Peiris v The State of Western Australia
[2008] WASCA 263
•2 DECEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PEIRIS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 263
CORAM: WHEELER JA
PULLIN JA
BUSS JA
HEARD: 2 DECEMBER 2008
DELIVERED : 2 DECEMBER 2008
PUBLISHED : 16 DECEMBER 2008
FILE NO/S: CACR 57 of 2008
BETWEEN: DENHAM MICHAEL PEIRIS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 15 of 2007
Catchwords:
Criminal law - Video record of interview of accused - Voluntariness of interview
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M D Cuomo
Respondent: Mr D Dempster
Solicitors:
Appellant: Julienne Penny & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Mackenzie v The Queen [2004] WASCA 146
R v Lee (1950) 82 CLR 133
WHEELER JA:
Background
At the hearing of this appeal the court unanimously dismissed the appeal and indicated that it would publish its reasons for so doing. These are my reasons for joining in the decision to dismiss the appeal.
The appellant in this matter was charged with one count of stealing a motor vehicle, one count of aggravated armed robbery, and three counts of aggravated assault with intent to rob. The assaults with intent to rob were alleged to involve an attempt to steal exotic birds while armed with offensive weapons (a hockey stick, a knife and a baton) and a dangerous weapon (a sawn‑off shotgun).
The appellant was tried with one Alan Ali Kobeissi. The indictment alleged that the two men were also in company with one John Peter Manuel, but he did not appear and the trial proceeded without him.
The three complainants in relation to the counts of aggravated assault with intent to rob were Gary Potter (count 2), Willem Hendriks Senior (count 3) and Willem Hendriks Junior (count 4). The appellant was convicted on all five counts, and now appeals those convictions.
The appellant's notice of appeal comprised two grounds. First, that the video record of interview was involuntary and therefore inadmissible, and secondly that the respondent had been allowed, at trial, to split its case and call a witness whose evidence was irrelevant and therefore inadmissible. Leave to appeal was granted on the first ground, and referred to the hearing of the appeal on the second. At the hearing of the appeal, counsel for the appellant abandoned the second ground.
Circumstances of the offences
The facts of the offences as alleged by the state were as follows. The appellant, Manuel and Kobeissi drove from the Perth metropolitan area to a house some 20 minutes' drive from Toodyay, armed with a hockey stick, knife, baton and sawn‑off shotgun, and wearing disguises. They arrived at the home of Gary Potter shortly after two visitors, Willem Hendriks Senior and Willem Hendriks Junior. Mr Potter and the two Hendriks were sitting on the veranda drinking tea when Mr Potter noticed a vehicle drive into his driveway. Three men got out of this vehicle, all wearing balaclavas over their faces, one wearing a wig. Mr Potter yelled a warning to his visitors and ran to a shed to collect a can of pepper spray before running back to the veranda where his guests were still standing. As he ran, he observed one of the three men from the vehicle rattling the padlock on an aviary in which a number of rare and exotic birds were housed.
Mr Potter sprayed the man with the shot‑gun with the pepper spray. The man with the gun threatened to shoot him if he did not stop, and the man with the hockey stick approached and struck him with it three times. Mr Potter then ran to a neighbouring property and was able to contact police.
The Hendriks, who remained at the property, were told to lie on the ground. Mr Hendriks Senior, an 87‑year‑old man who speaks little English, was slow to respond and was struck on the head a number of times with the baton. Mr Hendriks Junior attempted to shield his father and so he received a number of blows. The man with the knife stood guard over the two while the other two offenders went away. They returned a few minutes later, demanded Mr Hendriks Junior's mobile phone, and took off in the vehicle in which they had arrived.
Soon after, this vehicle was observed by police travelling at 122 km per hour along Toodyay Road and was stopped. Police requested the licence of the appellant, who was driving. He did not have a licence, and police enquiries revealed that the vehicle was stolen, so the appellant was taken to Toodyay police station. A search of the car uncovered the following items, among others: a hockey stick, a blonde wig, a large birdcage, gloves, a telescopic baton, a Nokia mobile phone later identified as belonging to Mr Hendriks Junior, and black cable ties.
Ground 1 – Video record of interview involuntary
This ground of appeal reads:
The respondent was permitted to introduce a Video Record of Interview of the applicant that was involuntary and therefore inadmissible.
In the appellant's submission, the interview was involuntary because the appellant indicated that he did not wish to answer any questions, and because he told police he wished to speak to a lawyer and this request was ignored.
The interview
The appellant was interviewed by a Detective Sergeant Davis on 30 October 2006, approximately four hours after the vehicle he was driving was stopped by police. The videotape commenced, after a brief introduction, by Detective Sergeant Davis, with the sergeant saying:
Q. Now you've told us as you walked in here that you didn't wanna speak to us but what I said to you we'll do it on video and you can - you can say that on video, cos also too I just wanna explain the allegations to you too just for your benefit, but you don't have to say anything . Now the caution is you're not obliged to say anything unless you wish to do so, however whatever you do say is gonna be recorded on the video camera and it maybe used in evidence. Do you understand that?
It then proceeded:
A.Yes, I do.
Q.If I ask you a question do you have to answer it?
A.No.
Q.And if you do answer it what happens?
A.I don't know, you tell me.
Q.It gets recorded.
A.Well, yep.
Q. Gets recorded and it might be used - do you know where it might be used?
A.In court.
Q.Okay, great. All right, do you understand that?
A.Yeah, of course.
Q.Now from that caution do you wish to answer my questions?
A.No, I don't wish to answer any more questions.
Q.All right, no - that's okay.
A.Sorry, mate, you ‑ ‑ ‑
Q.Don't be sorry. [AB 5]
The interviewing officer then said that he wished to "do ... a bit of background" and asked the appellant questions regarding his education, address, and the circumstances in which he came to be interviewed. When discussing how he was picked up by police, the appellant said:
Well I'll answer that question. Ah, yeah, I jumped out and - and they run the number plate through. Now they found that had been cancelled and they had the car stolen. [AB 8].
He then went on to answer questions relating to the car, how he obtained it, and who was in it when he was stopped by police. When the officer attempted to obtain detailed information regarding the appellant's claimed purchase of the car, he responded with two "no comments". The following exchange then occurred.
Appellant: Mate, I'm not gonna say anymore, all right, cos you're asking silly questions. The reason I don't wanna answer is - and no disrespect to both of youse, all right, cos I'm - I'm being set up… so I'm not saying nothing until I speak to my lawyer, all right? I just - I wanna just make that clear.
Officer: All right. Well what we'll do we'll just show some items to you that were in the car, and we don't expect you to say anything unless you want to.
Appellant: No worries. [AB 12 ‑ 13]
The next three questions, relating to the mobile phone, baton and hockey stick located by police in the car, received a response of "no comment". Questions relating to the purchase of fuel also received mixed answers and "no comment" responses. The appellant then answered a number of questions regarding items that were taken from the vehicle; in particular, a mobile phone which he claimed belonged to him.
The interview then moved back to the subject of the hockey stick and baton:
Officer: Do you wanna tell us whether the baton and the hockey stick are yours? Do you wanna - - -
Appellant: No, no, no, they're not mine at all.
Officer: Well you said no comment before, do you wanna - - -
Appellant: No - - -
Officer: - - - say it's not yours?
Appellant: - - - no comment
Officer: Nah, no problem…[AB 18]
The interview then moved on to other items located in the car, and the appellant identified a number of items as either belonging to him, or not belonging to him, discussing how the items came to be in the same bag:
Officer: Yep, okay. Found a bag - a grey black bag - silver black bag.
Appellant: Yep.
Officer: So how - - -
Appellant: It was all - I'll comment on this - - -
Officer: Yep.
Appellant: - - - everything was in the back - - -
Officer: Sorry, mate, can you hang on (indistinct)
Appellant: - - - so I just chucked it all into that bag cos when the policeman said take everything out of the car so I just chucked it all in there. [AB 18 ‑ 19]
…
Officer: Now do you want me to whack that back in the bag as - as it was?
Appellant: Nah, I don't even know where that bag came from like so I don't know (indistinct) don't worry about it.
Officer: So the bag's not yours?
Appellant: Oh, no, you didn't ask me but I'll tell ya.
Officer: All right, yep.
Appellant: Nah.
Officer: That was just in the back of the car was it?
Appellant: that was in the back. [AB 21]
After going through the items discovered in the car, the interviewer moved on to discuss the events earlier in the morning.
Officer:…Um, three men jumped out of the car and assaulted three people using weapons, using a hockey stick, expandable baton, a sawn off shotgun and a small knife.
Appellant: Mm. Well, I'm definitely gonna say no comment.
Officer: Yep. Oh, this is the allegation.
Appellant: (indistinct) So - I'm gonna say no comment. Sorry, mate. [AB 27]
It was then suggested that the mobile phone found in the vehicle belonged to one of the victims of this assault. The appellant answered "No comment" and then stated:
I need to - I really need to talk to a lawyer before I say anything to you guys. Because I - in past experience I said the wrong thing and fuckin I got fuckin (indistinct). [AB 28].
Finally, at the conclusion of the interview, the following exchange occurred:
Officer: Okay. And have you got any complaints about the way you've been treated by police?
Appellant: Nah, no, no.
Officer: And has any threats or promises been made to you?
Appellant: To me?
Officer: Yep. By police - - -
Appellant: No, no.
Officer: - - - to participate in this interview?
Appellant: Oh, no way.
Officer: And has this interview been made of your own free will?
Appellant: Well, yes.
Officer: What do you mean "well"?
Appellant: Of course. [AB 35]
Application and ruling concerning video record of interview
At trial, counsel for the appellant sought to have the video record of interview excluded as being unfair. He relied solely upon the transcript of that interview, and did not seek a voir dire to cross‑examine the sergeant, or to call the appellant to give evidence relevant to its admissibility. When asked by McKechnie J whether he objected to the video record of interview on the grounds that it was involuntary, or whether it was sought to have it excluded in the exercise of his Honour's discretion, this exchange occurred:
CAAMANO, MR: I am saying they should be excluded in the exercise of your Honour's discretion
McKECHNIE J: Discretion?
CAAMANO, MR: Discretion, yes.
McKECHNIE J: Not that it's involuntary?
CAAMANO, MR: No, not that it's involuntary, the discretion.
McKECHNIE J: Then in that case the burden would be on you, wouldn't it, to show that I should exercise my discretion?
CAAMANO, MR: Yes, your Honour ... [ts 332 ‑ 333]
McKechnie J dismissed the application:
The accused's counsel specifically does not make application on the basis that the interview was involuntary but makes it on the grounds that I should exercise what I will conveniently call the fairness discretion, that is, a discretion that remains with a court, notwithstanding that evidence may be relevant and admissible, to exclude it in a criminal trial if it is unfair.
The accused is, from my observation of him in court, a mature man and it is clear from the interview that he conceded there were no threats, promises or inducements and clearly understood his right to say nothing. He exercised that right on quite a number of occasions during the course of the interview. On the other hand, at other times he did answer questions, sometimes in a way that would seek to advance a particular position he was putting, and it is my overall impression of this interview that there was no persistent importuning or unfairness.
It is significant that in this case, unlike the case of Assafiri v Horne to which counsel has directed my attention, there were mixed statements, that is, it was not completely simple denials. Such a record of interview would be inadmissible on the basis that it would be irrelevant, but this is mixed and there are matters which are relevant.
In all the circumstances I am not satisfied that the discretion should be exercised to exclude the material because I am not satisfied in any way that the interview was unfair to the accused, so I propose to allow the prosecution to adduce evidence. [ts 340]
Voluntariness of the interview
As previously noted, trial counsel for the appellant expressly rejected the suggestion that the objection to the video record of interview was on the basis of voluntariness. Voluntariness, for these purposes, refers to the exercise of a choice to speak or be silent: R v Lee (1950) 82 CLR 133.
In Mackenzie v The Queen [2004] WASCA 146, it was similarly argued that a video record of interview ought to have been excluded on the basis that the interview was involuntary, although no such submission was made at trial. I said in that case:
The difficulty, however, with making at this time the submission that the appellant's confession was not voluntary, is that the appellant's counsel expressly refrained from making any submission directed to involuntariness at trial. As has often been pointed out, the right of an accused person to decide how to conduct his defence and what issues will be contested is fundamental to the conception of a fair trial under our system of criminal justice. As the Supreme Court of Victoria observed in Sarek v The Queen [1982] VR 971 (at 982 – 983):
'Where an accused person has at his trial been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial … In most cases the appellate tribunal will not seek to go behind a deliberate decision taken at the trial by a solicitor or counsel for the accused ….'
The Court, of course, pointed out that the fundamental question must always be whether the conviction involves, or has brought about, a miscarriage of justice. In assessing that question, the starting point in this case is that there was plainly a deliberate forensic decision not to raise the issue of voluntariness. That is not the end of the enquiry, but it is very significant. While the onus of proving a confession is voluntary is on the prosecution, a trial Judge is not required to consider the question of voluntariness unless it is put in issue in some way, either by some fact appearing which may suggest a lack of voluntariness (often arising on the depositions) or by counsel for the accused indicating that there is evidence which he wishes to call on that issue: see Hough v Ah Sam (1912) 15 CLR 452 at 457; R v Bradshaw (1978) 18 SASR 83 at 86, 100-101.
In the present case, as I have noted, there are a number of aspects of the videotape which might have suggested a lack of voluntariness but counsel for the appellant expressly advised his Honour that he was refraining from raising that issue. In that context, it is important to recall that the issue of voluntariness is one of fact and is ultimately one which involves an accused person's state of mind, a factor peculiarly within the accused's knowledge. The facts bearing upon that issue which are known to the accused's legal practitioner are unlikely to be known to the Court; in particular, how the accused himself perceived the interview process, and whether any particular considerations operated on him so as to induce him to make a confession, would be a matter of instruction given by him to his legal practitioner and not known to the Court. It is my view, therefore that, notwithstanding the presence of some factors which might suggest that an enquiry into voluntariness was necessary, an indication by counsel for an accused person that counsel is deliberately refraining from raising that issue amounts to a concession, upon which the Court can act, that the confession was relevantly voluntary. [73] ‑ [75]
...
The question then arises as to what this Court should do when the issue of voluntariness is raised for the first time on appeal. In the absence of any explanation for why the issue was deliberately not raised at trial, it is, in my view, inappropriate for this Court to revisit, based on the video alone, the question of whether the appellant was induced to confess, when that was a matter peculiarly within the appellant's own knowledge and the subject of a concession to the trial Judge. Obviously, if there had been any evidence of a failure to act on instructions, or an apparent failure by counsel to understand instructions which were given, the position would be different. Similarly, the position might well be different if there was a clear inducement or threat or matter of that kind rather than, as in this case, an accumulation of a number of matters, none of which on its own would necessarily suggest that the confession was involuntary, and some of which … might have been the subject of evidence if any issue in respect of them had been raised. [77]
Malcolm CJ and McLure J agreed with those observations: [10], [88].
For the reasons given in Mackenzie, it is not appropriate for this court to consider the issue of voluntariness, raised for the first time on appeal, after it was expressly conceded below.
Counsel for the appellant before us suggested that the appellant's trial counsel must have been in some way mistaken, in conceding that the video record of interview was voluntary. However, the transcript referred to above at [22] reveals no suggestion of confusion, or hesitation; rather, counsel said clearly and repeatedly that his application was based upon discretionary considerations.
I would add that, for essentially the reasons given by McKechnie J, I would not find that the appellant's answers were involuntary. He clearly understood the caution; he declined to answer questions selectively, and he conceded in the interview that he had answered of his own free will. Many of the questions directed at him were in the form "Do you wanna tell us ... ", and if he declined to answer a question, the interview simply moved to the next topic. His "requests" for a lawyer, as the appellant characterises them, appear to be no more than reasons advanced for not wishing to answer particular questions, in a context where he was happy
to answer others. The transcript does not support the submission made to us that the appellant "must have" felt he had no option but to answer; on the contrary, answers such as "I'm not gonna say any more ... 'cos you're asking silly questions" suggest that he felt confident in asserting his right to silence.
I would dismiss the appeal.
PULLIN JA: I agree with Wheeler JA.
BUSS JA: On 2 December 2008, I dismissed the appeal for the reasons given by Wheeler JA.
0
5
1