Narkle v The State of Western Australia - [2014] WASC 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NARKLE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 328

CORAM: SIMMONDS J

HEARD: 21 AUGUST 2014

DELIVERED : 21 AUGUST 2014

FILE NO/S: INS 51 of 2014

BETWEEN: WAYNE MURRAY NARKLE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Application to exclude evidence - Whether voluntary admission - Whether admission unfair to accused

Legislation:

Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA), s 98
Evidence Act 1995 (WA)

Result:

Application denied

Category: B

Representation:

Counsel:

Applicant: Mr S Watters
Respondent: Mr J Whalley

Solicitors:

Applicant: Ian Hope Barristers & Lawyers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Collins v The Queen (1980) 31 ALR 257
McDermott v The King (1948) 76 CLR 501
R v Lee (1950) 82 CLR 133
R v Miller [2001] WASC 81
Wright v The State of Western Australia [2010] WASCA 199
SIMMONDS J:
(These remarks have been edited from transcript.)

Introduction

This is an application by the accused in a prosecution for the exclusion of certain evidence at his trial (the application).
For the reasons that I will set out, I would not grant the application.
I first set out the background to this application by describing the prosecution, quoting the statement of material facts, and the nature of the evidence sought to be excluded. I then describe the application in more detail before describing the applicable law. I then apply that law. The final section of these reasons covers my conclusions and order.

Background to the application

The accused faces a single charge under the indictment INS 51 of 2014, dated 2 April 2014. That indictments reads:
On 30 December 2012 at Bassendean, Wayne Murray Narkle murdered Robert Bodney.
The statement of material facts in the prosecution brief reads as follows:
The victim in this matter was a two-year-old child born on 14 November 2010. He lately resided with his mother at Unit 9/7 Station Street, Bassendean.
The accused is a 22 year old male who resides in Belmont. The accused became involved in a relationship with the mother of the victim in November 2012.
During the day of Sunday, 30 December 2012, the victim was at his home address with his mother and the accused. The accused told the mother of the victim she was paying too much attention to the child. During that day he attempted to restrict the mother’s access to the victim periodically, picking the victim up and moving him away from her and assaulting the victim when she attempted to take hold of her son.
Between 9:45 PM and 10 PM on Sunday, 30 December 2012, the accused asked the mother of the victim to go to nearby premises to obtain cigarettes. The mother went to two nearby units attempting to obtain cigarettes but was unsuccessful.
While the mother was away from the premises the accused took the victim to the upstairs main bedroom of the unit and placed him in bed. The victim had been upset and crying for some time and continued to cry after being put to bed. The accused lost his temper and struck the victim to the head multiple times. He took hold of the victim and shook him violently shaking his head back and forth.
The accused left the victim on the bed and went to the downstairs lounge area. The mother of the victim returned to the unit and asked where the victim was. The accused told her he was asleep upstairs. After a short time the accused walked upstairs and returned to the lounge room carrying the victim who appeared not to be breathing and showed no signs of life.
St John's Ambulance were contacted, neighbours attended the unit in an attempt to resuscitate victim without success. St John's Ambulance attended and conveyed the victim to Swan Districts Hospital where attempts to resuscitate him continued. The victim was declared deceased at 10:45 pm.
The injuries caused to the victim during the assault by the accused included bruising to the forehead, neck, chest and abdomen. The victim has bruising around the eye and bilateral haemorrhage chooses to both eyes indicative of severe brain trauma. The injuries inflicted on the victim by the accused caused his death.
The accused handed himself in to police at the Perth Police Station at 3 AM on 31 December 2012 where he was arrested as a suspect. He subsequently participated in an electronic record of interview where he admitted striking victim to the head and shaking him.
The electronically recorded interview referred to in the statement of material facts commenced at 3.40 am on 31 December 2012. It concluded 47 minutes later, including a break of 19 minutes, at 4.27 am. The application is to exclude the record of the interview.

The application in more detail

The application is dated 14 August 2014 and was filed following the hearing before me. No objection was taken by counsel for the state to that somewhat less than desirable manner of proceeding. In view of the submissions in writing provided by the parties prior to the hearing, it was not apparent to me that any prejudice arose from that manner of proceeding, and I say no more about it.
The application reads as follows:
The applicant applies for Orders that:
1.The Applicant's record of interview dated 31 December 2012 ('the record of interview') be excluded on the basis the accused's participation and/or answers given in the record of interview were not voluntary;
2.In the alternative to Order 1 above, the Court exercise its discretion to exclude the record of interview on the basis it would be unfair to the accused to rule it admissible.
The application is to exclude the entirety of the record of the record of interview. It was not in contest that the Criminal Procedure Act 2004 (WA) s 98 empowers the court to order the exclusion of the entirety of a record of interview.

The applicable law

There is no contest as to this law. It is well established. It is conveniently, for my purposes, to be taken from Wright v The State of Western Australia [2010] WASCA 199. There are three matters of law I so take.
The first matter is the right of police to detain and interview an arrested suspect, and the right of that suspect to have a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner, and not to answer questions asked by police during the interview.
The second matter is the exclusion of evidence or admissions made in an interview where it is not proven these were made voluntarily.
The third is the discretionary exclusion of evidence of admissions made in an interview where it is shown that it would be unfair to an accused to admit the evidence.
As to the first matter, police have the right referred to, and an arrested suspect has the rights referred to, and I refer for this purpose to Wright [20] (McLure P, Buss JA agreeing), [130] (Blaxell J).
As to the second matter and its relation to the third, McLure P said this in Wright:
An admission by an accused person is only admissible in evidence if it was made voluntarily. The prosecution has the onus of establishing that the statement was voluntary. Once the prosecution proves that an admission was made voluntarily, the onus is then on the accused to establish on the balance of probabilities that the admission should be excluded in the exercise of the court's discretion. An admission will be excluded in the exercise of the court's discretion if it is unfair to the accused to admit it or the admission of the evidence is contrary to public policy [44].
The meaning of 'voluntariness' is described in a frequently quoted passage from McDermott v The King (1948) 76 CLR 501 (Dixon J), as follows:
This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary (511)
A frequently quoted description of the correct approach to determining whether or not an admission was made voluntarily is from Collins v The Queen (1980) 31 ALR 257 (Brennan J):
So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused (307).
The passage, except for its first sentence, is quoted in Wright, in the judgment of Blaxell J, as is the passage from McDermott.
Finally, the parties accepted that a sufficient statement of the discretionary bases upon which evidence might be excluded is in Wright [115] ‑ [116] (Blaxell J) in particular, as follows, referring among other authorities to R v Lee (1950) 82 CLR 133:
Once the prosecution proves that a confession was made voluntarily, it is prima facie admissible. The onus is then on the accused to establish on the balance of probabilities a 'substantial reason' why the confession should be excluded in the exercise of the court's discretion (Lee (152 ‑ 154)). There are three possible bases for a discretionary exclusion of a voluntary confession. These are that it is unfair to the accused to admit the confession, that public policy considerations make admission of the evidence unacceptable, or that the prejudicial effect of the statement outweighs its probative value (R v Swaffield (1998) 192 CLR 159 [51]). 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 third discretion focuses on the probative value of the evidence and guards against a miscarriage of justice (Swaffield [52]). Depending upon the particular circumstances, these various considerations may well overlap (Swaffield [74]).
The unfairness discretion is not concerned with whether the police acted unfairly, but with whether it would be unfair to the accused to use his confession against him (Lee (154); Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26). The prime concern of the unfairness discretion is the potential unreliability of the confession, but it is not the only concern. 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 (Van der Meer (20); Swaffield [71]).
As the application makes apparent, the accused relies only upon the discretionary basis of unfairness.

Application: voluntariness

On the submissions made to me, and in Collins, I must focus on the conduct of the police before and during the interview; the age, background and psychological condition of the accused at the time of the interview; and the circumstances in which the admission or admissions were made to the extent these other matters do not sufficiently describe those circumstances, including in this case the hour of the night, and the fact that the offence for which the accused was a suspect was murder, and the accused was detained in custody as a suspect in relation to that offence. This is to determine whether or not the prosecution has discharged its burden to show, on the balance of probabilities, that the will of the accused was not overborne in all the circumstances of the case.
As to the conduct of the police before the interview, it is not in contest that the accused arrived with his sister at Perth Police Station at about 2.45 am on Monday, 31 December 2012. His sister had driven him there. I did not understand the following details as to what ensued up to the commencement of the interview to be in contest.
The police officer at the front office who initially spoke to the two was Police Constable Julia Marie Huxley. The accused's sister indicated to Officer Huxley that they wished to talk to someone about a little boy whom the accused had just been with, and their concern something bad had happened to him. The police officer asked whether they would wish to speak with a male or female officer. His sister turned to the accused and asked him with whom he would prefer to talk, and he replied, 'Anyone'. In Officer Huxley's ensuing conversation with the two in an office downstairs from the front office, the accused said, amongst other things, something like, 'My girlfriend started yelling, saying I done it'. See the witness statement of Officer Huxley in prosecution brief pages 165, par 4 ‑ par 8. Paragraph 8 is the source of the first quotation, and par 20 is the source of the second quotation, where Officer Huxley adds that the accused had said the reason he had come in was:
It's just because she was saying I did it. I wanted to come show I'm not avoiding it [22].
It was not in contest that there was no evidence before me of upon whose initiative the accused came into the police station, including on whose initiative any request by the accused to do so, whether that of the sister; the 'girlfriend' (who it is common ground was the mother of the victim) or the accused himself.
At about 3.30 am, after the arrest of the accused as a suspect, Detective Sergeant Graham Lindsay Johnston and Detective Senior Sergeant Hindriksen entered an interview room in the Major Crime Squad to which the accused had been taken (the interview room) and Detective Johnston introduced both detectives to the accused. See the witness statement of Detective Johnston dated 3 July 2014 produced by consent at the hearing before me, par 10.
It was not suggested to me, and it is not apparent to me, that anything relevant occurred between the conversations with Officer Huxley and 3.30 am, other than the arrest of the accused and his being taken to the interview room.
However, it was not in contest that, at no time during that interval was the accused offered an opportunity to postpone the interview until after he had had an opportunity to sleep. I note in passing that there was, towards the end of the interview, an offer to the accused to 'have a rest', which the accused declined. See interview transcript page 20. I return to that exchange shortly. However, I do not consider this affects the present point.
Counsel for the defence laid emphasis on this point as an aspect of the circumstances. I consider its relevance is to the physical and psychological condition of the accused during the interview, of tiredness and distress, which I consider in some detail shortly.
Following the introduction referred to, Detective Johnston spoke with the accused about his rights under the Criminal Investigation Act 2006 (WA) as an arrested suspect and cautioned him. There is evidence before me, not challenged, that the accused at that time indicated his agreement to participate in an interview. See witness statement of Detective Hindriksen of 11 January 2013 in prosecution brief page 155, par 13. Whether, in fact, any such indication was a true indication of the accused's voluntary participation in the interview process was contested, as will be seen. However, I note in that regard the accused had previous experience of being interviewed by police in relation to matters of concern to them, on six separate occasions from 9 September 2008 to 2 May 2012. At the same time, in weighing that matter I should note that it was not contended that any of these interviews represented any substantial experience of interviews under conditions like those on 31 December 2012 starting at 3.40 am. Further, it was not suggested the accused had ever been interviewed in relation to a matter as serious as this one.
In the interview, which commenced shortly thereafter, Detective Johnston spoke with the accused again on both of the topics I have indicated. No issue was taken with the police conduct of those matters, save for the claim in the written submissions for the accused that the accused was not, at the commencement of the interview, given an opportunity to obtain legal advice. This was not pressed, in my view correctly. Detective Johnston referred to this right at the commencement of the interview (see interview transcript page 4). When he asked the accused whether or not he needed to speak with someone before he spoke with the detectives, the accused is to be seen in the electronic record of interview shaking his head.
Included among the matters of which Detective Johnston spoke to the accused during the interview was the accused's right to answer some questions and not others, or no questions at all. There were a number of references to this right that Detective Johnston made subsequently in the interview: see most clearly interview transcript pages 8 ‑ 9 and 11. I will indicate below, the accused acknowledged that he had that right at one point in the interview.
The interview began at 3.40 am, as noted by Detective Johnston (interview transcript page 3) and shown on the electronic record of the interview. The transcript of the electronic record of interview commences at page 2, is suspended at page 11 for the break I will return to, resumes at page 11 and ends at page 24. The interview was conducted by Detective Johnston and by Detective Hindriksen, principally by Detective Johnston. The transcript of the interview refers to the other officer present in the room as 'John Booth' (interview transcript page 2). As counsel for the accused noted, this is not the only - although it appears to be the clearest - error in the transcript. There is another example I noted, being the transcription of what the accused said in reply to the question asked of him as to where on the victim's arm the accused had hit the victim as 'top of the arm' (interview transcript page 19). In fact, I did not find that to have been said; rather, the response is more likely to have referred to the victim's hand, as the subsequent exchanges, including a demonstration by the accused indicated.
As it will be necessary for me to make references to particular portions of the interview, I have checked the electronic record of the interview against the transcript in those cases and made adjustments to the best of my ability, accordingly, where necessary. I have also checked the electronic record of interview against the transcript at a number of other points to which counsel for the accused directed my attention. I have also viewed and listened to the electronic record of interview several times. My understanding of the interview includes taking account of the results of all of those exposures to it.
As to the conduct of the police during the interview, I note that there are no indications in the electronic record of the interview that either Detective Johnston or Detective Hindriksen questioned the accused in a way that might be described as overtly oppressive. That is to say, they were polite; they gave him time to answer their questions; and when he indicated, as he did at a significant number of points, that he did not want to answer a question or not to answer further questions, they did not continue then to ask him the question just asked or an equivalent thereto. Nor was it suggested that the detectives used threats, promises or inducements in their exchanges with the accused.

Further, it was not contended that during the break in the interview, which began at 3.51 am and ended at 4.10 am, that the detectives or any other police officers acted in any of the ways described in that previous paragraph. At the same time, however, as counsel for the accused noted in oral submissions, the accused remained in the interview room, and it was not suggested that during that time he was offered an opportunity to rest or have refreshments there or elsewhere.
The written submissions for the accused and counsel's oral submissions for him both directed my particular attention to the persistence of the detectives in continuing to conduct the interview by asking their questions despite the accused's evident distress and tiredness, particularly given the hour of the morning and evident lack of sleep, during the interview, and despite his repeated indications he did not want to say anything to them or comment upon anything they said to him.
I was also directed to take account in the present connection of the accused's young age, which counsel for the accused said without challenge was 21 at the time of the interview, in connection with the nature of the alleged crime, the murder of a very young child, for which the accused was detained in custody. I do take account of those matters in the present connection, which is a concern with distress and tiredness, as well as more generally.
It was common ground that the accused was, indeed, distressed and tired during the interview process. There are many indications of both in what was said by the accused and by his demeanour, including at a number of points having his head in his hands and on or near the desk top and yawning at points during the interview. I note particular indications of distress and tiredness, including increased distress and tiredness over the course of the interview, both in this section of my reasons and the next, on unfairness. I take account of those particular indications, as well as all the other indications I have referred to, in both contexts.
I accept that during the interview, and in particular immediately following the break, there are signs of increased distress and tiredness. It was then Detective Johnston, at the first point he did this so far as I can tell during the interview, expressly acknowledged that the accused was tired (interview transcript page 11). It was not long after that point that the accused made his first admissions to the detectives about events that he said had happened on the night of 30 December 2012 involving the victim and himself (see interview transcript page 12). Those admissions included that he 'smacked' the victim and that he 'shook' the victim 'three times' (interview transcript page 12), and somewhat later he slapped the victim around the head 'twice' (interview transcript page 22).
Further, at one point, after the accused said 'I just don't want to do this interview, you know' and added 'I'm tired' (interview transcript page 20, correcting the '(indistinct)' there).
I note, as counsel for the accused put to me I should, that at one point the accused's concentration seems particularly to wane, where in response to the question 'So she has rung you, has she?' he says, 'What?' (interview transcript page 15). Further, very shortly afterwards, when the accused tells the detectives what he was doing during the evening of 30 December 2012 in the pool at the victim's mother's residence, the electronic record of interview shows that there was a particularly long pause and a yawn by him (see interview transcript page 15 and the corresponding point in the electronic record of interview). In addition, somewhat later, when the accused tells the detectives he 'just grabbed' the victim and 'shook him', there are clear signs in the electronic record of interview not captured in the transcript of the accused trailing off and his words losing coherence.
Further, the accused gave statements during the interview, from its commencement to the end, of the following kind:
•he did not 'want to answer any questions' (interview transcript page 5);
•he told police he did not 'want to talk about nothing', (a correction, I accept, should be made of the transcription of, 'I've told you enough' in interview transcript page 6);
•there was 'nothing' he wanted to talk to the detectives about, and indeed, he did not 'even want to talk' (interview transcript page 8);
•he 'just wanted the interview over and done with'; and he could not 'comment on any of them - on anything' (interview transcript page 9);
•he did not want 'to answer any questions' (interview transcript page 10);
•in response to the question 'What made you come into the police station?' the accused said 'No, no, no comment'; but then after Detective Johnston replied 'Okay' the accused said 'Sorry about that' (a correction of interview transcript page 11 '(indistinct)', which I accept should be made, and which in my view tends to indicate an unwillingness to answer more questions more generally);
•there is, in addition, the accused saying 'I just want to go'; and 'I just don't want to do this interview, you know' (interview transcript page 20);
•adding 'I'm tired' (where the transcript refers to '(indistinct)' (interview transcript page 20);
•the accused saying he 'can't talk any more'; and he did not 'want to answer no more questions', which he shortly afterwards repeats several times, before confirming he was not 'going to answer no more questions ... [t]oday, tomorrow, any day. I'm not answering no more ... What I said before. I said ... I'm over the questions' (interview transcript page 22).
It was at that last point that the detectives ended the interview.
I understood the submissions for the accused to be that, given those circumstances, I should not be satisfied, on the balance of probabilities, that the accused's submissions in the interview were voluntary in the sense the authorities identify. Any indications he gave during the interview or, as I understood it, prior to the interview, of his voluntary participation in the interview, whether by answering questions or otherwise, should, as I understand the submissions of counsel for the accused, be understood in that light.
I do not accept those submissions for the accused so understood. My reasons are these.
I accept that the submissions so understood to direct attention to factors which, considering the matter at its lowest, would tend to indicate a significant risk that the will of the accused was overborne at some point. I further accept that that point had been reached by no later than the point following the break, where the accused began (see interview transcript page 12) to describe events that happened on the night of 30 December 2012 between himself and the victim and continued to describe matter providing context to those events without refusal to answer a question or questions until the point where, as I previously have indicated, he said 'I just want to go. I just don't want to do this interview, you know' (interview transcript page 20).
However, I note that at that point Detective Johnston said 'Mate. If you, if you are tired we can have a rest. Okay?', to which the accused responded 'No. I don't want to have a rest. I just want to skip it. I just don't want to talk any more' (transcript page 20). The accused continued to answer questions and make statements in response to questions asked of him from that point, however, to the point where he ceased to answer any questions (corresponding with the bottom of interview transcript page 22).
Further, those matters must also be considered in the light of the accused providing answers to some questions and not to others throughout the interview, including after the point at which the distress and tiredness of the accused appears to have begun to be at its most acute. I identify that point as the period immediately before the break on my viewing of the electronic record of interview. I now describe that provision in more detail.
The accused had, from the commencement of the interview until shortly before the break (see interview transcript pages 6 ‑ 8, and page 10 in particular) as well as the point, as I have indicated, of saying 'I just don't want to talk any more' (see interview transcript pages 20 ‑ 22) and, again, briefly after the point where he said 'I can't talk any more' (see interview transcript page 22), answered some of the questions asked of him. These answers included that he did not know or was not 'too sure' of the answer to a question (see interview transcript pages 6 ‑ 8, including the answer to the question as to the victim's age at the top of page 8, an answer not reproduced in the transcript) or could not remember or remember enough to answer a question (see interview transcript page 13, the '(indistinct)' at the top of the page).
Further, the accused had, at about those times, said he would not answer a particular question 'can't answer you - that question' (see interview transcript page 8, which I so understand), responded 'can't comment' or similar to a particular question (see interview transcript pages 9 and 11), at one point confirming that his 'right' was so to respond (interview transcript page 9); and the accused had later responded 'I can't answer that. I can't talk about that' to a particular question (interview transcript page 22).
In addition, the accused had been asked this not long before the break (interview transcript page 10):
Q.Why did you want to - Why did you come into the police station tonight?
A.Just to keep - just to see - talk to youse about it because um - yeah.
Q.Sorry, mate?
A.Just to come - keep - come and see youse, that's all. Just - -
Q.Okay. How - about what, mate?
A.About what's going on.
In the immediately ensuing exchange between the accused and the detectives he indicated that 'I was scared Kerry [his girlfriend] been Kerry - cos of Kerry', and when asked whether it was 'something she told you' said he did not want to answer any questions (interview transcript page 10). Counsel for the accused put to me that this exchange tended to indicate that the accused felt himself under some pressure or at least some influence to make statements about what had happened.
However, I do not so understand this exchange in view of the witness statement of Officer Huxley, par 22, I have referred to above. Rather, I understand that exchange to be to the same effect as that paragraph, that what the girlfriend had said had caused him to come to the police station, which was that to which the question related, so as to show he was not avoiding the matter.
Further, there was the following exchange very shortly after the break (interview transcript pages 11 ‑ 12):
Q.Yeah. Okay. I um, the same rights that I gave you before and the same caution, that still applies, okay. I um, Wayne, I just been out to speak to other officers involved in the investigation, okay. And they're obviously speaking to witnesses and speaking to people involved, um, and they’ve spoken to your sister, okay? Now, um, your sister has described to us how, how she took you into your police station, you know, at your request, to, to try to clear this matter up, all right? Um, and that, that you were both worried that something bad might have happened to Robert? Yes? I um, she’s also said that you had a conversation with her about what had happened.
A.Yeah.
Q.Yeah? Are you willing to talk to us about that?
A.Yeah.
In the immediately ensuing exchange between the accused and the detectives, he stated that he was '[c]razy' and 'losing it', which was followed by a further response in which he said, amongst other things, the following, only some of which is set out in the transcript (page 12) but which I accept is what the accused said among other things:
Fucking - I would never do that, man. I would never do that, man, you know. Fucking drugs and shit, you know, fuck.
I further accept this is followed by the accused crying, as shown by the electronic record of interview.
Counsel for the accused laid emphasis on those statements and that behaviour as indicating, as I understood him, that the accused had by then lost control of his will.
However, in my view, of both the accused's answers then following and of his previous answers and other responses, I would not take the answers and behaviour relied on by counsel for the accused as clearly so indicating. Rather, it seems to me they are at least as likely to be indications of the accused's emotional distress at calling to mind what he could remember, but consistent with the exercise of his will whether or not to describe those matters not having been overborne.
Further, the signs of loss of concentration, trailing off, and loss of coherence I referred to appear to me, on the viewing of the electronic record of interview, to be followed by signs of recovery.
In that respect, and more generally, I note that when the accused, for the first time in the interview, made a series of successive responses to all of the questions asked of him at that time of a kind indicating he did not want to answer any further questions or, 'talk any more' (see interview transcript page 22, source of quotation, to transcript page 23), the detectives ended the interview (see interview transcript page 23). I consider that sequence of responses to indicate that even at that very late point in the interview, the accused's will had not been overborne.
I further note that even including the break, the interview was not a very long one; the accused could not, on the evidence before me, be described as an ill-educated young man, having been educated to year 11 (see interview transcript page 2); and there was no assertion that any form of deception has been practised on the accused, although I return below to what was said to be a form of misstatement by Detective Johnston of an answer that the accused had previously given.
Finally, I should note that the seriousness of the matter in relation to which the accused was the suspect, the fact that he was detained in custody as such a suspect, and the hour of the night at which the interview was conducted do not, in my view, significantly add to the other considerations upon which counsel for the accused relied in relation to voluntariness. I am of that view because it seems to me that those matters go to the matters of distress and tiredness to which I have already considered.
For these reasons, I consider that the state has proved, on the balance of probabilities, that the accused's participation and admissions in the interview were voluntary.
I turn now to the discretionary exclusion of the record of interview for unfairness.

Application: unfairness

On the submissions made to me, and on Wright, I must focus on any concerns as to the potential unreliability of the accused's admissions and whether the admissions would not have been made at all, or might have been made in a different form, if the interrogation had been conducted properly, or at least otherwise.
As I understood the written submissions for the accused, and his counsel's oral submissions, the impropriety or otherwise relied upon was police persistence in interviewing the accused in his distressed and tired state at the hour in the morning at which the interview was conducted with the accused as a suspect in custody in relation to an offence as serious as murder.
As to the last set of matters, I note that it was not in contest that some degree of persistence in questioning is not impropriety or unfairness for present purposes, provided at least the persistence is not overbearing or intimidatory. That is to say, the persistence's relevance is in relation to whether or not the admission is evidence of what an accused said in the face of such persistence would be unfair to the accused. See R v Miller [2001] WASC 81 [81] (Hasluck J), as well as other paragraphs in that judgment referring to other authority. Whether it is intimidatory or overbearing is to be considered in all the circumstances, most particularly in this case by reference to the physical and psychological condition of the accused in all of the other circumstances at the time.
That last set of matters is, in my view, the same ones I have already considered in relation to voluntariness. Those matters, when considered with all of the other matters I have referred to in relation to voluntariness, are not, in my view, sufficient to prove, on the balance of probabilities, that the discretionary basis of unfairness to the accused from the use of his admissions against him is made out which might cause me to exercise my discretion to exclude.
That takes me to potential unreliability.
In relation to potential unreliability, in both the written submissions for the accused and counsel for the accused's oral submissions, my attention was drawn to the following matters. One was particular indications of tiredness and distress in the interview which, it was said, gave reason for concern that what he said in the interview was potentially unreliable. Another was indications that the accused could not properly remember what happened on the night of 30 December 2012. The third was, as I understood what was put to me, forms of misstatement by Detective Johnston of an answer or answers that the accused had given that might have misled the accused or otherwise caused him to give unreliable answers on those and other topics. I deal with the first two matters together of the three I have listed, and then I deal with the remaining matter.
As to the particular indications of tiredness and distress in the interview, and indications the accused could not properly remember what happened on the night of 30 December 2012, the written submissions for the accused particularly drew my attention to indications that the accused was unable to concentrate or was having difficulty concentrating or remembering, all of which followed the acknowledgment by Detective Johnston that the accused was 'very upset'. (interview transcript page 13). See interview transcript page 15 (responding to the question, '[s]o she's rung you, has she?' with 'What?'); interview transcript page 16 (where the electronic record of interview shows that when the accused was asked, 'What'd you guys do during the evening?' he paused some time and yawned before answering); and interview transcript page 17 (when he described what he and the victim's mother were doing while the victim was in a pram outside, and Detective Johnston said, 'Yeah?' and the accused replied 'Yeah. I don't know. I really - I can't get into details, mate. Just - '
I also note that after the accused first said the victim was crying, and the accused 'shook him three times' (interview transcript page 12) the accused responded when asked about what happened 'earlier in the night' (interview transcript page 13) that 'I don't remember that' (interview transcript page 13, which is my correction of the '(indistinct)' in the transcript of that answer).
However, I do not consider those indications, considered alone or with the other indications of distress and tiredness I referred to in relation to voluntariness above, satisfy me, either alone or in conjunction with the matters I reach next, that the admissions the accused made were potentially unreliable for the following reasons.
There was no inconsistency in the accused's various accounts of his physical exchanges with the victim, and there were in each case details in the accounts, and a manner of providing them, that did not point, in my view, to any potentially unreliability in those accounts. I particularly note in those respects that, following the statement the accused made (interview transcript page 17), as to his inability to get the details I have quoted, he was asked 'what you do remember about what happened?' (interview transcript page 17), to which he said, in a way, indicating - on my viewing of the electronic record of interview - no difficulty in responding 'I smacked him and I shook him three times. That was it' (interview transcript page 17).

As to the form of misquotation or misstatement relied upon, counsel for the accused in his oral submissions took me to two points in the interview for statements as to what the accused had said in the interview made by Detective Johnston which counsel said were incorrect or misleading.
The first point in the interview where Detective Johnston made such a statement, it was said, was where he said to the accused 'And I think the way you said, you said you just snapped and you've never done that before', to which the accused responded 'Nuh' (interview transcript page 18).
I consider, as acknowledged by counsel for the accused, that the response and the manner of giving it are not easily construed. However, in my view, in the electronic record of the interview that response, considered with that manner probably amounts to the accused saying he was not endorsing the statement, understood as to the effect that he had never snapped before.
I further note the accused had previously said he had 'just snapped man' (interview transcript page 18, with my correction, as counsel for the accused put to me of 'man' for 'at' in the transcript). I also consider that still earlier in the interview the accused had said, 'I'd never do that', (interview transcript page 12, with my correction of 'I would never do that, man. I would never do that man, you know' set out in fuller context above). However, the latter does not, or does not clearly, relate, in my view, to having snapped.
The second point in the interview where Detective Johnston made such a statement, it was said, was almost immediately thereafter where he said:
You basically - I mean, you said to us, Wayne, that - that he was crying and that you snapped and that you hit him, and that you shook him three times. Whereabouts did you hit him? (interview transcript page 19).
As I have indicated, the accused had earlier said he had 'snapped' on the one hand, and that he had 'smacked' the victim and that he 'shook' the victim 'three times' on the other. However, I accept, as counsel for the accused put to me, that the accused had at no time expressly linked the two, but rather made statements of those two kinds separately.
However, I consider that neither statement by Detective Johnston, taken separately or taken together, was such as might have misled the accused or otherwise caused him to give unreliable answers on these and other topics for the following reasons.
On my construal of the accused's response to the first statement I have described, the accused indicates he was not endorsing the statement. Not long before this point the accused had shown he was prepared to correct what he considered to be a misstatement where Detective Johnston had said 'So you've walked from in town, here' and the accused said, 'From the train station' (interview transcript page 15).
The second statement by Detective Johnston read with its question, does not, it seems to me, make or make clearly the statement that there was a causal or other link between the accused having snapped and him having hit the victim and shaken him three times.
Nor, it seems to me, is it clear how any error or misleadingness in the statements of Detective Johnston, at those two points, taken separately or together, contributed to as opposed to being part of what led into, what the accused then said. I say this, having regard to the following.
What, following his response 'Nuh' at the first point in the immediately following question 'Was it because of his crying, and he wouldn't stop crying?', the accused then said was 'I had a few mixed emotions. I don't know'.
What, by way of response to the statement and question at the second point, the accused then said was, 'In the room', at which point Detective Johnston indicated he wanted to know 'whereabouts' on the victim the accused hit him, (interview transcript page 19). This led to the exchange on that location, the part of which I have previously referred.
I consider then that, whether taken on their own separately or together, or taken with all of the other matters put to me by counsel for the accused in relation to unfairness, to which I have previously referred, the matter of the misstatements or misquotations relied upon are not sufficient to prove on the balance of probability that the discretionary basis of unfairness to the accused from the use of his admissions against him is made out which might cause me to exercise my discretion to exclude.
Thus I would not exclude the record of interview for unfairness.

Conclusion and order

It follows, I conclude, that the application should not be granted. It follows that the appropriate order is one for dismissal of the application.