Kickett v Director of Public Prosecutions - [2025] WASC 134

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KICKETT -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 134
CORAM:   FORRESTER J
HEARD:   24 SEPTEMBER 2024 & 10 FEBRUARY 2025
DELIVERED          :   23 APRIL 2025
FILE NO/S:   SJA 1034 of 2024
BETWEEN:   TRAVIS REVEL KICKETT
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
For File No:   SJA 1034 OF 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S BUTCHER
File Number            :   BU 1733-1734 OF 2023

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction - Whether a requirement of the Criminal Investigation Act 2006 (WA) contravened - Whether magistrate wrongly admitted evidence pursuant to s 155 of Criminal Investigation Act 2006 (WA) - Whether evidence should have been excluded at common law - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Investigation Act 2006 (WA)

Result:

Extension of time granted
Application for leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr R Napper
Respondent	:	Ms M L Wong

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth (Criminal)
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

Cases referred to in decision:

Carr v The State of Western Australia (2007) 232 CLR 138
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
EYO v The State of Western Australia [2019] WASCA 129
Holmes v The State of Western Australia [2023] WASCA 26
Moore (A Pseudonym) v The King [2024] HCA 30
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68
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; (2010) 203 A Crim R 339

FORRESTER J:

Introduction

On 18 March 2023 the appellant was convicted of aggravated home burglary and stealing. He now appeals against that conviction. An extension of time is required.
For the reasons which follow, the extension of time should be granted, and the appeal dismissed.

Proceedings in Magistrates Court

The trial was held on 18 March 2024.

Prosecution case

The prosecution alleged that between 1 March 2022 and 25 March 2022 a burglary occurred at an address in East Bunbury, during which clothing, a black bicycle and a coffee mug containing coins were stolen. The burglary was reported on 28 March 2022.
On 30 April 2022 a police officer attended the address and seized some shorts, a black jumper and a pair of shoes. The inner waistband of the shorts produced a mixed DNA profile from at least three contributors, with a high likelihood ratio in favour of the hypothesis that the appellant was a contributor. A sample from the jumper produced a mixed DNA profile from at least three individuals, with there being a high likelihood ratio in favour of the hypothesis that the appellant was the major contributor.
The appellant was arrested on 9 April 2023. The arrest was recorded on body worn camera. During the arrest, the accused was told of his rights pursuant to s 137 of the Criminal Investigation Act 2006 (WA) (CIA) and was also cautioned as follows:
Sergeant Nimmo: You're not obliged to say anything unless you wish to do so. Whatever you do say will be recorded on the camera and may be used as evidence. What does that mean to you?
Appellant:Um, that'll it be used against me in court.
Sergeant Nimmo: That's the last bit. What's the first bit? You're not obliged to say anything unless you wish to do so?
Appellant:Um, I don't have to say anything at all.
Sergeant Nimmo: Beautiful. As long as you understand that.
Appellant:Yep.
The appellant was asked if he had been to Bunbury since his recent release from custody but was otherwise not asked any questions relating to the offence. He was then taken to Scarborough Police Station.
During a conversation there, which took place approximately 40 minutes after the appellant was arrested, the following exchange occurred:
Sergeant Nimmo: So we are currently at the Scarborough Police Station, you have been cautioned, correct? You don't have to say anything unless you wish to do so –
Accused:Yep.
Sergeant Nimmo: - whatever you do say will be recorded. At the moment I've just got my body worn camera going because you didn't want to do an official interview - -
Accused:Yep.
Sergeant Nimmo: - but I just wanna record the allegations that I'm gonna put to you, alright?
Accused:Yep.
Sgt Nimmo then informed the accused of the nature of the alleged offences and the address at which they occurred. He confirmed that the accused had let his friends and relatives know where he was, and that the accused did not want to speak to a lawyer, and then said:
Sergeant Nimmo: So I've given you that right. And you remember me cautioning you – you're not obliged to say anything unless you wish to do so?
Accused: Yep.
Sergeant Nimmo: And again, you said you know those rights, um, you didn't want to speak to, uh, the custody notification system, and we went through that again that you don't have to say anything, you understand that?
Accused: Yep.
Sergeant Nimmo: But yeah in fairness, I just have to tell you what the allegations are. So it was those dates that I just mentioned, 61 Hayes Street, East Bunbury. Now, you're familiar with East Bunbury?
After that, Sgt Nimmo continued to ask the appellant questions, along the way also disclosing further details of the offence. During the conversation, the appellant made significant admissions.

Voir dire

At the commencement of the trial, counsel for the appellant made an application to exclude the electronic record of interview conducted with him at Scarborough Police Station.
When asked the basis for the application, the appellant's counsel said:
[M]ultiple reasons, essentially that Mr Kickett's rights were not recorded, that he perhaps didn't understand what was being put to him. It's an informal – he said he didn't want to do an official interview but then he's recorded on body worn camera footage.
…
The caution wasn't recorded … so it's not clear if one was given.[1]
…
They say 'You were cautioned correct' I think but it wasn't recorded. Other rights such as right to a lawyer wasn't given, no preliminary questions such as level of education or intoxication or any injuries. He is advised that he doesn't have to answer questions but there's no second limb to that whether he understands what that means, you can answer ten questions or if I ask you ten etc.
No discussion about where that footage can be used, where it can be used in court as evidence against him. He was advised he's under arrest for burglary and stealing but then it was put to him – well, essentially the allegation is minimised, in our view. And there's an allegation of stolen bike as well, he wasn't cautioned on that. And then Mr Kickett says he can't remember number of times. He does eventually make some agreeance but he can't really give any detail as to the burglary or – it seems to be gratuitous concurrence.
[1] It appears that either the appellant's trial counsel had not, at this stage, seen the body-worn camera footage of the arrest, or had not recalled that a caution was administered at that time.
The appellant objected to the admission of the evidence against him on the basis that:
(a)when the appellant was first cautioned he 'hadn't woken up yet';
(b)the appellant was initially told that the offence was a burglary, not a home burglary, and thus the seriousness of the offence was minimised;
(c)it was not clear to the appellant that he was in an interview;
(d)the appellant was not reminded he could change his mind if he wanted to speak to a lawyer;
(e)there was no reiteration of the fact that the recording could be played in court;
(f)it was not clear that the appellant admitted committing an offence in the place; and
(g)the contravention of the CIA was intentional.
When his Honour indicated he was looking for the relevant provision in the CIA, trial counsel for the appellant referred to s 155.[2] Counsel referred to the factors relevant to the operation of s 155 of the CIA,[3] and said:
And since the trial would – or the conviction will probably hinge on this interview, we would ask your Honour, in fairness to Mr Kickett, to render that electronic record of interview, if it can be called that, inadmissible.[4]
[2] ts 6.
[3] ts 11 - 12.
[4] ts 12.
On behalf of the prosecution it was submitted that the interview did not need to be audio visually recorded (because the offence was not a solely indictable offence[5]), and the appellant had been properly cautioned and understood the caution when it was given. Further, it was submitted, the appellant freely answered the questions he was asked.[6]
[5] CIA s 118(2).
[6] ts 12 - 14.
Neither party led any evidence on the application.
His Honour was not satisfied that the appellant was affected by drugs or alcohol or that he was too tired.[7] However, his Honour was satisfied that the caution was inadequate because of a failure to comply with s 138(2)(b) of the CIA, saying:
He was given the caution initially. It was what I described as a short form caution, as very brief. There was no follow-up questions and it was merely adopted without repeating at the interview at the police station.[8]
[7] ts 19.
[8] ts 19.
The learned magistrate determined that the interview should be admitted in the exercise of his discretion, pursuant to s 155 of the CIA. His Honour found that the contravention of the CIA was reckless rather than intentional.[9] His Honour considered that the offence alleged was serious, the admissions were significant and the evidence was critical to the prosecution case.[10] Accordingly, his Honour was satisfied that:
[T]he probative value of that evidence is high and the desirability of that evidence being included into the evidence in trial outweighs the contravention of the legislation in not properly cautioning the accused.[11]
[9] ts 20.
[10] ts 19 - 20.
[11] ts 21.
The learned magistrate therefore dismissed the application.

Trial

The appellant's defence at trial was that he was not the person who committed the offences. It was submitted that the admissions made by him did not constitute admissions to the burglary which was committed, and there were other explanations for the DNA profiles obtained from an item found at the scene.
Sgt Nimmo gave evidence in the trial. He was asked about the circumstances leading up to the admissions being made by the appellant, and said:
[W]e took him to the interview room to conduct a formal interview in relation to that offence.
…
He didn't want to participate in a formal interview but wanted to know further about the allegations of what he was under arrest for and I explained to him that I can't do that unless it's recorded. He was adamant that he didn't want to have it done as a formal interview with the camera behind the window but was okay for – to do it with the body-worn camera footage. So I again activated my body-worn camera footage and conducted that interview.[12]
[12] ts 31.
In cross-examination, Sgt Nimmo confirmed the appellant did not want to 'do a formal interview'. He did not recall whether he told the appellant that the discussion on body‑worn camera was not a formal interview and did not recall saying that he was just going to put the allegations to the appellant.[13] His evidence in chief was not otherwise challenged.
[13] ts 32.
After hearing all of the evidence, the learned magistrate found, on the basis of the combination of the admissions and the DNA evidence, that the charge had been made out and accordingly convicted the appellant.[14]
[14] ts 39 ‑ 40.

Grounds of appeal

The grounds of appeal (as amended) are as follows:
1.A miscarriage of justice was occasioned by the learned Magistrate incorrectly finding that the desirability to admit the evidence outweighed its desirability under s 155(2) of the CIA; and
The Applicant's right to be cautioned was contravened
(i)The appellant has the right to be cautioned as a suspect pursuant to s 138(2)(b) of the Criminal Investigation Act 2006 (WA) ('CIA') (Particular 1);
(ii)The right required the police to caution the appellant before each occasion they interviewed him as a suspect (Particular 2);
(iii)The right prohibits the police from negating or undermining the force and effect of a caution previously given (Particular 3);
(iv)The police afforded the appellant's right to be cautioned shortly after his arrest, under s 138(3)(b) of the CIA (Particular 4);
(v)The appellant refused to participate in an 'official interview' with police shortly after he was arrested (Particular 5);
(vi)Following the refusal to participate in an 'official interview', the appellant subsequently initiated an 'informal conversation' with the police to discern the details of the allegations made against him (Particular 6);
(vii)This 'informal conversation' recorded on body-worn camera (BwC) constituted an interview that required the police to caution the appellant again (Particular 7);
(viii)The police contravened the appellant's right to be cautioned again because the police administered a new incomplete caution (Particular 8).
The undesirability of admitting the evidence outweighed its desirability
(ix)By contravening the appellant's right to be cautioned, s 155 of the CIA was engaged (Particular 9);
(x)The applicant's objections made at trial were valid (Particular 10);
(xi)The offending is not sufficiently serious as to warrant admissions (Particular 11);
(xii)The contravention is serious (Particular 12);
(xiii)The contravention was either deliberate or reckless (Particular 13);
(xiv)The probative value of the evidence does not warrant its admissions (Particular 14).
2.Alternatively, a miscarriage of justice was occasioned by the learned Magistrate failing to exclude the evidence under the common law.
(i)Trial Counsel's submissions were consistent with an application to exclude the evidence at trial under both the CIA and the common law (Particular 1);
(ii)Had the application been dealt with under the common law, it would have been correct to exclude the evidence (Particular 2);
(iii)The police correctly cautioned the appellant when he was first arrested (Particular 3);
(iv)The appellant exercised his right to silence when the police sought to commence an 'official interview' with him (Particular 4);
(v)The appellant subsequently initiated an informal conversation with the police to discern the detail of the allegations made against him (Particular 5);
(vi)The police misled the appellant into believing that they could not inform him about the allegations without recording the conversation on BwC where no requirement existed at law (Particular 6);
(vii)The police misled the appellant into believing there was a difference between the 'official interview' in which he refused to participate and the 'informal conversation' they had on BwC where no distinction existed at law (Particular 7);
(viii)The police omitted the second limb of the caution when they spoke to the appellant during their informal conversation (Particular 8);
(ix)The totality of the police's conduct misled the appellant into making admissions where none would have been made had they conducted their investigation properly (Particular 9).

Extension of time

The delay in filing the notice of appeal has been adequately explained. There is no prejudice to the respondent if an extension of time is granted. Accordingly, I will grant the extension of time.

Statutory framework

Appeal against conviction

The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[15]
[15] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[16] meaning that the ground is required to have a rational and logical prospect of succeeding.[17] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[18]
[16] CA Act s 9(2).
[17] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[18] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[19]

Criminal Investigation Act 2006 (WA)

[19] CA Act s 14(2).

Pursuant to the CIA, an arrested person is entitled to be provided with their rights as set out in s 137(3). Further, s 138 provides:
(1)In this section —
arrested suspect means a person who is under arrest having been arrested —
(a)under section 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence; or
(b)under the Criminal Investigation (Extra‑territorial Offences) Act 1987;
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)In addition to the rights in section 137, an arrested suspect is entitled:
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
(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 section 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).
Sections 154 and 155 of the CIA provide as follows:
154. Evidence obtained improperly
(1) In this section —
authorisation includes a warrant and an order.
(2) If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act —
(a) a thing relevant to an offence is seized or obtained; and
(b) a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless —
(c) the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
155. Inadmissible evidence, court may allow admission
(1) This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account —
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d) whether any contravention of this Act in obtaining the evidence —
(i) was intentional or reckless; or
(ii) arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.

Ground 1

The appellant contends by ground 1 that a miscarriage of justice was occasioned as a result of the learned magistrate exercising his discretion to admit the evidence pursuant to s 155(2) of the CIA.
It is not in dispute that the appellant was, at all relevant times, an arrested suspect.
If the appellant was not provided with the rights to which he was entitled as an arrested suspect in accordance with s 137 and s 138, that would constitute a contravention to which s 154 applied.[20] By the operation of s 154, a failure to comply with the requirements of s 137 and s 138 renders admissions inadmissible, subject to the exercise of the discretion in s 155.
[20] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339 [20] (Wright).
However, before consideration can be given to that aspect of the learned magistrate's decision, the appellant must first establish that a requirement of the CIA was contravened. If no contravention was established, the learned magistrate was not required to exercise his discretion pursuant to s 155 at all.

Was there a contravention of the CIA?

In this case, the contravention alleged is that the appellant was not properly afforded his right to be cautioned before being interviewed as a suspect, as required by s 138(2)(b).

Appellant's submissions

On behalf of the appellant it was argued that the police were required to caution the appellant before each occasion on which police intended to interview him as an arrested suspect. The appellant argued that his request to be informed of the allegations in detail caused a 'new' interview to be commenced, before which he had a right to be cautioned afresh.
Alternatively, the appellant submitted that the manner in which Sgt Nimmo did caution him at the commencement of the interview at the police station in effect 'negated' the original caution, meaning the CIA was not complied with.
The appellant submitted that this construction is supported by the text, the relevant context and the underlying purpose of the provision in the overall scheme of the CIA.[21]

Respondent's submissions

[21] Appellant's supplementary submissions [17].

The respondent submitted the construction urged by the appellant is not supported by the text of s 138, which specifically provides when the caution is to be given,[22] namely as soon as practicable after arrest. As the appellant was cautioned immediately upon arrest, there was no contravention of the CIA.

Disposition

[22] Respondent's supplementary submissions [13] ‑ [14].

Section 138(3) requires that 'as soon as practicable after the arrest of an arrested suspect', the accused be afforded their right, pursuant to s 138(2)(b), to be cautioned before being interviewed as a suspect.
The word 'afford' in this context means 'supply or furnish'.[23] The meaning of 'interview' is not defined for the purposes of pt 12 of the CIA.[24]
[23] Wright [29].
[24] 'Interview' is defined for the purposes of pt 11 of the CIA as meaning 'an interview with a suspect by a police officer or a CCC officer or any part of such an interview'.
The CIA is silent on the content of the caution which is required to be administered. However, in EYO v The State of Western Australia the Court of Appeal observed:
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.[25]
[25] EYO v The State of Western Australia [2019] WASCA 129 [69] (EYO).
There is no specific provision in s 138(3)(b) as to the extent to which, in order for that provision to have been complied with, it must be explained to the arrested suspect, or the extent to which the arrested person must understand the caution administered.
However, as the last two sentences in the extract from EYO make clear, it is important that the appellant understand not only his right to silence, but also the effect or consequence of answering police questions. As Hall J observed in The State of Western Australia v Gibson:
The obligation to administer a caution to an arrested suspect will not be satisfied by merely reciting the relevant phrases in the presence of that suspect. The caution must be understood by the suspect in order for it to be relevant to the question of voluntariness. In the case of a suspect who has an insufficient understanding of English this means that an interpreter should be used to explain the caution: s 10 CIA. Asking the suspect to then explain in their own words what the caution means will ensure that the suspect understands their rights.
It is also worth noting that the caution should be given in clear and unequivocal terms. Contradictory messages may undermine the force and effect of the caution.[26]
[26] The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68 [147].
Ultimately, it will be a matter for the court to determine whether the requirement has been complied with in any given case.
In this case, it is common ground that the appellant was provided with a sufficient caution within minutes of his arrest, that it was confirmed that the appellant understood the caution, and thus at that time the police had complied with their duty pursuant to s 138(3)(b) of the CIA to afford to the appellant his right to be cautioned before being interviewed as soon as practicable after his arrest.[27]
[27] Appellant's supplementary submissions [46] ‑ [47].
It was not suggested that the appellant was interviewed before he arrived at the police station. Further, it was not disputed that the conversation Sgt Nimmo had with the appellant at the police station, in which the appellant made admissions, constituted an 'interview' for the purposes of the CIA.[28] That interview took place approximately 40 minutes after the appellant was arrested.
[28] As to the meaning of 'interview' in the (related) context of s 570D of the Criminal Code as at 30 July 2003, see Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1, 17 [38]; Carr v The State of Western Australia (2007) 232 CLR 138, 153 [62], Gummow, Heydon & Crennan JJ (Gleeson CJ agreeing on this point [9]).
According to the evidence of Sgt Nimmo, the appellant refused to be interviewed 'as a formal interview with the camera behind the window but was okay … to do it with the body‑worn camera footage'.
The appellant submitted that, having refused to participate in a 'formal interview', he had concluded an 'interview'. He further submitted that, in requesting further details of the allegations, he had initiated a further conversation with the police which constituted a 'new interview' which required a further caution.[29]
[29] Appellant's supplementary submissions [52] ‑ [54].
I do not accept that there were two separate interviews. As the appellant acknowledges, the CIA does not draw any distinction between a 'formal' interview or any other kind of interview. The evidence of Sgt Nimmo was that the appellant did not want to participate in an interview in a room where the camera was behind the window, but was content to be spoken to on body‑worn camera.[30] In my view, this does not provide a basis for the contention that two separate interviews were conducted with the appellant.
[30] ts 31.
In any event, the plain text of s 138(3) does not support the submission that an arrested suspect is required by the CIA to be afforded the right to be cautioned before every 'interview'.
While it is no doubt desirable that an arrested suspect be cautioned at the start of each separate occasion on which they are spoken to, the requirement under the CIA is that the arrested suspect be afforded the right to be cautioned before being interviewed as a suspect 'as soon as practicable' after they are arrested.
In Wright, McLure P (with whom Buss JA agreed) observed:
Subsections (2) and (3) of s 138 are interrelated. Subsection (2) identifies the arrested suspects' rights and subs (3) identifies upon whom the duty falls, the scope of the duty and when the duty (to confer the rights) must be exercised. As to timing, the duty must be performed 'as soon as practicable after arrest'. The word 'practicable' is not defined and has its natural and ordinary meaning of 'capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible': Macquarie Dictionary 1494.[31]
[31] Wright [26].
Sections 137 and 138 fall within pt 12 div 5 of the CIA. Part 12 makes provision for matters including the power of arrest, what may be done ancillary to an arrest, searches of people in custody, and dealing with arrested people. Division 5 sets out the rights of arrested people and arrested suspects, the purposes for which arrested suspects may be detained, how long arrested suspects may be detained, and when they are required to be released, if they are not charged.
Importantly, the time for which a person may be an 'arrested suspect' before either being charged or released unconditionally is limited by the provisions of pt 12 div 5 of the CIA. As such, there is a limited time during which an arrested suspect can be interviewed as an arrested suspect, although that time may vary depending on what authorisations are granted under the CIA.
It is also relevant that, in addition to their rights under the CIA, arrested people and suspects retain their common law right to seek the exclusion of admissions obtained during interview, on the basis that admissions were made involuntarily, or that they should be excluded pursuant to the fairness discretion and/or the public policy discretion.[32]
[32] Wright [184].
If the appellant's submission that the CIA required that a caution be administered immediately before each interview were to be accepted, it would require a significant requirement to be imported into the legislation, without any textual support for it. Having regard to the protections provided for by pt 12 div 5, and the additional protections provided by the common law, there is no warrant for such a requirement to be imported in this way.
As is conceded by the appellant, he was adequately cautioned as soon as practicable after his arrest, and he satisfactorily understood the caution. In those circumstances, in my view s 138(3)(b) of the CIA was complied with.
There having been no contravention of the CIA, s 154 did not operate and s 155 had no operation in the circumstances of this case. Ground 1 must therefore fail.

If there was a contravention of the CIA, was there a miscarriage of justice by reason of the learned magistrate's exercise of discretion pursuant to s 155 of the CIA?

I will, however, go on to consider the question of whether there was a miscarriage of justice as a result of the learned magistrate's 'incorrectly finding', pursuant to s 155 of the CIA, that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. I will proceed on the assumption, contrary to what I have found, that there was a contravention of the CIA, namely the requirement to caution the appellant prior to the interview, which rendered the interview inadmissible pursuant to s 154 of the CIA.
In Moore (A Pseudonym) v The King, the High Court held that the appropriate test to be applied on an interlocutory appeal from a ruling of a trial judge in relation to whether to exclude evidence pursuant to s 137 of the Evidence Act 2008 (Vic) is the 'correctness standard', which requires the appellate court to determine for itself the correct outcome while making due allowance for such advantages as may have been enjoyed by the court below.[33]
[33] Moore (A Pseudonym) v The King [2024] HCA 30 [18] (Moore).
The court held that in such a case:
A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied 'demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies'.
Consistent with this approach, in R v Dennis Bauer (a pseudonym) this Court observed that an assessment of whether tendency evidence has 'significant probative value' for the purposes of s 97(1)(b) of the Evidence Act is 'one to which there can only ever be one correct answer', although 'reasonable minds may sometimes differ' about that answer. Thus it is for the appellate court to determine whether the evidence meets that threshold, rather than deciding whether it was 'open to the trial judge' to reach that conclusion.[34]
[34] Moore [15] ‑ [16].
In light of the decision in Moore, both parties submitted that the appropriate test to be applied in this case was the correctness standard. While I have some hesitation in accepting that submission, having regard to the way in which s 155(2) is framed, I will proceed on that basis without finally determining the issue.
In Wright, Blaxell JA noted that s 155 focuses on public policy considerations, observing that the matters to be taken into account under pars (b), (c), (d) and (e) of subs (3) all bear a close resemblance to the factors relevant to the exercise of the policy discretion at common law and said:
In my view, each of those factors has the same relevance in the statutory setting as it does at common law. Accordingly, the weight to be given to factor (b) (the seriousness of the offence) will vary according to the 'heinousness of the crime' so that the more serious the offence, the more weight it should be given.
Similarly, the weight to be given to the seriousness of any contravention of the Act in obtaining the evidence (factor (c)) will be proportionate to such seriousness. Factor (d) effectively requires that much greater weight should be given to a contravention if it was intentional or reckless than if it arose from an honest and reasonable mistake of fact. There will be occasions when a contravention does not fit either of those categories (eg carelessness) and in such a case, the court will assess its seriousness and give the factor such weight as it thinks fit.
The probative value of the evidence (factor (e)) will depend not only on its content, but also (in the case of an admission) on its reliability and unequivocalness. The greater the probative value, the greater the weight that should be given to that factor. However, by reason of subs (4) the weight given to the probative value can never be enough on its own to justify admission of the evidence.
The remaining factors in s 155(3) that the court must take into account when exercising the statutory discretion are:
(a)any objection to the evidence being admitted by the person against whom the evidence may be given.
…
(f) any other matter the court thinks fit.
It is significant that these two factors are not limited in any way and that they extend beyond matters of public policy. Furthermore, factor (a) refers to 'any objection to the evidence being admitted' which necessarily includes any objection based on common law grounds. Accordingly, when exercising the statutory discretion under s 155 in relation to evidence of an admission, the court will sometimes be required to take into account matters which are ordinarily determined by application of the principles and processes of the common law. Such matters might include the question whether or not the admission was made voluntarily, whether it would be unfair to the accused to admit the evidence, and (to the extent that there was any impropriety not involving a contravention of the Act) whether the evidence should be excluded on public policy grounds.
This entwining of common law issues with the exercise of the statutory discretion will not always occur, because there will be many cases where it is not alleged that an admission was obtained in contravention of the Act. In such cases, the issues concerning voluntariness, fairness, or public policy considerations will be determined entirely on a common law basis and in accordance with the common law burdens of proof. However, if the grounds of objection do include a claim that the evidence is inadmissible by reason of a provision of the Act (and that claim is upheld), then the statutory discretion will overlap with and have primacy over the common law. The important question in these circumstances is what impact s 155 has on the common law processes and outcomes.
Quite obviously the Act cannot be construed in a way which subjugates the common law determination of voluntariness to the statutory decision under s 155(2). The question whether a confession is voluntary is an issue of fact which is not susceptible to a discretionary determination. In this regard, it is clear that Parliament intended that s 155 would codify the common law rather than change its fundamental principles. This was confirmed during the parliamentary debate on the Bill when the Leader of the House in the Legislative Council stated that the clause (which is now s 155) had the following purpose:
The reason the government ever sets out to codify common law is to make life a little more understandable for the users of the given legislation. This measure will in the main be used by police prosecutors and police in charge of a particular case. They are not lawyers; they are certainly not expert in common law. This is an attempt to set out the common law in a black‑and‑white codified form with respect to this part of this act. It is no more profound than that. It is designed to create a clear, black‑and‑white statement of what is and is not admissible under this act. (Hansard 7439)
However, the (partial) codification of the common law in s 155 does interfere with the common law discretions. The common law discretions all operate to exclude evidence, whereas the statutory discretion operates to admit evidence. Accordingly, in respect of evidence rendered inadmissible by s 48, s 118, or s 154, there is simply no place for the exercise of any of the common law discretions to exclude evidence on the grounds of unfairness, public policy, or because the prejudicial effect outweighs the probative value.
Nevertheless, in any case where there are alleged breaches of the individual rights conferred by s 137 and s 138, issues of unfairness and/or impropriety will often arise. Sometimes there will also be an issue as to the probative value of the evidence compared to its prejudicial effect. It is in this context that the court must take account of the consequent objections under s 155(3)(a) to the admission of the evidence. If the objections are found to be valid they will add weight to the 'undesirable' side of the balancing exercise under s 155(2).
In summary, it is my view that on a proper construction of the Act:
(a) Section 155 does not impact upon the common law determination of the issue whether a confession or admission was made voluntarily.
(b) Nevertheless, when making a decision under s 155(2) in respect of a confession or admission, the court must take into account any objection that the same was involuntary. This will require a concurrent determination of the issue of voluntariness. In the event of a finding that the confession was involuntary, the undesirability of admitting the evidence would necessarily outweigh the desirability of doing so.
(c) In respect of any evidence which is found to be inadmissible under s 48, s 118, or s 154, there is no scope for the common law discretions to operate. Section 155 governs all discretionary considerations affecting the admissibility of evidence which is otherwise inadmissible under the Act.
(d) The burden of persuading the court to exercise the discretion under s 155(2) rests on the prosecution. To the extent that the decision turns on disputed issues of fact, the prosecution must prove those facts on the balance of probabilities.[35]
[35] Wright [178] ‑ [188].

The appellant's objections to the evidence being admitted are summarised at [13] above. In effect, an objection was raised on the basis of unfairness.
The first issue is that the appellant's agreement to allow the conversation to be recorded on body-worn camera was said only to have been given because he was told that he could not be told more detail of the allegations without that being done. However, Sgt Nimmo's evidence was only to the effect the appellant objected to the interview room camera, but agreed to the body worn camera being used. It is to be acknowledged that the appellant was told that the body worn camera would have to be used if he wanted to hear the allegations, but the appellant ultimately gave no evidence as to the reason for his agreement.
The appellant was not told he was going to be interviewed as part of that conversation. It was in that context that the incomplete caution was then given; he was told that he was not obliged to say anything unless he wished to do so. The appellant was not reminded that what he said could be used in court.
It is an irresistible inference that Sgt Nimmo still intended to ask the appellant questions about the alleged offending, and that he did not intend to just tell the appellant what the allegations were. So much is clear from the fact that:
(a)Sgt Nimmo told the appellant the time, date and location of the alleged burglary, administered the appellant's arrested person rights and then purported to again caution the appellant;
(b)having told the appellant that, in order to tell him the allegations, he had to have the camera on (which was not correct); and
(c)having readministered the caution (such as it was) Sgt Nimmo did not immediately tell the appellant the allegations, but asked the appellant a series of questions, only providing further details of the allegations as part of that questioning.
In addition, it is unclear why, in speaking to the appellant, Sgt Nimmo drew a distinction between an 'official interview' and an interview he was conducting on body worn camera. Sgt Nimmo must have been aware that there was no meaningful distinction.
I do take into account that there was no requirement under the CIA to audio visually record any interview, or admissions made by the appellant, although it is good practice to do so, as Sgt Nimmo no doubt appreciated.
The evidence of Sgt Nimmo was not that the appellant declined to be interviewed. It was that he declined to be interviewed in the room with the camera behind the window. This evidence was not challenged in any way.
I accept that it was undesirable for the interview to have proceeded in the manner it did. There was no basis for Sgt Nimmo to distinguish between an 'official' interview and the interview he proposed to have with the appellant. It is unclear why Sgt Nimmo told the appellant he needed to record him putting the allegations to him on body-worn camera. It is also unfortunate that Sgt Nimmo administered an incomplete caution to the appellant at the commencement of the interview.
However, it is also important to note that the appellant did not appear to have any difficulty understanding the caution when it was properly administered shortly after his arrest, and he was able to readily identify that anything he said could be used in court, although he only articulated that it could be used against him.
The allegation was that, on an unknown date between 1 March 2023 and 25 March 2023, the appellant entered the complainant's house without consent and stole various items. The offence attracted a maximum penalty of 18 years' imprisonment. A person's home is their sanctuary. Invasion of a person's home, then, even when they are not present, is a particularly serious offence.
If there was a contravention of the CIA, I would not accept that it was a particularly serious example. The appellant was cautioned at the time of his arrest, and demonstrated a clear understanding of that caution without explanation or significant prompting. The interview took place only 40 minutes later, and the police did remind the appellant of his rights, albeit in an incomplete fashion, at that time. It might be inferred that they considered the appellant had demonstrated a sound understanding of his rights and did not consider the need to comprehensively repeat them.
This was, in my view, at least unwise. If Sgt Nimmo considered it necessary to readminister the caution (which is, in any event, good practice) he should have administered it properly. However, I am unable to infer any sinister motives from the conduct of Sgt Nimmo, and nothing of the kind was suggested to him. In those circumstances, I am satisfied that, if there was a contravention, it was inadvertent and done out of a lack of considered care, rather than as being intentional or reckless.
The admissions made by the appellant were significantly probative. They were not equivocal, and there is nothing which suggests that they were unreliable. It was common ground that, in the absence of the admissions, the prosecution case would fail.
In my view, the learned magistrate was correct in finding that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. Even if there was a breach of the CIA, the following factors, in combination, required such a finding:
(a)the appellant was cautioned and demonstrated his understanding of the caution 40 minutes before his interview;
(b)the partial reiteration of the caution at the time of the interview;
(c)the lack of any indication that the appellant's admissions were unreliable;
(d)the seriousness of the offence;
(e)the relatively minor breach in the circumstances of the case;
(f)the apparent lack of any intention or recklessness on the part of Sgt Nimmo; and
(g)the importance of the admissions to the prosecution case.
Accordingly, even if there was a contravention of s 138 of the CIA in this case, I would dismiss the appeal on the basis that the learned magistrate's decision to admit the evidence pursuant to s 155 of the CIA was correct.

Ground 2

Even if there was no breach of the CIA, an accused remains entitled, pursuant to the common law, to apply for the admissions to be excluded on the basis that they were involuntarily made or that it would be unfair for them to be used at the trial of the accused.[36]
[36] Wright [47] ‑ [48].
The appellant's counsel at trial (who was not counsel on the appeal) did not clearly make an application for the admissions to be excluded on this basis. However, she did submit that there were potentially issues with the appellant's understanding of the caution,[37] and gratuitous concurrence on his part.[38] Regrettably, there was no further exploration of these matters at the trial.
[37] ts 2.
[38] ts 3.
If the issue of voluntariness is raised on the evidence, it is for the State to establish on the balance of probabilities that the admissions were voluntarily made.[39] If voluntariness is established or is not raised, the onus is on an accused to establish on the balance of probabilities that it would be unfair to the accused to use his admissions against him.[40] Whether admissions should be excluded on the basis of unfairness is a matter for the exercise of discretion.
[39] Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572 - 573.
[40] Wright [44].
In ground 2 of his amended grounds of appeal, the appellant did submit that a miscarriage of justice was occasioned by the learned magistrate failing to exclude the evidence under the common law.
It was apparent from the written and oral submissions that it was not argued that the admissions should have been excluded on the basis that they were not voluntarily made. However, it was submitted that they should have been excluded on the basis that it was unfair to use the admissions against the appellant, and for public policy reasons.[41]
[41] Appellant's supplementary submissions [95].
In his written submissions, the appellant conceded that, if ground 1 failed on the basis that the desirability of admitting the evidence outweighed the undesirability of admitting it, ground 2 must also fail because the burden of proof is on the appellant.
No contravention of the CIA is necessary to enliven the unfairness discretion. However, often the test as to whether admissions ought to be excluded on the basis that it would be unfair to admit them against the accused will overlap considerably with the test pursuant to s 155 of the CIA, as Blaxell J outlined in Wright. In this case, there is a considerable overlap, having regard to the matters raised by the appellant.
It is unnecessary to repeat what I have said in relation to the application of the test pursuant to s 155(2), except to note that those observations apply equally in the case of the common law unfairness discretion and the public policy discretion.
In the case of the public policy discretion, I am not satisfied that there is any room for its application at common law having regard to my decision in relation to s 155(2) of the CIA.
As for the unfairness discretion, in Holmes v The State of Western Australia the Court of Appeal observed:
The focus of the unfairness discretion is on the rights of the accused, whereas the public policy discretion is concerned with matters of public interest. The unfairness discretion does not focus on whether the police acted unfairly, but on whether it would be unfair to the accused to use their confession against them. The prime, but not only, concern of the unfairness discretion is the potential unreliability of the confession. In some cases, there may be unfairness to the accused because the confession might not have been made at all or might have been made in a different form if the interrogation had been conducted properly.[42]
[42] Holmes v The State of Western Australia [2023] WASCA 26 [203].
The appellant contended that he would not have made the admissions he did had the police acted properly in the conduct of their investigation. He further contended that he was misled into making those admissions. However, the appellant did not seek to adduce any evidence to this effect, either at trial or on appeal.
The appellant bears the onus of proving that it would be unfair to use the admissions against him, but adduced no evidence that the admissions were unreliable, that they would not have been made at all or might have been made in a different form had the interrogation been conducted in a different manner.
In those circumstances, there was no basis for excluding the evidence pursuant to the unfairness discretion. Accordingly, no miscarriage of justice has been made out.

Orders

1.Extension of time granted.
2.Leave to appeal granted on grounds 1 and 2.
3.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BF
Associate to the Hon Justice Forrester
23 APRIL 2025