Pihema v The State of Western Australia - [2017] WASC 282

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: PIHEMA -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 282

CORAM: JENKINS J

HEARD: 2 MAY 2017

DELIVERED : 3 MAY 2017

PUBLISHED : 4 OCTOBER 2017

FILE NO/S: INS 181 of 2016

BETWEEN: JOHNATHAN DEREK PIHEMA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Evidence - Confessions and admissions - Admissibility of recording of admissions - Discretion to exclude - Recording secretly made by friend of accused

Criminal law - Evidence - Confessions and admissions - Admissibility of recording of admissions - Common law principles - Basal voluntariness - Discretion to exclude - Electronic recordings of interviews with police - Tiredness - Interviews continuing after accused said that he did not want to talk about allegations of murder

Legislation:

Surveillance Devices Act 1998 (WA)

Result:

Applications allowed in part

Category: B

Representation:

Counsel:

Applicant: Mr A G Elliott & Ms K A Heslop
Respondent: Ms L E Christian & Mr B F Stanwix

Solicitors:

Applicant: Justine Fisher Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

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

AW v Rayney [2010] WASCA 161
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180
Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235
Ferry v The Queen [2003] WASCA 207
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
McDermott v The King (1948) 76 CLR 501
R v Ireland [1997] 3 WLR 534
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Sargent [2003] 1 AC 347
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396

JENKINS J: Jonathon Derek Pihema (the applicant) and Christopher Joe Moir were jointly charged with the murder of Jason Robert Edge. Matthew James Howarth was charged on the same indictment with being an accessory after the fact to the murder of Mr Edge. A fourth person, Jodi Abbott, was jointly charged with the murder of Mr Edge but her plea of guilty to manslaughter was accepted by the State.
The joint trial of the applicant, Mr Moir and Mr Howarth was heard before me and a jury. On 26 June 2017, the jury returned the following verdicts against the accused:
(a)the applicant ‑ guilty of murder;
(b)Mr Moir ‑ not guilty of murder but guilty of manslaughter; and
(c)Mr Howarth ‑ guilty of being an accessory after the fact to murder.
By a written application dated 10 April 2017, the applicant applied for the following orders:
(1)an order that the recording made by Ms Alana McGrath of a conversation between Ms McGrath and the applicant (the recording) be excluded from evidence on the basis that it was made illegally;
(2)an order that the electronically recorded interview between the applicant and the police which took place on 6 October 2015 (the 6/10/15 EROI) be excluded from evidence because it was not voluntary or it should be excluded in the exercise of my discretion; and
(3)an order that the electronically recorded interview between the applicant and the police which took place on 7 October 2015 (the 7/10/15 EROI) be excluded from evidence because it was not voluntary or it should be excluded in the exercise of my discretion.
I heard the application on 2 May 2017, which was supposed to be the second day of the applicant's trial. On 3 May 2017, I delivered the following decisions in relation to each application:
(1)I declined to exclude the recording.
(2)The 6/10/15 EROI up to the point at which the applicant appeared to fall asleep or be close to sleep was voluntary, and should not be excluded in the exercise of my discretion.
(3)The 6/10/15 EROI from where Detective Mayo said 'you didn't know him' at PB 413 to the end of the interview was excluded because the State had failed to prove that it was voluntary. Alternatively, I excluded it in the exercise of my discretion.
(4)The 7/10/15 EROI to the bottom of PB 424 was admissible because it was voluntary, and should not be excluded in the exercise of my discretion.
(5)The remainder of the 7/10/15 EROI was inadmissible because the State had failed to prove that it was voluntary. Alternatively, I excluded it the exercise of my discretion.
I said that I would deliver my reasons for these decisions at a later time. These are my reasons.

Admissibility of the recording

Ms McGrath and the applicant are former partners. They have one child who lives with Ms McGrath. After they separated, they remained on generally friendly terms and the applicant saw Ms McGrath in the course of having access to his child.
Ms McGrath alleged that on the ANZAC Day weekend 2015 the applicant came to her home and made admissions to her about his involvement in the death of Mr Edge (the first conversation). She further alleged that on 1 October 2015 the applicant came to her home and they had a conversation which she partially recorded using her mobile phone (the second conversation). During the second conversation the recording mechanism stopped working and once she noticed this, she restarted the recording. The recording which was the subject of par (1) of the application was the audio recording of parts of the second conversation. The applicant was unaware that the second conversation was being recorded.
In the recording, Ms McGrath is heard to refer to the first conversation. The following conversation was then recorded:
AlanaI just didn't believe it was true. And it is, isn't it?
JohnI told you it was an accident.
AlanaI know that.
JohnYou think I'm happy with what I did?
Alana[indistinct]
JohnYou think I'm happy with the person I was?
Alana[indistinct]
JohnI beat myself up every fucking night about it …
…
AlanaWere you alone?
JohnYeah.
AlanaWhy were you at the house?
JohnWhich house?
AlanaIn the house they believe he was murdered in. I've read the whole news report. I've doing my head about it in the last couple of days. It's been doing my head in.
JohnIt wasn't meant to happen.
AlanaWhy were you at the house?
JohnI told you why.
AlanaAnd you knew he was there?
JohnYeah.
AlanaWhy did you go? Why did ‑ ‑ ‑
John[indistinct] don't do this to me.
AlanaI'm not trying to do anything to you. I'm just dealing with it.
JohnYou think I'm happy about [indistinct] fuckin' happy about it. Okay?
The recording continued for a number of minutes and it contained further potential admissions by the applicant as well as some denials which the State submitted to the jury were consistent with the applicant falsely telling Ms McGrath what she told him she wanted to believe, which was that he was not involved in the death of Mr Edge.
The applicant acknowledged that even if the recording was illegally made, it was still admissible in evidence if it was relevant and not subject to an order for exclusion on discretionary grounds.
The applicant conceded that the recording was relevant in that for the purpose of the application he accepted that:
(1)Ms McGrath would give evidence that the recording recorded a conversation between herself and the applicant (as she did); and
(2)the jury could find that the recording contained admissions, express or implied, as to his involvement in the unlawful killing of Mr Edge.
Independently of those concessions I was, and remain, satisfied that the recording was relevant. That is, it was evidence which could rationally affect (directly or indirectly) the jury's assessment of the probability of the existence of a fact in issue between the parties. The relevant fact in issue was whether the applicant caused the death of Mr Edge. The recording could rationally affect the jury's assessment of the probability of the fact in issue, in that the jury could conclude that in the second conversation the applicant admitted truthfully to Ms McGrath that he was involved in causing Mr Edge's death.
Evidence of what a person has said out of court is not usually admissible to prove the truth of what they said. There is an exception to that general rule for admissions. An informal admission by words and/or conduct made by a party is admissible evidence against the party to prove the truth of its contents.
This exception to the general rule meant that Ms McGrath was permitted to give oral evidence of any admission made by the applicant to her during the first or second conversation.
It was not suggested by the applicant that the way the admissions in the conversations were made or obtained rendered them inadmissible. That is, the exclusionary rules relating to involuntariness did not render Ms McGrath's oral evidence of the admissions inadmissible.
There is no doubt that if oral evidence of admissions is admissible, an electronic recording of the admissions is admissible, unless it ought to be excluded in the exercise of a discretion to exclude otherwise admissible evidence. The prima facie admissibility of a recording of what was said to be a confession or admission was accepted by the High Court in Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180 when Mason CJ, Brennan and Deane JJ said:
Of course, a conversation can be proved by the oral testimony of anyone who heard it but that is not the only means by which a conversation might be proved. The courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape: see, among other cases, Reg v Maqsud Ali (1966) 1 QB 688; Papalia v. The Queen; The Queen v Cotroni (1979) 2 SCR 256; 93 DLR (3d) 161; Williams v The Queen (1982) Tas R 266; Walsh v Wilcox (1976) WAR 62; United States v Biggins [1977] USCA5 772; (1977) 551 F 2d 64; Hurt v State (1956) 303 P 2d 476, which canvass the conditions on which a tape recording may be admitted in evidence. It is unnecessary now to consider those conditions but it is obvious that the provenance of the tape recording must be satisfactorily established before it is played over to the jury.
The reason why a tape recording of a conversation is admitted in evidence to prove what is recorded is simply that use of the technology of sound recording and reproduction adds 'to our knowledge other data not discernible by the unaided senses, or can make more accurate and more usable the data already discernible': Wigmore, The Science of Judicial Proof, 3rd ed (1937), par 220, p 448, cited by Neasey J in Williams v The Queen, at p 270. Those additions to our knowledge, as Wigmore points out (ibid., p 450) are due to the use of instruments constructed on knowledge of scientific laws. A tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence (184).
Even if the recording was illegally obtained evidence, it was not inadmissible for that reason, either at common law or under statute: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 66 (Stephen & Aickin JJ) and 64 (Barwick CJ) and the Surveillance Devices Act 1998 (WA) (SDA) s 9.
Thus, the recording was admissible unless I exercised my discretion to exclude it. Relevant issues which had to be taken into account in the exercise of my discretion were whether the recording had been made illegally and, if so, whether Ms McGrath knew that she was acting illegally in making the recording.
The applicant submitted that Ms McGrath had made the recording illegally in breach of the SDA s 5. The parties agreed that whether she did so or not depended on the construction and application of the SDA s 5 which states, relevantly:
(1)Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device ‑
(a)…
(b)to record a private conversation to which that person is a party.
Penalty:
(a)for an individual: $5 000 or imprisonment for 12 months, or both;
(b)…
(2)Subsection (1) does not apply to ‑
(a)...
(b)...
(c)...
(d)the use of a listening device in accordance with Part 5;
(e)...
(3)Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if ‑
(a)...
(b)...
(c)...
(d)a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.
The State accepted that the mobile phone used by Ms McGrath to record the second conversation was a listening device and she used it to record a private conversation.
The construction of s 5(3)(d) was considered in AW v Rayney [2010] WASCA 161 [257] where Buss JA (McLure P agreeing) said:
(a)the word 'necessary' connotes, in the context of s 5 'appropriate or adapted' rather than 'essential or indispensable'.
(b)The word 'reasonably' imports an objective test. That is, the installation, use or maintenance of the listening device must, objectively, be reasonably appropriate or adapted.
(c)The determination of whether something is 'reasonably necessary' involves the exercise of judgmental evaluation.
(d)The determination of whether the use of a listening device is 'reasonably necessary' is to be undertaken by reference to the facts and circumstances, and upon the bases or grounds, existing at the time of the recording.
(e)The word 'protection', in the context of s 5, connotes defending, preserving or safeguarding the lawful interests of the principal party in question.
(f)What constitutes a person's 'lawful' interests must be ascertained from the facts and circumstances of the particular case. It may be said, generally, however that the word 'lawful' connotes, in the context of s 5, a right or interest which is not contrary to statute or general law. (authorities omitted)
As Buss JA said, whether the use of a listening device is reasonably necessary depends on the facts. The determination of the 'lawful interests' of a principal party to a private conversation also depends on the facts.
In order to find the relevant facts to determine whether the recording fell within s 5(3)(d) it would have been necessary for me to hear oral evidence on the voir dire. To ensure the trial proceeded expeditiously, I said that I would assume that the recording was illegally made in breach of the SDA s 5(1) and in circumstances that were not within the SDA s5(3)(d).
The State asked me to determine whether, in any event, s 5(2) rendered the recording lawful because it was made in accordance with the SDA pt 5.
The SDA s 26(1), which is in the SDA pt 5, relevantly states:
A person who is a party to a private conversation may use a listening device to record the private conversation if a principal party to the private conversation consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest.
The 'public interest' is defined to include:
[T]he interests of national security, public safety, the economic well being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.
There was no doubt that Ms McGrath was a principal party to the second conversation and that she consented to the recording of it.
As the applicant rightly submitted, a determination of whether the recording was made legally under s 5(2)(d) and pt 5 turned on whether there were 'reasonable grounds for believing that the use of the listening device is in the public interest'.
There is no binding authority on the construction of the SDA s 26(1). However, relying on the High Court's decision in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 and the Court of Appeal's construction of the similar provision in the SDA s 5(3)(d) I was, and am, of the opinion that:
(a)the word 'reasonably' imports an objective test. That is, there must be objectively reasonable grounds for believing that the use of the listening device is in the public interest;
(b)for s 26(1) to apply there must be facts which are sufficient to induce in a reasonable person a belief that the use of the listening device is in the public interest. See George v Rocket [8];
(c)it must appear to the judge determining legality, not merely to the person using the listening device, that reasonable grounds for believing that the use of the listening device is in the public interest exist. See George v Rocket [8];
(d)it is not necessary that the judge holds that belief. See George v Rocket [7];
(e)the objective circumstances do not need to establish on the balance of probabilities that the use of the listening device is in the public interest. 'Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture'. See George v Rocket [14];
(f)the determination of whether there are 'reasonable grounds for believing that the use of a listening device is in the public interest' is to be undertaken by reference to the facts and circumstances existing at the time of the use of the listening device; and
(g)what constitutes the 'public interest' must be ascertained by the application of the statutory definition of that phrase to the facts and circumstances of the particular case.
I was satisfied that, applying the above principles, there were reasonable grounds for believing that the use of the listening device was, and is, in the public interest.
Ms McGrath, was speaking to the applicant about his possible involvement in the unexplained disappearance and possible death of Mr Edge, which she knew that the police were investigating. The identification of persons involved in, or the exoneration of individuals suspected of being involved in, an unexplained disappearance of another person is a serious matter involving public safety and the protection of morals. A reasonable person would have reasonable grounds for believing that it was in the public interest to record the second conversation so as to provide an accurate and permanent record of the conversation about such a matter. There was also a public interest in recording the conversation in order to protect the rights of the applicant. The recording of the second conversation was not open to the same allegations of fabrication and inaccuracy to which Ms McGrath's oral account of the uncorroborated conversation may have been subject. It provided a reliable record of the conversation whereas Ms McGrath's oral evidence of the same conversation may not have been so reliable due to a number of matters including the fallibility of human memory and the lapse in time between the conversation and any account of it.
However, as I agreed that I would determine the application without hearing evidence on the voir dire and as the decision as to whether there were reasonable grounds to believe that the making of the recording was in the public interest may have been fact sensitive, I determined the application on the assumption that the recording was illegally made by Ms McGrath in breach of the SDA s 5, and that she knew it was illegal to record the second conversation. Nothing that I say in these reasons should be construed as a determination of illegality on its merits, as to law or facts, or a determination of Ms McGrath's knowledge of illegality.

Assuming that the recording was made illegally and assuming that Ms McGrath knew it was illegal to make the recording, the primary issue for determination was whether I would exercise my discretion to exclude it from evidence.
First, it was important for me to identify the nature of my discretion to exclude the recording.
In R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, the plurality (Toohey, Gaudron & Gummow JJ) spoke of four bases for the rejection of a confessional statement by an accused. The first lies in the fundamental requirement of the common law that a confessional statement be voluntary [50]. That basis is not engaged here.
The other three bases involve the exercise of a judicial discretion. These bases are:
(1)it would be unfair to the accused to admit the statement;
(2)considerations of public policy make it unacceptable to admit the statement into evidence; notwithstanding that it was made voluntarily and its admission would not result in particular unfairness to the accused; and
(3)the power to reject evidence the prejudicial effect of which is greater than its probative value, in order to guard against a miscarriage of justice [52].
These four bases of exclusion of confessional statements were agreed to by the plurality in Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [245] ‑ [248].
The applicant relied on Bunning v Cross and R v Ireland [1997] 3 WLR 534 but the joint judgment of Stephen & Aickin JJ in Bunning v Cross made it clear that the discretion under consideration in that case related to unlawful conduct by 'those whose task it is to enforce the law' (74). That is the second basis identified above. It is the third basis to disallow evidence if the strict rules of admissibility would operate unfairly against an accused which was relevant in this case, particularly as there was no issue that what was sought to be excluded was the recording and not the oral evidence of the second conversation.
The applicant submitted that the recording should be excluded in the exercise of my discretion for the following reasons:
(1)the recording did not capture the start or end of the second conversation with Ms McGrath;
(2)the recording stopped part way through the second conversation and then recommenced and thus it did not capture fairly all that he said;
(3)there was a danger that the recording did no fairly present the true context and meaning of the second conversation;
(4)the passage of time before the recording was disclosed to the applicant operated unfairly to him because he had not had the opportunity to remember what was said in the unrecorded parts of the second conversation whilst it was fresh in his memory;
(5)as a consequence of (4), there was a substantial danger that the recording would emphasise in a juror's mind the recorded portions of the second conversation to the exclusion of any unrecorded portions of it;
(6)the assumption that Ms McGrath made the recording in deliberate disregard for the law favoured its exclusion;
(7)the nature of the assumed illegality of the recording affected its cogency;
(8)the recording could be the result of a process of deliberate cutting of corners to make the task of the police easier; and
(9)the recording interfered with the accused's important common law rights.
In respect to (1) ‑ (3), despite the recording being incomplete, it was still fair to the applicant and in the interests of justice for the jury to have a true record of what the applicant said at the time the recording device was being used rather than rely on Ms McGrath's recollection of what the applicant said in the second conversation. The portions of the conversation which were recorded were extensive and spoke for themselves. The sound of the voices added to the evidence of what was said. The applicant did not point to any part of the recording or any evidence which suggested that he or Ms McGrath said things which were not recorded and which might have put a different light or interpretation on the recorded part of the second conversation.
The applicant's counsel would be able to, and did, cross examine Ms McGrath during the trial about what was said when the mobile phone was not recording.
As to (4), there was no reason given as to why the limited passage of time meant that the applicant would be unable to recall what he said during the second conversation or why he would be unable to explain why he said what he said during the second conversation. The onus was on the applicant, on the balance of probabilities, to persuade me to exercise my discretion to exclude the recording. I was not prepared to assume that the applicant could not recall what was said during the second conversation.
As to (5), there was no reason for me to conclude that there was a substantial danger that the recording placed undue emphasis on the recorded, as opposed to unrecorded, portions of the second conversation.
As to (6), the assumption that Ms McGrath made the recording knowing that it was illegal to do so did not cause me to exercise my discretion to exclude the recording. Ms McGrath made the recording and gave it to the police, who she knew were investigating the serious matter of the disappearance of Mr Edge. There was no evidence that she intended to use it for a wrongful purpose such as blackmail. It seemed that the recording was made by Ms McGrath to ensure that she had an accurate record of the second conversation. That remained the position at the end of the trial. Neither was there any evidence that Ms McGrath deliberately failed to record part of the second conversation. That also remained the position at the end of the trial.
The applicant relied on R v Sargent [2003] 1 AC 347 which he submitted was similar to the facts of this case. In Sargent the House of Lords decided that evidence of an illegal recording made by a third party of a conversation between the accused and another was not admissible in the accused's trial. It further held that the accused's confession made to a police officer after he was told about the illegal recording was inadmissible.
The first point of distinction between Sargent and this case was that in Sargent the House of Lords found that a provision of the relevant statute made the recording of the private conversation inadmissible in evidence. No such submission was made to me in this case.
Next, the facts of this case are quite different. The police in this this case did not use an unlawfully obtained and inadmissible recording made by a third party to elicit a confession from the accused, as occurred in Sargent's case.
Finally, in Sargent's case, the person who recorded the conversation could not have given oral evidence of the conversation. The only evidence of the conversation was the unlawfully obtained recorded intercept. Whereas in this case, Ms McGrath gave oral evidence of the second conversation.
The applicant submitted that nevertheless Sargent's case had some relevance because the recording would be used to make Ms McGrath's evidence about the first conversation appear more cogent. That submission was not elaborated on by counsel but doing the best I could to understand it, there could be two ways the State could use the recording to do that.
First, during the recorded part of the second conversation, the applicant did not deny to Ms McGrath that the first conversation took place. Rather, he appeared to accept that it did. I saw nothing unfair to the applicant in the jury assessing the recording to determine whether the applicant adopted as the truth what Ms McGrath said to him he said in the first conversation, or not.
Secondly, if the recording confirmed Ms McGrath's oral testimony about the second conversation, the State could submit to the jury that it bolstered her credibility about the first conversation, in the sense that it made her appear to be a witness upon whose memory the jury could rely. I was not convinced that was relevant unfairness or even if it was, that it made it unfair to admit the recording into evidence. The applicant was able to test Ms McGrath's truthfulness and reliability by reference to the recording.
The Court of Appeal's decision in Ferry v The Queen [2003] WASCA 207 was relevant. In Ferry one of the grounds of appeal was that the trial judge erred in admitting into evidence a recording which was made surreptitiously by the complainant's mother of a conversation between herself and the appellant during which the appellant responded to the allegation made against him. The mother then gave this recording to the police and it became an exhibit at the trial of the appellant. The recording was of poor quality. The appellant said that in first place the recording was inadmissible, it having been obtained in contravention of the SDA, and secondly it was of such a poor quality that it did not truly represent the conversation that occurred. Anderson J (Murray and Wheeler JJ agreeing) said:
As to the admissibility of the tape the trial Judge has a discretion to permit the recording of a private conversation to be adduced in evidence even although the recording was obtained unlawfully. Section 31(1) Surveillance Devices Act 1998.[1] … As there was a discretion to admit it and as there were ample grounds on which the discretion could be exercised in favour of the admissibility of the tape and as there was no objection to its admissibility the applicant cannot now complain about it.
As to the quality of the tape the applicant referred to R v Swaffield; Pavic v The Queen (1997) 192 CLR 159 in support of the contention that secretly obtained tape recordings which are unreliable should be excluded from evidence. A point of distinction between those two cases (heard and reported as a single case in the High Court) and the case before us is that in the former the secret recordings had been instigated by the police or by persons acting on their behalf, after the police had attempted unsuccessfully to obtain confessional statements at formal interviews [41] ‑ [42].
The High Court held that the recording obtained by the undercover police officer in Swaffield's case should have been excluded. The majority (Toohey, Gaudron and Gummow JJ) held that the admissions were elicited by the police improperly in clear breach of Swaffield's right to silence.
In Pavic's case (supra) the Court was influenced by the fact that the admissions had been made not to an undercover police officer acting improperly but to a person whom Pavic knew and trusted as a friend. There was no element of police impropriety and the admissions were likely to be reliable having been made to a trusted associate.
However subtle the distinction between these two cases may seem the case for exercising a discretion in favour of admitting the tape recording obtained by the complainant's mother in this case is even stronger than in Pavic. She had not been put up to it by the police. It was entirely her own idea. The relationship between the applicant and the complainant's mother was that they had been 'lovers' as the applicant put it and were still friends. There is nothing about the circumstances which is suggestive of any coercion or unfairness and the relationship between the applicant and the complainant's mother indicates that what he admitted to her concerning his conduct towards her daughter was likely to be true.
As to the quality of the tape, the applicant's submissions would have force if he was able to say that the inaudible parts of it might be exculpatory. That was not his submission. Once again it is common for tape recorded conversations to be played to a jury notwithstanding that the tape recording is of poor quality and contains inaudible passages. It is a question of balance and discretion and fairness. I am not persuaded that there was anything unfair to the applicant arising from the poor quality of the tape [44] ‑ [47].
[1] In this case it was not suggested that the Act rendered the recording inadmissible if it was made illegally, subject to a discretion to admit it into evidence. The Act s 9(2)(ix) states that the prohibition against publishing a recording made using a listening device does not apply in legal proceedings. Neither was it submitted that an order under the Act s 31 was required to render it admissible.
As in Ferry there was no suggestion that Ms McGrath had 'been put up to' making the recording by the police. Also, as in Ferry, the applicant and Ms McGrath had been partners and were still on friendly terms. There was nothing about the circumstances or in the recording which suggested any coercion or unfairness in the second conversation.
The applicant's counsel submitted that the second conversation was in the nature of an interrogation and that it was conducted in a deliberate endeavour to obtain admissions. It is true that Ms McGrath questioned the applicant quite closely but it was not an interrogation by a person in authority over the applicant in circumstances which were unfair to him. Further, to the extent that Ms McGrath put allegations to him which may have suggested that she suspected he was involved in the disappearance of Mr Edge, the nature of the relationship between the applicant and Ms McGrath indicated that any adverse admissions he made to her concerning his conduct in relation to the deceased were likely to be true.
In relation to (7), the recording was likely to be more reliable and cogent than Ms McGrath's oral evidence based on her recollection of the second conversation. Her oral evidence was admissible in evidence whether or not the recording was admitted. Fairness to the applicant favoured the admission of the recording, rather than there only be oral evidence of the conversation based of Ms McGrath's memory.
Point (8) is not relevant because it was not suggested that the police were involved in Ms McGrath's decision to record the conversation. That remained the position after trial.
As to (9), the accused did not identify a common law right which would be interfered with by the admission of the recording into evidence.
In summary, I concluded that the recording had significant probative value. There was no relevant prejudice to the applicant which meant that I should exclude the recording in the exercise of my discretion. The contents of the recording may have been adverse to the applicant's case but its admission into evidence was not unfairly prejudicial to the applicant.

Admissibility of the 6/10/15 EROI

I turn now to the applicant's application to exclude the 6/10/15 EROI on the grounds that it was involuntary or unfair.
The plurality in Tofilau further refined the voluntariness basis for exclusion of admissions into two categories. The first is the 'inducement rule' which provides that an admission by an accused person 'is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed'.
The second category concerns the 'basal involuntariness' rule. This rule does not require the involvement of a 'person in authority'.
Their Honours said that the basal voluntariness rule was established in the joint judgment of Dixon, Evatt and McTiernan JJ in Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235 when their Honours said:
[A] promise of advantage and a threat of harm are not the only matters which may deprive a statement of its voluntary character. For instance, a confession which is extracted by violence or force, or some other form of actual coercion is clearly involuntary, and, therefore, cannot be received in evidence [389].
Their Honours noted that the joint judgment in Cornelius had approved the following statement:
[A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion [390].
The judges in Cornelius also spoke approvingly of cases excluding confessions in the following circumstances:
[W]here the compulsion alleged takes the form of prolonged and sustained pressure by police officers upon a prisoner in their hands, until, through mental and physical exhaustion, to which want of sleep and food sometimes contributes, he consents, in order to obtain relief, to make a confession of the crime. If it is alleged that the confession is the outcome of pressure, the question whether by persistent interrogation, or by other means, a prisoner has been constrained to confess so that his statement cannot be regarded as voluntary must sometimes be decided as a matter of degree [392].
The plurality in Tofilau also referred to what was said by Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ in R v Lee [1950] HCA 25; (1950) 82 CLR 133, 144, adopting the words of Dixon J in McDermott v The King (1948) 76 CLR 501 [395], that an admission by an accused person is not admissible:
[U]nless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure [396].
Their Honours in Tofilau favoured a narrow scope for 'basal involuntariness'. They said:
The aspect of the basal involuntariness doctrine under discussion has only occasionally led to exclusion. A confession late at night by an accused person who had fainted twice, had difficulty in moving and was 'in a dopey condition' was excluded on the ground that the prosecution had not established that it was voluntary. The same result applied to a confession by a person who, after stabbing another person, had 'blacked out' and attempted suicide by taking poison and by jumping into Auckland Harbour; he was found in wet clothing, cold, shivering, frothing at the mouth and in a distressed state; he had repeatedly vomited; and he had been rushed to hospital where his stomach had been forcibly pumped out before the confession was elicited. But instances of this kind, where there has been automatic exclusion on grounds of involuntariness, as distinct from discretionary exclusion, are rare.
The point of these citations is to demonstrate that Dixon J, and other judges, have considered the 'basal involuntariness' rule in its application to mentally disordered persons to be quite circumscribed. The appellants do not now claim the benefit of any doctrine relating to mental disorder, but the limits of the 'basal involuntariness' rule in that respect suggests that it is not extensive in other respects, and that the width of the inducement rule is not a pointer towards any width in the 'basal involuntariness' rule.
To the very narrow extent to which a category of basal involuntariness has been found or contemplated as a possibility in relation to persons suffering from mental disorder, or a head wound, or extreme fatigue, that category operates as an exception to a general proposition - it cannot be called a rule of law - that 'what will render a confessional statement involuntary must be some factor external to the accused'. The factors listed by Dixon J in McDermott v The King were all factors external to the accused - factors causing the will of the accused to be 'overborne' [338] ‑ [340].
Later, when considering the application of the principles of basal voluntariness to the facts of the cases before it, the plurality said that Dixon J's test in McDermott 'does not turn on a rejection of police tactics which seek to obtain evidence indirectly which could not have been obtained directly without certain safeguards being supplied to the accused. It turns simply on an overbearing of the will' [344].
In Tofilau the appellants submitted that even if the will of the appellants had not been overborne, 'basal involuntariness' existed because the appellants' freedom to speak or remain silent had been so influenced by deception, trickery or manipulation that there had been no effective exercise of the freedom. In respect to this submission, the plurality said that there are innumerable examples of confessions being admitted despite the confession having been generated by deception. They gave the example of secretly recorded conversations which would not have occurred had the suspect known of the recording. They also referred with apparent approval to the admissibility of confessions obtained through the 'use of disguises, informers or other agents at the investigative stage, so long as this does not involve prompting or questioning a suspect in relation to an incident in a way that undermines rights that should be protected' [348].

After discussing the relevant cases, principles and submissions, the plurality concluded:
While it is possible to conclude that there has been basal involuntariness in circumstances which include the fact that the accused has been deceived, the mere fact of deception is insufficient in itself to justify a conclusion of basal involuntariness. Similarly, deception may be a ground on which a confession may be excluded in the court's discretion; but when that inquiry is undertaken, other factors must be weighed with the deception [360].
The plurality in Tofilau also said:
(1)The impropriety of police conduct may be a ground for the exclusion of any resulting confession as a matter of discretion. But it will not cause the confession to be subject to the 'basal involuntariness' doctrine unless the accused's will has been overborne.
(2)On Australian authority, there is no distinct ground for treating confessions as automatically inadmissible on the basis of 'appalling police trickery' unless the inducement rule is attracted or the conduct is such as to overbear the will of the accused: 'Appalling police trickery' could trigger a discretion to exclude the evidence [362] ‑ [363].
The applicant submitted that his answers in the 6/10/15 EROI were involuntary on the application of the basal involuntariness rule because his will was overborne in that the police continued to ask him questions despite:
(1)his emphatic statements on at least three occasions that he did not wish to answer any questions; and
(2)the fact that he was both fatigued and injured at the time of the 6/10/15 EROI.
The relevant background was that the applicant was arrested sometime after 3.00 pm on 6 October 2015. The police then searched various premises which were connected to him and the other accused. The applicant remained at one of those addresses until about 11.00 pm. The 6/10/15 EROI commenced at 11.30 pm and concluded at 1.05 am on 7 October 2015. It took place at the offices of the Western Australian Police Major Crime Squad.
From the commencement of the interview the applicant appeared to be tired but he answered questions in a way which indicated that he was awake and understood what was being asked of him. He said that he was not affected by illnesses, alcohol or drugs, other than that he had Nurofen for a headache. He explained that when arrested he had been 'hit in the head' and that police had 'stood on my neck'. He said that he had 'a wicked headache before' but that it had 'gone, worn off'. He was told to let the interviewing officers know if it was causing an issue. The applicant did not do that and he did not refer to the headache after that time.
The applicant was reminded that he was under arrest on suspicion of the murder of Mr Edge. The applicant told the police that he would not answer questions 'unless I speak to lawyer'. The interview was suspended and the applicant spoke to a lawyer on the telephone. When the interview resumed, the applicant was told that the police wanted to discuss with him information they possessed which implicated him in the murder of Mr Edge. They asked him whether he was involved in the killing of Mr Edge. The applicant said that he would be remaining silent throughout the interview. On a few occasions he told the police that his answer would be 'no comment' to all their questions.
One of the interviewing officers then said that whilst they (the police) were interested in 'Jason and his whereabouts' and that was 'the whole reason' that the applicant was with them, they were also interested 'in other things that surround the whole alleged incident'. The interviewing officer then said that he would like to 'move away' from Mr Edge. He asked the applicant to tell him a bit about himself. The applicant was then asked a range of questions about different topics personal to him such as places he had lived, people he knew and cars he had owned or used. He answered the majority of questions asked of him. At one point he refused to supply his email address but he continued to answer other questions after that without complaint.
The applicant submitted that he was, in effect, tricked into answering questions about incriminating matters by the interviewing officer's comment that the police were not going to ask questions about Mr Edge. He submitted that deception was made clear in the 7/10/15 EROI. In the 7/10/15 EROI the interviewing police officer said to the applicant that he may ask him questions about his car, mobile phone and 'stuff like that' but that he was not trying to get to know him; rather the questions 'are relevant to the inquiries that we're carrying out'. The interviewing officer repeated that explanation in other words. A short time later the applicant said 'now that you've explained everything to me, I don't really want to talk about anything in my life or what I done and so forth'. He said 'I guess it's just going to be no comment to everything now, guys.'
It is possible, but highly unlikely, that the applicant did not appreciate that police's questions during the 6/10/15 EROI related to the police inquiry into the disappearance of Mr Edge. If that was the case, it was not due to any unfair behaviour or trickery on the part of the police. The police told the applicant that he was under arrest on suspicion of the murder of Mr Edge and that Mr Edge and his whereabouts were the only reason the applicant was with the police. It was not suggested that the applicant suffered from any defect in intellect which meant that he was not able to understand the police or which rendered him liable to misinterpret what the police said to him.
The only injury which the applicant complained of was a headache for which he had been given analgesia and which had 'gone'. Thus, he did not have injury which resulted in his will being overborne.
The police did not breach the inducement rule in that the police did not induce the applicant's answers by a threat, promise or trickery. Neither was there a breach of the basal voluntariness rule, in that there was no compulsion or prolonged pressure by the interviewing police officers. Whilst there was evidence that the applicant was tired, I was not satisfied that the applicant consented to the interview out of physical exhaustion or to gain relief form sustained pressure by the police. That remained the position up to the point in the interview when the applicant appeared to be close to sleep. I will come back to that point shortly.
Neither did the police inflict violence or threaten to inflict violence on the applicant or coerce him into participating in the interview. The applicant was advised of all his rights and the police facilitated him exercising his right to obtain legal advice.
The applicant answered the police officer's questions because he was prepared to speak to the police about those matters and not others. If he did not appreciate that some of his answers may incriminate him, that is not a reason for holding that the interview was involuntary. No doubt many suspects answer questions believing that their answers are exculpatory or at the very least will not implicate them in an offence. This is not a basis for holding that the answers were involuntary or should be excluded from evidence.
A suspect may answer questions voluntarily but later change their minds and wish they had not answered questions. A belated appreciation that answers may be inculpatory or a belated regret of participation in a police interview does not make the answers, given voluntarily at the time of the interview, involuntary or inadmissible.
For these reasons, I found that the 6/10/15 EROI was voluntary. However, there was a point late in the interview where the interviewing police officer said 'you didn't know him' (PB 413). From that point I was satisfied that the State had failed to satisfy me that the applicant was sufficiently awake to be able to exercise a free choice to speak or remain silent: Tofilau [338]. Thus, the State had failed to prove that the interview was voluntary from that point onwards. For the same reason I would have excluded the interview from that point in the exercise of my discretion.
I was not satisfied that the interview prior to that point ought to be excluded in the exercise of my discretion. Considerations of public policy did make it unacceptable to admit the statement into evidence; notwithstanding that it was made voluntarily. The applicant was advised of his rights and although he appeared to be tired, he answered fair questions which were asked of him in an entirely acceptable manner. The police did not act illegally or improperly in questioning the applicant up until the point at which he appeared to have fallen asleep or to be close to sleep. This was not a case where the police interviewed a suspect who consented to the interview because he was mentally and physically exhausted, and the police took advantage improperly of his condition to obtain inculpatory evidence.
Further the admission of the balance of the 6/10/15 EROI would not operate unfairly to the applicant. The members of the jury were able to see the recording of the interview and to decide for themselves whether the answers given by the applicant were reliable and true. There was no cause for me to exercise my power to reject the evidence of the applicant's answers in the 6/10/15 EROI because they had a particular prejudicial effect which was greater than their probative value. An order for exclusion was not required to guard against a miscarriage of justice.

Admissibility of the 7/10/15 EROI

After the conclusion of the 6/10/15 EROI, the applicant remained at the police station until he was transferred to the police watch‑house in the early hours of the morning. The 7/10/15 EROI commenced at 10.38 am and concluded at 11.15 am at the offices of the Western Australian Police Major Crime Squad. At the commencement of the interview the applicant was told that he was still under arrest on suspicion of the murder of Mr Edge. He told the police that he was still a little tired but that he was 'alright'.
As mentioned above, the interviewing police officer said to the applicant that he may ask the him questions about his car, mobile phone and 'stuff like that' but that he was not trying to get to know him; rather the questions 'are relevant to the inquiries that we're carrying out'. The interviewing officer repeated that explanation in other words.
The police officer asked the applicant whether he was happy for the police to continue to ask him questions and the applicant replied:
I'm happy for you [indistinct] ask me questions, yes.
The police officer then summarised some of the information given by the applicant in the 6/10/15 EROI and the applicant confirmed that it was what he had told the police. The following exchange then occurred:
Police - And you started to tell us about Jason and your association with him. Yeah.
Applicant - [indistinct] didn't have any association with him.
The applicant then told the police 'now that you've explained everything to me, I don't really want to talk about anything in my life or what I done and so forth'. He said 'I guess it's just going to be no comment to everything.' The interview continued for a short time with the applicant repeating that he did not want to answer questions. He also told the police that in the 6/10/15 EROI he had answered questions voluntarily and he recalled answering the questions up until he fell asleep. He told the police that he was not involved in the murder of Mr Edge and that he did not know what he was doing around the ANZAC Day weekend, which was the weekend during which Mr Edge went missing.
The State submitted that the probative material in the 7/10/15 EROI was:
(1)the applicant's confirmation that he had voluntarily spoken to the police the evening before about various matters;
(2)the applicant's assertion that he had no association with Mr Edge was a lie showing a consciousness of guilt; and
(3)the applicant's assertion that he did not know what he was doing around the ANZAC Day weekend was relevant because it 'locks the [applicant] into a version of events where there was nothing particularly memorable about the ANZAC Day weekend'.
The applicant submitted that the 7/10/15 EROI was inadmissible because it contained no admissions.
I declined to exclude the 7/10/15 EROI down to the end of the applicant's answer about his lack of association with Mr Edge (PB 424). That answer was potentially probative as a lie showing consciousness of guilt.
I granted the application to exclude the remainder of the interview because the State had failed to satisfy me that the balance of the interview was voluntary. The applicant repeatedly told the police he did not wish to answer questions.
I would have also exercised my discretion to decline to admit the interview from that point on the basis that the prejudicial effect of what were essentially answers expressing the applicant's reluctance to speak to police, a position which he was entitled to take, outweighed the potential probative effect of the answers which the State relied on in the balance of the interview.