Jacobs v The Queen
[2000] WASCA 142
•25 MAY 2000
JACOBS -v- THE QUEEN [2000] WASCA 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 142 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:99/1999 | 2 FEBRUARY 2000 | |
| Coram: | KENNEDY J STEYTLER J WHEELER J | 25/05/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | CECIL JAMES JACOBS THE QUEEN |
Catchwords: | Criminal law and procedure Evidence Confession Corroboration Oral interview followed by audio-visual recorded interview Discretion to exclude confessional evidence on the ground of unfairness No unfairness demonstrated |
Legislation: | Criminal Code, s 570D |
Case References: | Kelly v The Queen (1995) 12 WAR 405 Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996 McKinney v The Queen (1991) 171 CLR 468 Sell v The Queen (1995) 15 WAR 240 T (A Child) v The Queen (1998) 20 WAR 130 Attorney General's Reference No 1 of 1988 (1988) 49 SASR 1 Cicchino v The Queen, unreported; CCA SCt of WA; Library No 8973; 2 August 1991 Duke v The Queen (1989) 180 CLR 508 Foster v The Queen (1993) 67 ALJR 550 McDermott v The King (1948) 76 CLR 501 R v Swaffield (1998) 192 CLR 159 Van Der Meer v The Queen (1988) 62 ALJR 656 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : JACOBS -v- THE QUEEN [2000] WASCA 142 CORAM : KENNEDY J
- STEYTLER J
WHEELER J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Evidence - Confession - Corroboration - Oral interview followed by audio-visual recorded interview - Discretion to exclude confessional evidence on the ground of unfairness - No unfairness demonstrated
Legislation:
Criminal Code, s 570D
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr P J Hogan
Respondent : Mr J Mactaggart
Solicitors:
Appellant : McDonald & Sutherland
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Kelly v The Queen (1995) 12 WAR 405
Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996
McKinney v The Queen (1991) 171 CLR 468
Sell v The Queen (1995) 15 WAR 240
T (A Child) v The Queen (1998) 20 WAR 130
Case(s) also cited:
Attorney General's Reference No 1 of 1988 (1988) 49 SASR 1
Cicchino v The Queen, unreported; CCA SCt of WA; Library No 8973; 2 August 1991
Duke v The Queen (1989) 180 CLR 508
Foster v The Queen (1993) 67 ALJR 550
McDermott v The King (1948) 76 CLR 501
R v Swaffield (1998) 192 CLR 159
Van Der Meer v The Queen (1988) 62 ALJR 656
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wheeler J. For the reasons which her Honour gives, I agree that this appeal should be dismissed.
2 STEYTLER J: I have read in draft the reasons to be published by Wheeler J. I agree with those reasons and have nothing to add.
3 WHEELER J: The appellant faced an indictment containing four counts of aggravated sexual assault which arose out of two incidents. Ultimately, the Crown proceeded only in respect of one incident, there being two counts arising out of it. The jury returned a verdict of not guilty on the first count and guilty on the second.
4 The complainant was unavailable at trial, and the evidence against the appellant consisted of the evidence of a medical practitioner who had examined the complainant, whose findings on examination were consistent with the application of some force to the complainant and with recent sexual activity, and the evidence of police officers who interviewed the appellant. The interviews took place at the Kwinana detectives' office on 2 March 1996, the day following the incident. The course of the interviews was as follows.
5 During an interview, in the course of which the appellant made statements amounting to confessions, the police took notes of the questions and answers, which notes the appellant acknowledged at the conclusion of the interview by signing them and by making corrections. A second interview was recorded on video later that day. The video commenced by an explanation of video recording, introductions and a caution. Following the caution, the entirety of the notes were read to the appellant while the video was running and the appellant was then asked whether the notes were a true account of the conversation earlier in the day. He agreed that they were. He identified his signature and corrections. He was then told:
"What we'd like to do now for the purpose of the interview is obviously go through it a bit more and ask you some more questions about it."
- He was then asked a substantial number of questions, and gave answers which were generally consistent with, and which considerably amplified, the answers contained in the notes.
(Page 4)
6 At trial, there was an objection to the admissibility of the notes and of the video-taped confessions on two grounds. First, it was said that the confessional evidence was involuntary and second, it was said that the confessional evidence ought to be excluded on the ground of unfairness, in particular because the whole of the interviews were not recorded on video. There was also, as I understand it, a specific objection raised relating to s 49 of the Aboriginal Affairs Planning Authority Act, which is not pursued on appeal.
7 There was a voir dire. The two police officers present at the interviews gave evidence, as did the appellant. There was also evidence from a psychologist as to the appellant's level of intellectual functioning at the time of participating in the interview and as to the likely effect upon the accused and upon his responses of the type of questioning carried out on the video. As I understand it, no issue arises in respect of the evidence of the psychologist. His Honour formed the view that the appellant was asked a number of open-ended questions which he readily answered and that he demonstrated an understanding of quite complicated words such as "intercourse" and "penetration" and that he expressed in an apparently unsolicited manner, remorse for his conduct, and generally conducted himself on the video as someone who "knows his own mind and is not easily deflected from an insistence upon his own point of view". This last remark has some significance in relation to the unfairness issue which is said to arise on this appeal.
8 So far as voluntariness was concerned, his Honour was satisfied that the will of the accused was not overborne in this case. The appellant's evidence on the voir dire was to the effect that he had denied to police that he had committed the offences; that he had lied to the police in his confessions because they would not believe him; that he only confessed to make the police happy; that the police put him under pressure and he had no choice; and that he was "under duress". His Honour did not accept that evidence.
9 His Honour having rejected the submissions made on behalf of the appellant in relation to unfairness, the notes made by police, although not used or read in evidence at the trial, were tendered and became exhibit 2, while the video was played and tendered at the trial.
10 This case raises again the issues dealt with in, inter alia, Sell v The Queen (1995) 15 WAR 240 and Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996. In Sell (at 250-251, per Malcolm CJ) it was said that:
(Page 5)
- "…public policy does not necessitate the adoption of a rule of practice or of law that requires that in every case where video facilities are available, the whole of a suspect's interview should be recorded on video…This does not detract from the view that, as a matter of practice, it is highly desirable that the police themselves adopt a rule to that effect so as to avoid the necessity for the trial judges to determine whether to exercise the discretion to exclude confessional evidence on the ground of unfairness".
11 The court in that case endorsed earlier comments made in Kelly v The Queen (1995) 12 WAR 405 to the effect that where video facilities are available, but are used only selectively, the value of the resulting video is much reduced, since the "balance" that a record of the full interview might have provided is lost. It was noted that such a practice leaves the way open to improper conduct in obtaining subsequently recorded admissions and dramatically weakens the protection to both suspect and investigating offers that a fully recorded interview carries.
12 In Mallard, Malcolm CJ at 25 said:
"The judgments in Sell also make it clear that the purpose of the video-recording of an interview is to corroborate the police evidence of the admissions made by the accused in the course of that interview. The purpose is not to obtain corroboration of admissions alleged to have been made in an earlier interview which was not video-recorded."
- At 28 his Honour said:
"This Court has now clearly stated what the desirable practice should be, but it would be inappropriate to give that practice retrospective effect. It should be clearly understood, however, that the practice described in Sell as desirable will be given effect by the courts in respect of interviews conducted since the date of that decision on 22 June 1995",
and at 30-31 his Honour said:
"I am of the opinion, however, that police officers should in the future take note that where video facilities are available and use is not made of them, the evidence obtained in an oral interview is likely to be held inadmissible in the exercise of the court's discretion".
(Page 6)
13 It is not clear why in this case the interview was not video-taped from the outset. Although the officer in charge of the interview was asked why he did not do so, his answer was "I have no direct recollection of that apart from what would commonly be the course that I would do - the course of action that I would take". There was no exploration in cross-examination of what that "course of action" would be or of the reasons for it. He was also asked: "Why not go then directly to the video process without the hour and a half gap? [referring to the time interval between the taking of the notes and the video-recording], and the answer given was: "Well, you need to arm yourself with all the facts or other information that you have been told by Mr Jacobs and other information may have come in that you would have checked out". This answer appears to be referring to the reason for the hour and a half gap, rather than the reason for not using a video from the outset, although it is perhaps possible to understand it as suggesting that a video is only of value or is of more value once information has been "checked out".
14 In the end, perhaps all that can be said of the evidence in relation to the procedure adopted is that, while there appears to have been no evidence of any good reason for failing to video-tape the interview from the outset, neither was there any evidence of a deliberate decision to disregard either police guidelines then in force relating to video-taping or the observations in decisions of this Court. In those circumstances, it appears to me that the proper focus of any inquiry directed to the discretion to exclude for unfairness is not upon the conduct of the police, in relation to which there is simply no evidence pointing to impropriety (leaving aside the evidence which his Honour rejected as to the "pressure" which the appellant said was applied to him). Rather, the appropriate inquiry is in relation to the fairness or otherwise to the accused of permitting the confession to be admitted. This seems to me to have been the approach taken by his Honour, the learned trial Judge. After referring to Sell, Kelly and Mallard, and pointing out that the practice adopted by the police in this case was not a desirable one, his Honour concluded however, that:
"The question of the admissibility of the confessional material in this case depends upon the answers to the fundamental questions raised by the objections, namely the voluntariness or otherwise of any confession and the fairness to the accused of allowing a voluntary confession to be admitted in any event".
15 The particular unfairness identified by the appellant in this case is said to be the forensic disadvantage to him in not being able to have his
(Page 7)
version of events corroborated; that is, in having no independent record of the manner in which the initial interview was carried out. Such a potential for unfairness does exist where there is a failure to video-tape the entirety of an interview.
16 However, in my view it was open to the trial Judge in this case to reach the view that the potential for unfairness had not been realised. Unlike the practice adopted in any of the other cases dealing with unrecorded interviews followed by video-taped confessions, what was done in this case was to read to the appellant on the video the entirety of what was alleged as the earlier conversation. That gave his Honour, in assessing the question of voluntariness and fairness, the opportunity to observe the demeanour of the appellant while those notes were read to him and gave the appellant the opportunity to respond on the video to the question of whether those notes were a true account of the earlier conversation. It is also to be noted that during the course of the more extensive video-recorded questioning, the appellant selectively agreed with propositions put to him by the interviewing officers. On a number of occasions, when asked whether the complainant had said "No" to his requests for sex, the appellant denied that she had said no, which tends to suggest that the appellant did not then feel under "pressure". It was in due course open to the jury to consider the entirety of the appellant's demeanour, both while the notes of the earlier interview were read to him and during the course of later questioning, and in response to the question as to whether he had any complaints about the way in which he had been treated during the course of the day.
17 This is not a case in which it is said that what took place during the earlier interview was in some way qualified by matters which were not recorded, or in which there are said to be ambiguities in the earlier interview or in which the appellant's tone in responding to earlier questions might have been particularly significant. In cases of that kind, potential unfairness to an accused caused by the failure to record the earlier interview may well be impossible to cure. However, the issue in this case was essentially whether the appellant had voluntarily answered questions or whether he had instead made untruthful admissions as a result of "pressure". His Honour determined that question adversely to the appellant, after viewing the extensive video-taping which did occur.
18 Further, the learned trial Judge gave the jury a direction which was, in effect, that said in McKinney v The Queen (1991) 171 CLR 468 to be appropriate to the case of an uncorroborated confessional statement made in police custody, notwithstanding the corroboration by the video-taped
(Page 8)
recording, so that the jury's attention was drawn clearly and forcefully to the need to analyse the video-taped recording with care.
19 In my view, the learned trial Judge was right in his conclusion that, although the practice adopted in this case was not desirable, this was nevertheless, having regard to the extensive nature of the video-taping and to the conduct of the appellant in the video-taped interview, a case in which fairness to the appellant did not require the exclusion of the evidence of either of the confessions made by the appellant.
20 I should add that, the question of the applicability or otherwise of s 570D of the Criminal Code, having been raised in the written submissions of the respondent, leave was given to the parties to make supplementary submissions in relation to this issue. The supplementary written submissions of the respondent assert that the provision is not procedural, but is to be considered as making a change in the substantive law and is therefore prospective only in its operation, contrary to the view apparently accepted (it being common cause between the parties in that case) in T (A Child) v The Queen (1998) 20 WAR 130. The appellant however does not wish to argue that s 570D applied to the circumstances of this case, and it is in my view not appropriate to consider that question in the absence of full argument and in a case where the appellant does not seek to rely upon that provision.
21 I would dismiss the appeal.
0
12
1