R v Catena [No 4]
[2013] WASC 262
•16 JULY 2013
R -v- CATENA [No 4] [2013] WASC 262
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 262 | |
| Case No: | INS:162/2011 | 13 DECEMBER 2012, 14 JANUARY & 6-7 MARCH 2013 | |
| Coram: | CORBOY J | 16/07/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application to exclude evidence dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN ROBERTO GERALD CATENA FLEMMING HOOD NIELSEN COLIN EDWARD GEORGE HEBBARD |
Catchwords: | Criminal law Whether admissions made voluntarily Whether admissions should be excluded on discretionary grounds Whether unfair to accused to allow evidence of admissions |
Legislation: | Australian Securities and Investments Commission Act 2001 (Cth), s 19 |
Case References: | McDermott v The King (1948) 76 CLR 501 R v Catena [2012] WASC 144 R v Catena [No 2] [2013] WASC 7 R v Catena [No 3] [2013] WASC 97 R v Lee (1950) 82 CLR 133 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; (1988) 82 ALR 10 Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ROBERTO GERALD CATENA
First-named Accused
FLEMMING HOOD NIELSEN
Second-named Accused
COLIN EDWARD GEORGE HEBBARD
Third-named Accused
Catchwords:
Criminal law - Whether admissions made voluntarily - Whether admissions should be excluded on discretionary grounds - Whether unfair to accused to allow evidence of admissions
Legislation:
Australian Securities and Investments Commission Act 2001 (Cth), s 19
(Page 2)
Result:
Application to exclude evidence dismissed
Category: B
Representation:
Counsel:
Applicant : Mr S Van Dongen SC & Mr P D Yovich
First-named Accused : Mr M Howard & Mr S Nigam
Second-named Accused : Mr G Massey
Third-named Accused : No appearance
Solicitors:
Applicant : Director of Public Prosecutions (Cth)
First-named Accused : Nigam & Co
Second-named Accused : Holborn Lenhoff Massey
Third-named Accused : Lawton Gillon
Case(s) referred to in judgment(s):
McDermott v The King (1948) 76 CLR 501
R v Catena [2012] WASC 144
R v Catena [No 2] [2013] WASC 7
R v Catena [No 3] [2013] WASC 97
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; (1988) 82 ALR 10
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
(Page 3)
- CORBOY J:
The application and the result
1 Mr Catena and Mr Hebbard were charged with contraventions of s 1043A(1) and s 1043A(2) of the Corporations Act 2001 (Cth) (the Act). Dr Nielsen was charged with having contravened s 1043A(1) of the Act. Section 1043A(1) of the Act prohibits insider trading; s 1043A(2) prohibits the communication of inside information. Contravention of those prohibitions constitutes an offence: s 1311(1) of the Act.
2 Mr Hebbard pleaded guilty to one count on the indictment. Mr Catena and Dr Nielsen were jointly tried and acquitted of most the charges alleged against them. The jury could not reach a unanimous verdict on five counts on the indictment. The Crown decided not to further prosecute those charges.
3 The Crown proposed to adduce evidence at the trial of an interview conducted between Dr Nielsen and investigators employed by the Australian Securities and Investments Commission (ASIC), Mr Colliss and Ms Fuller. Dr Nielsen objected to the evidence on the grounds that he had not voluntarily participated in the interview, alternatively that it would unfair to permit the Crown to lead the evidence having regard to the circumstances in which the interview had been conducted.
4 I ruled during the trial that evidence of the interview was admissible. These are my reasons for that ruling.
The facts relevant to the charges against Dr Neilsen
5 The facts alleged by the Crown in respect of the charges that had been made against Mr Catena, Mr Hebbard and Dr Nielsen were summarised in R v Catena [2012] WASC 144; R v Catena [No 2] [2013] WASC 7 and R v Catena [No 3] [2013] WASC 97. I will not repeat the summary in these reasons.
The interview with Dr Nielsen
6 Mr Colliss and Ms Fuller interviewed Dr Nielsen at his home on 22 February 2007. The interview concerned trading by Dr Nielsen in shares issued in Vision Systems Ltd (VSL), a company that was listed on the Australian Stock Exchange. Mr Colliss and Ms Fuller formed part of a team assembled within ASIC to investigate trading in VSL shares.
(Page 4)
7 Dr Nielsen was not suspected of contravening the Corporations Act at the time that he was interviewed. Accordingly, he was not contacted by ASIC in advance and he was not cautioned prior to or during the interview. He was not examined at any time under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
8 Mr Colliss and Ms Fuller took notes during the interview with Dr Nielsen. They subsequently compared their notes and prepared a typed record of the interview that contained a compilation of their notes.
9 It was not alleged that Mr Colliss or Ms Fuller had acted improperly while conducting the interview.
The admissions made by Dr Nielsen
10 Dr Nielsen admitted at his trial that he had traded in VSL shares. The details of his trading were also admitted. The admissions were made pursuant to s 32 of the Evidence Act 1906 (WA). His trading in VSL shares was, in any event, readily established by contemporaneous business records.
11 Consequently, the Crown did not seek to adduce evidence of the interview conducted by Mr Colliss and Ms Fuller to prove that Dr Nielsen had traded in VSL shares. Rather, it was argued that Dr Nielsen had made admissions concerning his knowledge (or lack of knowledge) about VSL and the basis upon which he had decided to trade in VSL shares. An element of the offence with which Dr Nielsen was charged was that he knew or ought reasonably to have known that information that he allegedly possessed at the time that he traded in VSL shares was not generally available.
12 Dr Nielsen did not dispute that he had made admissions against his interests during the interview.
The hearing of the application
13 Dr Nielsen's application to exclude evidence of the interview was made prior to the commencement of the trial. The focus of the application was on the admissibility of the notes made by Mr Colliss and Ms Fuller and the typed record that was subsequently prepared from those notes. However, there was some uncertainty at the time that the application was first argued about how the Crown proposed to adduce evidence of the interview. A final decision had not been taken on whether the Crown would seek to tender the notes and the typed record or whether the investigators would give oral evidence of the interviews, the notes and
(Page 5)- typed record being used only to refresh their memories should that become necessary (and subject, of course, to the relevant evidentiary requirements being satisfied). Accordingly, the determination of Dr Nielsen's application was deferred until the trial as different considerations applied according to how the Crown proposed to lead evidence of the interview.
15 The application was argued on facts that were stated as part of the submissions made by Dr Nielsen and agreed by the Crown, supplemented by statements provided by Mr Colliss and Ms Fuller that formed part of the prosecution brief. Dr Nielsen did not dispute the account given by Mr Colliss and Ms Fuller of the circumstances in which the interview was conducted.
The grounds for the application
16 The grounds on which Dr Nielsen contended that the Crown ought not to be permitted to adduce evidence of what was said during the interview have already been noted. There was a considerable overlap between the matters relied on in support of each ground. As to voluntariness, it was contended that:
(a) the absence of a caution triggered a discretion to exclude the evidence;
(b) the investigators had arrived at Dr Nielsen's home unannounced;
(c) the investigators had not explained the purpose of their investigation;
(d) accordingly, Dr Nielsen's apparent consent to participating in the interview was not an informed consent.
17 As to the ground of unfairness, it was contended that:
(a) unfairness was not limited to cases where an admission had been obtained through unlawful or improper conduct by the police - it extended to all instances where the admission of the impugned evidence would be unfair to the accused;
(Page 6)
- (b) it may be unfair to an accused to admit evidence that is inherently unreliable;
(c) it would be unfair to admit evidence of what was said during the interview as:
(i) the interview was not recorded;
(ii) the interview notes made by the investigators were not in the form of questions and answers;
(iii) the investigators compared their notes following the interview and at least one amendment was made to the note taken by Ms Fuller as a result;
(iv) Mr Catena and Mr Hebbard were examined under s 19 ASIC Act and accordingly, they had an opportunity to make a claim under s 68(2) ASIC Act in respect of any statement made by them - Dr Nielsen was not afforded that opportunity;
(v) there were differences between the notes taken by the investigators and further differences between the typed record of the interview and those notes - accordingly, the documents were not a reliable record of what had occurred.
18 There was no substantive issue over the principles relevant to determining the application. The rules by which a statement that was made involuntarily by an accused person is excluded from evidence were explained by the High Court in in Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396. The discretion to exclude admissions that were voluntarily made was considered by the High Court in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159. Blaxell J reviewed and summarised the principles in Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1.
Voluntariness
19 Many of the reported cases on voluntariness concern confessions of guilt. However, as Gleeson CJ pointed out in Tofilau, the common law rules relating to voluntariness apply to all admissions sought to be used in evidence against an accused person. Accordingly:
(Page 7)
- The admission may have been made to any manner of person, and in any kind of circumstance. … It may have been made in circumstances where issues of legal rights or consequences, or considerations of choice either to speak or remain silent, never entered the mind of the maker. It would be clearly wrong to suggest that the only kinds of admission used in evidence at criminal trials are those made to police officers in a context of a conscious decision not to exercise a 'right to silence'. Admissions, which may turn out to be very damaging, are often made in circumstances where the maker of the admission is unconcerned with legalities, and may not even realise the significance that later will be attached to what is said (403).
20 In McDermott v The King (1948) 76 CLR 501, Dixon J said:
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made … An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (511).
21 The second category of case referred to in that passage - circumstances where an accused person made a confessional statement out of fear of prejudice or hope of advantage exercised or held out by a person in authority - was characterised as being the 'classical' ground for rejecting confessions and the category that 'looms largest in a consideration of the subject'. However, his Honour also observed:
It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will (512).
22 In R v Lee (1950) 82 CLR 133 the High Court noted, in relation to the distinction apparently drawn by Dixon J in McDermott that:
[Smith J] began by putting s 141 on one side on the ground that in the present case there was no evidence of a threat or promise, and then set out two imperative rules of the common law regarding confessional statements
- in the language of Dixon J in McDermott … These rules, stated in abbreviated form, are - (1) that such a statement may not be admitted in evidence unless 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 a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by person in authority, unless the inducement is shown to have been removed. These two 'rules' are, of course, well established, but it is important, we think, in this case to observe that they seem to be not really two independent and co-ordinate rules. There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character. It is implicit in the statement of the rule, and it is now well settled, that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible (144).
24 The 'definite' or 'inducement' rule excludes statements that are the result of a threat made, or an inducement given, by a person in authority. Basal voluntariness involves a wider concept. It is concerned with whether a statement was only made because the will of the maker of the statement was overborne for some reason.
25 In relation to the rationale for excluding involuntary admissions, Gleeson CJ noted in Tofilau that:
The law treats as voluntary a great deal of conduct about which a person, speaking colloquially, may say that he or she had no choice. Since the original rationale for the principle of exclusion of involuntary statements was concern about the unreliability of statements made under coercion, that will sometimes be a useful guide in making a judgment about what kind of conduct will be taken to render a statement involuntary [17].
26 His Honour also noted that the 'abuse of the state's coercive authority' provided another part of the rationale for the exclusionary rule [18].
27 In their judgment in Tofilau, Callinan, Heydon and Crennan JJ traced in some detail the history of the 'inducement' rule and the concept of basal voluntariness and the underlying policy rationale for each rule. Their Honours carefully identified and emphasised the limits of the rules.
(Page 9)
28 Similarly, Gummow and Hayne JJ were concerned to confine the application of the rules. Their Honours observed:
'Basal voluntariness' may be seen as a principle underpinning the whole of the law relating to confessions. But is a principle that in practice will fall for consideration, if at all, only in cases not concerning a person in authority. The test excluding statements preceded by an inducement in the form of fear of prejudice of hope of advantage held out by a person in authority necessarily excludes confessions in which a person in authority has so acted as to engage the principle of basal voluntariness. For, of course, if a person in authority subjects a suspect to coercion, whether by threats of violence or other intimidatory acts, the rule excluding a confession made to a person in authority in response to an inducement is readily applied. …
Confessions made to someone now known or believed to be a person in authority will thus fall to be considered under the test of 'basal voluntariness'. Basal voluntariness is concerned with confessions made under compulsion. The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, 'overborne' should be understood in the sense described by Dixon J as 'the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure'. It is necessary to focus upon the sufficiency of the compulsion [59] - [60].
Discretionary exclusion
29 The 'inducement' rule and the 'basal voluntariness' rule exclude statements that were made involuntarily by an accused person. There are also discretionary principles by which a trial judge may exclude voluntary admissions. Those principles were considered by the High Court in Swaffield. Three categories of case were identified - cases where:
(a) it would be unfair to the accused to admit evidence of the admission;
(b) evidence of the admission should be excluded on public policy grounds;
(c) the prejudicial effect of the evidence outweighs its probative value.
30 In Swaffield, Toohey, Gaudron and Gummow JJ explained the rationale underlying each category of case:
The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person.
(Page 10)
- The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice [52].
31 Unfairness in this context is concerned with the accused's right to a fair trial and not with whether investigators have acted unfairly. An accused's right to a fair trial may be jeopardised if a statement is obtained in circumstances that affects the reliability of the statement: see Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; (1988) 82 ALR 10. However, the unfairness discretion is not exclusively concerned with reliability. The rights and privileges of an accused include procedural rights so that there 'may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence' (Swaffield [78]). So, for example, it may be unfair to admit a confessional statement into evidence if the person to whom the statement was made was not called as a witness or where an accused person had been questioned out of court in such a way as to create apparent inconsistencies that might be used unfairly to impair his or her credit as a witness.
Conclusion
32 In my view:
(a) There was no allegation that an inducement had been made by Mr Colliss and Ms Fuller to Dr Nielsen prior to or during the interview. Consequently, there was no basis for applying the 'definite' or 'inducement' rule to exclude evidence of the admissions allegedly made by Dr Nielsen.
(b) There was no fact alleged by Dr Nielsen that suggested that his will had been overborne in making the statements attributed to him in the interview. There was no indication of 'duress, intimidation, persistent importunity or sustained or undue insistence or pressure' or the presence of any other factor that would suggest that Dr Nielsen was compelled to make statements to Mr Colliss and Ms Fuller against his will. Accordingly, there
- was also no basis for excluding evidence of the admissions allegedly made by Dr Nielsen under the 'basal voluntariness' rule.
- (c) It would not have been unfair to Dr Nielsen to permit evidence of the admissions he allegedly made in the interview to be adduced at his trial for the following reasons:
(i) The Crown did not propose to tender the notes taken by Mr Colliss and Ms Fuller or the typed record. Accordingly, the reliability of the statements contained in those documents was not an issue that would necessarily arise in the trial. Mr Colliss could be cross-examined on the reliability of his recollections of the interview without his contemporaneous notes necessarily being put into evidence even if the notes were used to revive his memory on some matter.
(ii) It was not suggested that the oral evidence proposed to be given by Mr Colliss of the admissions allegedly made by Dr Nielsen would be inherently unreliable; the issue of reliability focused on the notes that were taken by Mr Colliss and Ms Fuller and the typed record. Further, the agreed facts and evidence regarding the circumstances in which the interview was conducted did not suggest that Mr Colliss' evidence would be inherently unreliable. In any event, I did not consider that the variations between the notes and the type record identified in Dr Nielsen's submissions were such as to suggest that the contemporaneous documents were inherently unreliable.
(iii) Dr Nielsen did not dispute that he was not suspected of having contravened the Corporations Act at the time that the interview was conducted. Accordingly, the investigators had not acted improperly by not giving some form of caution prior to the interviews. In any event, it is well established that a failure to administer a caution to a suspect prior to a confessional statement being made does not automatically result in evidence of the statement being excluded. There was nothing in the circumstances in which the interview was conducted that would have jeopardised the right of Dr Nielsen to a fair trial if evidence of what was said was admitted.
- (iv) The right to claim privilege against self-incrimination in response to a question put during an examination conducted under s 19 of the ASIC Act reflects and balances the compulsory nature of the examination. Dr Nielsen was not compelled to answer any of the questions posed by Mr Colliss and Ms Fuller.
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