in [27] above, where, at the end of the interview, Detective Oldfield informed the appellant that if he was charged he would be given a copy of the interview, and the appellant asked, in English, for a copy of the interview and when he was going to court. Counsel for the respondent submitted that it may be implied from these answers that he understood that, if he chose to answer the interrogating police officers' questions, those answers would be used in evidence. We do not accept this submission. Both of the appellant's responses, which are in the nature of questions, merely seek to confirm the advice Detective Oldfield gave him concerning the availability of the recording of the VROI and whether he was to be charged with any offence. They may also reflect an appreciation, on the appellant's part, that his lawyer should be informed of what had been said.
While the appellant understood the first limb of the caution, we are not satisfied the appellant understood the second limb of the caution.
We return to the issue of whether the interrogating officers respected the appellant's right to silence. As to this, the statement of Mason J in Van Der Meer v The Queen applies:[80]
Whether the suspect wishes to take advantage of the opportunity given to him is a matter for him to decide. And it is vital that the law should ensure that his freedom of choice is respected.
[80] Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 19.
It will be recalled that Mr Dyason from the ALS sent a letter addressed to Detective Oldfield which was received at the Town police station about one hour before the VROI commenced. The terms of the letter were clear: '[The appellant] wishes to exercise his right to silence'; 'He does not wish to participate in a police interview'; 'He will not answer questions about the matter'; 'he does not wish to enter into any discussion with the police, at all'; 'he wishes to exercise his right to legal representation'; 'he asks … that he be accompanied by a lawyer from the ALSWA in any and all future dealings with the police'; 'We trust you will abide by our client's decision to remain silent'.
Detective Oldfield did not, at the date of the voir dire, recall whether he read the letter prior to the VROI or not. However, the important point, for present purposes, is that the letter was sent to and received at the Town police station about one hour before the VROI commenced and the terms of the letter were, as we have indicated, clear in relation to the appellant's wish to exercise his right to silence and his wish not to participate in a police interview. In any event, the appellant told Detective Oldfield the advice that he had been given by the lawyer. Further, on various occasions, when asked whether he wished to answer questions by the police, the appellant answered to the effect that he did not wish to answer. The appellant could not have been any clearer when he said, 'I'm saying nothing'; 'Yeah, I don't want to speak'; 'Yeah. I don't want to say anything'; 'On them other thing, like, this lawyer told me to, you know. The lawyer tell me to say no'.
Whenever the appellant responded to the effect that he did not wish to answer any questions, the interrogating police officers ignored those responses. Instead, they continued to interrogate the appellant about the alleged offences, as if the appellant had answered in the affirmative. In our opinion, the police officers, by their conduct, whittled down the effect of the caution by continuing with the interview when the appellant had repeatedly stated his wish to remain silent. In this way, the interrogating officers failed to respect the appellant's choice to stay silent. Their conduct infringed guideline 8 of the Anunga guidelines which provides that an interview should not proceed if the person being interviewed states he or she does not wish to proceed further.
It is evident from his Honour's reasons on the voir dire that he did not have regard to the combination of these relevant considerations:
(a)the absence of a proper explanation to the appellant of the second limb of the caution;
(b)the appellant's multiple and clear statements that he did not wish to answer questions which were, in effect, ignored by the interrogating officers; and
(c)the effect of guideline 8 of the Anunga rules.
We conclude, with great respect to his Honour, that he erred in law by failing to take into account the combination of these relevant factors. As a consequence, his Honour decided, contrary to law, that the VROI was admissible at the appellant's trial, when he ought to have concluded that the VROI was inadmissible on the basis of the unfairness discretion.
In our opinion, it was plainly unfair to admit into evidence the VROI, having regard to the factors above.
It is for these reasons that we upheld ground 2.
There remains the issue of whether this court should order a retrial.
Should this court enter a judgment of acquittal or order a new trial?
Section 30(5) of the Criminal Appeals Act relevantly provides that if this court allows an appeal against conviction it must set aside the conviction and must, also, either order a new trial or enter a judgment of acquittal.
The legal principles applicable to the question of whether an appellate court should enter a judgment of acquittal or order a new trial were set out in Gibson v The State of Western Australia.[81] We adopt what was written in that case without repeating it.
[81] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [205] - [209].
The power to enter a judgment of acquittal without a new trial is an exceptional course to be used sparingly. There is a wide range of circumstances which may arise but two issues must be considered. First, an appellate court must assess whether the admissible evidence adduced at the original trial is sufficiently cogent to support a conviction. Second, if the appellate court determines that the admissible evidence was sufficiently cogent to support a conviction, the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again. This second issue requires a consideration of the public interest in the proper administration of justice as well as the interests of the individual accused bearing in mind that it is desirable, if possible, for the guilt or innocence of an accused person to be finally determined by a jury.
In our assessment of the cogency of the evidence at the original trial, we have ignored the VROI. We regard the other evidence as being cogent enough to support the convictions, although we would not characterise the State's case as strong. The conclusion we have reached would usually lead to an order for a new trial. However, the appellant has served more than half of the sentence of immediate imprisonment that was imposed upon him and more than the non-parole period. Further, any retrial would have to take place in the District Court either at Broome or Derby and may well not have taken place for some time. Having regard to these factors we did not believe that it is in the interests of justice for a new trial to be ordered. Accordingly, judgments of acquittal were appropriate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza28 AUGUST 2019
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