R v Carleton
[2000] WASC 52
•2 MARCH 2000
R -v- CARLETON [2000] WASC 52
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 52 | |
| 02/03/2000 | |||
| Case No: | INS:172/1999 | 24 FEBRUARY 2000 | |
| Coram: | MALCOLM CJ | 1/03/00 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | THE QUEEN GLENN ISAAC CARLETON |
Catchwords: | Criminal law and procedure Voir dire Admissibility of video record of interview Whether interview voluntary or unfair Whether accused induced to participate in expectation of bail if he co-operated Whether accused so fatigued or in such pain as to make interview unfair Whether inappropriate cross-examination made interview unfair Whether accused's level of intelligence and comprehension such that interview was unfair |
Legislation: | Nil |
Case References: | Cleland v The Queen (1982) 151 CLR 1 Collins v The Queen (1980) 31 ALR 257 MacPherson v The Queen (1981) 147 CLR 512 Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996 Moss v R (1991) 91 Cr App R 371 R v Williams (1992) 8 WAR 265 Seymour v Attorney General (Cth) [1984] 1 FCR 416 The Queen v Lee (1950) 82 CLR 133 Van Der Meer v The Queen (1988) 62 ALJR 656 Wendo v The Queen (1963) 109 CLR 559 Driscoll v The Queen (1977) 137 CLR 517 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
AND
GLENN ISAAC CARLETON
Catchwords:
Criminal law and procedure - Voir dire - Admissibility of video record of interview - Whether interview voluntary or unfair - Whether accused induced to participate in expectation of bail if he co-operated - Whether accused so fatigued or in such pain as to make interview unfair - Whether inappropriate cross-examination made interview unfair - Whether accused's level of intelligence and comprehension such that interview was unfair
Legislation:
Nil
Result:
Application refused
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Representation:
Counsel:
The Crown : Mr M P Bugg
The Accused : Mr I D Hope
Solicitors:
The Crown : State Director of Public Prosecutions
The Accused : Ian Hope
Case(s) referred to in judgment(s):
Cleland v The Queen (1982) 151 CLR 1
Collins v The Queen (1980) 31 ALR 257
MacPherson v The Queen (1981) 147 CLR 512
Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996
Moss v R (1991) 91 Cr App R 371
R v Williams (1992) 8 WAR 265
Seymour v Attorney General (Cth) [1984] 1 FCR 416
The Queen v Lee (1950) 82 CLR 133
Van Der Meer v The Queen (1988) 62 ALJR 656
Wendo v The Queen (1963) 109 CLR 559
Case(s) also cited:
Driscoll v The Queen (1977) 137 CLR 517
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1 MALCOLM CJ: These reasons relate to an objection to the admissibility in evidence of a video-recorded interview of the accused by police officers at Morley Police Station on 29 April 1999. In order to determine the objection a voir dire was conducted on 24 February 2000 pursuant to s 611A of the Criminal Code. On 1 March 2000, when the parties were before me on an application by the Crown for an adjournment, I overruled the objection and said I would publish my reasons as soon as practicable. These are my reasons.
2 The accused has been indicted on one count of attempted armed robbery and two counts of armed robbery. He was born on 10 March 1973 and was aged 26 at the time. At approximately 1.40 am on 29 April 1999 the accused was arrested as a suspect in respect of the three offences which are now the subject of the indictment. During his arrest he was bitten on the leg by a police dog. He was conveyed to Swan Districts Hospital where he received treatment, after which he was taken to the Morley Detectives Office. At about 3.00 am on that date he was put in a cell at the Morley Police Station. At 7.55 am on 29 April 1999 he participated in a video-taped record of interview which concluded at 9.20 am. The objection to the admissibility of the video-taped record of interview is based upon the grounds that participation by the accused in the interview was involuntary and, further or in the alternative, that it would be unfair to the accused to use the record of interview against him. It was submitted that the conduct of the interviewing officers and matters personal to the accused rendered the video record of interview an unreliable account of his evidence.
3 It is trite law that if a confession is not voluntary it is inadmissible. If voluntary, it may still be rejected in the exercise of discretion: R v Williams (1992) 8 WAR 265 at 272 per Rowland and Owen JJ. The principles to be applied were stated by Gibbs CJ and Wilson J in MacPherson v The Queen (1981) 147 CLR 512 at 519 as follows:
"The rule of the common law … is that a confessional statement made out of court by an accused person is not admissible in evidence unless it was made voluntarily, that is, in the exercise of a free choice to speak or be silent. The confession will not have been voluntary if it has been obtained from the accused by fear, prejudice or hope of advantage exercised and held out by a person in authority, or as the result of duress, intimidation, persistent importunity or sustained undue influence or pressure - anything that has overborne the will of the accused."
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4 In each case the position of the accused must be looked at subjectively. Thus, as Brennan J said in Collins v The Queen (1980) 31 ALR 257 at 307:
"So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during the 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, focusing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which their 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."
5 So far as the discretionary ground is concerned, Wilson, Dawson and Toohey JJ said in Van Der Meer v The Queen (1988) 62 ALJR 656 at 666:
"In consideration whether a confession or statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him: R v Lee (1950) 82 CLR 133 at 154; Cleland v The Queen (1982) 151 CLR 1 at 18. Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."
6 In Moss v R (1991) 91 Cr App R 371, Taylor LJ said at 378:
"We can only say that each member of this court reading the papers independently, felt troubled about the confession evidence in this case going to the jury and having heard the argument each member of this court is of the opinion that the verdict here would be unsafe and unsatisfactory if allowed to stand. These cases are very much a matter of impression, but
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- where the impression of all three judges of this court is unanimous, as I have indicated we feel that the only proper course must be to allow this appeal and we do so."
7 In this case it was contended on behalf of the accused that the confession was both involuntary and unfair. It was said that the unfairness was compounded by the putting of questions to the accused in the nature of cross-examination. It was submitted that the statements made by him during the interview were not made voluntarily. It was alleged that the accused was deprived of sleep before the interview was commenced and was fatigued and exhibited moments of disorientation and confusion. During the course of the interview he complained of pain and discomfort, but his complaints were ignored. It was also submitted that the conduct of the interview was unfair and oppressive in that the accused was repeatedly referred to as a liar and made the subject of "powerful cross-examination" and persuasion by "importunistic" suggestions by the investigating officers. This occurred in circumstances where the accused presented as a person of lower than average intellectual capacity, who complained of short term memory loss. It was also alleged that he was given an expectation or hope of advantage in that he would be released on bail provided he participated in the video-recorded interview. Finally, it was alleged that prior to the commencement of the interview, the accused asked to see a lawyer, but his request was refused.
8 The burden of proof of facts relied upon to support a contention that the statements made by the accused were voluntarily made or were not obtained unfairly is on the Crown: MacPherson v The Queen, supra; The Queen v Lee (1950) 82 CLR 133; and Wendo v The Queen (1963) 109 CLR 559.
9 The two police officers who conducted the interview with the accused were both called to give evidence on the voir dire. The first was Det Sgt Darren Francis Charles Seivwright, the officer in charge of Morley Detectives. He had been recalled to duty at about 3.00 am on 29 April 1999 and went with Det Noel Gartlan to a location at or near the intersection of Truganina Road and Alexander Drive, Malaga, not far from the Shell Service Station at Warwick. There were seven other police officers present, including an officer from the Canine Section with his dog.
10 There was a person in custody in the back of a police van whom Det Sgt Seivwright knew as Brendan Buchanan Loo. The Detective Sergeant was informed that there was another person apprehended who
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- had used the name Glen Leton. He had been taken to hospital because he had been injured when bitten by the police dog. There was also a Ford Station Wagon at the scene with a South Australian registration VYY 228. The police seized a number of items at the scene including money, clothing, some red stillsons, a Bourbon bottle, a hammer and a fuel can. The money had been found in the scrub nearby. There was also a small sum of money in the car itself.
11 Det Sgt Seivwright said that he remained at the scene from about 3.15 am to about 4.00 am. He then went to the Morley Detectives Office and arrived there at about 4.00 am. Mr Loo was taken to that office by police van and placed in a cell at the Morley Police Station. On arrival at the office the Detective Sergeant telephoned Det Beesley and called him into the office. He arrived at about 5.00 am. At about 5.00 am or shortly before, the accused was brought to the Morley Station by two officers from Mirrabooka. They had brought the accused from the Swan Districts Hospital where he had been treated for his injury.
12 Det Sgt Seivwright said that the accused went to sleep in his cell. The accused was lying down in the cell with a blanket on top of him. He went to the cell every 25-30 minutes to check on the accused. There were also video cameras in each of the cells. In the meantime, he was directing inquiries into two alleged offences of armed robbery and one of attempted armed robbery.
13 In cross-examination it was put to the Detective Sergeant that he did not know whether or not the accused was asleep in his cell. He accepted that he "guessed" that the accused was asleep because he was lying down with his eyes closed. Det Beesley also observed the accused on the television monitor and checked on the accused in his cell. He also gave evidence that the accused was asleep. The accused says that he was not asleep, but was simply lying down with his eyes closed. In my opinion, it is unnecessary to resolve the issue whether or not the accused was asleep. He was certainly resting.
14 At just before 7.55 am Det Sgt Seivwright accompanied by Det Beesley took the accused into an interview room and conducted an interview with the accused which was recorded on video. Following the completion of the interview, the accused was given access to a telephone to make some telephone calls. The clothing which the accused was wearing was seized. He was then placed back in his cell while Mr Loo was interviewed.
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15 Det Sgt Seivwright said that during the course of the interview the accused had picked at the wound on his leg. There was a discussion about further medical treatment. Later on, shortly before he was taken to the East Perth Lockup, the Detective Sergeant said he asked the accused whether he wanted to go to the hospital on the way to the lockup, but he said "no". He was taken to East Perth at about 12.30 pm. He went to court that afternoon and was released on bail the following morning.
16 In cross-examination it was established that as Det Sgt Seivwright and the accused were walking into the interview room, the Detective Sergeant said, "Well we can". This was fairly obviously something said by way of a response to something said by the accused. It was put to the Detective Sergeant that this was in the course of a conversation about the release of the accused on bail in which the Detective Sergeant had said that the accused "was going to be released to bail if he co-operated". The Detective Sergeant said this was false. It was put to him in cross-examination that the accused had said immediately after the Detective Sergeant had said, "Well we can":
"I just want my bail. If you're gonna charge me I'll tell you what I know."
17 He agreed that the accused said that. It can be heard on the tape, but the Detective Sergeant said it was quite false to say that he had put a proposition to the accused that "he would be released on bail following his consent to doing the video record of interview". The Detective Sergeant was unable to recall what was said by the accused which prompted him to say, "Well we can".
18 The Detective Sergeant denied that prior to the interview the accused had asked to telephone his lawyer. He said that whenever anyone made a request to see a lawyer it was complied with. He also said that if he was satisfied that a person being interviewed was telling lies, he would put to them that they were telling lies.
19 Det Beesley gave evidence that between about 5.00 am and the conduct of the video-recorded interview, he was conducing inquiries by telephone into the three alleged offences. He was working in the Detectives Office and observing the television monitors for the two cells in which the accused and Mr Loo had been put. He said that the accused was sleeping in his cell. He met the accused when he went down to his cell with Det Sgt Seivwright to collect the accused for the purposes of the video interview. After the video interview had finished the accused went
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- with Det Beesley to his office where a statement was taken from him and typed. This was around 11.00 am - 11.30 am, presumably after the interview with Mr Loo. The statement was typed and signed by the accused at about 12.50 pm. He was then taken to the East Perth Lockup. Det Beesley confirmed that during the video interview the accused started picking at the scab on his leg and it started to bleed. Before that "it looked pretty dry, congealed blood".
20 Det Beesley could not recall what conversation took place prior to the commencement of the video interview between the accused and Det Sgt Seivwright. He agreed that the accused thought that he was at Midland Police Station rather than Morley, but that the position was explained to him. He said that, as far as he was aware, the accused understood the caution and understood "everything that was asked of him".
21 Det Beesley had no recollection about the conversation which occurred as the accused and Det Sgt Seivwright walked into the interviewing room. Det Beesley agreed that neither he nor Det Sgt Seivwright in his presence had asked the accused whether he had had sufficient sleep. He was not aware that the accused suffered any intellectual disability. He agreed that at one stage he thought he was at Midland and it was explained to him that he was at Morley.
22 Dr Lynda Doreen Hayward was called to give evidence on behalf of the accused. Dr Hayward is a clinical psychologist with extensive experience in neuropsychological assessment and intervention as well as in the preparation of medico-legal reports. It appears that the accused has a history of head injury and presents as quite simple and naïve. In an interview with the accused which lasted approximately two hours Dr Hayward obtained a background history. The accused has a very poor schooling history and had learning difficulties at school. He has some literacy problems. He said that about 10 or 12 years ago he was hit in the head in a football game, stood up, had a seizure and fell to the ground. He required resuscitation and was hospitalised. It was found that he had a blood clot on the right side of his brain. He developed a left hemiplegia involving loss of movement on the left side of his body. He eventually recovered from that, but said that mentally he has not been the same since. He has had seizures which can be associated with drinking and has not had medication for them. He has experienced sensory phenomena associated with increased seizure activity, including hearing strange sounds. This was different from someone with a psychiatric disorder who
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- actually hears what the voices are saying. Dr Hayward was of the opinion that it was possible he had an untreated seizure disorder.
23 According to Dr Hayward the accused's estimated IQ would fall into the impaired to borderline range. It was not possible to be more specific because not all of the tests could be conducted. There was a large degree of difference in the results of the various tests with scores falling in the very defective range to the low average range. The results showed markedly slow speed of information processing, very concrete thinking and severe difficulties with attention. This resulted in divided attention and difficulty with putting things in order, arranging things in order or recalling things in order. He also experienced difficulty with unstructured tasks where he was unable to formulate a plan, but less difficulty with tasks where he was given a structure, so that he had a lot of supervision. He had a significantly reduced immediate attention span and impaired memory. He also had difficulty knowing exactly what has been said to him with the result that he may make a near miss or give a near, close to, but not correct, answer. He was able to deal with comparative concepts such as bigger, older, or faster, but he had difficulty with both temporal and spatial relationships. He was also poorly performed on tests that looked at planning and the ability to anticipate consequences. On one test his approach was poorly planned and demonstrated difficulty in predicting consequences. In Dr Hayward's opinion any complex questioning could leave him a bit bewildered and his answers might be "hit and miss". In her opinion, this would not be because of a conscious attempt to mislead, it would simply be that there would be times when he was not understanding the underlying linguistic structures and make a best guess. Dr Hayward also indicated that, on the basis of her assessment, the accused would be unable to come up with a plan to solve a problem without structure or guidance. Based upon her own interview, she observed that toward the end of the first hour or so the accused was becoming increasingly confused and more tired and fatigued. This would be compounded if he was fatigued or tired at the commencement of the interview and distracted by pain.
24 Dr Hayward was asked whether it was probable that the accused told deliberate lies to the police officers about his involvement in the commission of offences. Dr Hayward was unable to say whether he was capable of telling deliberate lies, but said that in her assessment she used some established tests for looking at people who malinger or exaggerate or try and change the truth. On those, he did not provide that kind of profile. She suggested that it would be very difficult to decide, if he had told lies, "whether it was deliberate or part of the problem". She was
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- unable to say whether he was able to deliberately omit events in an attempt to deflect suspicion from him, although she accepted it was possible.
25 The accused himself gave evidence in which he said when he was interviewed he was very tired and "stressed out" about the seriousness of the charges, as well as being in a lot of pain. He said that he only wanted to sit in the interview room and do the interview if he got bail. He said he was told by Det Sgt Seivwright that if he gave an interview he would give him bail. He said that he told the two detectives at Morley that he wanted to speak to his lawyer, Mr Hope, and also his wife but that the detectives wanted him to do the video interview first. He said he remembered Det Sgt Seivwright saying as they walked into the interview room, "Well we can", and that he said, "I just want my bail if you're going to charge me". He said that he believed they were talking about bail. The following passage then appears in the transcript of his examination in chief on the voir dire:
"It was asked of you in the interview whether you went to a pizza shop. Do you remember that at all?---I can partially remember but I also know there definitely was no Marlon presence (sic present).
MALCOLM CJ: I wonder if you could clarify what you mean by that?---I was trying to protect the co-accused.
That is Brendan? You were trying to protect Brendan?
---That's correct, your Honour.
Are you telling us that there never was a person called Marlon there that night?---That's correct."
26 The significance of this is that during the course of the interview with the police officers, the accused had described how he had driven Brendan Loo from North Perth to the Midland Police Station arriving at about 11.15 pm and taken him into the police station to comply with a bail reporting condition. He told the police officers that on the way to Midland he had seen an Aboriginal person named Marlon who was walking along the street. He thought this was near Lord Street. He knew Marlon but Brendan did not. He stopped the car and picked him up. He described him as a 28-year-old Aboriginal, but he did not know his surname. He said he was wearing black tracksuit pants with an Adidas or Nike jacket and Nike shoes. He described him as having the "Noongar
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- nose" which was "pushed in and wider at the side". They gave him a lift to Midland.
27 Marlon waited in the car when Brendan went in to report accompanied by the accused. Marlon was sitting in the back of the car. He said that after that they picked up a couple of girls at the Midland train station and gave them a lift to a house in Bassendean. He could not remember the house. They stopped at the house for about 10 minutes. There were some other people at the house and one of them wanted to fight him so he, Brendan and Marlon left. He said that they stopped at a service station and Marlon got out to see if he could get some money with his keycard. He came back and said he did not get any money. He said he did not know what had gone on in the service station. He thought it was a Caltex service station. The service station was on the way back to Midland. His explanation was that that was the only place where Marlon said he could use his keycard. He said that Marlon did "a runner" when Brendan and himself were apprehended.
28 The following passage appears in the transcript of the interview:
"Q. - - the time you left home at 10.30 until the time you were apprehended by the police this morning - -
A. I was with Brendon, and I picked Marlon up on the way.
Q. Okay.
A. And then me and Brendon got apprehended.
Q. Where was Marlon?
A. He disappeared.
Q. So, at the time when you were apprehended by the police did Marlon do a runner?
A. Yeah.
Q. Okay. So, he - - he got away, and you and Brendon didn't?
A. That's right. And he's the one that done it all.
Q. Okay. What had he done? What's he done?
A. Well, you're saying there's robberies.
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- Q. Yeah.
A. It all sounds pretty sus to me.
Q. Okay. All right. I'm going to tell you the - - the allegations that we've got. Okay? At 12.35 midnight, just after midnight, last night a - - at Domino's Pizza, which is in Bayswater, okay, a male half-caste Aboriginal went to that store carrying a large red spanner, okay, and tried to get into the place. What can you tell me about that?
A. It was Marlon; yeah.
Q. Okay.
A. And that's my boss's shifter.
Q. Mm.
A. You know, it was trust in my hands. You know, I don't need this - -
Q. All right. I'll ask you another question, Glenn. Did Marlon take the shifter - - take possession of the shifter at any time during the night?
A. Not that I know of.
Q. Okay. Did Marlon get out of the car and leave you in the car on your own at any time?
A. Yeah.
Q. Okay. Tell me when that was.
A. The pizza.
Q. Okay. Well, this is the first time a pizza's shop's come up. Okay? You haven't mentioned a pizza shop before. Tell me what happened then.
A. I'm just confused, and I'm spinning out.
Q. Okay.
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- A. Because I've been out of trouble for so long, and I don't want something like this to come down on me.
Q. Well, do you agree, Glenn, that all I've asked you for is what you did last night?
A. Yeah.
Q. Okay?
A. I agree with you totally.
Q. All right. So - -
A. I don't want to make this hard or nothing."
29 Shortly after that the accused told the detectives that he suffered from short term memory loss. He was shown a jumper and said, "It looks like the one Marlon was wearing". He said it belonged to his boss. He later said that when Marlon tried to get into the pizza shop he had the red spanner in his hand. He was then asked whether he was sure it was Marlon and not Brendan. He said it was definitely not Brendan. It was then put to him that the description given by a person in the pizza shop matched the description of Brendan.
30 It was then put that half an hour later there was an armed holdup at BP Noranda when a male person went into the service station and stole about $200. The accused said he could not remember. It was also put to him that there was another armed robbery at the Shell service station in Malaga when the offender was captured on video and that the police had identified the person on the video as Brendan. The accused admitted that he pulled up at the service station near the bowser and "he reckoned he was going in to check his keycard". He came out a couple of minutes later and said, "no go". That was all that happened. Shortly afterwards, they ran out of fuel. Later the accused said he thought it was Marlon who went into the service station with a bottle of bourbon. He later changed the story again to say that Brendan went in and checked the keycard. It was the person serving at that service station who wrote down the registration number of the accused's vehicle.
31 It was submitted by counsel for the accused that the record of interview should not be admitted into evidence because it was unreliable. In my opinion, it was of the utmost significance in this context that the account was necessarily unreliable because the accused person had
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- formulated a plan, which he adhered to throughout the interview, to protect Brendan Loo by inventing the presence of a fictitious third person, Marlon. While I accept that his efforts to protect Brendan were not successful because of his low intellectual ability, he did, however, demonstrate an ability to achieve a level of consistency in carrying out the plan. This clearly demonstrated an ability which Dr Hayward did not think he had.
32 Having heard and observed the witnesses it is sufficient for me to say that I am satisfied on the balance of probabilities that Det Sgt Seivwright did not seek the co-operation of the accused to participate in a video-recorded interview by suggesting that if he co-operated he would be granted bail. Likewise, I am satisfied on the balance of probabilities that the accused did not ask to speak to a lawyer and Mr Hope in particular prior to the commencement of the video-recorded interview. There was a discussion about bail during the course of the interview when the accused mentioned that he was due in court the following day. The following conversation then occurred:
"A. So, it's really important that I get - - get bail and get this sorted out.
Q. Well - - At - - at the completion of the inquiry, okay, we'll decide whether you're going to be charged, what you're going to be charged with and what sort of - - what sort of bail is going to be considered. Okay? But until then, until we've spoken about the occurrences or things that occurred last night, okay, we're not in a position to discuss bail and I - - I - - it's very important that you understand that bail - - that's you're not feeling under any obligation to answer the questions because of bail. Okay? If - - whether you get bail or not has nothing to do as to whether you participate in this interview, do you understand that? Okay? I don't want you to think for a second that by participating in this interview that will - - that it will either affect your bail for the good or for the worse. All right?
A. Yeah, I understand.
Q. I need you to participate in this interview of your own free will, forgetting about bail, forgetting about any other thing, okay? And if you don't want to do that, then it's important that you don't - - that you tell me that you don't. Do you understand that?
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- A. Well, just go ahead.
Q. Okay. Are you happy to continue with the interview?
A. And I'll tell you the truth - -
Q. Okay. I'll - -
A. - - as far as I know."
33 In general, having listened carefully to the tape and observed the demeanour of the accused throughout the interview, I am satisfied on the balance of probabilities that he did so voluntarily and without any inducement related to bail. At the conclusion of the interview the accused said he had a complaint about the use of the dog, but he had no complaint about the way in which the detectives had dealt with him. He confirmed that he had participated in the interview of his own free will and that no-one had promised him anything to take part in the interview. In my opinion, these discussions were inconsistent with there having been any preliminary discussion to the effect that if the accused co-operated, he would be given bail. The way in which the accused responded to questions during the course of the interview did not seem to be materially different from the way in which he appeared when he gave evidence in the witness box. He did not appear to be in significant pain during the course of the video interview.
34 It was also complained that there were a number of occasions when it was put to the accused by Det Sgt Seivwright that he was not being truthful. Given his admission in the witness box that he invented Marlon in order to protect Brendan who was on bail in respect of a charge of a criminal offence at the time, that invention required the accused to produce a coherent different story with a third party, the fictitious character Marlon, involved. In my view, when one reads the record of the transcript and watches the interview with that in mind, it demonstrates that he was capable of achieving a level of consistency about that person, his description and his activities to sustain the untruth over a significant period of time. That conduct seemed to me to be quite inconsistent with the evidence of Dr Hayward of his difficulty with planning. His account was such that it was not surprising that the interviewing detective challenged the truthfulness of the story. Whatever the inconsistencies and difficulties there might have been with it, he stuck to it throughout the whole of the interview in a manner which was consistent with him having formed a plan to protect Brendan.
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35 In the circumstances, I consider that the video record of interview should be admitted in evidence. While it is clear that the accused had cognitive disabilities, in my view they were not such that would displace my conclusion that on the balance of probabilities the statements were made freely and voluntarily. At the same time, however, they were made untruthfully because the accused had made a conscious decision to invent the alleged third person, Marlon. In these circumstances, it was appropriate for the police officers to put to him that they did not believe the story he was telling. This was not a case in which police officers knowingly or unknowingly dealt with an accused in an unfair or oppressive manner by overbearing him. While he was not honest, he was responsive and did not appear to be in pain or tired or fatigued to such an extent that this affected his ability to participate in the interview.
36 It has frequently been held that mere moral exhortations to tell the truth will not render a confession inadmissible. A number of the authorities were referred to in my judgment in Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996 per Malcolm CJ at 31 - 32. So far as the cross-examination point is concerned, I consider that the police were entitled to point out inconsistencies and ask the accused to explain them. In my opinion, given the overall context and the particular circumstances of this case, the approach adopted by the police officers in the conduct of the interview with the accused did not infringe the principle stated by Mason CJ in Van Der Meer v The Queen, above, at 661.
37 In the result, I am satisfied on the balance of probabilities that the statements made in the course of the video record of interview were made by the accused voluntarily and not under circumstances which would make it unfair to admit the video record of interview against him in the sense that the reception of the evidence would be unfair to him: cf Cleland v The Queen (1982) 151 CLR 1 at 16 per Deane J; and see Seymour v Attorney General (Cth) [1984] 1 FCR 416 at 428 - 429 per Fitzgerald J. In my opinion, the video record of interview is admissible in evidence.
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