Narrier v The State of Western Australia
[2014] WASC 21
•28 JANUARY 2014
NARRIER -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 21
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 21 | |
| 28/01/2014 | |||
| Case No: | INS:121/2013 | 15, 25 & 26 NOVEMBER 2013 & 15 JANUARY 2014 | |
| Coram: | JENKINS J | 17/01/14 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Portion of first interview excluded as involuntary All of second interview excluded in exercise of discretion | ||
| B | |||
| PDF Version |
| Parties: | NEIL MATTHEW NARRIER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Confessions and admissions Objections to admissibility of electronically recorded interviews between accused and police Voluntariness Unfairness Alleged breaches of the Criminal Investigation Act 2006 (WA) |
Legislation: | Criminal Investigation Act 2006 (WA) |
Case References: | R v Anunga Anors (1976) 11 ALR 412 Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Confessions and admissions - Objections to admissibility of electronically recorded interviews between accused and police - Voluntariness - Unfairness - Alleged breaches of the Criminal Investigation Act 2006 (WA)
Legislation:
Criminal Investigation Act 2006 (WA)
Result:
Portion of first interview excluded as involuntary
All of second interview excluded in exercise of discretion
Category: B
Representation:
Counsel:
Applicant : Mr S M Shadgett
Respondent : Mr M G Nicol
Solicitors:
Applicant : Shadgett Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
R v Anunga Anors (1976) 11 ALR 412
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
1 JENKINS J: Neil Narrier, the accused, has applied to have the records of two electronically recorded interviews between himself and the police which were conducted on 9 and 10 November 2012 (EROI 1 and EROI 2, respectively) excluded from evidence at his trial on a charge of murder.
2 The grounds of the application are:
1. The interviews were not voluntary;
2. The interviews should be excluded in the exercise of the fairness discretion; and
3. The interviews occurred following breaches of the Criminal Investigation Act 2006 (WA) (CIA) s 137 and s 138.
The law
3 The parties are in agreement about the relevant legal principles. In Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1, McLure P (Buss JA agreeing) said:
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.
It is necessary at this juncture to address the relationship between the common law and the provisions of the [CIA]. The only relevant provision is s 7 of the [CIA] which provides:
(1) Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2) If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3) If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
There is no common law right equivalent to s 138(2)(c) although requests to speak to a lawyer are relevant to the voluntariness or fairness of a record of interview: Mackenzie v The Queen [65].
Section 7 does not make express reference to the statutory consequences of a failure to comply with the statutory duty. There is clearly no express or implied exclusion or modification of the common law relating to the voluntariness of confessional evidence.
The position in relation to the discretion to exclude on the grounds of unfairness or public policy is not as clear. If the only matter relied on was a contravention or contraventions of the [CIA], there must be no scope for the application of the common law discretion. That may also be so if all matters relevant to the exercise of the common law discretion were relevant to the statutory discretion in s 155. However, it is unnecessary to answer that question in this case. [44] - [48].
4 In the same case, Blaxell J set out the relevant principles which apply to determine whether a confession was voluntary or ought to be excluded in the exercise of discretion. His Honour said:
A confessional statement (or admission) by an accused person can be received into evidence if there is proof on the balance of probabilities that it was made voluntarily (R v Lee (1950) 82 CLR 133, 144). In McDermott v The King (1948) 76 CLR 501 Dixon J held:
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).
In Collins v The Queen (1980) 31 ALR 257 Brennan J outlined the correct approach to the determination of whether or not a confession was voluntary:
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 confession a list 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).
In cases where the accused's mind was affected by a mental condition or by intoxication with alcohol or drugs, the issue of voluntariness will depend on whether or not he understood what he was doing. In R v Buchanan [1966] VR 9 the Victorian Court of Appeal held that a confession made by an accused while suffering the effects of a head injury was voluntary. Sholl JA stated:
Now the important point, as it seems to me, is that in a case of the present kind there is no suggestion in the evidence that there was a suspension of the faculty of judgment, and the mere reduction of that faculty by head injury or drink could not be held to be sufficient to render a confession or admission involuntary in the legal sense. It is always, as has been said, a question of degree, but for myself I would not be prepared to exclude such a statement as involuntary unless the evidence showed that … the accused was incapable of appreciating that he had a choice to remain silent, or incapable of exercising sufficient volition to give effect to what he knew was such a right of choice (15).
More often, the admissibility of a confession in such circumstances will turn upon whether there should be a discretionary exclusion of the evidence. If the evidence is admitted, the accused's state of mind at the material time is always relevant to the jury's determination of what weight should be given to the confession (Sinclair v The King (1946) 73 CLR 316, 336, Jackson v The Queen (1962) 108 CLR 591, 596).
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]).
The line between the unfairness and public policy discretions is sometimes blurred (Swaffield [54]). This is because the question of unfairness is often taken into account in the exercise of the public policy discretion (Bunning v Cross (1978) 141 CLR 54, 74 - 75). However, unfairness is only one of the relevant factors in the exercise of this discretion which focuses on broader questions of 'high public policy' favouring the exclusion of any evidence which has resulted from unlawful or improper conduct by police (Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 202 (Deane J)). The exercise of the public policy discretion also requires a balancing of competing policy considerations. In Pollard, Deane J held:
In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an 'isolated and merely accidental non-compliance' (Bunning v Cross, 78) with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. … . In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence (203 - 204), [111] - [117].
5 It is common ground that just after midnight on 9 November 2012 Merlene Jackman, the accused's de-facto partner, was found dead in a laneway in the town of Meekatharra. A post mortem report states that the cause of death was multiple injuries. There were blunt force injuries to the deceased’s body and head, multiple broken ribs and internal injuries.
6 An aboriginal man had been seen in the laneway and other areas of Meekatharra earlier that evening. He was acting in a way which was consistent with him dealing with the deceased before and/or after her death.
7 A witness alleged that he saw the accused at the end of the laneway shortly before the same witness walked down the laneway and discovered the body.
8 The police were called to attend the scene. On the basis of apparent injuries on her body, it was suspected that the deceased had not died of natural causes.
Facts relating to apprehension of accused
9 Detectives from the Major Crime Squad and the Carnarvon detectives’ office flew to Meekatharra to investigate the death,
10 Very soon after her body was discovered, the Police suspected that the accused had been involved in the death of his partner. In the police's term’s he quickly became a 'person of interest'.
11 Detective Sergeant Mackay (Mackay) from the major crime squad was assigned the role of 'person of interest' manager. At about 12.20 pm on 9 November 2012 he and Detective First class Constable Pereira (Pereira) commenced inquiries to locate the accused.
12 They searched an area of bushland to the rear of 33 Queen St, Meekatharra. Shortly before 5 pm they located the accused lying on a mattress underneath a tree at the top of a rocky hill.
13 Both police officers say that Mackay told the accused that he was arrested on suspicion of causing grievous bodily harm to the deceased. He was also cautioned and given his rights in accordance with the CIA s 137 and s 138. He did not ask to exercise any of those rights.
14 Mackay says that the accused 'confidently' communicated with him in English. Pereira heard the accused speak but did not hear what he said. Mackay said that shortly after affecting the arrest he left the immediate area to organise further officers to attend.
15 The accused says that he was not given his CIA rights or told what he was under arrest for.
16 I am satisfied that the accused can communicate in simple English. However, I am of the opinion that Mackay's belief as to the accused abilities in this respect are over stated.
17 The accused was handcuffed. This was reasonable given the serious nature of the enquiry and the need to preserve any forensic evidence. There are differences in the evidence as to how he was cuffed and treated at the scene but it is not necessary for me to resolve those differences.
18 Mackay alleges that the accused said to him:
I stuffed up, made a mistake. She was breathing when I left her.
19 That comment is not the subject of this application.
20 By 5.30 pm Mackay and Pereira had transported the accused to the Meekatharra police station in an unmarked vehicle.
21 At the police station, the handcuffs were removed and blue coveralls were placed over the accused's jeans and gloves were put on his hands.
22 The accused was placed in an interview room. He was offered food and water but drank only the water. Pereira left the interview room shortly afterwards and had no further involvement with the accused.
23 Mackay says that he gave the accused his CIA rights again and that the accused did not ask to exercise those rights. The accused says that he was not told of those rights. He says that he did not understand what was happening.
24 In respect to this last comment, I do not accept that the accused did not understand that he was under arrest in relation to the death or serious injury of his partner or the basic procedure that the police followed with an arrested suspect. He had been arrested and interviewed by the police in respect of at least seven prior alleged assaults on his partner. These experiences would have given him an understanding of the process of arrest, forensic examination and interview. Further, he was well aware that something had happened to his partner. Whether he was responsible for that or not, I conclude he knew that the police would be looking for him to speak to him about it and/or arrest him.
25 After a short period, the accused was taken to an area at the back of the police station where police officers often socialised. The accused was given sandwiches, cigarettes and drinks. He did not eat the sandwiches. Sergeant Bruce McDonald (then Detective Snr Constable) (McDonald) was introduced to the accused whilst the accused was in this back area. McDonald remained with the accused for most of the next four hours until the first interview commenced. If the accused was not with McDonald during this period he was in the company of Mackay and/or maybe another officer. On one occasion McDonald says that Detective Sergeant Doran (Doran) spoke to the accused. Doran did not give evidence on the voir dire.
26 Sometime before the first interview the accused consented to forensic procedures. These were carried out.
27 The accused was told he could see a doctor but he said that he did not want to see a doctor. The accused acknowledges that the officers did not yell at him or hurt him. He says that he understood everything the police said to him at the police station. He remained in this area until the first interview commenced.
28 The accused says that at no time prior to the first interview was he given his full CIA rights. In particular, he says that he was not told that he could speak to a lawyer. He says that when he was in the back area of the police station, he asked Mackay if he could speak to Ms Stephanie Mippy, a court officer with ALS in Meekatharra, but was told that he could not. He says that he was not told that Ms Mippy was asking to see him. He says that he was tired and felt sick
29 Mackay and McDonald say that on a couple of occasions during this period the accused showed an interest in talking to them about the incident under investigation. They say that they told the accused that it was not the time to talk about it and that Mackay took the opportunity to again explain the CIA rights to the accused. They say that the accused did not ask to exercise those rights, said that he did not want to speak to a relative or friend and that he would see a lawyer at the lock up or prison. They say that he did not ask to speak to Ms Mippy. They also say that the accused did not say that he was tired. McDonald says he offered the accused the opportunity to lie down but he did not take up the offer. The police say that the accused did not tell them that he felt sick. They say that the accused was offered something to eat but he chose only to drink and to smoke.
30 Mackay and McDonald say that they spent the time building 'a rapport' with the accused. McDonald says that he spoke to the accused about football, sport and hunting. He says that he did not have difficulty understanding the accused, although he acknowledged that he had to listen carefully to him as the accused spoke 'lightly'. He believes that the accused understood what he said to him.
Alleged breaches of the CIA s 137 and s 138
31 There is no dispute between the parties that the accused understood, albeit in a basic sense, what the police said to him. There is also no dispute that he was generally treated well by the police and was given the opportunity to see a doctor, which he declined to do. What is in issue is whether he was told of his CIA rights to speak to a lawyer and to speak to a friend or relative, whether he was denied an interpreter, whether he was denied the opportunity to see Ms Mippy, whether he was deliberately not told that Ms Mippy had rung to speak to him and whether he was tired and felt sick and whether this impacted on the voluntary nature of the first interview and/or rendered it unfair.
32 For six hours after his arrest at about 5 pm, the accused was an arrested suspect for the purpose of the CIA. The police were entitled during this period to detain him for, amongst other reasons, investigating any offence which he was suspected of committing and interviewing him in relation to any offence that he was suspected to have committed. Thus, there is no doubt that his detention at the Meekatharra police station and the first interview were permitted by law. As an arrested suspect he had to be detained in the company of a police officer and not in a lockup.
33 The relevant provisions of the CIA state:
137. Arrested people, rights of
...
(3) The arrested person is entitled -
(a) to any necessary medical treatment; and
(b) to a reasonable degree of privacy from the mass media; and
(c) to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
(d) if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
138. Arrested suspects, rights of
...
(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).
...
35 I am satisfied that there was no breach of the CIA s 137(3)(a) or s 138(3) in relation to the accused's right to medical treatment. I note that the obligation is to provide 'necessary medical treatment'. There is no direct evidence before me that the accused required medical treatment and insufficient evidence to enable me to infer that he needed medical treatment. If medical treatment had been necessary I would have expected there to be evidence that the accused was suffering from an illness or disease. Certainly something more than he was feeling sick. It would not be unnatural for him to be feeling sick when he was aware that his partner had passed away. He was told that he could see a doctor and he declined the offer.
36 There is no complaint regarding the right to privacy from the mass media (CIA s 137(3)(b)).
37 As to the accused's right to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts (CIA s 137(3)(c)), the evidence of the accused is at odds with the evidence of the police officers Mackay, McDonald and Pereira. I am persuaded by the contents of EROI 1 that the accused was told of this right and that he declined to speak to anyone.
38 In EROI 1 the accused was asked about seeing a doctor and it was put to him that he had been asked whether he wanted to see a doctor. The following exchange then takes place:
Q. … Neil, just, um, further to that I offered you the chance of - to speak to family members and that sort of thing to let them know where you are. Did you, did you want to do anything of that nature?
A. No, they'll find out where I am is.
Q. Yeah, you don't want to call anyone at the moment?
A. No.
Q. Okay. Are you right at the moment to keep, um , talking with us, Neil?
A. Yeah.
Q. Okay.
A. Have a yarn for a while (ts 6 - 7).
39 It seems to me to be highly unlikely that the police officer would put the questions in the way he did unless the accused had been offered the opportunity to speak to a friend or relative at an earlier time. Further, there are numerous occasions during the interview where a version of events, expressly or by implication, is suggested to the accused by the police and the accused puts forward a different version of events. Yet, he does not do so on this occasion. His responses are only consistent with him agreeing that he has been told that he can speak to a family member and deciding that he does not wish to do so.
40 As to his right, if he is unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person (CIA s 137(3)(d)), there is no doubt that the accused has few written English literacy skills, little education and that he speaks only simple English.
41 However, in the accused's evidence he asserted that he understood what the police said to him and, in their evidence, the police asserted that they understood what he said to them. Further, having listened to the interviews I am satisfied that although he only has an understanding of basic English that the accused usually understood what questions that were asked of him and that he gave responsive answers which are able, in the main, to be understood.
42 I have also listened to and watched the recordings of his other recorded interviews with the police between 1997 and 2011, which were all conducted in English. As with EROI 1 and EROI 2, he was able to communicate with the police officers and in most cases he gave appropriately responsive answers to the questions.
43 It is true that in EROI 1, EROI 2 and the previous interviews the accused was unable to explain in full what the standard caution meant. However, when he was asked specific questions about his right to remain silence and the use to which the recording of a specific interview may be put he was able to give sensible answers, which indicate to me that he understood what was being put to him when it was broken down into simple English.
44 The accused was going to give evidence on the voir dire in English until I suggested that an interpreter ought to be arranged for him because he allegedly had limited understanding of English. I was told then by his counsel that he had intended for him to give evidence in English because he thought that the accused could understand English if simple words were used. Although an interpreter was arranged and the accused gave evidence through the interpreter, it was also apparent that the accused could follow the proceedings and questions in English.
45 Thus, I am satisfied that there was no need for the police to provide him with an interpreter because he had insufficient ability to understand spoken English and to communicate in spoken English. That is not to say that it would have been desirable for them to have attempted to locate an interpreter.
46 I now turn to consider whether the accused was given the rights provided for in the CIA s 138. The first, is to be informed of the offence for which he had been arrested and any other offences that he or she is suspected of having committed (CIA s 138(2)(a)).
47 Although in his evidence the accused denied being told at the time of his arrest that he was being arrested on the suspicion of grievous bodily harm of his partner, at the commencement of the first interview Mackay said to him, 'I've previously made you aware that you're an arrested suspect in regards to the offence of grievous bodily harm'. The date and time of the suspected offence was then mentioned but not the victim's name. When this was said to the accused he did not make a verbal response, but he nodded his head. A short time later, before the questioning about the accused's conduct commenced it was again put to him that he had been advised that he was an arrested suspect in relation to an offence of grievous bodily harm. He was then told the date and time of the alleged offence and the name of the alleged victim. The accused said 'yeah'.
48 I also note that in his evidence on the voir dire, in cross-examination, the accused acknowledged that on 9 November 2012 he knew that the police wanted to speak to him because his partner had died.
49 I am satisfied that the accused was informed of the offence for which he had been arrested both before and at the start of the first interview.
50 The second right the accused had was to be cautioned before he was interviewed (CIA s 138(2)(b)). The caution was given, and is recorded as having been given, at the commencement of EROI 1. As I have noted the accused could not repeat it back to the police or explain it in full to them. However, after further explanation and questioning he told the police what he confirmed in evidence which is that he knew that he did not have to answer the police's questions. The accused does not complain that he did not know that what he said was being recorded and could be used in a court against him.
51 I also note that on the previous occasions that the accused has been interviewed by police he has been cautioned but has not been able to repeat the caution or explain it in full. However, with more explanation and questioning he has shown a similar understanding to that contained in EROI 1. He repeated this understanding when cautioned during EROI 2. That is, he told the police that it was his choice to be interviewed and that he would answer if he wanted to answer. He also understood that what he said was being recorded and could be used in evidence against him.
52 The caution which he received from Mackay on 9 November 2012 was given against the background of his previous experience with police and also against the background that Ms Mippy had explained to the accused on two previous occasions that he did not have to speak to the police when he was arrested. She had used simple English and hand gestures in an attempt to ensure that he understood. Although, she doubts whether he understood what she told him, she concedes that on those occasions when she asked him directly whether he had to speak to police he said 'nothing', indicating that he knew that he did not have to do so.
53 Even given the accused's lack of formal education and lack of sophistication, I am not of the opinion that he is so deficient in the English language and cognitive ability that he could not understand what was said to him about the caution. His responses to the police in the interviews indicate that he is able to understand questions and to respond to them affirmatively or negatively according to his wishes. He is able to make explanation where he believes it is called for.
54 Therefore, I am satisfied that prior to the first interview, the accused was cautioned and that he understood the essential message of the caution.
55 The third right in CIA s 138 is to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner (CIA s 138(2)(c)). The accused and the police are entirely at odds as to whether the accused was advised of and afforded this right. The accused says 'no, he was not'. The police say 'yes, he was repeatedly'. The accused also says that he asked to speak to Ms Mippy and to a lawyer before the commencement of the first interview.
56 As in respect to whether he was given a reasonable opportunity to communicate or to attempt to communicate with a relative or friend, I am persuaded by the contents of EROI 1 that he was given this right. It is recorded that the following exchange occurred:
Q. … Neil, I, I gave you some other rights, um, beforehand as well and I'll quickly run through those again with you. Those other rights that we afforded you; you had the opportunity to, to speak with a lawyer or ALS, okay, we offered you that beforehand. Is that right?
A. No I can speak to them when I go to prison. (This answer is not clear but it sounds as if the accused said this or a similar comment)
Q. Yeah.
A. --- prison
Q. Okay. So you don't want to speak to them now?
A. No. (ts 9) [The note in italics is mine]
57 Again, it seems to me to be highly unlikely that the police officer would put the questions in the way he did unless the accused had been given that opportunity at an earlier time. Further, as I have already said, there are numerous occasions during the interviews where the accused contradicts the questioning officer. Yet, he does not do so on this occasion. Rather he specifically says that he will speak to them when he is at the prison and says 'no' to the question as to whether he wants to speak to them at that time. Also given that he makes no mention of wanting to see a lawyer at that time, I am not satisfied that he asked to speak to one or to Ms Mippy before the interview commenced.
58 The accused's counsel submits that the accused shows a lack of understanding of his right to speak to a lawyer. Ms Mippy also gave evidence that on the two previous occasions she had spoken to the accused about his rights although she had told him that he could ring her if he was arrested, he had replied that he would do so from the prison or lock up. She believes that this shows a lack of understanding of his rights.
59 However, these are subjective conclusion which I do not believe I am justified in making. It is true that others may think that the accused, knowing that he could make such a call, would have been wiser to speak to a lawyer or Ms Mippy, that a lawyer or Ms Mippy may have told him not to speak to the police, that the accused may have followed that advice and he would not have made admissions to the police which implicate him in the death of his partner. However, it is not for his present counsel, Ms Mippy or for me to make such decisions for the accused. It seems to me that to come to this conclusion, would be to effectively say that the accused has such limited cognitive capacity that he is unable to make decisions for himself. I am not persuaded that the evidence or law enables me to make such finding. As McLure P said in Wright:
I have concluded that the only relevant obligation of a police officer under s 138 is to inform a suspect of his right to communicate with a lawyer. Having exercised that duty, the onus is effectively cast on the suspect to exercise the right if he or she so desires [38].
60 As I am satisfied that the obligation was complied with and that the accused understood that he could speak to a lawyer before EROI 1 but did not want to do so, I am satisfied that the police complied with the statutory obligation in the CIA s 138.
61 Even on the accused's case, he knew when he was interviewed that he did not have to speak to the police, he was told in EROI 1 that he could speak to a lawyer and he declined to do so. He has had more experience than most people have had with the criminal justice system and lawyers. It was up to him whether he exercised his right.
62 One of the issues between the parties is whether Ms Mippy had repeatedly telephoned the Meekatharra police station on the afternoon and evening of 9 November 2012 seeking information as to whether the accused had been arrested so that she could attend the police station to speak to him in her role as a court officer for the ALS. Ms Mippy said she did and was told that she would be contacted after his arrest. The accused says that in those circumstances the failure to tell the accused that Ms Mippy wanted to speak to him was a breach of the CIA s 138(2)(c) and s 138(3)(b).
63 The State’s evidence is to the effect that although Ms Mippy called the police station that afternoon and evening, she did not ask to have access to the accused. In any event, the State says that when the accused was told that he could speak to a friend, relative and lawyer he declined to do so. It says that the police were under no obligation to tell Ms Mippy when the accused had been taken to the police station, not required to tell the accused that Ms Mippy wished to see him and not required to provide Ms Mippy access to the accused, absent a request from him to see her and in light of him telling the police that he did not wish to speak to anyone.
64 There are difficulties for me in finding the facts in relation to this issue because although Ms Mippy is a credible witness there are inconsistencies between her evidence and the telephone records. It is not clear whether she made three or four calls, what times they were all made and which of those calls were substantive calls as opposed to leaving a message to be called back.
65 Also, the various police officers who gave evidence on the voir dire were not asked the questions which were necessary to elicit all the relevant evidence in relation to the issue. For example, Sergeant Butler-Henderson (Butler-Henderson) who was then Acting officer in charge of Meekatharra Police Station, said that he spoke to Ms Mippy on the telephone on the afternoon of 9 November 2012 and that he does not recall her asking to be contacted so that she could see the accused when he was brought into custody. Butler-Henderson is also a credible witness, although it seems more likely to me than not that Ms Mippy did ask to be advised when the accused was brought into custody. Reasons why I have formed this opinion include that:
1. it was common practice at Meekatharra police station to permit the ALS court officer to see indigenous persons in custody even if they had not asked to speak to a lawyer or an ALS officer;
2. Ms Mippy knew that the police were looking for the accused, knew the accused quite well and had telephoned the police station on the afternoon of 9 November 2012; and
3. Butler-Henderson says that during the course of the afternoon or evening he gave another officer involved in the investigation a post it note with Ms Mippy's number on it.
66 Although Butler-Henderson says that he did this as a consequence of the common practice I have referred to above, it seem also likely to me that it was a result, in part, of Ms Mippy's call or calls. He says that the officer to whom he gave the note replied that the accused did not want to see a lawyer. However, it is not possible for me to identify who that officer was and what he did with the post it note because there was no questioning of Butler-Henderson to establish who he gave the note to and none of the other officers who gave evidence were asked whether they received the note.
67 Given the evidence before me I conclude that in at least one call Ms Mippy made to the Meekatharra police station that day Ms Mippy expressed a wish to speak to the accused when he was brought into the station and asked to be telephoned when he was brought in. I am unsure whether she was told that she would be called but it is clear that she believed that she would be. I also find that Butler-Henderson told her during a call that detectives, not local police, were in charge of the investigation. He told her that consequently, local police did not have any input into how the investigation was run. It may be that by this comment, he was attempting to tell her that it would be a decision for the investigating officers as to whether she would be telephoned, without a specific request from the accused to do so. If so, the message did not get through to Ms Mippy who believed that she would still be called.
68 These finding do not cause me to conclude that there was a breach of the CIA s 138(2)(c) or s 138(3). The accused was told by Mackay on more than one occasion that he could speak to a lawyer and told that he could speak to a friend or a relative. He had been told by Ms Mippy on at least one previous occasion that he could ring her if he was arrested. He knew Ms Mippy well and was aware that he had a family connection to her as well as her role with ALS. Thus, he was informed of and knew of his right to speak to a lawyer or Ms Mippy and was given the opportunity to exercise that right. I am satisfied that he chose not to take it up.
69 Finally, the CIA s 138(2)(d) deals with the obligation to provide an interpreter during an interview. This is similar to the requirement in s 137(3)(d). For the reasons given in respect of it, I conclude that there was no breach of s 138 (2)(d).
70 As to whether there was compliance with the obligation to inform the accused of his rights and afford him an opportunity to exercise them 'as soon as practicable after' his arrest (CIA s 138(3)), I am not able to say that he was told all of them at the scene at the time of his arrest. Although the police officers say that he was, it seems to me that even if he was, it was not in a situation where he was likely to absorb them and to be able to make a decision as to whether he wanted to exercise them. That situation would have occurred when he was back at the police station after he had been given a drink and was in a quiet, ordered environment. I am satisfied that by then the accused had been advised of his rights by Mackay. I am satisfied that he then had a reasonable opportunity to exercise those rights. I am satisfied that the timeliness requirement was met.
EROI 1 - Details
71 The above analysis and findings deal with alleged breaches of the CIA in respect to EROI 1. However, as the accused also alleges that EROI 1 should be excluded from evidence because it was not voluntary and because it would be unfair to admit it against him, I will deal with the interview in more detail and then analyse those submissions.
72 EROI 1 commenced at 9.07 pm and concluded at 10.38 pm. Mackay and McDonald were the interviewing officers. The accused was interviewed alone in the interview room of Meekatharra police station. The interview was audio visually recorded and I have watched that recording. I have already referred to some of the contents of the interview. During the interview the accused was subdued and spoke quietly. A number of his answers are difficult to hear or understand. His answers were responsive to the questions asked of him. There are only a few occasions where he appears to misunderstand the question.
73 At the commencement of EROI 1 the accused told the police that he is feeling 'really tired' and that his 'guts are starting to stir, stir up a little bit'. This latter comment was in answer to whether he was affected by alcohol.
74 The accused said that on the previous evening he was 'blue drunk', had been looking for the deceased and had met her as she came out of a hotel. She was also drunk. They started arguing after she accused him of going with other girls. He got angry, grabbed her and flung her onto the ground. She fell down and he hit her again (once) by pushing her head into the bitumen. He said he punched and kicked her once whilst she was on the ground. He denied hitting her again, having any weapons and was insistent that was all he had done. He then lay beside her and they spoke to each other. He said he did not want to hurt her. He said that what he did would have hurt her. There were some questions and answers about what the likely consequences of his actions would be. He said she asked him to get help but that he did not have a phone and there was nobody walking around. He said that she stopped breathing. He tried to resuscitate her. He said that he had picked her up to take her home and carried her until he saw the police. He then put her on the ground and took off because he knew he had done the wrong thing. He denied having put her in a shopping trolley in order to move her. It was then put to him that a witness had seen an indigenous male in the area with a shopping trolley and had seen hair coming out of the trolley.
75 The accused acknowledged that he had 'pushed along' and then the police had come. The accused said :
I don't …. to answer any more questions. (ts 55)
76 I am satisfied that the accused said that he did not want to answer any more questions. Mackay then said to the accused:
Okay. No that's all right, I – 'cause what – I was just trying to clarify what people have said anyway, and are they talking, about you. I'm trying to get your recollection of it, okay. There might – might've been a, a legitimate reason to put her in the trolley (ts 55).
77 The police continued to ask more questions and the accused said that he had put her into the trolley to take her back home. There were then some questions asked about the relationship between the accused and the deceased. About two minutes after the accused said that he did not want to answer any more questions the following exchange occurred:
A. Ah, that's all I know. I've got no more questions to say.
Q. You ---
A. That's all I know. I've got no more questions to say.
Q. Okay. I, I've got some other questions just about, um – a little bit about the days or two beforehand and, and your relationship with your missus. Are you, you happy to talk to us about that?
A. What about? (ts 57).
78 The police then ask the accused how long he had been in a relationship with the deceased. The accused said that he had been in and out of prison for assaulting her. It was put to him that in the days leading up to her death the deceased had gone to Cue and that the deceased had told others that she was worried that when she returned to Meekatharra that the accused would hit her for going away. The accused said that he was angry with her because of that.
79 The police asked the accused whether the deceased had any weapons or had assaulted him. He said that she had punched him two or three times. Fourteen minutes after the accused said that he had no more to say, he asks whether the interview is finished. Mackay responds:
Yeah, I've only got a couple of little questions. Have you got any injuries at the moment? (ts 67).
80 The questions then continue without any indication that they are 'little questions'.
81 The interview ends with the usual questions. The accused acknowledged that it had been his choice to speak to the police, that he had not been threatened or promised anything. He said that he had been 'treated good' by the police. (ts 71 - 72).
EROI 1 – Was EROI 1 made voluntarily?
82 I am satisfied that the accused made most of the first interview voluntarily. That is, he made it in the exercise of his free choice to speak or remain silent. He did not speak because his will was overborne, or as a result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure.
83 The point in the interview at which I consider circumstances changed was at that point at page 55 of the transcript of the interview where, on my understanding of what is recorded, the accused says that he does not want to answer further questions. Despite the accused's statement, the questioner continues without pause. About two minutes later the accused says that 'that's all I know. I've got no more questions to say'. He repeated this statement. I infer that what the accused was saying was that he did not want to answer further questions. His subsequent answers reveal that he did have more information to give but that is not the point. I am satisfied that he was again trying to say that he did not want to answer further questions. Mackay did not entirely ignore this comment. Rather he suggested to the accused that he had a different and less potentially prejudicial subject to ask about, that was, the history of the relationship between the accused and the deceased. It is clear from the accused's next response that he is wary of this foray into another area but Mackay persists and the accused answers the questions which, in fact, soon move into a very relevant area for the prosecution. About 14 minutes later the accused says 'Is this interview finished' and Mackay says 'yeah, I've only got a couple of little questions'. This would have indicated to the accused that the questions would be both few and of little consequence. Despite this Mackay continues to ask questions and elicit information about matters which are very relevant to the State's case.
84 I acknowledge that at the end of the interview the accused said that everything he had said was his choice but I have decided that given what the accused said to the interviewing police at the earlier points in the interview, the failure of the police to ask questions to clarify whether the accused wanted to continue with the interview and the interviewing officer's responses to his comments, that the State has failed to satisfy me that what the accused said in the first interview from page 55 onwards was voluntary. I think that it is probable that the accused did not want to answer the police's questions after that point but that his will was overborne when he continued to do so.
85 In saying this I am not suggesting that the police had to immediately stop asking questions when the accused said he did not want to. Neither am I saying that the police yelled at or abused the accused. Rather, given the all the circumstances I am satisfied that the accused did not want the interview to continue and he only continued to answer questions because the police did not listen to him, continued the interview and he was too submissive to be able to insist on his right to finish the interview.
86 Apart from what the accused said to the police and the police's responses, in coming to this decision I have also taken into account:
1. the accused's background including that he is an indigenous man with only basic verbal English skills and very little formal education;
2. the accused's circumstances being that he was alone in the interview room at the police station with two police officers he had only met that day, it was about 10.30 pm and he had already been interviewed for over an hour; and
3. the accused's physical and mental condition being that he had not eaten that day and was feeling tired and sick and had told the police that.
87 Thus, the content of EROI 1 after that point and up until the concluding questions commencing at the bottom of page 71 of the transcript is inadmissible.
EROI 1 – Would it be unfair to the accused to admit EROI 1?
88 For the reasons given above, the admissions contained in pages 1 - 55 of the first interview were not obtained unlawfully. Therefore they are not to be excluded on that ground.
89 In his evidence on the voir dire the accused initially acknowledged that he told the police the truth in the first interview. However, when he was questioned about specific passages he denied that several of them were the truth. Despite this, there is nothing which persuades me that it would be unfair to admit pages 1 - 55 of the first interview into evidence in the sense that his fair trial may be jeopardised by its admission. In my view, up until he told the police that he did not want to answer further questions at page 55, he spoke voluntarily to the police, was aware that he did not have to do so and that anything he did say would be recorded and used in evidence against him. He knew that his partner had died and that he was being questioned about his suspected involvement in her death. I accept that he was tired and was not feeling very well but I am not satisfied that he was so tired or ill that it interfered with his ability to exercise or understand his rights.
90 In respect to unfairness, the accused relies on the alleged failure of the police to follow the guidelines stated by Forster CJ in R v Anunga Anors (1976) 11 ALR 412 (the Anunga Guidelines) as justifying the exercise of my discretion to exclude the first interview. The Police Commissioner requires police to follow the Anunga Guidelines for interviews with Aboriginal people. The accused alleges that adherence to those guidelines required an interpreter and a 'prisoner's friend' to be present during the interview. Further, that he should not have been interviewed at all because he was 'disabled' by illness and tiredness.
91 I agree that the Anunga Guidelines were not strictly adhered to by the police. However, that alone does not justify the exclusion of EROI 1. The ultimate question for me is whether that failure makes it unfair to admit the first interview into evidence in the sense that his fair trial may be jeopardised by its admission.
92 In my view it does not. The Anunga Guidelines were formulated when interviews between suspects and the police were not audio visually recorded and before the CIA was enacted. They were, in short, created for a different time when there was no independent record of what occurred between the police and an Aboriginal suspect. In this case there is a complete record of what occurred between the police and the accused in each interview. That record does not disclose to me that the accused’s right to a fair trial would be prejudiced by the admission into evidence of EROI 1. The jury will have before it that record of the interview and it will be able to decide what weight to give to the admissions contained in the interview having regard to matters such as the accused’s basic level of literacy.
93 The fact that there was confusion between the police and Ms Mippy about her access to the accused is regretful but in my view it does not make the admission into evidence of the first interview unfair, given my findings above.
Events between the first and second interview
94 At the conclusion of EROI 1 the accused was again taken to the back of the police station. It is not entirely clear whether he had anything to eat but on the balance of probabilities I am satisfied that he did not eat. McDonald took the disks containing the first interview to an office and dealt with them, administratively. He says that he had no further dealings with the accused until he was asked to sit in on EROI 2.
95 At 10.58 pm on 9 November 2012, Sergeant Macander, pursuant to the CIA s 140(4), authorised the detention of the accused for a further period of six hours. This extension authorised the accused's detention for amongst other things, the purpose of interviewing him until 4.50 am on 10 November 2012.
96 Mackay had a briefing with senior police and they decided that the accused should be charged with aggravated grievous bodily harm.
97 At 11.20 pm the accused's DNA was taken in the lock up. Mackay says that McDonald supervised this but McDonald has no recollection of doing so.
98 At 11.25 pm, Mackay was in the back area alone with the accused and he advised the accused that he was to be charged with aggravated grievous bodily harm. He says that he told the accused that enquiries were ongoing and the charge may be upgraded. He says that he also told the accused that on the basis of what he had been told, the injuries on the deceased did not match the injuries which may have resulted from the assaults which the accused had admitted, during EROI 1, inflicting on the deceased. Mackay says that the accused then 'volunteered' that there had been further assaults on the deceased.
99 Mackay says that he then consulted with the senior investigating officer, Sergeant Bradley (Bradley) after which Mackay asked the accused whether he would participate in EROI 2. Mackay says that the accused agreed to do so. He says that apart from what was said in the second interview, he did not inform the accused again of his rights and nor did he specifically afford him an opportunity to exercise them. Detective Sergeant Vuletta (Vuletta) a senior investigating officer who was also present at the police station, says that at no time did he speak to the accused.
100 The accused says that after the first interview Mackay spoke to him and wanted him to say more. He says that Vuletta also spoke to him and that together they told him that he was lying. Mackay told him he had hit the deceased on the head and Vuletta told him he had hit the deceased over the head with a pipe. The accused says that he was feeling sick and tired and that he was not permitted to sleep between the first and second interviews, despite his request to do so. He says that the officers pointed their fingers at him and that in aboriginal culture it makes a person feel shame when a finger is pointed at them. He said that he felt shame when they did that. He says that he does not know why he participated in the second interview and that he did not tell the truth in it. He says that he said what he said in the interview because he felt threatened by Vuletta. He says that in the second interview he told the police that he had hit the deceased on the head when she was on the ground, in order to copy the police officer's words to him.
EROI 2 - Details
101 EROI 2 commenced at 12.18 am on 10 November 2012 and concluded at 12.55 am. It was conducted by Mackay and McDonald. At the commencement of it, Mackay says that the accused has been told that he was to be charged with aggravated grievous bodily harm and that he had disclosed some further information. The accused does not respond in a negative way to that recitation of events. The accused says that he was not threatened to do a second interview and neither was he promised anything. He says that is was his choice to do another interview. He says that he is not suffering from any illness or injury.
102 Mackay then cautions him and the accused says that he does not have to answer the police's questions and it is his choice whether he talks or not. He says that he knows that a judge may see the recording of the interview and it may be used against him. The accused is asked whether he wants to speak to ALS and he says no. He also says that he does not want anybody sitting in with him.
103 Mackay then summarises what the accused said in the first interview and says that 'subsequent to that you wanted to clarify a few other matters now that, um, you had raised in regards to those events in the laneway there. Can you tell us what happened in the laneway?' (ts 78).
104 The accused then says that he banged the deceased's head into the bitumen about 'three or – five or four times'. The questioning then continues with the accused giving more information about his assault on the deceased.
105 At page 97 of the transcript the accused is asked whether he used a weapon or whether he struck the deceased with anything other than his fists. He denies using a weapon and says that he just used his hands and did not use a stick or pipe.
106 I make two comments about that. The fact that the accused denied using a weapon suggests to me that he was not simply copying what he says Vuletta said to him he had done. Indeed the information which comes from the accused appears to come without leading from the police.
107 Secondly, the reference to a pipe does suggest that the accused knew that there was a suggestion that he had used a pipe. That suggestion could be because he knew he had used a pipe or because a police officer had earlier suggested to him or told him that he had used a pipe. Counsel for the State submitted that the accused's use of the word could have come from a question he was asked in the first interview about the possible use of a 'pole'. I am not satisfied that the words are so similar that the accused would have used them interchangeably.
108 At the conclusion of EROI 2 the accused is asked the usual questions and he says that it has been his choice to speak to police and that there has been no threat or inducement made to him to do the interview.
EROI 2 – Were there breaches of CIA?
109 Essentially for the same reasons I gave in respect of EROI 1, I am not satisfied that there has been any breach of the CIA in respect of the second interview.
EROI 2 – Was EROI 2 made voluntarily?
110 The State has persuaded me that the second interview was made voluntarily. In the interview the accused says that it was his choice to speak to the police a second time. He speaks freely without any prompting from the police. Their behaviour is not overbearing or intimidatory.
EROI 2 – Would it be unfair to the accused to admit EROI 2?
111 The accused has persuaded me that it would be unfair to admit the second interview into evidence. I acknowledge that the accused appears to speak voluntarily. However, what is not clear is what the police have said to him to make him want to speak again.
112 On both the accused's and police's version of events some unrecorded things were said to the accused about the deceased’s injuries which resulted in him deciding to make further disclosures in the second interview. There is a dispute between the parties as to what was said. I do not know who is telling the truth in that regard. I am not prepared to make findings in that regard as there is no independent record of the conversation.
113 What I do know is that the unrecorded conversation made the accused, who I am satisfied up until then had indicated that he did not want to speak to the police further, decide to speak again. This indicates to me that it must have been significant. Was it truthful, was it fair, was it misleading? Was it designed to make the accused believe that it would be in his best interest to speak again? Was it simply designed to help the accused to understand the issues that may affect the charge he would face? I do not know.
114 What I also know is that by the time the second interview commenced the accused had been in police custody for seven hours without any contact with a friend, relative or legal representative. It was the middle of the night. He had already been interviewed by police. English is not the accused's first language and he is an unsophisticated, uneducated, indigenous Australian. He had not eaten or slept in the time he had been in police custody. I doubt that he had eaten or slept much the previous evening. He was alone and vulnerable. Some hours earlier he had told the police that he was very tired and was starting to feel unwell.
115 A police officer told him he was to be charged with a serious offence relating to the death of his partner and pointed out discrepancies in the accused's account of events to the police as compared to what the police officer had been told of the injuries to the deceased. This did not occur in the interview room where it could have been recorded. Neither did the officer attempt to record it or ensure that an independent person was present to witness the conversation. There is no contemporaneous record of what the officer said to the accused or what words the accused said in response.
116 The State's counsel submits that it is not possible for the police to record every conversation with an accused person. I accept that. But this was not any conversation. It was not simply a conversation in which the accused was told he was going to be charged. It was more significant than that. The officer acknowledges that he challenged the accused's account of his assaults on the deceased by telling him that the deceased's injuries did not match that account. Efforts should have been made to record the conversation. Certainly, as soon as the accused started to make admissions, the conversation should have stopped until it could have been recorded or the police officer should have made contemporaneous notes of its exact content.
117 In these circumstances I am satisfied that it would be unfair to the accused to admit the second interview into evidence at the accused's trial. I decline to admit it into evidence.
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