R v Lovett [No 3] - [2013] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- LOVETT [No 3] [2013] WASC 102

CORAM: EDELMAN J

HEARD: ON THE PAPERS

DELIVERED : 27 MARCH 2013

FILE NO/S: INS 26 of 2012

BETWEEN: THE QUEEN
Applicant
AND
BENJAMIN DAVID LOVETT
Respondent

Catchwords:

Criminal law - Evidence - Potential basis for admissibility of video record of interview at the scene - Evidence of an alleged forceful arrest prior to video record of interview is relevant

Legislation:

Criminal Code Act 1995 (Cth)
Criminal Code Act 2004 (WA)

Result:

Evidence is relevant

Category: B

Representation:

Counsel:

Applicant: No appearance
Respondent: No appearance

Solicitors:

Applicant: Director of Public Prosecutions (Cth)
Respondent: Kate King Legal

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

Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397
Miranda v Arizona (1965) 384 US 436
Piché v The Queen [1971] SCR 23
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Barrett (2007) 16 VR 240
R v Beck [1990] 1 Qd R 30
R v Donaldson (1976) 64 Cr App R 59
R v Su [1997] 1 VR 1
Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279

EDELMAN J:

Introduction

The short issue in this application concerns a ruling sought by the prosecution to exclude evidence of a forceful arrest of both the accused, Mr Lovett, and a co‑accused, Mr Webster, who pleaded guilty. The basis upon which the evidence is sought to be excluded is because it is said to be irrelevant.
I indicated to the parties at a directions hearing that if oral submissions were to be made on this point then they should be made in the presence of Mr Lovett.[1] Counsel for both parties said that they wished this issue to be determined on 'the papers', that is on the basis of their written submissions.
[1] Criminal Procedure Act 2004 (WA) s 88.
The evidence concerning the forceful arrest is relevant to the evidence of a video record of interview of Mr Lovett. If the video record of interview is tendered then the evidence of the forceful arrest preceding it is relevant. The parties' submissions did not canvass the basis for the relevance of the video record of interview but for the reasons set out below it is sufficient to proceed on the basis that it contains admissions.

The facts and issues in the previous trial

In Smith v The Queen,[2] Gleeson CJ, Gaudron, Gummow and Hayne JJ explained that in 'determining relevance, it is fundamentally important to identify what are the issues at trial'.
[2] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 654 [7].
The prosecution on this application relied heavily on the facts and issues at the previous trial. Of course, those facts and issues will not necessarily be identical to the facts and issues at the re‑trial. Nevertheless, the facts and issues from the previous trial serve as a useful indicator of the likely facts and issues in the re‑trial against which an assessment of the relevance of the proposed evidence can be made.
What follows derives broadly from the prosecution's summary of the facts and issues from the previous trial and from the summing up of the trial judge. It is included in these reasons only as the background, primarily as asserted by the prosecution, against which the issues of relevance fall to be addressed.
Mr Lovett stood trial, together with a co‑accused, Mr Petter, on 19 November 2012 in the Supreme Court before a judge and jury.
Mr Lovett was charged with one count of attempting to traffic a commercial quantity of methamphetamine, contrary to s 302.2 and s 11.1 of the Criminal Code Act 1995 (Cth) and also with dealing with the proceeds of crime, namely $320,000, contrary to s 400.1(1) of the Criminal Code Act 1995 (Cth).
The jury delivered verdicts of not guilty in relation to Mr Petter but were unable to deliver a verdict in relation to Mr Lovett. A third person, Mr Webster, entered pleas of guilty to all charges on 1 November 2012.
On 17 December 2010, Mr Webster met with a male person who, unknown to Mr Webster, was an undercover operative (UCO). The UCO informed Mr Webster that the UCO intended to import cocaine. The UCO said that he required assistance with the shipping process and storage of the goods upon their arrival. Mr Webster advised the UCO that he could create a Hotmail 'draft drop' email that they could use to communicate.
Mr Webster then provided the UCO with a piece of paper with a Hotmail username and password handwritten on it. This email account was used by the UCO and Mr Webster to facilitate meetings and progress the importation.
On 22 January 2011, the UCO met with Mr Webster. The UCO advised that the importation would be no less than 10 kg and it was agreed that the UCO would receive 10% of the importation for arranging and securing the delivery.
On 4 March 2011, the UCO met with Mr Webster. Mr Webster advised that he thought the drugs had been sent but said that he was not aware of the timeframes.
On 1 July 2011, the UCO met with Mr Webster. At that meeting Mr Webster told the UCO that he wanted to purchase 10 kg of methamphetamine from the UCO. Mr Webster requested that the UCO arrange a half an ounce sample for Mr Webster and his associates.
The UCO requested that the money for the first 2 kg be provided at the time of the first exchange. Mr Webster agreed.
On 29 July 2011, the UCO met with Mr Webster. Mr Webster advised that he had $200,000 for the purchase of the drugs.
The UCO provided Mr Webster with two 1 gram bags of methamphetamine (80% purity for 1.6 grams). Mr Webster advised that he would try to obtain $120,000 over the weekend.
On 30 July 2011, Mr Webster contacted the UCO. Mr Webster said that he had obtained $320,000 for the purchase of the first 2 kg. The UCO told Mr Webster that the handover would happen the next day and that the UCO would contact him in the morning.
On 31 July 2011, Mr Webster and the UCO organised to meet at 2.00 pm at South Gate Commercial Centre Car Park.
On 31 July 2011, a gold Nissan car entered the South Gate Commercial Centre Car Park. Mr Webster and Mr Petter were in that gold Nissan.
Mr Webster got out of the driver's seat of the gold Nissan and retrieved a black sports bag from the rear seat.
Mr Webster then approached a silver Corolla car and spoke to the UCO who was in that car. Mr Webster appeared to show the UCO the contents of the black sports bag and then he placed it in the boot of the Corolla.
Mr Lovett had driven a white Hyundai and had followed the gold Nissan into the South Gate Commercial Centre Car Park. At the same time as Mr Webster had got out of the gold Nissan and approached the silver Corolla, Mr Petter had also got out of the gold Nissan and entered the front passenger seat of the white Hyundai.
A blue Nissan Tiida subsequently drove up and parked next to the silver Corolla. A male person got out from the blue Tiida. Mr Webster, the UCO and the male person inspected the boot of the blue Tiida. The male person removed a backpack.
Mr Webster was seen walking with the backpack and passing it into the front passenger seat of the white Hyundai where Mr Petter was sitting.
The backpack contained 2 kg of a white crystalline inert substance which, on the prosecution case, Mr Webster and Mr Lovett believed to be methylamphetamine.
Prior to this time Mr Lovett had not been seen by the authorities in relation to this investigation. Nor had Mr Webster made any reference to Mr Lovett in any admissible evidence.
Members of the Western Australian Police Tactical Response Group then arrested Mr Webster, Mr Lovett and Mr Petter.
During the course of the arrest Mr Webster was forcefully put to the ground and held in that position. Mr Lovett was interviewed at the scene within approximately two hours of his arrest. Mr Lovett appeared to be uninjured in contrast with Mr Webster who sustained quite substantial facial injuries during the course of his arrest. Mr Lovett said in evidence and in his video record of interview that he had been orally abused and kicked to the face immediately after his arrest.
The videotaped interview was conducted with Mr Lovett in front of the white Hyundai car. The car was searched during the interview. It is sufficient for this judgment simply to recount small parts of the interview.
In the interview, Mr Lovett was asked how to describe how the vehicle came to be in the location. He answered that
I was just asked to pick up a friend, so I go ... (indistinct) ... Yeah, no, I was just asked, yeah, if you can come and pick up a friend. He had to go off from there and just take him back up our way. I was just like, Yeah, no worries. So come here and here we are. Okay. So.
Mr Lovett then admitted that he was driving the vehicle. He described his conversation with the man who had entered the white Hyundai. He described the receipt of the bag by the man, Lance (Mr Petter's first name is Lance). He admitted that he and Lance were in the car at the time. Later in the interview, Mr Lovett also agreed that he 'followed James' car in' (Mr Webster's first name is James). He also said that he did not have any passengers in his car prior to picking Lance up.
The prosecution submits that the ultimate issues were whether the accused believed that the backpack contained a commercial quantity of methamphetamine, whether he intended to traffic it (which includes transporting the substance believing that another person, in this case, Mr Webster, intended to sell any of it), and whether he did something that was more than merely preparatory.
Mr Lovett's defence at trial was that he had agreed to meet with his brother‑in‑law, Mr Webster, for a social drink, that he had been given no explanation as to why they had diverted from a meeting place to the car park and that he had previously agreed to transport an unnamed person, as it turned out Mr Petter, back to the northern suburbs. He put the prosecution to proof as to whether the circumstantial evidence produced permitted the drawing of an inference to the criminal standard that he had the requisite belief in the content of the backpack and that it was this belief that informed his actions.

The basis for the admissibility of a video record of interview

Since the prosecution did not make any submissions concerning the basis upon which the video record of interview was proposed to be tendered, it is necessary to make some remarks about the basis upon which an out of court record of interview can be tendered as evidence.
At common law, evidence of out of court, hearsay, statements by an accused person have generally required an exception to the rule against hearsay before they are admissible. A common basis for admitting an out of court interview with an accused person is that the interview contains admissions. In Cross on Evidence, JD Heydon defines an admission as 'any statement, express or implied, oral or written, which is adverse to a party's case'.[3] This definition incorporates the understanding that a 'statement' for the purposes of an admission means all things 'stated', whether by words or conduct.
[3] J D Heydon Cross on Evidence (8th ed, 2010) 1181 [33455].
An implied admission might not be readily apparent from an interview. But, as the Supreme Court of the United States said in Miranda v Arizona,[4] many statements which are intended to be exculpatory may raise inculpatory matters. As Wigmore explained, even statements which are not against the interests of an accused at the time they were made are capable of constituting an admission.[5]
[4] Miranda v Arizona (1965) 384 US 436, 476 ‑ 477.
[5] J Wigmore, A treatise on the Anglo-American System of Evidence in trials at common law (1940) 4 ‑ 5, § 1048.
In Miranda, the United States Supreme Court considered that '[i]f a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution'.[6] It might be, however, that this approach does not reflect Australian law. In R v Su[7] the Victorian Court of Appeal, in a joint judgment, explained a different basis for admitting evidence of an out of court interview with an accused person. Speaking about out of court interviews, the Court (Winneke P, Hayne JA and Southwell AJA) said that '[s]uch material is traditionally led by the Crown, whether incriminating or not, both as a matter of fairness and to show the "first opportunity" response by the accused to the allegations made against him by his accuser'.[8] The Court then quoted with approval from the English Court of Appeal:[9]
When the Crown adduces a statement relied upon as an admission, it is for the jury to consider the whole statement, including any passages which contain qualifications or explanations favourable to the defendant, that bear upon the passages relied upon by the prosecution as an admission and it is for the jury to decide whether the statement, viewed as a whole, constitutes an admission. To this extent the statement may be said to be evidence of the facts stated therein. If the jury find that it is an admission they may rely upon it as proof of the facts admitted. If the defendant elects not to give evidence, then insofar as the statement contains qualifications or explanations favourable to the defendant the jury in deciding what, if any, weight to give to that part of the statement, should take into account that it was not made on oath and has not been tested by cross examination.
When the Crown adduces evidence in the form of a statement by the defendant which is not relied upon as an admission of the offence charged, such a statement is evidence in the trial in that it is evidence that the defendant made the statement, and of his reaction, which is part of the general picture which the jury have to consider but it is not evidence of the facts stated.
[6] Miranda v Arizona (1965) 384 US 436, 477.
[7] R v Su [1997] 1 VR 1.
[8] R v Su [1997] 1 VR 1, 64.
[9] R v Donaldson (1976) 64 Cr App R 59, 65 (James LJ, Nield & Griffiths JJ).
It is not necessary to decide whether, or the extent to which, this 'traditional practice' in Victoria is an independent rule of admissibility, as it appears to be in Canada,[10] or, if it is a rule of general practice where the tender of the interview is admitted because there is no objection,[11] the extent to which that practice operates in this State. It is sufficient to make two points.
[10] Piché v The Queen [1971] SCR 23.
[11] Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, 465 [76] (McHugh, Gummow & Hayne JJ).
First, even if the 'first opportunity response' or 'general picture' is the basis upon which the prosecution proposes to tender the interview, it would be misleading for the prosecution to tender the record of interview as evidence of Mr Lovett's first response without the essential context for that response and Mr Lovett's demeanour. That essential context, based on Mr Lovett's evidence at his first trial, was what Mr Lovett described as the forceful arrest. Mr Lovett's evidence from his first trial is discussed in more detail below.
Secondly, it will be a very unusual type of case, of which this case is not one, in which the prosecution could tender a record of interview on the basis that the 'first opportunity response' is evidence of consciousness of guilt.
It has been held that 'occasions when guilt could be proved by demeanour displayed during a record of interview would be rare indeed, having regard to the unreliability of demeanour as proof of the state of mind of any person, let alone as proof of guilt of a criminal offence'.[12] In these rare cases, any invitation by the prosecutor that an adverse inference should be drawn from demeanour or selective answering of questions requires a strong warning to the jury.[13]
[12] R v Barrett (2007) 16 VR 240, 247 ‑ 248 [31] (Eames JA; Maxwell P & Habersberger AJA agreeing).
[13] R v Barrett (2007) 16 VR 240, 248 [36] ‑ [37].
Although the written submissions of the Crown did not explain the basis upon which the proposed tender of the video record of interview at the scene was said to be relevant, I proceed on the assumption that the basis for its admissibility is that it contains admissions.

Evidence concerning the previous forceful conduct by police is relevant

If the video record of interview is to be tendered on the basis that it contains admissions then those admissions must be understood in context. It has been said that in the tender of a video record of interview it is not open to the prosecution to pick and choose between statements which are inculpatory and self‑serving statements.[14]
[14] R v Beck [1990] 1 Qd R 30, 33 (Macrossan CJ); Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397, 408 [39] (Gleeson CJ, Gummow, Kirby & Kiefel JJ).
The submission of the prosecution is that the evidence of the interview is not relevant because, in the previous trial, Mr Lovett accepted that the video record of interview was not misleading or inaccurate. The prosecution referred to the following in cross‑examination:
PROSECUTOR: But you were here in this trial, of course, whilst the video was being played?
MR LOVETT: Yes.
PROSECUTOR: It's a video interview with you?
MR LOVETT: Yes.
PROSECUTOR: It's your trial?
MR LOVETT: Mm hm.
PROSECUTOR: You presumably were paying careful attention when it was played to the court, to the ladies and gentlemen of the jury?
MR LOVETT: Of course.
PROSECUTOR: As you saw it being played, did it occur to you that there was anything that you said at that time that was in some way misleading or inaccurate?
MR LOVETT: No. Nup.
This series of questions and answers was read out to the jury in the closing submissions of the prosecutor at Mr Lovett's first trial.
The submission for the prosecution is that these answers from Mr Lovett mean that evidence concerning the forceful arrest preceding the interview 'given the accused's evidence, [cannot affect] the probability of facts relevant to the facts in issue namely resolving any issues of credibility arising from answers given during the interview'. Hence, it is submitted, the prior forceful arrest was irrelevant. Several points must be made about this submission to illustrate why it should be rejected.
First, the series of questions quoted above neglects to include preceding questions and answers. The preceding questions are set out in full below. Read as a whole they give a very different impression from the short extract.
PROSECUTOR: You were asked a number of questions, Mr Lovett, by police officers, principally, Mr Cormack, and you've seen the video of that questioning process?
MR LOVETT: Yes.
PROSECUTOR: And you presumably would have had the opportunity prior to the trial of looking at a transcript of it which is someone trying to do the best they can to record the questions and answers?
MR LOVETT: Yeah.
PROSECUTOR: Was there anything that you said to the police in that question and answer session that you now say was in some misleading or inaccurate?
MR LOVETT: At the time I was - I was all over the place.
PROSECUTOR: Right?
MR LOVETT: I'd - I'd told them which wasn't put on the transcript that I - I - I was in shock.
PROSECUTOR: Yes?
MR LOVETT: As much as what they say, I - I was - I was totally in shock.
PROSECUTOR: Right?
MR LOVETT: So what I was saying, I - I didn't want to not be helpful to the police.
PROSECUTOR: Yes?
MR LOVETT: But my answers were all over the place. I would talk about, yeah, scenarios but - but I was scared and in shock.
PROSECUTOR: Right?
MR LOVETT: Did not know what ‑ ‑ ‑
PROSECUTOR: But in terms - sorry to cut you across?
MR LOVETT: Okay.
PROSECUTOR: But in terms of what you said to the police, as we have seen it as an exhibit in this court, is there anything that you said to them that you say was, in fact, in some way misleading or inaccurate?
MR LOVETT: I'm not sure. I don't know.
PROSECUTOR: Pardon?
MR LOVETT: I'm not too sure. I - not - not that I ‑ ‑ ‑
PROSECUTOR: So there's – there's nothing that you can point to that you say, well look, that was wrong or that was inaccurate or that was in some way defective as an answer?
MR LOVETT: Off the top of my – I'd – I'd have to look at the - the transcript again to be 100 per cent sure but I - I can't remember what - what was totally said.

Secondly, the submission of the prosecution involves a non sequitur. The video interview of Mr Lovett might contain matters that the jury consider to be misleading or inaccurate. If the video record of interview is led on the basis that it contains admissions then it is not conclusive that nothing misleading or inaccurate occurred to Mr Lovett as he watched the video.
Thirdly, an assumption underlying the prosecution's submission may have been that Mr Lovett will give evidence again at his retrial so that any inculpatory statements which the jury consider to be made in the video record of interview can be confirmed in his cross‑examination. This assumption seemed to inform another assumption, that Mr Lovett's demeanour in the video record of interview is therefore less relevant since the jury would be able to assess Mr Lovett's demeanour directly. But it is not possible to proceed on an assumption that Mr Lovett will give evidence.
For these reasons the application is refused.

Conclusion

Evidence concerning the forceful nature of Mr Lovett's arrest is relevant. It is not entirely clear to what end the ruling concerning relevance was sought by the prosecution. If the ruling was sought for the purpose of deciding whether to call the police officers at the scene who effected Mr Lovett's arrest it should be borne in mind that the prosecution should generally call '[a]ll available witnesses ... whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based'.[15] If the purpose of the ruling was a prophylactic application concerning anticipated questions from defence counsel in cross‑examination about the forceful nature of the arrest then the answer is that those questions are permissible.
[15] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 674 (Dawson J). See also Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279, 294 (Fullagar J); Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563; Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397, 408 [39] (Hayne J).