Green v The State of Western Australia
[2011] WASCA 178
•12 AUGUST 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GREEN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 178
CORAM: MARTIN CJ
McLURE P
BUSS JA
HEARD: 7 JULY 2011
DELIVERED : 12 AUGUST 2011
FILE NO/S: CACR 204 of 2010
BETWEEN: RAYMOND JOHN GREEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BLAXELL J
File No :INS 53 of 2010
Catchwords:
Criminal law - Appeal against conviction - Whether appellant accorded entitlement to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner under s 138(2)(c) of the Criminal Investigation Act 2006 (WA) - Turns on own facts
Legislation:
Criminal Investigation Act 2006 (WA), s 138, s 138(2)(c), s 138(3)(a)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cockram v The State of Western Australia [2010] WASC 211
Wright v The State of Western Australia [2010] WASCA 199
MARTIN CJ: This appeal should be dismissed for the reasons given by McLure P, with which I agree.
McLURE P: The appellant appeals against his conviction after trial of the murder of Timothy Everington (the deceased). His co‑accused, Jeremy David Cockram, pleaded guilty to the charge.
On 2 May 2009, the appellant and Cockram, who were best friends, were at a house in Coodanup where Cockram's girlfriend resided with her 6‑year‑old son. The deceased called at the house that night because he was friends with another woman who lived there. Shortly after his arrival, the appellant and Cockram left the house to go to Mandurah.
The appellant and Cockram returned to the house at approximately 5.00 am the following morning. Cockram claimed to have discovered the deceased in his girlfriend's bedroom sexually molesting her son. He did not say or do anything about this other than to ask the appellant to go for a short drive with him in his car.
Both men agreed that, during the drive, a decision was made to give the deceased a beating but denied that there was any discussion about using a knife or doing the deceased any further harm.
The appellant and Cockram returned to the house and asked the deceased to give them a ride in his car. They persuaded him to do so on the pretext that they had arranged to buy some amphetamines and that, if he took them to their dealer, they would reward him with a portion of the drugs.
Cockram brought with him into the car a bag containing a knife which he always carried with him. He handed the bag to the appellant, who was sitting in the back seat. Cockram gave the deceased directions to a remote location near a boat ramp on the Serpentine River. The appellant and Cockram gave different accounts of what happened next. Each accused the other of stabbing the deceased in the chest before he fled from the car. The deceased received 11 stab wounds including to his chest, neck, head and back. Cockram admitted that he had used the deceased's fishing knife to stab him in the head above the left eyebrow, fracturing the deceased's skull and penetrating his brain.
With the deceased on his knees and the fishing knife lodged in his head, the appellant admitted using Cockram's knife to stab the deceased twice in the back. The appellant claimed he acted in self‑defence.
There were two fatal stab wounds, one to the deceased's chest and one to his neck. Both the appellant and Cockram denied inflicting the fatal wounds. Each accused the other of doing so.
During the investigation into the deceased's murder, the appellant was interviewed by police on three occasions. The first interview was conducted at approximately 12.20 am on 5 May 2009, after the appellant had been arrested on suspicion of committing grievous bodily harm. Prior to the interview the appellant was informed, inter alia, of his entitlement to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner. In the first interview, the appellant gave police detailed information about the comings and goings at the Coodanup house on the night in question. However, he made no admissions as to his involvement in the murder of the deceased.
The second interview was conducted later that morning between 8.12 and 8.20 am. The appellant insisted on speaking to a lawyer and, having done so, refused to answer police questions. At the conclusion of the interview, the appellant was informed that he was arrested on a charge of murder.
The appellant was remanded in custody at Hakea Prison. On 10 June 2009 police officers visited him at the prison and conducted a third interview. They told the appellant that they had heard Cockram's side of the story and wanted to give him the opportunity to tell his. He was cautioned and advised of his right to have his lawyer present. The interview proceeded in the absence of the appellant's lawyer. He made significant admissions as to his involvement in the deceased's murder.
The appellant objected to the admission into evidence of the video record of his first interview (VROI) on the basis that police had failed to accord him his entitlement under s 138(2)(c) of the Criminal Investigation Act 2006 (WA) to a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. For the purpose of determining the objection, the trial judge (Blaxell J) conducted a voir dire during which he heard oral evidence from the interviewing police officers and the appellant. The trial judge ruled that the VROI was admissible: Cockram v The State of Western Australia [2010] WASC 211.
At the time of the first interview, the appellant was an 'arrested suspect' within the meaning of s 138 of the Act. Section 138 of the Act relevantly provides:
(2)In addition to the rights in section 137 an arrested suspect is entitled -
…
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
…
(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect -
(a)inform the suspect of his or her rights under … subsection (2)(c);
The trial judge found that the appellant was informed of his rights under s 138(2)(c) prior to the commencement of the first interview and that it was done 'as soon as practicable'. The trial judge continued:
In the present case, [the appellant] did not at any time (prior to or in the course of the first interview) express or indicate any desire to exercise his right to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner. At most, he simply ruminated as to whether or not he should do so. In response to what [the appellant] said in that respect, Detective Marshall offered him the choice and stated that he could contact a lawyer if he wished. However, [the appellant] did not express any such wish [71].
The relevant portion of the VROI is as follows:
Q. ... Um, do you agree that, um, a short time ago at 10 past midnight I advised you that you are under arrest under suspicion of a GBH offence against a Timothy Everington ‑ ‑ ‑
A. Yeah.
Q. ‑ ‑ ‑ last Sunday? And I also gave you some rights ‑ ‑ ‑
A. Was that when?
Q. On Sunday.
A. Yeah.
Q. The Sunday, um, just gone, Sunday morning. That would be 3 May.
A. Mm.
Q. And I also gave you some rights. Do you recall what they were?
A. Oh, yeah, not really but, yeah.
Q. And do you recall me, um, advising you that, um, you had the right to, um, contact a lawyer?
A. Yeah.
Q. Or another person of your choosing to advise that person of where you are?
A. Yeah.
Q. Do you recall me saying that now?
A. Yeah.
…
Q. So those rights that I have given you, do you wish to exercise any of those rights at this point [in] time?
A. Well, if I'm being charged with whatever you fellows charge me with then, yeah, I probably wouldn't mind seeing a lawyer.
Q. You have the choice. You can contact a lawyer if you wish ‑ ‑ ‑
A. Well ‑ ‑ ‑
Q. You're not being charged at this point in time.
A. Well, you just said I was being charged.
Q. No, I advised you that you're under arrest, under suspicion. There, there is a huge ‑ ‑ ‑
A. Well ‑ ‑ ‑
Q. ‑ ‑ ‑ distinction so - and it's important that you understand.
A. Yeah. Well, what, what's it mean 'under arrest'? What am I under arrest for?
[Q.] With the new Criminal Investigation Act it, it advises that if, if we want to speak to someone and we have suspicion they may have been involved in a particular offence in some way we are to advise them that they are under arrest under suspicion ‑ ‑ ‑
A. Well, then why ‑ ‑ ‑
Q. It's that ‑ ‑ ‑
A. ‑ ‑ ‑ why did I get told I wasn't under arrest when I left my house and then get told I'm under arrest when I'm here?
Q. There is a reason - the reason for that. When we spoke to you at the house, um, there were some things that we were not aware of and we have brought you here to clarify those and you were advised then that you were free to leave at any time. Do you remember that at the house?
A. Mm.
Q. That you were not under arrest and you could leave at any time.
A. No, I was advised that I wasn't under arrest.
Q. All right.
A. Right.
Q. And you freely accompanied us to the Mandurah police station?
A. Well, yeah.
Q. Is that right? All right. And ‑ ‑ ‑
A. Well, then if I was gunna be placed under arrest, which you obviously knew I was, why wasn't I placed under arrest before ‑ ‑ ‑
Q. Well, in between that time ‑ ‑ ‑
A. ‑ ‑ ‑ I left me house?
Q. In between that time and now we discovered other information that, um, has given us suspicion that you may have been involved in that particular offence. Right? And hence that's why you have now been advised that you're under arrest under suspicion of committing that offence. You're not being charged and because of that you have those rights that I have given to you and that's why I have asked you whether or not you wish to exercise any of those rights. Do you understand that?
A. Yeah.
Q. All right. Further to that I've got to advise you that you're not obliged to say anything unless you wish to do so but whatever you do say or do is going to be recorded on this video here and it may be used in evidence against you.
A. Mm.
Q. Right? It's also very important that you understand that as well so could you, in your own words, explain to me what that means to you; what we call the police caution.
A. Well, that anything I say will be recorded and used in court if youse did want to use it.
Q. Yeah, that's some of it, but more importantly if I ask you a question do you have to answer it?
A. Well, no.
Q. Exactly. So you can choose to answer some of my questions, all of my questions or none of my questions.
A. All right then.
Q. That's right. It's basically your choice. So you're happy with that?
A. Yeah.
The scope and effect of s 138(2)(c) and s 138(3)(a) were considered by this court in Wright v The State of Western Australia [2010] WASCA 199. The majority (McLure P, with whom Buss JA agreed) said:
The proper construction of s 138(2)(c) is not without difficulty. What is relatively clear is that it is not the source of any duty imposed on police. Sections 138(3)(a) is the source of the duty on police. The two provisions have to be read together to determine the scope of the duty on police in relation to a suspect's right under s 138(2)(c). The only express duty on police is to inform the suspect of his right to communicate with a lawyer. That is to be contrasted with the obligation of the officer in charge under s 138(3)(b) which is to afford the suspect his or her other rights under s 137 and subs (2). The word 'inform' means tell and the word 'afford' means supply or furnish. The word 'other' can only mean other than the provisions expressly referred to in s 138(3)(a), which includes s 138(2)(c). Accordingly, the officer in charge is under a duty to caution the suspect or if the suspect is unable to understand or communicate in English, to provide an interpreter. The only obligation of the officer in charge in relation to s 138(2)(c) is to inform the suspect of his entitlement to a reasonable opportunity to communicate with a legal practitioner. However, what is a reasonable opportunity will depend on all the circumstances, including the suspect's access to the means to communicate. Thus there is every practical incentive on police to permit access to the means necessary to facilitate communication.
…
What is a 'reasonable opportunity' will be assessed from the time the suspect was informed of his right to communicate with a lawyer (or perhaps earlier if it is established that the suspect was otherwise aware of his rights). However, it is entirely a matter for the suspect as to whether or not he wishes to exercise the right. Thus, what is a reasonable opportunity will depend upon the suspect's attitude to communicating with a lawyer. If
the suspect expressly or impliedly indicates that he does not want to do so, no further time is required. I will assume without deciding that a suspect can in those circumstances subsequently avail himself of the right [29], [34].
It was contended on behalf of the appellant that he impliedly indicated to police that he wanted to communicate or attempt to communicate with a legal practitioner. The claim is without merit.
When the appellant thought (incorrectly) he was being charged, he was equivocal about his position saying 'I probably wouldn't mind seeing a lawyer'. After being informed that he was not being charged at that point but was under arrest on suspicion of having committed an offence, the appellant in effect retreated from his equivocal position. He then confirmed that he understood his rights, understood he did not have to answer any questions and continued to voluntarily participate in the first interview. The only reasonable inference from the exchange is that the appellant did not wish to exercise his entitlement to communicate with a lawyer.
The appeal should be dismissed.
BUSS JA: I agree with McLure P.
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