R v Mardlin
[2004] WASC 73
•30 April 2004
R -v- MARDLIN [2004] WASC 73
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 73 | |
| Case No: | INS:105/2003 | 4, 5, 8, 9, 12, 26 & 29 MARCH 2004 | |
| Coram: | MCLURE J | 30/04/04 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN DESMOND MARDLIN |
Catchwords: | Criminal law and procedure Confessional evidence Voir dire Whether statements made voluntarily Unfairness discretion Turns on own facts |
Legislation: | Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), s 5 |
Case References: | Cornelius v The King (1936) 55 CLR 235 Elie Azar (1991) 56 A Crim R 414 Frijaf v R (1982) WAR 128 McDermott (1948) 76 CLR 501 R v Lee (1950) 82 CLR 133. , R v Smith [1959] 2 QB 35 R v Swaffield (1997) 192 CLR 159 Van Der Meer v R (1988) 82 ALR 10 Wong Kam-Ming v R (1979) 2 WLR 81 Burns v The Queen (1975) 132 CLR 258 Callis v Gunn [1964] 1 QB 495 Cleland v The Queen (1982) 151 CLR 1 McKinney v The Queen (1991) 171 CLR 468 R v Ireland (1970) 126 CLR 321 R v Pfitzner (1996) 85 A Crim R 120 R v Pritchard [1991] 1 VR 84 R v Williams (1992) 8 WAR 265 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- State
AND
DESMOND MARDLIN
Accused
Catchwords:
Criminal law and procedure - Confessional evidence - Voir dire - Whether statements made voluntarily - Unfairness discretion - Turns on own facts
Legislation:
Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), s 5
Result:
Application granted
(Page 2)
Category: B
Representation:
Counsel:
State : Mr K P Bates
Accused : Ms B J Lonsdale
Solicitors:
State : State Director of Public Prosecutions
Accused : Amidzic & Associates
Case(s) referred to in judgment(s):
Cornelius v The King (1936) 55 CLR 235
Elie Azar (1991) 56 A Crim R 414
Frijaf v R (1982) WAR 128
McDermott (1948) 76 CLR 501
R v Lee (1950) 82 CLR 133
R v Smith [1959] 2 QB 35
R v Swaffield (1997) 192 CLR 159
Van Der Meer v R (1988) 82 ALR 10
Wong Kam-Ming v R (1979) 2 WLR 81
Case(s) also cited:
Burns v The Queen (1975) 132 CLR 258
Callis v Gunn [1964] 1 QB 495
Cleland v The Queen (1982) 151 CLR 1
McKinney v The Queen (1991) 171 CLR 468
R v Ireland (1970) 126 CLR 321
R v Pfitzner (1996) 85 A Crim R 120
R v Pritchard [1991] 1 VR 84
R v Williams (1992) 8 WAR 265
(Page 3)
1 MCLURE J: Just prior to the scheduled commencement of the applicant's trial for the wilful murder of his father, he applied to exclude from admission into evidence at trial admissions he made during the course of an interview with police on 19 September 2002 and any admissions he made whilst in Graylands Hospital in the period 20 September to 1 November 2002. The applicant contends that any admissions made after 12.15 pm on 19 September 2002 should be excluded because they were not made voluntarily or alternatively, were unfairly obtained.
2 The matter was the subject of evidence adduced and submissions made in a voir dire held on 4, 5, 8, 9, 12, 26 and 29 March 2004.
Background Facts
3 The facts are as follows. The body of the deceased, Ronald Mardlin, was discovered by the applicant in a shed attached to the deceased's home in Rivervale on Saturday 14 September 2002. The deceased died of a head injury thought to have been inflicted at around 3.30 pm on Wednesday 11 September 2002. The applicant admitted to being at his father's home on that day, leaving at around 3.00 pm. At all material times the applicant had in his possession a spare set of keys to his father's home. One of the keys opened the front door to the deceased's house as well as the shed. The applicant made a number of phone calls to his father's telephone number on the night of Wednesday 11 September. The calls were not answered. The following morning, Thursday 12 September, the applicant, in company with his wife and child, went to his father's home. The house was unlocked. Mr R Mardlin was not located. The applicant went to the police station and made a missing person's report. The police arrived at the deceased's home later that day. They searched the deceased's premises. The door to the shed was locked. As a result, the shed was not searched. On Friday night the accused had a telephone discussion with his aunt, the deceased's sister, who said she had a premonition that the deceased was in the shed and told the applicant that one of the spare set of keys in his possession opened the door to the shed.
4 The following day the applicant, again in company with his wife and daughter, went to the deceased's home. The applicant unlocked and opened the shed door, saw the deceased's body, withdrew and called the police. The police murder investigation commenced on Saturday 14 September 2002.
5 The accused was born on 3 January 1953 and was 49 years old at the time of the deceased's death. He was happily married with a young
(Page 4)
- daughter. For the year leading up to the death of his father, the applicant had been unemployed. He was under significant financial pressure. He had borrowed money from his father. Around the time of his father's death, the applicant had only just been employed as a BP service station console operator. He was educated to fifth year high school and was a person of at least average intelligence. He had always had a very good relationship with his father.
Police Interview
6 The applicant was interviewed by police on at least three occasions and signed three statements, one handwritten and two typed. In none of the statements did the applicant make any admission.
7 At 7.00 am on 19 September 2002 Detective Sergeant Lee and Detective Senior Constable Gomez attended at the applicant's home in Heathridge in company with other officers who had, and proceeded to execute, a search warrant at that address.
8 What was said by DS Lee to the applicant at this stage is in dispute. However, as a result of what was said the applicant accompanied the police officers in their vehicle to the Cannington Police Station. The applicant was interviewed by officers Lee and Gomez. The interview was largely conducted by DS Lee, DSC Gomez playing a minor role.
9 Not all of the interview was videotaped. The taped parts of the interview are contained in three videotapes. The interview recorded in tape 1 went from 8.44 am until 11.25 am with two breaks in between. The interview recorded in the second tape went from 11.45 am to 12.16 pm. The interview recorded in the third videotape commenced at 1.55 pm and concluded at 2.49 pm.
10 The breaks in videotaping were as follows:
9.38 am - 9.45 am (6 mins) - first break
10.37 am - 10.51 am (14 Mins) - second break
11.25 am - 11.45 am (20 mins) - third break
12.16 pm - 1.55 pm (1 hour and 39 mins) - fourth (long) break
2.15 pm - 2.21 pm (6 mins) - fifth break
(Page 5)
11 The State conceded that the final half of the interview recorded in the second tape (comprising some 10 out of 20 transcript pages) was inadmissible because "Detective Sergeant Lee's questioning and demeanour becomes somewhat overbearing". The concession of inadmissibility is correctly made. It was in the unrecorded interview following this conduct that the applicant allegedly made admissions to DS Lee and DSC Gomez. This unrecorded interview took 1 hour and 39 minutes and was conducted in the station "sally port", in effect the station's staff car park. Thereafter, the interview the subject of the third videotape took place and the applicant made certain admissions. The State does not intend to lead evidence of what was allegedly said during the long break.
12 It is necessary to refer to the structure of the interview and the section the State concedes is inadmissible. The interview recorded on the first tape is, at least until after the second break, benign in tone and content. DS Lee sought confirmation, clarification and elaboration in relation to the applicant's written statement dated 17 September 2002. On re-commencing after the second break, DS Lee told the applicant that he proposed to put a series of questions to him and, so the applicant was under no misapprehension, said "where I'm coming from is that you are the person that in fact killed your father". He continues with what he describes as inconsistencies in the applicant's statement and things that do not fit in with what the police know, or more accurately, what they think they know.
13 One such area was the applicant's admitted failure after he had lodged a missing person's report and the police had arrived, to use his spare set of keys to attempt to open the shed on Thursday 12 September. The applicant's response at interview was he did not know that any key fitted the shed. The State concedes that aspects of the police questioning on this issue went too far. DS Lee and DSC Gomez voiced their views that it was "incredible" that he did not think to try the keys and that was what a normal person would be expected to do in that situation. The officers were very insistent and persistent on this subject and it was clearly distressing the applicant who asked to see his wife, which request was refused. He then asked for a break because he said he was fed up with the line of questioning and was getting angry. The third break was taken. This was the end of tape one.
14 In the first half of the second tape of the interview the applicant is asked about the clothes he was wearing on Wednesday 12 September, being a green and white striped BP work shirt, black pants and shoes. The
(Page 6)
- applicant said the shirt he was wearing on Wednesday had got covered in grease and oil from working on his car, which had broken down, and he had "binned" it. On Friday 15 September he had received a number of new work shirts from BP following a request he made to his superior, Rose Williams. DS Lee put to the applicant that he had telephoned Rose Williams on Wednesday evening (that is, after his father had been murdered) and advised her that he had oil all over his only work shirt and needed a new one. DS Lee then suggested to the applicant that it was not oil on the shirt but blood which is why he had got rid of it, a proposition unequivocally denied by the applicant. The applicant repeated his request for his wife. The request was refused.
15 The information DS Lee gave to the applicant concerning the time of this telephone call to Rose Williams is inconsistent with her original deposition. She states in her original deposition that this telephone conversation with the applicant occurred at noon on Wednesday 11 September (that is, before the deceased was murdered). In a subsequent deposition signed on 25 March 2004 Rose Williams says that this conversation did in fact occur on Wednesday evening.
16 The State concedes that all of the second part of the second tape is inadmissible. It is necessary to set out the inadmissible material in full. The officers continue with questions about the applicant's clothing:
"Q. Your boss says around about 6.00. Okay. And give or take a little bit, I don't care if it's 6.15, but the first thing you did when you got home was you rang her and you said 'I've got oil all over my shirt. I need a new one.'
A. I don't know what time I rang her.
Q. The point I'm making is it's Wednesday, immediately - - it was - - the first thing you did after you got back from your Dad's is you rang up and said 'I've got a new - - I need a new shirt. I've got oil all over this one'. And what I'm putting to you is it wasn't oil, it was blood.
A. There was no blood on that shirt. If there was any blood, it would be from me nicking myself shaving. That's all.
Q. No.
A. There was no blood on that shirt.
(Page 7)
- Q. No. The blood that was on that shirt was your father's.
A. It was not. It was not.
Q. That's why you changed the shirt.
A. No, no, had grease and oil on it. It wasn't my father's blood.
Q. Can I jump in?
Q. No, not yet. The other thing the guys - - the guys have obviously run around. As I said to you, they're checking on these things. Okay. When you damage a shirt, especially one - - one of theirs, and you get grease on it, they'll exchange it for a new one.
A. I didn't know that.
Q. You were told that. Okay?
A. I didn't know that.
Q. You rang Rosy Williams at 1830.
A. I want to see my wife. I want to see my wife.
Q. All right. You're not going to see your wife. Okay?
A. I want to see my wife.
Q. You'll see your wife when we're finished our investigation. Okay?
A. I want to see - -
Q. I've explained to you - -
A. No.
Q. I've explained - -
A. ... (indistinct) ...
Q. Des, I've explained to you what the situation is. All right? You're not going to speak to your wife. Your - - your wife is a witness and there is no way you're going to speak to her while we're conducting this investigation. All right? She is being
(Page 8)
- interviewed as well or she will be as soon as we finish the search. All right? And there is no way you're going to be able to speak to her until we've done that.
A. Mm.
Q. All right? When you spoke to - -
A. I'll wait for then to see her then.
Q. Pardon?
A. I'll wait for then to see her then.
Q. Good. When you spoke to Rosy Williams at 1830, which is 6.30 on Wednesday night - - she's the owner of the BP franchise. You said to her you had grease on - - on the shirt, your car had broken down with brake problems on Wanneroo Road, your shirt was currently soaking at the moment and the stains should come out but you needed a new shirt for work.
A. Mm.
Q. Did you soak the shirt?
A. No.
Q. No.
A. Wasn't worth it.
Q. Okay. So why tell her that you were?
A. I don't know. I just said it.
Q. All right. The other thing is your wife says you only ever had three, that you had one initially - -
A. Well, I picked up three on Friday.
Q. No, no. We've spoken to her, Des. This is all coming unglued. All right?
A. No ... (indistinct) ...
Q. I have spoken to her, Des.
(Page 9)
- A. I'm not talking any more. I want to see my wife.
Q. You're not speaking to your wife. All right. And I'm going to tell these things to you. All right. You can't just back out of these things and say 'It's too hard. I want to speak to my wife'. All right. We've spoken to her. She believes that you got one shirt initially and you collected two on Friday. She doesn't know that you've got four because you never told her. Why would you tell you wife a lie? Why didn't you tell your wife that your shirt had oil on it?
A. (No audible response)
Q. Des?
A. (No audible response)
Q. If that shirt went to Karrinyup, to BP Karrinyup, like you said, and I doubt that, we'll find it, and when we do find it it'll have blood on it, your father's blood. You need to get this over and sorted. All right. That's what I said to you from this morning. There are lots and lots and lots of things we need to put to you. You need to come to terms with it. We need to talk it through. There may be reasons why this occurred. Okay?
A. (No audible response)
Q. But one thing you're not going to do is contaminate your wife. She is a witness. Would you like to have a break while we think about this?
A. (No audible response)
Q. Des?
A. (No audible response)
Q. It's not going to go away, Des. It needs to be resolved. This is your father we're talking about. Okay. Your father is dead; not mine, not his, yours.
A. (No audible response)
Q. Okay.
Q. Suspend for a minute? [Gomez]
(Page 10)
- Q. Hey?
Q. Want to suspend for a minute? Want to keep going? [Gomez]
Q. No. I'm going to keep going.
Q. I've got actually a problem with his story as well. [Gomez]
Q. Yeah. I've got several problems with it.
Q. Yeah, in relation to - - Des?
A. (No audible response)"
- The applicant had remained silent throughout this period. DS Lee's questions punctuated long silences. The questioning continued:
"Q. I know you can hear me, Des, so I'm going to say this anyway. You just told Detective Sergeant Lee that Thursday night/Friday morning you drove the green Magna to BP in Scarborough and on the way home, Friday morning, was when you had brake problems with the car so you've stopped and you climbed underneath it. Earlier on in the interview you've stated that Thursday afternoon you picked up the red car because the Magna had already packed up. You drove the red car to work that night. That's what you've stated. So as you can see, Des, we're having a lot of trouble with your story here and this is your opportunity to talk to us and tell us what happened.
Q. Des, the situation at the moment, there's a lot more evidence that I want to put to you. I don't know that given your current behaviour it's - - whether it's appropriate to put it to you. Obviously you can hear me. Whether you've chosen not to answer or you're simply remaining silent or whatever you want to do, there's a lot more that I'd like to put to you. Would you like to have a break?
A. My mind is just running 100 mile an hour. I can't think. I can't think.
Q. The question was, Des, would you like to have a break?
A. Yeah, I'll have a break. Yeah.
Q. All right.
- A. I just can't think at the moment.
Q. We'll stop the tape and we'll have a break, all right, while you gather your thoughts. Okay? But there is still a lot more questions that we want to put to you. There's a lot more that we need to go through. Okay. And in fairness to you, there is a lot of questions that you - - you probably should answer because the end result is, with the evidence we currently have, you will be charged. Okay?
A. Didn't do anything. I didn't do anything.
Q. Well, then can you explain why we've got - -
A. I didn't do anything.
Q. Can you explain why we have all these inconsistencies in your story?
A. I didn't do anything. I didn't do anything. I didn't do anything. I didn't do anything.
Q. Okay.
A. ... (indistinct) ...
Q. I want to put some things to you and I want to put them on tape, okay, so that you're aware of what allegations are coming and you have time to consider your situation. All right. The first point I want to make is that after Thursday, when you handed responsibility for finding your father over to the police, you didn't do anything to try and continue that. All right. The story you've given us in relation to the shirt you were wearing on Wednesday is all lies and those lies have been verified by your wife. Okay. The knowledge about your daughter not having netball training. Okay? You didn't go and pick her up at 3 o'clock when you should've but your wife and her both say that netball training was - - both your wife and her say that you were aware and Shannon says she told you on Wednesday morning that netball training had been cancelled because it was the final day for the year and you were supposed to pick her up at 3.00, you never turned up until 5.00. Okay?
A. (No audible response)
(Page 12)
- Q. You disposed of the car, the Magna, on Friday. We went and seized that car on Monday afternoon after we spoke to you. Okay. There's detectable traces of blood in that car. Okay. All of that has been taken down the PathCentre. I believe the blood in that car is your father's and I believe it came there from transference from you and it got there on Wednesday afternoon after you left Dad's. When you left Dad's, you had blood all over your shirt, you had blood all over your hands, you had blood on your shoes, your father's blood.
A. ... (indistinct) ...
Q. That ended up inside the car and on the shirt. You disposed of the shirt. You lied about the shirt. You disposed of the car. Okay. We've got the car back and we will find the shirt. You need to be aware of those. The other problem I have with the disposal of the car is your mechanical ability. You rebuilt your dad's engine, yet you couldn't fix the brakes. You sold the car which conservatively – I've see that car – is worth a couple of thousand dollars, at least a thousand. You sold it for 150 bucks. You have no money. You've got a 90 dollar - - $90,000 mortgage. You've got a $10,000 overdraft. Your credit line has been stopped. You haven't had work for 12 months. You've just gone back to work in the last 2 weeks. You sold your only viable asset, which is your car, for 150 bucks. I believe the reason you sold the car was because you knew it was contaminated. The knowledge of your dad's injuries: You've told us today and you told us on Monday that you saw the injuries to the back of your dad's head. That is physically impossible from what you did at the crime scene on Saturday morning. Do you hear what I'm saying, Des?
A. I didn't do anything.
Q. From where you stood at the door, and we stood there yesterday – we've had the place measured by our police draftsman, we've had our forensic scientists out there – you cannot physically see the injuries to your dad's head from that door. The only way you could see them is if you went in there. Okay? And I'm not talking about one step in. I'm talking about standing over him, hitting him. That's how you know what injuries he had, Des, because you put them there.
(Page 13)
- A. I didn't do anything.
Q. Yes, you did.
A. I didn't. I didn't do anything to him. I didn't do anything.
Q. It may have been an accident, it may have been unintentional initially, but you did it.
A. I didn't do anything to him. I didn't do anything. Can we stop?
Q. Absolutely.
A. I didn't do anything to him.
Q. Yeah, you did.
A. I didn't.
Q. You also said the reason you shut the door immediately was so your daughter couldn't see. Your daughter wasn't even there. Your daughter was out the front, at the car. Okay. You made attempts to have the police locate the deceased and that's because you wanted to remove yourself from the crime. You haven't asked any questions of any investigator in relation to the progress of the investigation. That's a real cause of concern for me, having done so many of these, that you just don't seem to want to know where we're going and how we're going. You haven't asked anything. The pants and the shoes that you gave Detective Gomez on Monday are absolutely spotless. Not only have they not been worn in the crime scene, they haven't been worn in the service station either, and they're all brand new. You haven't worn those anywhere. They are not the clothes you were wearing last Wednesday.
A. They are.
Q. No. All right. You left home on two occasions last Wednesday night, one on the pretext of going out and getting some smokes and the other one on the pretext of going to Eric's place to pay some $30 bill. Okay?
A. I didn't do anything.
(Page 14)
- Q. But you weren't going to pay a bill. You were going to get rid of your clothing.
A. Didn't do anything.
Q. You told your wife you were going down the shop to get some smokes but you didn't. You went out and got rid of the clothes. Then you came back and you realised you hadn't - - you'd forgotten to get the smokes, so then you made up the story about going around to Eric's, to pick something, with the spanner, and you went and got the smokes then.
A. Didn't do anything.
Q. We've been through the keys time and time again. It is inconceivable that you would have that much access to that shed and not know about the key to the shed. Okay. The other point we probably haven't mentioned at this stage is we've got the other set of keys. We found them hidden at the unit. They've also tested positive for blood.
A. ... (indistinct) ...
Q. I believe those keys were yours and the ones that you've got, the ones we took off you on Monday, were in fact your father's.
A. I didn't do anything.
Q. We've got your work history here. On Wednesday you were supposed to go to work for a training session.
A. ... (indistinct) ...
Q. And you never turned up. All right. You have no money. On the number of occasions where you're supposed to go somewhere to work you haven't turned up. Why?
A. ... (indistinct) ...
Q. You owe all this money to your father. You paid him with a cheque that bounced. Why?
A. I didn't do anything.
Q. We've got a cheque here from the unit, Des, dated the 14th of March, okay, for $1250. All right. Your account, made out
(Page 15)
- to your dad. Also got your dad's record book. Okay? And it's got a list of numbers here. Your dad has given you money on a regular basis, all the way through here: September last year, $200, 'Des, loan'; 13th of July, 'Des, loan', 150 bucks; 26th of February, 'Des', 500 bucks. I can't read the date on that, '$200, Des, dentist'; 5th of August, $100, 'Des'; 23rd of the 8th, $300, 'Des'. Sounds like your old man was pretty generous to you, Des. Okay. I have no doubt that you and him were mates. Okay. I've also got no doubt that whatever happened on Wednesday afternoon probably wasn't intended by you but you did it.
A. I didn't do anything.
Q. All right. And you've got to deal with it.
A. I didn't do anything, didn't do anything.
Q. Would you like to see the crime scene photographs?
A. (No audible response)
Q. Des?
A. I want to stop. I want to stop.
Q. You want to stop? We can stop. You want a break or you want to stop completely?
A. Just want to stop. I didn't do anything. Just want to stop.
Q. Well, it's not going to stop, it's not going to go away. All right. Your father is dead.
A. I want to stop for a while. I didn't do anything.
Q. Okay. Well, then we'll - - we'll terminate the interview right now. Okay. Do you want to talk to us off - - off camera?
A. (No audible response)
Q. Do you want to give us a statement?
A. I didn't do anything. I just want to stop for a while.
(Page 16)
- Q. All right. I'll suspend the interview now. Well, actually what I'll do is I'll terminate the interview now because I don't know whether we're ... (indistinct) ... Okay. ... "
17 Inaccurate statements were put by DS Lee to the applicant in the course of this exchange. It subsequently emerged from forensic testing that there was no blood in the applicant's vehicle that he had disposed of and no blood on the keys found in the deceased's home. Further, there were aspects of propositions put by DS Lee that are not supported by the deposition from the applicant's wife. She states: she did not think the applicant knew that their daughter was not going to netball on Wednesday 11 September; she was with the applicant when he opened the shed door on Saturday 14 September and could "just see some hair and maybe his shoulder" referring to the deceased; and that she had told the applicant that they were not going to spend any more money on the car (which was the applicant's stated reason for selling it). However, it was not suggested that the police deliberately misstated the facts.
18 The interview the subject of the third tape was conducted as if starting afresh. A further caution was administered and repeated after the fifth break. The tone of the questioning in this interview was in stark contrast to the previous tape. It was quiet, calm and supportive. The applicant, although very emotional, was also calmer. After the formalities and introductory matters the applicant was asked what occurred on Wednesday 11 September 2002:
"I -- I don't know why or -- I just remember Dad laying there ... (indistinct) ... this mallet in my hands."
19 He was asked about the mallet as follows:
"… When you were standing there, whereabouts were you standing in relation to your dad?
A. Uh, I remember standing in the doorway.
Q. Mm. Okay.
A. He was laying there on the ground and I had this mallet in my hand.
Q. Okay. Where was --- what did the mallet look like?
A. It was a rubber mallet.
(Page 17)
- Q. Right. Just like one you'd use for - - for changing tyres and so on, is it?
A. Yeah, brick paving.
Q. Brick paving?
A. Yeah, yeah.
Q. Was it one of the larger ones or one of the smaller ones?
A. Uh - -
Q. They generally come in two sizes, don't they?
A. About - - just medium one.
Q. Yeah?
A. Yeah.
Q. With a wooden handle?
A. Yeah.
Q. Anything distinctive about it? Did it have tape on it or held together in any way?
A. No, no.
Q. Reasonably new?
A. Yeah."
20 However, the applicant said in the interview that he had no recollection at all of hitting his father or the events that preceded or precipitated his only relevant memory which was his father lying on the ground in the shed and him standing in the doorway with a rubber mallet in his hand.
21 He also admitted taking his father's wallet and after withdrawing $30, throwing the wallet out of his car window along Riverside Drive. He said he dropped the mallet out of his car somewhere near Dog Swamp Shopping Centre. He also said he put his clothes in a plastic bag and disposed of them in a bin near Observation City. Despite extensive searches by police the wallet, mallet and clothes were never located.
(Page 18)
22 In all other respects the applicant's answers in the interview on the third tape were consistent with what he had told police earlier in the day before any admissions were made and with his written statement. In particular, he did not notice any blood on his clothes, he did not change his clothes before picking up his wife and child and going to dinner that evening, that he went from his father's place "just after Rod left" to his home and what he did and the time spent there was the same as he earlier described before the admissions were made and do not sit entirely happily with them. He also maintained that he did not believe his father was dead until Saturday when he saw his body.
Graylands Admission
23 In the closing stages of the voir dire the applicant widened his application to cover statements that may be construed as admissions made by him during his admission to Graylands Hospital pursuant to a hospital order made on 20 September 2002 under s 5 of the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA). Dr M Schineanu was the applicant's treating psychiatrist in Graylands. The applicant was informed at the outset that any information provided by him to Graylands staff may be provided to court. The hospital notes record that on 20 September 2002 the accused said "I don't remember doing it … I remember him laying on the ground with me standing over him with a mallet in my hand". However, he also said on this and other occasions that he had no recollection of this until at the police station.
24 On 21 and 23 September the accused is recorded as stating that he could not remember anything relating to his father's death, although he again stated that whilst at the police station he remembered "standing there" over his father. The notes record that on 30 September and 1 October the applicant made allegations against the police that largely correspond with the applicant's evidence in the voir dire concerning the off camera conduct of the police.
The Applicant's Evidence
25 The applicant gave evidence in the voir dire. He complained of what DS Lee said to him at his house, when he was asked to accompany the officers to the police station, in the car ride to the police station, before the commencement of the interview and during the interview breaks. A summary of the substance of what was said is as follows. At the house DS Lee said words to the effect: "We know you did it. We have your father's blood in the car. You're coming with us." The applicant said he did not voluntarily attend for questioning. In the car he repeatedly said
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- words to the effect: "We know you did it. We have your father's blood in the car. You'll be dead within two weeks. You'll hang yourself." The applicant said he regarded the statement that he would be dead in two weeks and he would hang himself as a threat on his life. In context it would seem to convey that unless the applicant admitted to and dealt with his guilt, he would die by his own hand.
26 Before going on video DS Lee said "we know you did it, just come in and admit it". The applicant said he was very upset and distressed about the comments that had been made.
27 His recollection was that DS Lee put pressure on him during every short break by saying words to the effect: "We know you did it. You may as well come and own up to it. We have the blood in the car. We have all the evidence under the sun. We know you did it. Just own up to it." During the short breaks DS Lee also said to the applicant that when they went back in and restarted the interview he would ask whether they had discussed the case and the applicant was to say no.
28 In relation to the long break DS Lee said words to the effect: "Just come in and admit it. You can see your family. You can go home." The applicant kept saying he did not do anything and they said "You did. We've got all the evidence. We've got the blood in the car. Come in and own up and you can go home and see your family." In cross-examination Mr Mardlin added that DS Lee may have also said "What did you hit him with?" He said DS Lee repeated these statements throughout the long break and that he had no recollection of making any admissions during the long break.
29 Mr Mardlin's consistent response when questioned about his videotaped answers was that he had no independent memory of most of what he said. In relation to tape three he said he had no recollection at all of that part of the interview. He also said he had no recollection of making admissions whilst in Graylands. It was accepted that the applicant's solicitor, Ms Amidzic was unable to obtain instructions from him at the Court of Petty Sessions on 20 September 2002 because of his emotional state and that Ms Amidzic and a psychiatric nurse present at court concluded it was appropriate to apply for a hospital order.
30 The applicant was cautioned (that he was not obliged to say anything but anything he did say would be recorded and may be used in evidence) at the very start of the interview and immediately on recommencement of the videotaped interview after the first, second, third, fourth and fifth
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- break. Further, after each of the first, second and fifth break he was asked whether there had been any conversation in relation to the case during the break and on each occasion the applicant answered "No". He was not asked that question at the commencement of the second and third tapes.
31 The applicant was also asked questions about the voluntariness of his participation at the end of the interview recorded in tape two. The exchange is as follows:
"Q. ... So I'll terminate the interview. I've got some questions. I do need you to answer these ones. It is important. They're procedural. Okay. Have you got anything to go before we - -
Q. No.
Q. All right. Has this interview so far been conducted of your own free will?
A. ... (indistinct) ...
Q. Des, I need - - I need you to answer these questions. All right? This is not in relation to your father's death. These are about the interview here today. Okay. Has the interview we've conducted with you today - - has that been conducted of your own free will?
A. (No audible response)
Q. 'Are you here - - here voluntarily?' is what I'm saying.
A. No. You brought me here.
Q. I know I brought you here but I'm - - I'm - - I wasn't going to ask you to catch a bus here, Des. What I'm saying is you're here of your own free will?
A. Yeah.
Q. Okay. All right. Have you been threatened at all today to participate in this interview? Have we threatened you to do anything?
A. No.
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- Q. Okay. Have you been promised anything in return for participating in the interview? Have we offered you bail or any of those sorts of things?
A. No.
Q. Or pay your mortgage or anything? Okay. Do you any complaints about the way you've been treated by us today?
A. No.
Q. Do you have any complaints about the way of the police officers have conducted this investigation?
A. No.
Q. Okay. Is there anything that you want to say - -
A. No.
Q. - - in relation to this matter? Okay. I intend at this stage to suspend this interview. Okay. We are going to continue investigating this matter. Okay. And I'll ask you to remain here with us while we do that. Your wife is still assisting us at her house - - at your house. Okay. And she will be brought here. As I've said to you, there is no way that you will be able to speak to her until we've completed our interview with her. Okay. When that happens, I promise you, when we've completed our inquiry with both of you, you will be able to speak to her, if she wishes to speak to you. All right. I can't make a promise on her behalf.
A. Yeah.
Q. Okay?
A. Yeah.
Q. All right. I'll terminate the interview now at 12.16. Do you want something to eat?
A. No.
Q. No? Want another brew? Would you turn it off please, mate?"
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32 Similar questions were asked at the end of the interview the subject of the third tape. That exchange is as follows:
"Q. ... Has this interview been conducted on your own free will.
A. Yeah.
Q. All right. Have you been threatened to participate in any way?
A. No.
Q. Have you been promised anything - -
A. No.
Q. - - for answering questions or participating? Do you have any complaints about the way we've treated you today?
A. No.
Q. Do you have any complaints about the way the police have conducted the investigation?
A. No.
Q. Is there anything you wish to say?
A. ... (indistinct) ... don't know why."
33 When the applicant was cross-examined as to whether he understood the caution, his response was that according to the transcript he did but that he was "only doing as he was told" and that "he understood the threats from outside too". As to why he did not take the opportunity to say that there had been discussions off video, he said he was scared of the officers and had never been through a police interview before.
34 In his examination-in-chief the applicant denied hitting his father over the head with a mallet or that he had a memory of having a mallet in his hand or that he stole from and disposed of the wallet or the mallet. He could not explain why he said those things to police other than the pressure he was subjected to before and in the course of the interview.
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The Police Officers' Evidence
35 DS Lee's sole role in the investigation was to interview the applicant. He had been briefed for that purpose by officers involved in the investigation. He denies the applicant's evidence of what was said at the applicant's home on the morning of 19 September, in the car en route to the station, before the interview and during the short and long breaks.
36 DS Lee's evidence was that when the applicant asked for a break or to stop the interview, that is what he did. He did not regard the applicant as having made an unequivocal request to stop the interview in the second half of the interview in the second tape until just before it was terminated.
37 In relation to what occurred in the long break, DS Lee said that he and DSC Gomez took the applicant into the sally port area. He continued:
" ... I remained in company with him as did Senior constable Gomez and we had a chat during which he started to discuss the case. He brought it up, not us and he initially started in the third person. 'I can remember this. What if I was doing this? What would happen?' and those sort of things. This wasn't recorded in any way. It wasn't part of the interview process and it certainly wasn't initiated by us."
38 DS Lee said the applicant admitted that he could recall standing over his father with a mallet. He also made admissions concerning where and how he disposed of the mallet, where and how he had disposed of the clothing the applicant was wearing at the time, that he had taken $30 from his father's wallet and where he had disposed of it. DS Lee then asked the applicant whether he would be willing to go back on tape and repeat the conversation that they had had in the car park and the applicant agreed to do so.
39 When asked whether there had been any conversation during any of the earlier breaks, DS Lee said:
"No. I had steered quite away from that during every break and I made a point of mentioning it when we came back into the interview that we hadn't in fact covered those issues off camera. It wasn't my intention to interview him off camera at any time."
40 DS Lee accepted that if he presented facts to the applicant which pointed to the applicant's guilt, the applicant would be more likely to say something incriminating.
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41 DSC Gomez did not corroborate the applicant's evidence of what was said by police officers off camera. His evidence concerning the long break is as follows:
" ... we took the accused to the sally-port area at the rear of the police station for him to have a break and we gave him about 10 minutes. He sat against a green Hyundai Excel and we gave him some cigarettes. After that he had a bit of a conversation with Detective Sergeant Lee and asked what was going to happen. Detective Sergeant Lee advised him that with the evidence that we had, he was more than likely going to be charged with the murder of his father and advised the status of the investigation, what was going to be required after that, and also basically what was taking place. On that the accused became a little bit upset and he started to make some admissions. From memory, he stated that he couldn't remember what happened. All he remembers is his father laying there and he was holding a mallet in his hand."
42 DSC Gomez in essence confirmed DS Lee's evidence concerning the other admissions save for what the applicant said about disposal of his clothing about which he had no recollection.
Voluntariness
43 A confession (admission) is not admissible unless it is made voluntarily. The onus is on the State to prove voluntariness on the balance of probabilities.
44 A confession is voluntary if it is made in the exercise of a free choice to speak or to remain silent and not because the will of the accused has been overborne: R v Lee (1950) 82 CLR 133 at 149.
45 The rationale for the exclusionary rule is the potential unreliability of the confessional statement and the common law privilege against self-incrimination. However, the court does not attempt to determine the actual reliability of the confession. Rather, it assesses the nature and effect of any inducement or pressure to make the confession in order to determine whether the confession was made because the will of the accused was overborne by the conduct of a person or persons in authority: R v Swaffield (1997) 192 CLR 159 at 171 per Brennan CJ.
46 It does not matter by what means the accused's will has been overborne. The range of conduct includes promise of advantage, threat of
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- harm, duress, intimidation, persistent importunity or sustained or undue pressure: Cornelius v The King (1936) 55 CLR 235 at 246; R v Lee (1950) 82 CLR 133 at 144.
47 Whether an accused's will is overborne is to be determined by reference to his or her personal circumstances including age, background and psychological condition: R v Swaffield (supra) at 169 – 170 per Brennan CJ.
48 However, it remains to be determined whether the personal condition of an accused will render a statement involuntary in the absence of improper conduct by the police, there being differences between the medical or psychiatric and legal concepts of voluntariness: Elie Azar (1991) 56 A Crim R 414 at 419.
49 Finally, and importantly in the circumstances of this case, when there has been improper conduct by a person or persons in authority preceding the making of admissions, the State must prove on the balance of probabilities that the effect of the overbearing behaviour has been shown to have been removed: R v Lee (supra) at 144; R v Smith [1959] 2 QB 35 at 41.
Unfairness Discretion and Public Policy
50 The court has a discretion to exclude a voluntary confession on the ground of unfairness.
51 The nature and effect of the conduct of persons in authority central to the question of whether a confession was voluntary is also relevant in the exercise of the unfairness discretion: McDermott (1948) 76 CLR 501 at 513. That is, the unfairness which enlivens the discretion must arise from the circumstances under which the admissions were made. The purpose of the discretion is to safeguard a person from the unfairness of using his admissions in evidence against him at trial.
52 The effect of the improper conduct on the reliability of the admission is a relevant factor in the exercise of the discretion. However, a voluntary and reliable confession may be excluded if, but for the misconduct, the confession might not have been made or not made in the same form: R v Swaffield (supra) at 175 and 189.
53 Recognition of the right to silence and fairness to a suspect requires that police should not whittle down the effect of the caution by pressuring
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- or cajoling the suspect into speaking once he has clearly indicated his wish to remain silent: Van Der Meer v R (1988) 82 ALR 10 at 19.
54 There is a significant overlap between the unfairness discretion and the public policy discretion although the chief object of the latter is to constrain law enforcement officers from engaging in illegal or improper conduct: R v Swaffield (supra) at 347 per Brennan CJ.
55 It is unnecessary to resort to reliance on the public policy discretion for the determination of this application.
The Psychiatric Evidence
56 As stated earlier, the applicant was referred to the Frankland Centre at Graylands Hospital on 20 September 2002 under a hospital order made pursuant to the Criminal Law (Mentally Impaired Defendants) Act 1996. He was under the care of, among others, Dr M Schineanu, a consultant psychiatrist who was called by the State to give evidence on the voir dire. Dr P Skerritt gave evidence on behalf of the applicant.
57 Dr Schineanu diagnosed the applicant whilst in Graylands as having a major depressive episode which he related to the applicant's then personal, social and legal circumstances. This and other diagnoses referred to by Dr Schineanu are in terms of the Diagnosis and Statistical Manual of Mental Disorders of the American Psychiatric Association 4th ed, text revised (DSM-IV-TR). The applicant was in Graylands for about three weeks. Dr Skerritt agreed that the applicant was suffering a major depressive episode at that time.
58 In Dr Schineanu's assessment, the applicant was not suffering from a major depressive episode at the time of the interview with police. He reached that assessment primarily because there was no identified clinically significant dysfunction or impairment in important areas of the applicant's functioning. However, he accepted the applicant was suffering from an adjustment disorder with depressed mood (a depression of lesser intensity than a major depressive episode) and anxiety symptoms.
59 According to Dr Schineanu, the applicant was not at the time of the interview suffering from any psychiatric condition which by itself impaired his understanding, or his reasoning or his ability to make rational decisions or to know and tell the truth. I do not understand this to be in dispute.
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60 Based on a history of symptoms given by the applicant in a 1-1/2 hour consultation in March 2003, Dr Skerritt concluded that the applicant was suffering from a generalised anxiety disorder and major depressive episode in the twelve months preceding the applicant's admission to Graylands. However, he accepted that the applicant may not have satisfied all of the DSM-IV-TR criteria for these diagnoses.
61 Dr Skerritt had seen and read the transcript of the video interview. He concluded that as a result of the applicant's psychiatric condition at the time of interview, he was seriously vulnerable to the "analogue" of brain washing.
62 Dr Skerritt referred to Chapter 9 of William Sargent's book "Battle for the Mind - A Physiology of Conversion and Brain-Washing". The author's thesis is that the basic principles of brainwashing and mind control used by oppressive regimes and some religions, usually over long periods of physical or mental deprivation or manipulation, can be applied in a typical police interview scenario. The basic principles include raising anxiety levels and prolonging tension to bring about temporary disturbance of normal judgment (resulting in the making of the incriminatory statements) or greatly increased suggestibility (which might allow a person to be wrongly persuaded as to guilt). Suggestibility is a person's readiness to do or accept things that they would not otherwise do or accept. Suggestibility may relate both to the decision to participate or to continue to participate in an interview as well as the truthfulness of the admissions. The psychiatrists agreed that all human beings, whether suffering from a psychiatric disorder or not, are vulnerable to suggestion in differing degrees.
63 According to Dr Skerritt, having regard to the applicant's background anxiety state, the length of the interview, the steadily increasing tension, the increase in the applicant's anxiety as the interview progressed and the relief in that tension with the break at the end of the second tape the applicant went into a position of increased suggestibility and in these circumstances there was a very serious possibility that the applicant made a confession in the terms suggested to him.
64 Although Dr Skerritt referred to the vagueness of the admissions to support his view, he accepted that a person could commit a serious offence in such a state of heightened emotional arousal that their memory of it could be patchy. He also accepted that there are large variations in people's openness or vulnerability to suggestion, even among those suffering from an anxiety illness.
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65 It was pointed out to Dr Skerritt that a number of details of the admissions were not expressly or impliedly suggested to the applicant by the police. Into that category falls the nature and description of the weapon and stealing his father's wallet and $30, all of which information was supplied in response to non-leading questions. Dr Skerritt did not regard this as inconsistent with his opinion on suggestibility because the applicant was persuaded to the belief that he had killed his father, the applicant could have filled the details in himself. According to Dr Skerritt, a change of belief in response to pressure could be an explanation for the admissions made whilst in Graylands Hospital and the new beliefs took some time to fade until they were relinquished.
66 In Dr Schineanu's view, whether the person participated in an interview as a result of increased suggestibility or pressure or whether a person had made a false confession because of high suggestibility and pressure are not matters within the expertise of psychiatrists. Even so he responded to Dr Skerritt's opinion. He did not regard the vagueness of the confession as being an indicator of high suggestibility because people who commit serious crimes can be in such an emotional state at the time that their recollection of events is patchy or non-existent (recall amnesia and registration amnesia respectively). Dr Schineanu also referred to factors which to him contraindicated a false confession. Firstly, not all the details of the confession were mentioned to the applicant such as the mallet and the money from the wallet. Secondly, even if the applicant was in a suggestible frame of mind, it was unlikely he would have a false memory because he was aware in his own mind that he was accepting he had committed an horrific crime. Anxiety predisposes people to be vulnerable to suggestion but the applicant would have to be suffering very significant psychological distress to accept that he had committed a very serious crime.
67 It is clear from the authorities that the question of voluntariness goes beyond issues involving psychiatric expertise. Further, I am inclined to the view that the question whether a person has made a false confession because of suggestibility is also outside the expertise of psychiatrists. However, it is unnecessary to rule on that matter. The evidence in this case goes no further than identification of factors affecting the applicant's openness to suggestibility and the risks of making a false confession.
Findings
68 There is a conflict in the evidence of the applicant and the police officers as to what, if anything, was said by DS Lee to the applicant off
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- camera. This is not a situation where I am persuaded to accept all of the evidence of a witness or witnesses. There are unsatisfactory aspects in each. In order to resolve the conflicts I have directed my attention primarily to the objective probabilities.
69 There is material that corroborates the applicant's evidence that DS Lee had spoken to the applicant off-camera about the strength of the evidence against him and that it would be in his best interests to confess. In particular, in the inadmissible exchange in the second half of tape two after asserting that they would find his father's blood on the applicant's work shirt, DS Lee said:
"You need to get this over and sorted. All right. That's what I said to you from this morning. There are lots and lots and lots of things we need to put to you. You need to come to terms with it."
70 DS Lee's message to the applicant in this statement is in substance to admit and come to terms with his guilt. He did not convey this message to the applicant in any earlier part of the taped interview. Further, the theme of the applicant in some way freeing himself by confessing his guilt is reflected later in the inadmissible exchange when DS Lee tells him "It's not going to go away ... It needs to be resolved ... your father is dead; not mine, not his, yours". After repeatedly asserting to the applicant that he had killed his father, DS Lee said "and you've got to deal with it" and in response to the applicant's final request for the interview to stop said "Well it's not going to stop, it's not going to go away. All right. Your father is dead."
71 DS Lee said in evidence that as a result of the applicant's videotaped answers his status changed at some point in the interview from that of suspect to, in effect, an accused. It is difficult to identify anything the applicant said before making his admissions that materially altered the strength of the circumstantial case. However, it is unnecessary to resolve this issue. Based on the evidence the police had collected before the interview, in particular what was believed to be the deceased's blood in the applicant's car, I am satisfied that DS Lee believed prior to the commencement of the interview that the applicant had killed his father.
72 The applicant's presentation and demeanour on video is not inconsistent with the applicant's evidence as to what DS Lee said off camera and his distressed reaction to it. He had been collected from his home at around 7 am. He was left in the video room for about 45 minutes
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- before the interview commenced. After the completion of introductory matters the applicant said he needed his wife and family. The applicant's demeanour remained fairly constant during the exploratory questioning even when, during that questioning, he was told that he was suspected of killing his father. That was clearly not news to him. The applicant's level of distress and agitation rose significantly after the commencement of DS Lee's interrogation between the second and third break and continued to rise thereafter.
73 Having regard to these matters, in particular DS Lee's statement as to what he had said earlier, I am satisfied that before the applicant made any admissions, DS Lee said to him off camera words to the effect that they knew he had committed the crime, they had his father's blood in his car and that he would be dead in two weeks and would hang himself. I understand the last statement in context to mean that would occur if he did not admit to and deal with what he had done to his father. That is in the nature of pressure rather than a threat.
74 I am not persuaded that DS Lee made the statements during any break where immediately after it the applicant was directly asked an open question as to whether they had discussed the case. In particular, I regard it as unlikely that DS Lee would be so unsubtle and risk taking as to direct the applicant to lie on camera. However, at the commencement of the video the applicant was asked leading questions about their discussions and the question as to whether they had discussed the case was not asked after the third break at the commencement of tape two. I am satisfied that DS Lee made the statements before, and during the third break in, the interview.
75 I come now to the question of what was said in the long break. Having regard to the nature and extent of the misconduct during the inadmissible exchange the subject of the second tape (which immediately preceded the long break) I do not accept the police officers' evidence that the applicant took the initiative and volunteered the admissions after being advised that he was going to be charged or DS Lee's evidence that it was not his intention at any time to interview the applicant off camera.
76 DS Lee's conduct at this stage went well beyond what was legitimate. He aggressively cross-examined the applicant. He repeatedly expressed incredulity and disbelief at the applicant's responses and denials. He persisted with his aggressive cross-examination notwithstanding that the applicant clearly demonstrated his wish to remain silent by his actions in refusing to answer DS Lee's questions. DS Lee
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- then pressured and cajoled the applicant into speaking thereafter. DS Lee's explanation for continuing during this period was that the applicant had not unequivocally requested him to stop. Counsel for the State submitted that the applicant's silence was referable only to the specific question asked of him. These explanations are disingenuous and I reject them.
77 It is appropriate to characterise the conduct of this part of the interview as having an objective tendency to extort admissions or to overcome mental resistance to the making of admissions. In my view, it was intended to have that effect. DS Lee by his conduct continued to build pressure and tension over a significant period after the applicant had indicated that he wanted to stop and, in context, DS Lee clearly intended from his invitation to the applicant to attempt to continue the interview off camera. I do not accept that from the termination of the taped interview the police officers thereafter became the passive recipients of volunteered information.
78 I turn now to the applicant's mental and psychiatric state at the time of the interviews. Both experts agree that the applicant was suffering from anxiety and depression up to and including the time of the interview. They disagree as to the extent of his symptoms. For the purposes of this application, nothing turns on whether the applicant was suffering from a major depressive episode or an adjustment disorder with depressed mood and anxiety symptoms. Having said that, I prefer the evidence of Dr Schineanu on this issue because he reviewed the applicant on a number of occasions over a longer period and had independent input as to the absence of clinical manifestations of relevant symptoms. Dr Skerritt's assessment was based on his review of the records and a history provided by the applicant at one consultation some six months after the police interview. Both experts agreed that the applicant's mental state would increase his vulnerability to pressure and to suggestion. I accept that. It is also clear from viewing the second videotape that the applicant's distress and anxiety levels were very high by the termination of the interview the subject of the second tape.
79 At the end of the second interview the applicant confirmed that he had not been threatened or induced and had no complaints about the police conduct. Having regard solely to the transcribed exchange, the applicant had, on an objective basis, every right to complain of the police officers' conduct. The fact that he did not may reflect his lack of understanding of his rights or his weakened mental state or a combination of both. I do not regard his answers as determinative.
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80 I am satisfied on the balance of probabilities that DS Lee continued to pressure the applicant in the long break. I accept the applicant's evidence that DS Lee said words to the applicant to the effect that he should just come in and admit that he did it, they had all the evidence including blood in the car and own up and you can go home and see your family. I am also satisfied that thereafter the applicant made the admissions referred to by the police officers in their evidence. Their evidence is corroborated by the evidence of an officer who, as a result of what was said in the long break, commenced a search for the missing items referred to by the applicant as well as the applicant's acknowledgement at the commencement of the third tape that he had made admissions in the long break. The State contends the statement that the police would let the applicant go home and see his family is so patently ludicrous as to be incapable of constituting an inducement. I do not accept that submission. Having regard to the applicant's repeatedly denied requests to see his wife and his obviously weakened mental state, the statement is capable of amounting to and was an inducement.
81 I turn now to the question whether the admissions to the police were made voluntarily. They were made in the long break and, after the administration of another caution, repeated in the interview recorded in the third tape. That interview commenced 1 hour and 39 minutes after the earlier recorded interview had been terminated.
82 I start with the admissions made in the long break. The nature and extent of the police misconduct is central to the question of causation in relation to both voluntariness (was the applicant's will overborne) and unfairness (the effect of the conduct on reliability or whether, but for the misconduct, the admissions might not have been made). For convenience, I repeat my findings concerning the police misconduct. DS Lee's interrogation in the second half of the second tape was oppressive. It combined aggressive cross-examination, repeated expressions of incredulity and disbelief at the applicant's responses and repeated assertions of the applicant's guilt. Further, he pressured and cajoled the applicant into speaking after the applicant had demonstrated his wish to remain silent. In summary, this part of the interview had, and was intended to have, the objective tendency to extort admissions or to overcome resistance to making admissions.
83 The police officers remained with the applicant throughout the long break. As I have found, DS Lee maintained the pressure and added an inducement. Following the police misconduct the applicant made admissions.
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84 I have no hesitation in concluding that the police misconduct was capable of and, having regard to the applicant's weakened mental state, had the effect of overbearing the applicant's will so that the admissions in the long break were not voluntarily made.
85 The making of those admissions is likely to have taken a significant part of the long break. I infer the admissions commenced shortly after the termination of the interview recorded in the second tape. The applicant was calmer, although more emotional, in the inteview recorded in tape three. The aggression and tension of the earlier interview was absent. The applicant was twice cautioned that he did not have to answer questions. The State says that, by virtue of the time lapse between the end of the police misconduct and the commencement of this interview as well as the demeanour of the applicant during it, the admissions were voluntarily made.
86 There may be merit in such a submission if the only issue arising from the misconduct was whether it had caused a temporary derangement of judgment which ceased on or shortly after the cessation of that conduct. But that is not this case. Different considerations apply to different components of the improper conduct. Take for example the increase in pressure on the applicant as a result of the inaccurate assertions repeatedly made by DS Lee that there was forensic evidence linking the applicant to the crime. The assertion that his father's blood was located in the applicant's car is particularly damning. The State says this did not increase the pressure on the applicant because he said in evidence he did not believe it. The cross-examination was as follows:
"Do you recall the police putting to you that your father's blood was in your car?---Yeah. They told me that at the house, first thing in the morning.
Yes. What was your reaction to - - - ?--- It was in the car.
What was your reaction to that?---I told them I didn't believe them. I told them what I thought of it."
87 These answers relate to the period before he was subjected to the considerable pressure in the interview recorded in the second half of the second tape. However, I am not persuaded that the answers apply after being bombarded with the circumstances relied on by the police to substantiate a repeated assertion of his guilt. DS Lee told the applicant in this part of the interview that he should answer the police questions because on the evidence they had, he would be charged. A person having
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- the benefit of a healthy mind and body might well start to question the correctness of their belief when presented with repeated unqualified aggressive assertions that forensic evidence connected them to a crime. As none of the inaccurate statements put to the applicant were withdrawn at anytime before the admissions were made they constitute continuing (improper) pressure. The inducement is in a different category. For example, it would have been clear to the applicant before his Graylands Hospital admission that the inducement was a ruse.
88 However, there is a wider aspect to the police misconduct in this case. The totality of the conduct complained of has the objective tendency of increasing a vulnerable person's openness to suggestibility. If the conduct has the capacity to cause a person in the applicant's situation to come to believe for a time that he is or may be guilty of a crime and there is a real risk that a false confession was made, then the removal of the pressure or the cessation of the misconduct is not significant.
89 I am satisfied and I find that the applicant's anxiety illness made him more vulnerable to suggestion. I also find that the nature of the police misconduct was such as to significantly increase the applicant's openness to suggestibility. That he was suggestible to some degree is demonstrated by his answers to the "process" questions at the end of the second tape. There is no independent evidence to corrorborate the truth of the admissions made by the applicant. The wallet and mallet have not been located. Nor has the clothing. The onus is on the State to prove that the effect of the police misconduct had been removed by the time the applicant made the admissions in the interview the subject of the third tape and in Graylands. It has not discharged that onus. I am satisfied on the balance of probabilities that the admissions were not voluntarily made.
90 I acknowledge that generally the truth of an admission is not relevant to voluntariness. An involuntary confession is deemed to be unreliable. However, this is one of those rare cases where the State could have rebutted the risk of a false admission by proving on the balance of probabilities that details of the admissions known only to the applicant were independently corroborated: see Frijaf v R (1982) WAR 128 at 148; cf Wong Kam-Ming v R (1979) 2 WLR 81. Further, reliability is relevant to the alternative ground of unfairness.
91 In my assessment, doubt is cast on the reliability of the admissions having regard to the nature and extent of the police misconduct, the applicant's background vulnerability, his heightened vulnerability as a result of the conduct of the interview, the fact that the strength of the
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- circumstantial case presented to the applicant by the police was undermined by a material misrepresentation, the vague and patchy content of the admissions none of which were independently confirmed (by the location of the mallet or the wallet or the clothes) and the uneasy fit in some aspects of the superimposition of the admission on his original version of events which he continued to maintain. I am not required by the authorities and decline to rule on the issue of whether the applicant made false admissions. For these reasons I uphold the applicant's application to exclude any admissions made by him after 12.15 pm on 19 September 2002 to police and whilst in Graylands Hospital in the period 20 September to 1 November 2002.
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Confessional Evidence
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Voir Dire
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Voluntariness of Statements
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Unfairness Discretion
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