Hietanen v The State of Western Australia
[2016] WASC 15
•14 JANUARY 2016
HIETANEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 15
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 15 | |
| 14/01/2016 | |||
| Case No: | INS:181/2015 | 11 JANUARY 2016 | |
| Coram: | HALL J | 11/01/16 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SAMMY JONATHON HIETANEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application to exclude police interviews with accused Voluntariness Whether interviewing police officers gave an inducement |
Legislation: | Nil |
Case References: | Collins v The Queen (1980) 31 ALR 257 McDermott v The King (1948) 76 CLR 501 R v Lee (1950) 82 CLR 133 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application to exclude police interviews with accused - Voluntariness - Whether interviewing police officers gave an inducement
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Ms L Boston
Respondent : Ms A J Burrows & Mr M M Cvetkoski
Solicitors:
Applicant : Abigail Rogers Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Collins v The Queen (1980) 31 ALR 257
McDermott v The King (1948) 76 CLR 501
R v Lee (1950) 82 CLR 133
1 HALL J: The accused, Sammy Hietanen, is charged with the murder of Lindsay Edward Judas. The trial is listed to take place in Broome commencing on 14 March 2016. The accused applied for a ruling that evidence of his interviews with the police are inadmissible on the ground that they were not voluntary. A voir dire to determine that issue was conducted on 12 January 2016. At the conclusion of the hearing I dismissed the application, ruled that the interviews were admissible and gave brief reasons. I said that more detailed reasons would be published in due course.
The prosecution case
2 The prosecution case is that in February 2013 the deceased was employed as a bus driver in Port Hedland. He would work on a two weeks on and one week off roster. When rostered on shift he lived in Port Hedland workers' accommodation. On his week off he was required to book out of his accommodation and often went camping and fishing in the Broome area.
3 The accused and Stacey-Marrie Knight were travelling around Australia in a blue Mitsubishi Triton utility. On or about 7 February 2013 they hit an animal that caused damage to the radiator of the Triton. As a result they went to the Pardoo Roadhouse. At the roadhouse they met the deceased. Arrangements were made for the deceased to follow the accused and Ms Knight to Broome to ensure that they arrived safely. It was intended that the group would camp together at some place between Pardoo and Broome.
4 On the evening of 8 February 2013 the deceased, the accused and Knight camped together at a location at the end of Crab Creek Road near Broome. During the evening Knight went to sleep in the back of the Triton and the accused and the deceased continued to socialise and drink alcohol.
5 The State alleges that during the night the accused armed himself with a metal pole which he used to strike the deceased to the head. The deceased died as a result of being struck. The State alleges that the motive for the attack was to steal the deceased's vehicle and its contents.
6 The accused woke Knight and sought her assistance in concealing the body of the deceased. The accused and Knight then tied a rope around the feet of the deceased and used their vehicle to drag the body away from the campsite. The accused then dug a hole and buried the deceased's body.
7 After concealing the body the accused stole the deceased Nissan Navarra vehicle and the property contained in it. The Triton was driven by Knight and abandoned at a road train assembly area on the south side of Broome Highway near the Cape Leveque turn off. The accused and Knight then travelled to Broome. They later drove across the Kimberley to the Northern Territory in the deceased's vehicle. At some point the metal pole used to assault the deceased was disposed of. Property of the deceased was pawned at Cash Converters stores in Darwin and Cairns. They later sold the deceased's vehicle.
The police interview
8 The accused was interviewed by police on the afternoon of Sunday, 9 November 2014. He had been apprehended on other matters in Kununurra and remanded in custody. For the purpose of the interview he was taken from Broome Regional Prison to the Broome Police Station.
9 The interview commenced at 3.06 pm. The accused was informed of his rights, including his right to remain silent. He confirmed his understanding of those rights.
10 Prior to commencing the interview the accused had been afforded an opportunity to contact a lawyer. He did so and confirmed that he had done so in the interview. He was asked some preliminary questions regarding is level of education and whether he had consumed any alcohol. At this point he gave 'no comment' answers. He was then asked the following questions:
S/CON FOSTER: Sam, like I said, we're investigating the disappearance and suspected murder of Lindsay Judas, um, which occurred around the eighth of February in 2013 in this area, in the general Broome area and surrounds, um, and that's what we wish to talk to you about. Alright. I told you that you don't need to talk to us unless you wish to. Um, what I will ask you is, just tell me what you know about the murder of Lindsay Judas.
HIETANEN: No comment.
S/CON FOSTER: Do, do you know Lindsay Judas?
HEITANEN: No comment.
S/CON FOSTER: Okay. Alright. No worries. Look, um, just I understand that you've had your legal advice and, and your right to, to make no comment to these things is, is fine. Um, what, what we intend to do is probably have a little break. Alright. And then we're going to come back in and we're going to tell you what we know about the matter. Okay. And also that Stacey is with us. She has been in here in Broome today. We brought her up from Perth and presently she is out showing us where the body of Lindsay Judas is buried. Okay. Time by watch is twelve minutes past three and we will have a break (ts 4).
11 The interview was then suspended for a 17 minute period. One of the interviewing officers, Detective Senior Constable Shane Foster, left the room. The other interviewing officer, Detective Sergeant Matthew Garnaut, remained in the room with the accused. On resumption the following questions and answers occurred:
S/CON FOSTER: Okay. Time by my watch is 3:29, still the ninth of the eleventh 2014, still at Broome Police Station. Alright. Sam, you're still under that caution. Okay. You don't have to talk to us unless you want to. Um, while the video was off has any details of what we're investigating been discussed with you?
HIETANEN: Nah.
S/CON FOSTER: Alright. Urn, when I left off I said that I will come back and tell you what we know about what has happened. And I also told you that Stacey was with us and was out locating where Lindsay Judas is buried. Okay. To start things off, Stacey Knight is your girlfriend, is that correct?
HIETANEN: Yes.
S/CON FOSTER: What stage is that relationship at? Ar-, are you married?
HIETANEN: No, nearly.
S/CON FOSTER: What do you mean by nearly?
HIETANEN: Oh, we were going to be. Not now by the looks of it.
S/CON FOSTER: Wh-, wh-, describe your living arrangements.
HIETANEN: Um, been travelling round Australia.
S/CON FOSTER: For how long?
HIETANEN: Two years.
S/CON FOSTER: Together?
HIETANEN: Yep.
S/CON FOSTER: Any time that you weren't together?
HIETANEN: Ah, no, not really.
S/CON FOSTER: Do you want to tell us what places that, that you have travelled, you and Stacey?
HIETANEN: Um, well instead of fucken going all the way round the bush why don't we just hit the nail on the head, get this fucken thing over and done with.
S/CON FOSTER: Well if you've got something you want to say, we're happy to listen.
HIETANEN: Yeah. Um, yeah, it was me. Um - - -
S/CON FOSTER: Tell me what you mean by that.
HIETANEN: Um, I'm guilty of it. Stacey has got nothing to do with it.
S/CON FOSTER: What, what are you guilty of, Sam?
HIETANEN: Um, the murder (ts 4 - 5).
12 The accused went on in the interview to provide more details as to what he said occurred. He stated that he and the deceased had an altercation when they were camping on Crab Creek Road. He said that the deceased came towards him yelling and screaming. He said he panicked and hit the deceased with a metal pole twice to the head. The deceased collapsed to the ground and when the accused checked his pulse the deceased was dead. He said that Knight was walking on the beach at the time and was not involved. He said that he later moved the body and buried it. Initially he claimed to have done this alone, however he later said that Knight assisted him. Twice during the interview he stated that he did not intend to answer any more questions, however when the police officers asked for further details he continued to answer.
13 Towards the end of the interview the accused was asked whether he was prepared to show the police officers where the deceased was buried. He says:
HIETANEN: I don't know. I don't know whether that's a good thing or a bad thing.
S/CON FOSTER; Well it's a decision for yourself. We can't - it's not something we can force you to do (ts 31).
14 The accused subsequently agreed to travel with police to the area of the campsite with a view to finding where the deceased was buried. The interview at the Broome Police Station was suspended at 4.34 pm. Prior to turning off the camera the accused was asked whether he had any complaints about the way he had been treated and he said that he did not.
15 The interview continued at the scene at Crab Creek Road at 5.05 pm. The accused was again cautioned and confirms his understanding of that caution. The following exchange then occurred:
SGT GARNETT: You're still under those same arrested suspect rights, okay? Um, one thing I wanted to cover off: we're going to do a pan of the area, but before we did that, earlier on today you got some legal advice.
HIETANEN: Yep.
SGT GARNETT: Okay. Since then, you've answered a few questions and, and been very cooperative.
HIETANEN: Yep.
SGT GARNETT: Has that been of your own free will?
HIETANEN: Yes.
SGT GARNETT: Yeah? We haven't forced you - - -
HIETANEN: No.
SGT GARNETT: Or we haven't promised you anything.
HIETANEN: No.
SGT GARNETT: We haven't threatened you - - -
HIETANEN: No (ts 4 - 5)
16 During the scene interview the accused again described how he hit the deceased with a metal pole and then buried the body. He showed the police officers the location in which the deceased is buried. The body was later disinterred at that site. The accused then says:
HIETANEN: Um, yeah, I just apologise for what I've done.
SGT GARNETT: Yep.
HIETANEN: And it wasn't meant to happen. It was just an accident, and I'm sorry.
SGT GARNETT: Okay. Has everything you've said in this field interview been of your own free will?
HIETANEN: Yes.
SGT GARNETT: Have we promised you anything?
HIETANEN: No.
SGT GARNETT: Have we threatened you?
HIETANEN: No (ts 11 - 12).
17 Similar questions were put just prior to the scene interview concluding at 6.48 pm:
SGT GARNETT: - - - um, a copy of this video will be made to your legal representative. Okay. Um, I've got nothing further. Have you been threatened at all - - -
HEITANEN: No.
SGT GARNETT: - - - whilst you've been in our care since the prison?
HIETANEN: No.
SGT GARENTT: Have we promised you anything?
HIETANEN: No (ts 39).
The application
18 In written submissions filed on behalf of the accused it is said that the interviews are involuntary because they were 'the result of an inducement offered by Officers Foster and Garnaut to overcome Hietanen exercising his right to remain silent, Hietanen having exercised that right at the start of the interview process on 9 November 2014'. The submissions allege that in the 17 minute break between 3.12 pm and 3.29 pm one of the police officers (either Foster or Garnaut) told the accused that if he spoke to them about what happened to the deceased then Stacey Knight would not be charged. This is said to be an inducement which renders the accused's subsequent participation in the interview involuntary.
19 At the hearing of this application counsel for the accused said that she had instructions that the accused did not wish to give evidence in support of the allegation that an inducement was made. Nor did the accused object to the tender by the State of statements and running sheets of DS Garnaut, DSC Foster and Detective Sergeant Thomas Mills. Furthermore, the defence did not require any of those police officers to be available for cross-examination. I will return to the contents of those statements later in these reasons, suffice it to say that they each deny that any inducement of the type alleged was given. Accordingly, the direct evidence of the police officers was uncontradicted. As I pointed out to counsel for the accused, it was difficult in these circumstances to maintain the allegation that an inducement was offered. However counsel said that her instructions were not to abandon the application and that it would be pursued on the basis that an inference that an inducement was given could be drawn from the change of attitude of the accused to answering questions after the break.
20 Counsel for the accused submitted that prior to the break at 3.12 pm the accused had taken a firm stance of answering 'no comment' to questions regarding the allegations. This is consistent with him having obtained legal advice and following that advice. The break is a relatively short one, but there is a very marked and significant change to the way in which the accused responds to questions after that break. He no longer gives 'no comment' answers, responds readily to the questions asked by the police and is impatient to admit his guilt. It is submitted that it can be inferred from this that the accused was given the alleged inducement during the break.
Police evidence
21 As I have already noted, statements of police witnesses regarding the interview were tendered at the hearing of this application. The evidence of those witnesses is summarised below.
Matthew Stuart Garnaut
22 Detective Sergeant Garnaut was one of the interviewing officers on 9 November 2014. In his statement he states that the interview took place at the Broome Police Station and that DSC Foster was also in attendance.
23 When the interview was suspended at 3.12 pm DSC Foster left the interview room to turn the recording off. DS Garnaut states that at this time he remained seated in the room with the accused. The accused said, 'So Stacey is here?'. DS Garnaut replied, 'Yes, that is what Detective Senior Constable Foster has just told you'. He then said, 'Whilst the video is off we are not going to talk about the matter'. He says that he then remained with the accused during the remainder of the break and did not engage in any further conversation until the interview resumed at 3.29 pm.
Shane Andrew Foster
24 Detective Senior Constable Foster confirms in his statement that the accused and Knight were stopped in Kununurra and arrested in relation to another mater on 31 October 2014. On 8 November 2014 he interviewed Knight for some time.
25 On 9 November 2014 DSC Foster participated in the interview with the accused. He says that shortly after the interview commenced there was a break and he left the interview room to pause the recording. DS Garnaut remained in the interview room with the accused. DSC Foster then walked to the Detective's Office and spoke to DS Mills. DS Mills was monitoring the interview on a screen which provided audio and vision. He and DS Mills discussed the interview. During this period DSC Foster did not hear any conversation via the monitor in the interview room between DS Garnaut and the accused.
Thomas Eric Mills
26 Detective Senior Sergeant Mills was the senior investigating officer in regard to the investigation into the death of the deceased. He was present when DSC Foster and DS Garnaut attended at Broome Regional Prison for the purposes of removing the accused to be interviewed regarding the alleged murder of the deceased. He was present when the accused was advised that he was under arrest on suspicion for that murder. He also heard the accused being advised of his rights at that time.
27 At the Broome Police Station the accused was provided with a telephone and used it to contact his solicitor for legal advice. Later that afternoon the accused was taken to an interview room by DSC Foster and DS Garnaut. DS Mills commenced monitoring the interview by close circuit television. The accused initially answered 'no comment' to questions that were put to him. In accordance with an interview plan he was then advised that Knight was in police custody and was assisting police to located the body of the deceased. DSC Foster then left the interview room and turned off the recording.
28 DS Mills continued to monitor the interview room after DSC Foster left. At that time the accused asked DS Garnaut if Stacey Knight was present. Detective Sergeant Garnaut told the accused that she was, as DSC Foster had told him. DS Garnaut then told the accused that he would not have any further conversation with him unless the video recorder was turned on.
29 DS Mills then had a conversation with DSC Foster regarding a further interview strategy. Throughout this conversation DS Mills continued to monitor the interview room. Apart from the initial exchange that has been referred to there was no other conversation between DS Garnaut and the accused during the period that the video recorder was switched off.
Relevant law
30 Admissions made out of court are not admissible in evidence unless they are made voluntarily: McDermott v The King (1948) 76 CLR 501, 511 (Dixon J). The word 'voluntary' does not mean volunteered, it means made in the exercise of a free choice to speak or be silent: R v Lee (1950) 82 CLR 133, 149. Voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was made.
31 Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused: Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J). Where the issue of voluntariness is raised the onus is on the prosecution to establish on the balance of probabilities that the accused's admissions were made voluntarily: Lee (144).
32 In McDermott Dixon J referred to a 'definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made'. His Honour said that an inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by a person in authority. Confessional statements not falling within the definite rule can still be excluded if it is established that they were involuntary, this is referred to as 'basal involuntariness'.
Voluntariness - findings
33 There is no direct evidence that an inducement of any type was given by the interviewing police officers. The submission that an inference that such an inducement was given can be drawn from the accused's change of attitude faces a number of insurmountable difficulties:
(1) there is direct and uncontroverted evidence from both of the interviewing police officers that no inducement was given;
(2) that evidence is corroborated by DS Mills who was monitoring the interview room during the relevant period;
(3) on several occasions during the course, and at the conclusion, of the interview the accused was asked whether his answers were given of his own free will and he confirmed that they were. He also denied that any promise or threat had been made to him by the police. These answers are not consistent with the claim that an inducement was offered during the break; and
(4) there is another, and more obvious, reason for the accused's change of position. Having been told that Ms Knight was cooperating with the police he may well have considered that his interests were best served by answering all questions truthfully. This inference is supported by the evidence of the police officers that the only question asked by the accused whilst the recording was turned off was whether Stacey Knight was with the police.
34 On the evidence the only reasonable conclusion that can be drawn is that an inducement was not given. In these circumstances the claim that the interview was involuntary has no basis.
Conclusion
35 It was for the above reasons that I was satisfied that the accused's participation in the interviews at the Broome Police Station and the scene were voluntary. The application was based solely on the allegation that an inducement was offered and the evidence was to the contrary. It was not suggested that the interviews were involuntary for any other reason. Accordingly, the accused's application to exclude the evidence was dismissed.
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