Kelly v The State of Western Australia
[2017] WASCA 221
•28 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KELLY -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 221
CORAM: BUSS P
BEECH JA
HALL J
HEARD: 16 AUGUST 2017
DELIVERED : 28 NOVEMBER 2017
FILE NO/S: CACR 182 of 2016
BETWEEN: JAMES BERNARD KELLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BOWDEN DCJ
File No :IND DER 19 of 2014
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of possession of a prohibited drug with intent to sell or supply - State tendered at the trial an edited version of the appellant's electronically recorded interview with police - Public policy discretion - Whether the whole of the electronically recorded interview should have been excluded
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr R K Williamson
Respondent: Mr R G Wilson
Solicitors:
Appellant: Ross K Williamson
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1
Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
McDermott v The King [1948] HCA 23; (1948) 76 CLR 501
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
R v Clarke (1997) 97 A Crim R 414
R v Ireland [1970] HCA 21; (1970) 126 CLR 321
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
JUDGMENT OF THE COURT: The appellant has applied for leave to appeal against conviction.
On 4 October 2016, the appellant was convicted, after a trial in the District Court before Bowden DCJ and a jury, of one count in an indictment which alleged that on 1 June 2014, at Derby, the appellant had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.
Overview of the State's case at trial
The State's case at trial was that on 1 June 2014 the appellant had sole or joint possession of about 13 kg of cannabis contained in three orange coloured plastic barrels tied to a boab tree on the Meda Station near Derby.
At the material time, the appellant lived in Derby and worked at the Drysdale River Station. Access from Derby to the Drysdale River Station involved travel on the Gibb River Road.
The boab tree was about 150 m from the Gibb River Road. There was dense scrubland between the tree and the road.
The cannabis was stored in plastic shopping bags which had been deposited in the three orange coloured plastic barrels. Some of the plastic shopping bags were marked with texta pen. Occy straps were wrapped around the barrels, and the barrels were attached to the base of the boab tree by a rope. A folded piece of black plastic sheeting was on top of the barrels.
Two of the appellant's fingerprints were found on a piece of adhesive tape that had been affixed to the folded piece of black plastic sheeting. The appellant's DNA was found on one of the occy straps and on the inside and outside of one of the plastic shopping bags in which some of the cannabis was stored.
On 16 June 2014, the appellant participated in an electronically recorded interview with police. The interview occurred before the police had received the results of a forensic examination of the folded black plastic sheeting, the occy straps and the plastic shopping bags.
During the interview the appellant said that he used cannabis and that his fingerprints or DNA might be on the plastic shopping bags. The appellant explained that he had met with two men in a parking bay adjacent to the Gibb River Road for the purpose of inspecting some bags of cannabis which the two men had offered for sale. The appellant claimed that he had 'rifled through' the bags of cannabis (EROI 11). Ultimately, he decided not to purchase any of the cannabis because it was too expensive. The appellant said that the two men were not 'locals' and that he did not know their names (EROI 13). They had about five to eight bags of cannabis in an old Toyota utility. There were markings in texta pen on some of the bags. The appellant claimed that his encounter with the two men occurred at least two months before the interview. He said that he had previously owned barrels similar to the three orange coloured plastic barrels found by police, but there were 'lots of them around' and people 'usually get them from the wharf' (EROI 18). The appellant denied having been at the place on the Meda Station where the three orange coloured plastic barrels were attached to the base of the boab tree.
Overview of the appellant's case at trial
The appellant gave evidence at trial. He maintained and expanded upon the version of events he gave during his electronically recorded interview with police. Defence counsel cross‑examined the forensic experts called by the State in relation to the possibility of secondary transfer of fingerprints and DNA. It was submitted on the appellant's behalf that his DNA could have been deposited on the relevant items as a result of primary or secondary transfer consequent upon the appellant having been in contact with those items or other items in the Toyota utility when he inspected the cannabis that the two men had offered for sale.
The directions hearing prior to trial
At a directions hearing prior to trial the appellant applied for an order to exclude the whole of the appellant's electronically recorded interview with police on the basis of the unfairness discretion.
Defence counsel did not contend that the interview was involuntary. However, he submitted that:
(a)the police officers' statement to the appellant that they believed he was guilty;
(b)the 'disbelieving demeanour' of the police; and
(c)the 'ingratiating' conduct of the police and their informal use of colloquialisms,
adversely affected the appellant's behaviour and demeanour throughout the interview.
According to defence counsel, there was a danger that the jury would draw an adverse inference from the appellant's behaviour and demeanour throughout the interview in circumstances where the reason for his behaviour and demeanour (namely, the inadmissible statements by the police officers of their opinion that he was guilty) would not be before the jury.
The State proposed to adduce an edited form of the interview. The police officers' statements of opinion would be removed (directions ts 68).
Defence counsel argued that the unfairness to the appellant could not be remedied by editing the interview.
Braddock DCJ heard and dismissed the appellant's application. Her Honour said that she had viewed the EROI a number of times in whole and in part (directions ts 66, 68).
Her Honour made these findings and observations:
(a)The behaviour of the police officers was not oppressive. They were not rude or offensive (directions ts 68).
(b)Most of the questioning in the edited form of the interview was 'open‑ended, getting more detail, making notes of it, and exploring what [the appellant had] introduced' (directions ts 68).
(c)There were no indications in the appellant's demeanour that he was 'intimidated or overborne, or indeed, unduly bothered by the [police] officers'. The appellant was 'not a happy man', but there was 'nothing extraordinary in his demeanour'. He appeared to be 'moderately calm'. He was not 'unfriendly to the [police] officers; rather the opposite'. He was given time to answer questions and he was not at a loss for words (directions ts 68).
(d)Defence counsel did not specify what it was in the appellant's demeanour that was allegedly brought about during the interview and in respect of which the jury would or might draw an adverse inference (directions ts 68).
(e)The appellant did not behave during the interview 'in any particularly extreme or strange or prejudicial fashion' (directions ts 70).
(f)Although her Honour said that aspects of the police officers' conduct during the interview were less than 'ideal', her Honour's criticism was to the effect that the officers were 'informal, and perhaps … overly friendly when one remembers that this is a police interview in a serious situation for a serious allegation' (directions ts 70). Also, the officers were 'somewhat awkward' in the manner in which they complied with the requirements of the Criminal Investigation Act 2006 (WA) (directions ts 69).
(g)The objectionable parts of the interview had been removed. It had not been demonstrated that the manner in which the interview had been conducted had caused the appellant any prejudice (directions ts 69).
(h)Her Honour was satisfied that, as edited, there was no unfairness in the State adducing the interview (directions ts 70).
An edited version of the electronically recorded interview was tendered by the prosecutor at the trial.
The ground of appeal
The appellant relies on one ground of appeal.
The ground alleges:
The exercise of the discretion of Braddock DCJ [to refuse] to exclude from evidence the whole of the electronically recorded police interview [EROI] of the appellant miscarried.
Originally, there were two particulars of the ground. At the hearing of the appeal, counsel for the appellant abandoned the second particular (appeal ts 12). The remaining particular reads:
Her Honour erred in law and fact by failing to take into account the following relevant considerations:
(1)to permit the EROI into evidence at least appeared to condone the improper and unfair practice of the police saying in the interrogation of a suspect they think he or she is guilty of the offence that has been committed and nothing he or she can say in answer to their questions will change that view.
On 11 February 2017, Mazza JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
The ground of appeal: the relevant contents of the electronically recorded interview
The electronically recorded interview with the appellant was conducted by Senior Constable Steve Cleal and Sergeant Craig Wasley.
The unedited transcript comprises 34 pages. The vast majority of pages 1 to 19 was unedited. The vast majority of pages 20 to 34 was edited.
At pages 27 to 28 of the unedited transcript the following exchange occurred:
S/CON CLEAL: Barrels and, and you've accounted for they're, they're common, and you might have one or two at your house, but, oh, not that, that there is 'cause we did a search warrant there, but, um, you, a, a, it's, it's almost like it, it, you can see why we're stuttering and, and struggling with what to ask and going over the same things and just making sure well, we've at least got you to this story because a, I'm, I'm just being totally honest, [the appellant]. I don't, I don't believe that story. I, I think that's something that you've made up. And, and, um, you know, I guess that is me calling you a liar, but you're allowed to say whatever, whatever you want, but, um, I think you're, you were trying to suggest that your fingerprints could possibly be on those bags, and if it did come back, come back and say that oh, yes [indistinct] your fingerprints or DNA is on there, that, ah, well, that this would be the reason if it does. Um, so what [Sergeant Wasley's] question was before was that you, you're trying to link this cannabis that you looked through a month ago on the side of the road with these travellers to what is now in a bush location that we've in, in, in the bush. Yeah [indistinct]. Um, and that that, it, in my mind I think that's just something that you've … made up [indistinct].
[THE APPELLANT]: [indistinct] that.
S/CON CLEAL: To tell us. Yeah, so that if it does come up, that would be your explanation to it. Um, do you understand what I'm saying?
[THE APPELLANT]: Oh, absolutely, but, you know [indistinct].
S/CON CLEAL: But you, but you're, you're saying, but you're saying that what you've told me here, that is the truth, is it?
[THE APPELLANT]: Well, yes, that's the truth, mate.
S/CON CLEAL: This is the truth.
[THE APPELLANT]: Yeah.
At page 34 of the unedited transcript the following exchange occurred:
S/CON CLEAL: … I know we've got to ask you questions, and, look, I am saying I think you're lying. I'm sure that doesn't make you feel great …
Both of the exchanges that we have reproduced (and other passages) were removed from the electronically recorded interview that was tendered by the prosecutor at the trial.
We have viewed the edited version of the electronically recorded interview that was tendered by the prosecutor. We have also read the unedited transcript of the interview.
The ground of appeal: the appellant's submissions
At the hearing of the appeal, counsel for the appellant argued the ground of appeal solely on the basis of the public policy discretion.
Counsel expressly and repeatedly disavowed any reliance on the unfairness discretion (appeal ts 5, 6, 9). Indeed, counsel said that he was 'not here today to challenge [the] finding by [Braddock DCJ] that it was not unfair [for the State] to use the [edited interview]' (appeal ts 5).
According to counsel for the appellant:
(a)The whole of the electronically recorded interview should have been excluded at the trial because the police officers adopted an 'inappropriate practice' (appeal ts 6, 9).
(b)The 'inappropriate practice' was that 'it is wrong for the police … to say' to a suspect who is under arrest at a police station, '[w]e think you're guilty', '[n]othing you can say will change our view' and then '[use] those words to frame the interview' (appeal ts 3).
(c)The court should 'set its face against the [inappropriate] practice' and, notwithstanding that the practice appears not to have had any impact on the appellant, Braddock DCJ should have excluded the whole of the interview (appeal ts 9).
Counsel was unable to refer to any authority in support of his proposition that it is improper for a police officer who is interviewing an arrested suspect to say to the suspect that the officer believes the suspect is guilty of an offence (appeal ts 6). Also, counsel was unable to refer to any authority in support of his proposition that it is contrary to public policy for a police officer who is interviewing an arrested suspect to say to the suspect that the officer believes the suspect is lying (appeal ts 7).
The ground of appeal: its merits
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).
In the present case, the ground of appeal, as developed and confined by counsel for the appellant at the hearing, is without merit. Braddock DCJ did not err in the exercise of her discretion by refusing to exclude the whole of the electronically recorded interview. No miscarriage of justice has occurred. Our reasons are as follows.
First, to the extent that the unfairness discretion and the public policy discretion overlap, as we have mentioned counsel for the appellant expressly and repeatedly disavowed any reliance on the unfairness discretion and expressly declined to challenge Braddock DCJ's finding that there was no unfairness in the State adducing into evidence the edited interview. Counsel's decision not to contest her Honour's finding on that point was correct. The parts of the interview where Senior Constable Cleal asserted that the appellant was a liar and he did not believe the appellant's version of events were removed from the electronic recording that was tendered by the prosecutor at the trial. Also, the relevant assertions by Senior Constable Cleal did not 'frame the interview'. They occurred towards the end of the interview and after the appellant had uttered the statements relied on by the prosecutor at the trial. Further, the editing of the electronic recording did not present a distorted or reconstructed view of the manner in which the appellant's admissions against interest were made. Additionally, it is readily apparent on viewing the edited electronically recorded interview that the appellant was not adversely affected by anything done or said by the police officers in the course of the interview. In particular, the appellant was not intimidated or overborne by them.
Secondly, the assertions by Senior Constable Cleal that the appellant was a liar, he did not believe the appellant's version of events and the appellant was, in essence, guilty of the alleged offence did not, in the context of the interview as a whole, constitute improper conduct by a police officer whose duty is to enforce the law and for that purpose to interrogate with persistence, if reasonably appropriate, and on occasions with incredulity, if reasonably appropriate. The police officers' persistent questioning of the appellant was appropriate and proper. Also, based on the information known to the police officers, Senior Constable Cleal's occasional expression of disbelief as to the appellant's version of events and belief as to his guilt was not inappropriate or improper. The police officers' questioning and conduct was not intimidatory or oppressive.
Thirdly, in any event, even if (contrary to our opinion) the relevant assertions by Senior Constable Cleal were to any degree improper, the residual discretion to exclude the whole of the interview had to be exercised after balancing all of the relevant public interests. The nature and extent of any impropriety did not warrant the exclusion of the whole of the interview having regard to the public interest in convicting those who commit criminal offences. The admission into evidence, as part of the State's case, of the edited electronic recording did not give the appearance of curial approval of any impropriety and was not in conflict or at variance with the protection of societal norms.
Fourthly, Braddock DCJ did not fail to take into account relevant considerations that she was bound to take into account, as alleged in the remaining particular of the ground of appeal. The police officers did not engage in an improper or unfair practice, as asserted in the remaining particular. The admission into evidence of the edited electronically recorded interview did not involve condoning any improper or unfair practice of the police.
Conclusion
The ground of appeal did not have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
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