R v Murcott; R v Johnston - [2005] WASC 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- MURCOTT; R v JOHNSTON [2005] WASC 30

CORAM: OWEN J

HEARD: 9 NOVEMBER 2004 (AT BROOME) & 28 FEBRUARY 2005 (AT PERTH)

DELIVERED : 28 FEBRUARY 2005

PUBLISHED : 4 MARCH 2005

FILE NO/S: INS 207 of 2003

BETWEEN: THE QUEEN
Applicant
AND
ANNETTE JOY MURCOTT
Respondent

FILE NO/S :INS 209 of 2003

BETWEEN :THE QUEEN
Applicant
AND
ROBERT EDWARD JOHNSTON
Respondent

Catchwords:

Criminal law - Admissions and confessions - Videotaping of interviews - Accused in custody - Signed, written statement challenged - Previous interviews video recorded - Dispute as to whether accused consented to interview not being recorded - State failing to satisfy burden of proof that accused consented and therefore a reasonable excuse not to use video recorder

Legislation:

Criminal Code, s 570D

Result:

Evidence of admissions ruled inadmissible

Category: A

Representation:

INS 207 of 2003

Counsel:

Applicant: Ms C Barbagallo
Respondent: Mr M I Crispe

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Max Crispe

INS 209 of 2003

Counsel:

Applicant: Ms C Barbagallo
Respondent: Mr L M Levy

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: L Levy & Associates

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

Kelly v The Queen (2004) 78 ALJR 538
Nicholls and Coates v The Queen [2005] HCA 1
Stapleton v The Queen (2002) 136 A Crim R 65

Case(s) also cited:

Nil

OWEN J: These reasons relate to a voire dire in which the accused man, Robert Edward Johnston, challenged the admissibility of certain confessional statements alleged to have been made by him in the course of an interview with investigating police officers on 30 May 2003.

Background

Johnston and Annette Murcott are jointly charged on indictment that on 2 March 2003 at Port Hedland they wilfully murdered Bevan Anderson. The deceased and Murcott were then in a de facto relationship. The relationship was one in which alcohol and domestic violence seems to have played a large part. Johnston was a friend or acquaintance of Murcott and Anderson. The nature of the relationship between Johnston and Murcott is in dispute but it is not relevant for present purposes.
On the afternoon and evening of 2 March 2003 Murcott and Anderson were at Johnston's home and a large amount of alcohol was consumed. Murcott and Anderson were arguing. Anderson left and it appears that Murcott feared that when she went home he would beat her. What happened as between Murcott and Johnston at Johnston's home is in dispute. The prosecution case is that Murcott asked Johnston to accompany her home and to help her to kill Anderson. Both Johnston and Murcott deny this. In video records of interview (the admissibility of which is not challenged) Johnston says he followed Murcott home and hit Johnston several times with a baseball bat and then stabbed him in the neck with a knife. Johnston says that Murcott was present at the time of the attack. In a video record of interview Murcott denied that she was at the scene at the relevant time.
At some time after 1.00 am on 3 March 2003 the deceased's body was placed in the back of Johnston's utility and he drove away, apparently to bury the body in the bush. He was stopped by police and the body was discovered. Johnston was taken to the South Hedland Lock‑Up. The police officer in charge of the investigation was Detective Sergeant Standish. The corroborating officer was Detective Constable Leach. Shortly after 1.00 pm a video record of interview commenced. In essence, Johnston said he had gone into the house and Anderson had been "ranting and raving" and told him to get out. Anderson then punched him in the throat and he (Johnston) picked up a baseball bat and hit Anderson several times. In answer to a direct question he denied that Murcott had asked him to kill Anderson. Johnston also accompanied the police to his home and to the house at which the deceased died where he described to the investigating officers what had happened and where. These attendances were also recorded on video.
On 4 March 2003 Johnston spoke to Leach. Leach prepared (in typed form) a statement that effectively covered all of the matters in the video record of interview. Johnston signed the statement and Leach witnessed it. On the same day (4 March 2003) Johnston indicated to Standish that he had not told him the truth the previous day and agreed to participate in a further video record of interview. In it (again in brief summary) he said that when he went into the house Anderson had been asleep on the floor. As he (Johnston) had been stepping over him Anderson had started to wake up and to growl. Johnston then picked up the baseball bat and hit Anderson several times. As Anderson had been trying to get up Johnston stabbed him in the neck with a knife. Once again Johnston answered in the negative when it was put to him that Murcott had asked him to do it.
Johnston was charged with intentionally causing grievous bodily harm and was kept in custody. Murcott was charged with being an accessory after the fact to Johnston's offence but was released on bail. I think it is fair to say that the police officers believed that Murcott had played a more significant part in the events than she was admitting. They gathered some evidence from third parties from which it might be inferred that the relationship between Murcott and Johnston was something other than they admitted and that Johnston may have been protecting the woman.
The post mortem report is dated 6 March 2003. There is no evidence as to when it first became available to the police or when they gave it detailed consideration. In any event, largely as a result of the post mortem report the police decided to upgrade the charge against Johnston to one of wilful murder. On 27 May 2003 a complaint was sworn out against Johnston alleging wilful murder. At that stage they (the police officers) felt they had insufficient evidence to charge Murcott with the same offence.
At some point prior to 30 May 2003 members of Johnston's family and others had given information to police and urged them to speak to Johnston again. He was then being held at Roebourne Prison. On 30 May 2003 Standish and Leach visited Johnston at the prison. Exactly how Standish described the reasons for the visit to Johnston is in dispute. What is not in dispute is that a long conversation (lasting about three hours) took place during which Standish wrote out what purports to be a statement by Johnston and Johnston signed it. In it Johnston made some admissions that, on one view of it, would be relevant to the issue of intent and may be seen as implicating Murcott. The conversation was not recorded on video. In the balance of these reasons I will refer to the handwritten statement dated 30 May 2003 as “the May statement”.
Standish and Leach left the Prison and travelled immediately to Karratha. That afternoon (30 May 2003) Murcott was arrested and charged with wilful murder.
An indictment was preferred charging Johnston and Murcott jointly with the wilful murder of Anderson. The trial was listed for the Broome sessions of this Court commencing on 8 November 2004. I was to be the trial judge. On 27 October 2004 Murcott was diagnosed with a serious medical condition requiring immediate and invasive treatment. An application was brought on her behalf to vacate the trial dates and on 29 October 2004 I made an order to that effect. Counsel for Johnston was given notice of Murcott's application.
During the course of the hearing counsel for Johnston made an oral application for a severance of the indictment and for the trial to proceed on 8 November 2004 with Johnston as the sole defendant. For reasons which I delivered orally that day I declined to make the order on the basis that the application was premature. I indicated that there should be a status conference, preferably before the end of 2004, at which time there might be better evidence as to when Murcott could stand trial. In the light of that additional evidence Johnston could then consider whether to renew the application for severance of the indictment and for a separate trial.
In the course of preparation for the hearing that was held on 19 October 2004 I had noticed the May statement on the brief. I asked counsel for Johnston about its status. It appears that earlier in 2004 counsel for Johnston contacted counsel within the office of the Director of Prosecutions and advised that objection would be taken to its admissibility. A date was set for a directions hearing to determine the matter. But the prosecutor indicated that the State did not intend to rely on the May statement and the date for the directions hearing was vacated. Since then the brief has been transferred to a new prosecutor who, it seems, has taken a different view as to the admissibility of the May statement. I hasten to say that I make no criticism of counsel or of the office of the Director in that respect.
I told counsel that I thought the admissibility of the May statement should be resolved promptly because (in addition to questions arising as to its use at trial) it could conceivably be relevant to any severance application that might be made. It was therefore decided to conduct a voire dire as part of the Broome sessions commencing 8 November 2004. That is what occurred. Unfortunately it was not possible to complete the voire dire in Broome because two relevant documents were not available. The matter was adjourned to be completed in Perth. That, too, is what occurred.
Since November 2004 Murcott has been released on bail to undergo medical treatment. There is no evidence as to when she will be fit to stand trial. No formal application has yet been made by Johnston to sever the indictment. There is, therefore, uncertainty as to when Johnston might be tried. Nonetheless, it remains important to complete the voire dire and resolve the questions surrounding the admissibility of the May statement.

The Voire Dire

No objection is taken to the admissibility of the video records of interview taken on 3 and 4 March 2003, or the typed written statement signed by Johnston on 4 March 2004 or to the videos taken on 3 March 2003 at Johnston's home and at the house at which the deceased had died. The objection relates solely to the hand written statement of 30 May 2003 at Roebourne Prison.
The voire dire involves an appeal to statutory proscriptions on the admissibility of confessional evidence and on the common law. As I see it, the matters that fall for decision are as follows:
1.Should admissions contained in the May statement be rejected as inadmissible because:
(a)the evidence of them is not a videotape recording of the admissions as required by Criminal Code s 570D(2)(a); and
(b)there is no reasonable excuse for there not being a recording on videotape of the admissions?
2.If the admissions are not inadmissible for the reasons set out in the first question, should they be rejected because they were not obtained voluntarily?
3.If the admissions are not inadmissible for the reasons set out in either of the first or second questions, should they be rejected in the exercise of the discretion to exclude otherwise admissible evidence on the ground of general unfairness?
I need to make a few initial comments before dealing with the merits of the application. To do so I will have to describe briefly the form and content of the May statement. It is 12 pages in length, confined to the right hand half of the page and is in the handwriting of Standish. The writing is in paragraphs that are not numbered and which are, in the main, three or four lines in length and with a spare line between each. The signatures of Standish and Johnston and the date appear at the foot of each page.
The statement commences with some material about the relationship between Johnston, Murcott and the deceased and about Johnston's observations. It then describes an incident that occurred on the preceding Friday but with which I need not deal. The pages numbered 4 to 11 then deal with the events of 2 March 2003. The final page is taken up by the usual declaration to be found in a deposition and a note in the handwriting of Johnston saying:
"I have made this statement of my own free will, without threat or promises or inducements."
Within pages 4 to 11 there are five paragraphs to which Johnston objects as "not being what happened" and as not reflecting what he said to Standish and Leach that day. They are as follows:
1."Around 9.00 to 9.30 pm Bevan and Annette started having an argument. Annette wanted to take [her child] home as he had school next day. Bevan wanted to stay and continue drinking."
2."Annette continued to ask Bevan to go home but Bevan told her to shut up and said he wasn't going anywhere."
3."I can't remember the exact conversation but Annette wanted me to go with her to her house to help her kill Bevan."
4."Annette said 'Now's the time, I want you to kill him'."
5."I think Annette handed me the baseball bat."
The reasons why Johnston takes issue with the content of the paragraphs numbered 1 and 2 are not particularly relevant. The important fact, for the purposes of this application, is that he contends he did not say the last sentence of 1 and the last phrase of 2 to the police officers. In relation to the paragraph numbered 3, he acknowledges having said "I can't remember the exact conversation" but denies that he said what appears in the remainder of the paragraph. He denies having said any of the things set out in the paragraphs numbered 4 and 5.
Counsel for Johnston initially submitted that if it came to a rejection in the exercise of discretion I need only exclude the paragraphs numbered 3 and 4 as the rest of the statement effectively repeated what he had already said in interviews to which objection had not been taken. But this was before Johnston gave evidence. I think I should regard the application for rejection in the exercise of discretion (if it comes to that) as covering the five numbered paragraphs.
The out of court statement made by Johnston in the paragraphs numbered 3, 4 and 5 would not be evidence against Murcott. But they have an obvious relevance to the case against Johnston.
Finally, while s 570D of the Code speaks of "admissions" rather than "statements", in the context of this case I think it would be difficult to disentangle from the May statement things that were "admissions" and things that were not. It seems to me that for all practical purposes the entire May statement is either admissible or inadmissible under s 570D.

Events Leading up to the Prison Visit

Standish said he had two main reasons for attending the Roebourne Prison on 30 May 2003. One was out of courtesy to Johnston to advise him of the post mortem results and the fact that the charges were to be upgraded. The other was that there had been "influence from [Johnston's] family, friends and associates" with whom the police officers had spoken. For reasons that will become apparent, I think this second reason is significant.
In cross‑examination this exchange occurred:
"… you tell his Honour you go out to Roebourne Regional Prison for two reasons. One is as a courtesy to tell him of the post mortem results. Correct? --- Yes.
And also because you … were of the view that there was a possibility that Johnston might want to speak to you further? --- Yes.
Right, and your view of that had been influenced by what other people had said to you? --- Yes."
At the conclusion of the video record of interview on 4 March 2003 Johnston had said this to Standish: "I'm prepared to speak to you at any time you need to".
Standish testified that before 30 May 2003 Murcott had been charged only as an accessory after the fact. He said that "she had more involvement than she expressed to us" but that there was insufficient evidence to charge her with wilful murder. Johnson had always denied that he had been in an intimate relationship with Murcott. Other people had given information to Standish inferring that the relationship was closer than Johnston had admitted. Standish had formed the view that Johnston was very fond of Murcott and that he was trying to protect her.
As I have already said, the complaint proffering the charge of wilful murder against Johnston was sworn out on 27 May 2003. It must follow that prior to the 30 May 2003 Standish felt there was evidence going to Johnston's intent. He said in evidence he believed he had already established intention on the second video and didn’t need the confessional evidence in the 30 May 2003 statement against Johnston. But Standish agreed that he did need that evidence against Murcott.
Leach also agreed that prior to going to the Prison on 30 May 2003 he was aware there was a possibility that Johnston would want to speak to them. He said in evidence: "I had a belief that due to previous interviews that Johnston had always spoken to us and that it was likely he would speak to us again". Leach went on to say that he did not know what Johnston might say and so did not know whether he would participate in an interview or provide a statement. He also said "there was no intention in going to the prison that we were going to formally interview him". But he did agree that there was "fair probability" that Johnston would speak to them.
Both Standish and Leach gave evidence that they were aware, before the visit, that there were no videotaping facilities at the Prison but that they could have taken a hand held video recorder with them from the police station. Standish also said he was aware there were video recording facilities at Roebourne police station, which is about 10 kms from the Prison and that arrangements could have been made (either on that day or another) to take Johnston from the Prison to the police station for that purpose. Leach said that he had attended the Prison on a number of occasions and there were no facilities there so "in general if you were going to video someone there you would take a machine from your office".
I make two particular findings from this material. Standish and Leach went to Roebourne Regional Prison on 30 May 2003 knowing it was at least possible and, I infer, in fact likely that Johnston would speak to them. Secondly, despite the absence of video recording facilities at the Prison there were alternative means that were reasonably available. The significance of these findings will become apparent shortly.

The 30 May 2003 Visit

Standish gave evidence about the visit of 30 May 2003. Standish, Leach and Johnston sat down at a table in the Prison visit area. They exchanged pleasantries and discussed how he was getting on in prison. They then discussed the post mortem results and the fact that he would be charged with wilful murder. Standish then told Johnston what his (Johnston's) sister had been telling the police and asked Johnston whether there was anything further about the incident that he wanted to talk about. To this question Johnston answered "yes". Standish then said in evidence:
" … I said: 'Do you want to do that on video?' and he said, 'No, I don't want to go on video again'. So all of a sudden I'm thinking, 'He wants to talk to me. He wants to tell us more information, but for me to use that admissibly, its either got to be … videotaped, primarily, then I thought, 'Well, how else can we do it?' My only other thought or option was for a handwritten statement, so I took a handwritten statement."
During the evidence I asked Standish whether, after Johnston had said he didn't want to go on video, he had said anything else to Johnston about video. That prompted this answer:
"I asked him why and … he mentioned something to do with legal advice or something along those lines, but I can’t remember. But he did express to me that he didn't want to go on video again but he wanted to talk to me and tell me further about the incident, so I then introduced the idea of a handwritten statement and he agreed."

Standish made a note in his case book to the effect that Johnston had declined to go on video. But he did not record that the reason Johnston gave was because of "legal advice".
Leach also testified that Johnston said he did not want to participate in a video. But this exchange occurred during his evidence in chief:
"Did he give a reason that you can remember? --- No, I don't think there was a particular reason to mind, a reason why."
Two other things have to be borne in mind. First, Johnston participated in the video record of interview on 3 and 4 March 2003 after receiving legal advice. Secondly, Standish and Leach were both aware of the Commissioner’s Standing orders about videotaping interviews and about the importance generally of taking that course.
Johnston's evidence can be summarised as follows. He had not been expecting a visitor but was taken into the visitors' room. He saw Standish and Leach and they sat down at a table. After exchanging pleasantries the police officers told him they had been speaking to his sister. They then told him they were going to run through the events of the previous interviews to make sure they were correct. The police asked many questions and he answered them. They went over his relationship with Murcott and the police suggestions that was a deeper relationship than Johnston had previously conceded. Standish told him they had recordings of some of Murcott's telephone calls and what had been said in certain parts of them.
Johnston denied that there was any conversation about going on video. He denied at any stage having said he did not want to go on video. He also denied there was any conversation about him receiving legal advice about giving "a statement". He thought they were just clarifying everything he had said to make sure it was correct. He said he signed the piece of paper "because I was asked to". He thought that he, Standish and Leach were friends and he trusted them. He did not understand he was signing "a statement" and he did not read it before he signed it. This exchange occurred during his evidence in chief:
"On 30 May if the detectives had asked you to go on video would you have? --- Yes."
There is one other aspect of the evidence that I should record. I had this exchange with Johnston:
"Let me put this to you: is it --- just possible that something might have been said about video but that you didn't hear it or that you didn’t understand the suggestion was being made to you? --- Yes, sir."
Standish denied having mentioned to Johnston the telephone intercepts. But he did tell Johnston that he (Standish) had information that Murcott had been intimate with other men. It was put to him that he was using emotional tactics to get Johnston to speak to him and that it was designed to get Johnston to start speaking to him in order to implicate Murcott. While he disavowed the phrase "emotional tactics" he said: "Certainly I wanted Johnston to understand fully on who she was". While it is perhaps not particularly relevant to questions arising under s 570D, it seems to me that the decision of the police officers to make the prison visit had as much (if not more) to do with Murcott than it did with Johnston.

The Events of 23 June 2003

On 23 June 2003 Johnston attended the South Hedland court. As he was entering the holding area he saw Standish and they exchanged greetings. The critical incident occurred at the end of the day, after the court proceedings.
Johnston says that he was waiting in the holding area to be "loaded into the transport vehicle" when Standish called him aside and asked him to sign a typed copy of what he had signed on 30 May 2003. He said he started to sign and then read about two thirds of it and found it "was not correct … it was completely wrong". He said he told Standish it was incorrect and he was not going to sign it. He objected to particular paragraphs and Standish said he was going to remove them and reprint it. Standish took it away but by the time he returned the prisoners were being loaded onto the truck and Johnston did not see a revised version.
Standish's evidence is that he gave the typed statement to Johnston and asked him to read and sign it. Johnston started to read it and "after about page 2" he became angry and objected to it saying that "we were trying to set him up or words to that effect and he refused to sign it". Standish said there was pressure to get the prisoners on the transport and he (Standish) "basically left it like that".
Johnston said that he was not given a copy of the May statement and the first time he saw the contents was on 23 June 2003 in the typed version. I do not think the State disputes that Johnston was not given a copy of the May statement although it does contend that he was given an opportunity to read it before he signed it and that he did so.

Some Aspects of the Law

The law relating to confessional statements is well settled but time and time again problems concerning them come before the courts. Perhaps that illustrates what a critical area it is for the administration of the criminal justice system.
The starting point is s 570D of the Criminal Code: Section 570D(2)(a) provides that on a trial of a person for a serious offence evidence of an admission is not admissible unless there is a videotape recording of the admission. But there are two exceptions to this prohibition, also contained in s 570D(2):
"(b)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c)the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence."
The expression "reasonable excuse" used in s 570(2)(b) is the subject of amplification in s 570(4):
"For the purposes of subsection (2), 'reasonable excuse' includes the following ‑
(a)The admission was made when it was not practicable to videotape it.
(b)Equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person.
(c)The accused person did not consent to the interview being videotaped.
(d)The equipment used to videotape the interview malfunctioned."
It is not contended by the State that the May statement should be admitted under s 570(2)(c). So the question is whether there is a "reasonable excuse" for the admissions not being in the form of a videotape recording. In that respect the State does not contend that either s 570D(4)(b) or (d) are applicable. It comes down, therefore, to a question whether it was not practicable to videotape the interview or that Johnston consented to the interview not being recorded by those means.
The presence of video recording facilities at Roebourne police station and the capacity for the officers to have taken a hand held recorder with them, especially in light of the finding that they appreciated there was a possibility, or even a likelihood, of Johnston speaking to them, dispose of any argument that might have been raised under s 570D(4)(a). That leaves the question whether Johnston declined to consent to the interview being recorded on video.
Section 570D(2)(b), in its terms, requires that the State establish on the balance of probabilities that there was a reasonable excuse not to record the interview. It should also be borne in mind that the section is mandatory in its terms. It is a question of fact whether there was a reasonable excuse. There is no discretionary element involved in the decision, although (as with so many things that rely on a test of "reasonableness") questions of judgment are involved.
The legislative history and intent of s 570D have been well canvassed in the authorities: see, for example, Stapleton v The Queen (2002) 136 A Crim R 65. The most recent and authoritative pronouncements come in the decisions of the High Court in Kelly v The Queen (2004) 78 ALJR 538 and Nicholls and Coates v The Queen [2005] HCA 1.
In Kelly McHugh J commented that the mischief at which legislation such as s 570D is directed is the problem of admissions to the police and the perceived problem of the police "verbal" which his Honour described, at 548 in these terms:
"... the possibility of police fabrication and the ease with which experienced police officers can effectuate it, the frequent lack of reliable corroboration of the making of the statement, and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence."
McHugh J went on to examine the remedial purposes of the legislation when he said, at 558:
"All Australian legislatures have enacted legislation that seeks to protect the rights of accused persons during a period when their rights are vulnerable by reason of the mistaken recollection or lies of police officers. The enactments of the various legislatures are broadly similar in principle although they differ in detail. In general, they identify the period of vulnerability as commencing with the time when the facts raise a suspicion of the accused's guilt. In most jurisdictions, the period is thereafter open-ended. The enactments recognise that miscarriages of justice may occur when there is no mechanical record confirming an allegation by police officers that the accused has confessed to a crime or made a damaging admission after he or she was or ought reasonably to have been seen as a suspect. The evident policy of the enactments is that it is against the interests of justice to admit evidence of such confessions or admissions unless there is a mechanical record of such confession or admission or an acknowledgment of it, or in some jurisdictions that exceptional circumstances justify the admission of the evidence."
It must be said that McHugh J, while agreeing in the disposition of the appeal in Kelly, took a different view to the majority on some aspects of the interpretation of the legislation. So too did Kirby J. It also concerned the Tasmanian legislation, which is in slightly different terms to s 570D. But the majority in Kelly, at 547 ‑ 548, also identified the "police verbals" problem as the mischief to which the legislation was directed.
Then came Nicholls and Coates. It did concern the Western Australian legislation. McHugh and Kirby JJ, at [98] to [109] and [212] to [220] effectively reiterated and confirmed the views they had expressed in Kelly. The views expressed by Gummow and Callinan JJ at [149] to [157] are in sympathy with those of McHugh and Kirby JJ. They too referred to the "clear" purpose of the section which ought not to be circumvented. They went on to say (in essence) that "reasonable excuse" ought to be given real content and that it ought not to mask things that might be a "charter for evasion of the section and the thwarting of its purpose.”
Kellyand Nicholls and Coates involved different fact situations to that with which I am confronted. Accordingly, I rely on those decisions for their exposition of matters of principle rather than as examples of a "reasonable excuse" that would dispose of this application.

Was There a Reasonable Excuse

The State has failed to persuade me on the balance of probabilities that there was a reasonable excuse for not recording the admissions on video. In particular I have not been persuaded that Johnston did not consent to the interview being videotaped. By "consent" I mean a voluntary and fully informed agreement freely given to the course of conduct that is now impugned. There are several reasons why I have come to this conclusion. All of them involve, to a greater or lesser degree, Standish's knowledge of the importance of the video recording of evidence. I will not repeat it each time.
First, the evidence of Standish about Johnston's attitude was not particularly detailed. It really amounts to no more than a question to Johnston whether he wanted to talk on video, a negative response, a question asking why he didn't want to do so and a response "he mentioned something to do with legal advice or something along those lines, but I can't remember". Given the knowledge that Standish had as to the importance attached to a permanent video record on interview it is surprising that he left it at that. But that is the evidence. There is no evidence, for example, that Standish probed Johnston to ensure that he understood his rights or as to what may have been behind the decision. When I speak of "his rights" I am not referring to the right to speak or to remain silent but rather to the statutory right, conferred by s 570D, to have the admissions recorded (subject, of course, to the exceptions).
The cautions that Standish delivered at the commencement of the video records of interview on 3 and 4 March 2003 should be contrasted with all of this. They are lengthy and comprehensive. Standish went to great lengths to ensure that Johnston understood that he had a right to decline to participate in the interview. Standish gave evidence that he was careful to eliminate the possibility of later allegations of threats or intimidation. Whatever, Standish's motivation the cautions were models of propriety. His evidence at the voire dire was that he administered a caution at the outset of the interview process on 30 May 2003. While the running sheet includes a note that a caution was administered there is no detail as to its content. And nor is their evidence that it was anything other than a standard caution to alert the interviewee of his right to speak or to remain silent. There is no evidence that during the caution the subject of a right to have a video recording of the interview was raised.
I should explain what I meant when I referred to an absence of "probing" by the police officers when Johnston told them he did not want to go on video. Standish was not sure whether any reason had been given but he thinks something might have been said about legal advice. Leach could not recall any reason having been given. I will assume for the moment that Johnston did say he had legal advice not to go on video. I do not believe, in the circumstances of this case, that it would have been appropriate simply to take that answer at face value and move on. I accept that it would have been inappropriate for the police officers to have questioned Johnston about the content of the legal advice or the circumstances in which it was taken. But the fact remains that the legislation proceeds on the basis that interviews of this type will be recorded on video. It is implicit in the section that this is far and away the most desirable option. That being so I believe that it was incumbent on the police officers to ask such questions as might have been necessary to ascertain that Johnston understood not only that he had a right to utilise video technology but that it was the course the legislature deemed the most appropriate. If, armed with that knowledge, Johnston had confirmed the decision and consented to a form of interview different from that in which he had participated on 3 and 4 March 2003, then no objection could have been taken. In saying this I am not overlooking the fact that he had on one previous occasion signed a typed statement. But this did little more than repeat what had previously been recorded on video.
The other possibility on the evidence was that no reasons had been proffered by Johnston for refusing to go on video. If that was what happened then in my view the case for questioning of the decision is even stronger.
Secondly, there is no mention in the May statement (which Johnston signed) that he had been offered, and declined, an opportunity to have the interview recorded on video. In settling for another option it is surprising that Standish did not take the opportunity to include reference to Johnston's position on the video option in the handwritten statement.
Thirdly, there is no evidence that Standish made a written note in the running sheet that the reason Johnston proffered for not going on video was that he had taken legal advice. Again, I would have thought this would occur to the police officers as an important matter. It is particularly so as it represented something of a change of heart for Johnston. In March he had participated in four video records of interview after taking legal advice. The logic of him, at some time between March and May, having taken legal advice that he ought not to go on video when he was prepared to give and sign a written statement should have been explored. Standish's evidence on the proffering by Johnston of the reason for not going on video was not supported by Leach. I repeat what I said earlier. What should have been explored was whether Johnston had a real appreciation of his rights, not the content of the legal advice or the circumstances in which it was taken.
Fourthly, there is no evidence that the police officers took steps to have the admissions confirmed on video at a later time. All that occurred was the events of 23 June 2003. But that would not have cured the problem because the same questions would have arisen in relation to the typed version of the May statement.
Finally, I have the sworn evidence of Johnston that there was no conversation about video, he did not decline to go on video and he did not say he was declining to do so because of legal advice. While there were some aspects of Johnston's evidence that were not particularly appealing, in this respect what he said in evidence fitted with the objective history, particularly his previous willingness to be interviewed on video after legal advice and the fact that he recanted at what appears to have been the first available opportunity.
In the background to all of this is the ready availability of video facilities that could have been utilised.
I am not saying that the police officers have deliberately given false evidence. It could well be, for instance, as I put to Johnston that something was said about video but that he did not hear or understand it. If so, it could not amount to an informed consent. The State bears the burden of proof. In this case there was an absence of detailed inquiry and confirmatory notes or similar action commensurate with the importance of the issue. Assuming in favour of the State that the video option was raised, the evidence is still insufficient to satisfy me, on the balance of probabilities, that Johnston’s rejection of it was a fully informed consent of the type I have described. In my view that tells against the State's case for the admissibility of the evidence.
This is a prime example of the problem that s 570D is designed to avoid. Hard though these decisions sometimes are, the courts must not shy away from intervening where there has been a departure from the course of conduct that the legislation clearly and unequivocally specifies as best practice. It is true that the section is not absolute in its terms. There are exceptions to the general rule that admissions must be videotaped. The courts must not take an approach that is so strict as to rob the exceptions of real meaning. But neither must the courts sanction conduct that has a potential to compromise the "rights of accused persons during a period when their rights are vulnerable". As is so often the case, the fact finding undertaking on which the court embarks when exercising judgment as to what is reasonable involves the striking of a balance between competing factors.
In my view, in this case the balance lies in favour of the accused person and the admissions contained in the May statement being ruled inadmissible. As I have already said, for all practical purposes that probably means the entirety of the statement ought not to be admitted.

The Voluntariness of the Statement

Because of the conclusion to which I have come on the statutory ground I do not need to, and nor do I intend to, make findings on Johnston's complaint that he did not know he was signing a "confessional statement" and that it was, accordingly, not voluntary.

It might be thought odd that I could make a finding on whether the State had satisfied the burden of proof on the statutory issue without deciding issues of credibility and the like on the voluntariness issue. There are two answers to this. First, it is not unheard of for a trier of fact, in assessing whether "party A" has satisfied the burden of proof on a particular issue, to find sufficient in the evidence of "party B" to influence the conclusion on that issue without necessarily accepting what "party B" has said on every issue.
Secondly, the fundamental question for the voluntariness test is whether Johnston exercised a free choice to speak or remain silent. But the question in relation to the statutory issue is different. It is whether he made an informed decision to participate in the interview other than by video. Logically, a person could exercise a free choice to speak (rather than remain silent) and do so not on video but without giving an informed consent to an interview process other than video.
Similarly, I do not need to delve into questions concerning the possible exercise of discretion to reject otherwise admissible evidence.

Conclusion

The evidence of admissions contained in the 30 May 2003 handwritten statement is inadmissible under s 570D of the Criminal Code.