Ritchie v The Queen
[2005] WASCA 84
•11 MAY 2005
RITCHIE -v- THE QUEEN [2005] WASCA 84
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 84 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:135/2003 | 18 MARCH 2005 | |
| Coram: | WHEELER JA PULLIN JA MILLER AJA | 11/05/05 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARGARET ELIZABETH RITCHIE THE QUEEN |
Catchwords: | Criminal law Evidence Admissibility of admissions made by the accused Whether admissions made in videorecorded interview were voluntarily made Similar fact evidence Whether properly admitted Prior inconsistent statement Procedure Cultivation of cannabis Intent to sell or supply Whether any evidence in rebuttal |
Legislation: | Criminal Code (WA), s 7 Evidence Act 1906 (WA), s 21 Misuse of Drugs Act (WA), s 6(1), s 11 |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Davis v The State of Western Australia [2005] WASCA 47 Hoch v The Queen (1988) 165 CLR 292 MacPherson v The Queen (1981) 147 CLR 512 Nicholls v The Queen; Coates v The Queen (2005) 79 ALJR 468 Perry v The Queen (1982) 150 CLR 580 Pfennig v The Queen (1995) 182 CLR 461 R v Swaffield; Paric v The Queen (1998) 192 CLR 159 R v Williams (1992) 8 WAR 265 Sutton v The Queen (1984) 153 CLR 528 Watt v Thomas [1947] AC 484 Peters (1987) 23 A Crim R 451 R v Boardman [1975] AC 421 R v Miller [2001] WASC 81 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RITCHIE -v- THE QUEEN [2005] WASCA 84 CORAM : WHEELER JA
- PULLIN JA
MILLER AJA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
File No : IND 593 of 2002
(Page 2)
Catchwords:
Criminal law - Evidence - Admissibility of admissions made by the accused - Whether admissions made in videorecorded interview were voluntarily made
Similar fact evidence - Whether properly admitted
Prior inconsistent statement - Procedure
Cultivation of cannabis - Intent to sell or supply - Whether any evidence in rebuttal
Legislation:
Criminal Code (WA), s 7
Evidence Act 1906 (WA), s 21
Misuse of Drugs Act (WA), s 6(1), s 11
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L P Rayney & Ms F M Clare
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Davis v The State of Western Australia [2005] WASCA 47
Hoch v The Queen (1988) 165 CLR 292
MacPherson v The Queen (1981) 147 CLR 512
Nicholls v The Queen; Coates v The Queen (2005) 79 ALJR 468
Perry v The Queen (1982) 150 CLR 580
Pfennig v The Queen (1995) 182 CLR 461
R v Swaffield; Paric v The Queen (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
Sutton v The Queen (1984) 153 CLR 528
Watt v Thomas [1947] AC 484
Case(s) also cited:
Peters (1987) 23 A Crim R 451
R v Boardman [1975] AC 421
R v Miller [2001] WASC 81
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
2 PULLIN JA: On 14 August 2003 the appellant was convicted after a trial before Judge Muller and a jury in the District Court on two charges which read:
"(1) … between 8 May 2001 and 24 August 2001 at Thornlie MARGARET ELIZABETH RICHIE [sic] cultivated a quantity of prohibited plants, namely cannabis plants, with intent to sell or supply cannabis to another.
(2) AND FURTHER THAT on 24 August 2001 at Wembley Downs MARGARET ELIZABETH RICHIE [sic] had in her possession a prohibited drug, namely cannabis, with intent to sell or supply it to another."
3 The appellant appeals against those convictions.
Events leading to the charges
4 Between July and August 2001 Detective Sergeant Blackshaw conducted enquiries into the activities of the appellant. He obtained telephone interception warrants which allowed the tapping of telephone conversations between the appellant and other people including her brother Graeme Mader.
5 On the morning of 24 August 2001, groups of police executed search warrants at a house owned by the appellant and her husband at 213 Riseley Street, Booragoon, and at the appellant's mother's home at 35 Slalom Drive, Wembley Downs. At the same time as the Wembley search was being carried out, another group of police stopped a car containing the appellant soon after she left her home at Unit 2, 14 Roberts Road, Como. The appellant was then taken back to the Como unit where a search warrant was executed. The police found at the Como premises, inter alia, a hydroponic PH test kit and nearly $40,000 in cash located in the kitchen, on her person and in the bathroom cabinet. The police interviewed the appellant at the house as the search progressed. The interview was video-taped. The appellant made no admissions during this interview. This interview was completed late in the morning. The appellant and her husband were then kept at the Como unit until 4.30 pm.
(Page 5)
6 At the Riseley Street, Booragoon premises the search revealed a hydroponic set-up with cannabis plants. When the search warrant was executed at 35 Slalom Drive, Wembley Downs, Graeme Mader and his mother were found in attendance. There was a large amount of cannabis drying in the rear bedroom. There were telephone bills for the appellant, the address being shown as 1 Bluegum Road, Thornlie (which address is also known as 201 Wharton Road, Thornlie). Those premises were also searched by police late in the afternoon of 24 August 2001 and a hydroponic set-up with many similarities to the set-up at the Riseley Street, Booragoon premises, was found.
7 In the afternoon of 24 August 2001 at about 4.30 pm, the appellant was taken to the Cannington police station along with her husband, Colin Ritchie. Colin Ritchie was unwell and he appeared ill to the police. The appellant and Mr Ritchie were held in separate rooms at the police station for about 1¾ hours. The appellant then asked to speak to the person in charge of the police operation. As a result, Detective Sergeant Blackshaw spoke to her at about 6.30 pm. They spoke briefly in the police station and then went out into the sally port which was the only place where smoking was permitted. Another policeman Detective Sergeant Squirres was present during these conversations. I will go into greater detail about what was said to have taken place there, but suffice it to say for present purposes, that following this discussion there was a video-recorded interview conducted by Detective Sergeant Blackshaw in company with Detective Sergeant Squirres. During the interview the appellant made admissions about her involvement in the cannabis operation discovered at the Booragoon property.
8 After the interview she was charged with four offences, the two referred to above and two other offences, namely:
"Between 1 March 2001 and 24 August 2001 at Booragoon [the appellant] cultivated a quantity of prohibited plants, namely cannabis plants, with intent to sell or supply cannabis to another.
…
AND FURTHER THAT on 24 August 2001 at Booragoon [the appellant] had in her possession a prohibited drug, namely cannabis, with intent to sell or supply it to another."
9 The appellant pleaded guilty to both of those charges. There was then a trial in relation to the two charges set out at the beginning of these
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- reasons for decision (relating to the Thornlie and Wembley Downs premises).
10 At the beginning of the trial the appellant challenged the admissibility of the video tape of the interview conducted at the Cannington Police Station. The appellant challenged the admissibility of the video because she claimed it was made following inducements or threats by Detective Sergeant Blackshaw. The trial Judge ruled that the video was admissible and it was led in evidence at the trial.
11 I will now turn to deal with the grounds of appeal.
Ground 1 - The decision of the trial Judge to admit the video-taped interview into evidence
12 The appellant contends that admissions made in the video-recorded interview were not made voluntarily. She said in her evidence in the voir dire that, in essence, Detective Sergeant Blackshaw told her that unless she confessed or made admissions, he would charge her husband (who was unwell) with the offence and keep him in a cell overnight. She submitted that it was this inducement or threat which persuaded her to take part in the video-taped interview which she had no wish to take part in and that the admissions she made during the interview were not made voluntarily. In the evidence in the voir dire both detectives denied any such threat or inducement.
13 The evidence-in-chief of Detective Sergeant Blackshaw in the voir dire was as follows.
"The conversation that you had at 6.40 pm, was that recorded by any means?---I had a brief conversation with her in the lockup area which lasted probably 2 to 3 minutes and then we went and did the video-recorded interview.
Whereabouts in the lockup area did the conversation occur, are you able to say?---Yes. I was actually in my office when I had a request to come down and speak with Margaret Ritchie, apparently from her. I've gone into the charge room area and she's asked if I was the person in charge of the inquiry. I said I was. She said, 'Can we go and speak somewhere?' We then had a 2 or 3-second conversation in that charge room area, then we've gone out the back door and we had a conversation outside.
(Page 7)
- Was anybody else involved in the conversation other than yourself?---Detective Sergeant Squirres.
Can you recall what was said in that conversation?---Yes. She asked me if her husband Colin was being charged and I said, 'At this stage yes, he is.' She said, 'Well, he had nothing to do with anything.' I said, 'Well, in the absence of any explanation to the contrary - we've got a house that's been set up with cannabis inside and it's a jointly-owned property. In the absence of any other explanation, then you will both be charged with that offence'. She said, 'Well, he had nothing to do with it.' I said, 'Well, I don't know that." She said, 'Well, I'm telling you that.' I said, 'Well, are you prepared to tell me that in a formal interview?' and she said yes, she was. I asked her whether he had any involvement whatsoever with it and she said no. I said, 'Well, who did?' and she said along the lines of Stephen Buiks. At that point I said 'I'm not really interested in talking to you outside for any length of time. If we're going to have a conversation, I want it to be recorded.' We then went inside. I think she had a cigarette while we were standing outside. She went inside and then we did the video interview." (My emphasis). (T/s 27).
14 The video was then played so his Honour could view it. Detective Sergeant Blackshaw was cross-examined and the following is the portion where the appellant's version of events was put by her counsel:
"Did you at some point outside say, 'Fine. We'll have to charge Colin and for Colin to be locked in the cell for the night'?--- No, I definitely didn't say that.
'And you can get all the legal advice you need'?---Sorry, that's another comment I made apparently, is it?
Yes?---No, I definitely didn't say that.
Do you ever say, 'We've been very good to Colin. We've allowed him to sit in that airconditioned room and he should be in the cold cell with your son,' or words to that effect?---No, I did not.
Did Margaret Ritchie get upset outside at any time during the interview - sorry, during this discussion outside?---No.
(Page 8)
- Did you say that Colin was going to be charged with the cannabis offences unless she admitted them?---No, I did not.
Did you indicate that if she admitted it, it could all be done very quickly and she would be able to leave?---No, I didn't say that.
Was the gist of outside - the discussion to the effect that Colin was going to be charged? Is this what you're telling us this morning, that you did say outside that Colin was going to be charged?---Well, the gist - I had no intention of interviewing Margaret Ritchie. She's asked to see me. She's raised the issue of Colin being charged and I said 'Yes, he will be charged,' not the other way around. I never intended to interview her in regards to Colin outside.
Do you agree, with me this much, that the purpose of her wanting to speak to you, this conversation outside, concerned Colin?---Yes, primarily.
Did you say in that conversation that Colin was going to be charged?---I told her that in the absence of any other explanation they were joint owners of the property in which there were cannabis plants in and on that basis they will be charged.
Was there some aspect that she wanted Colin to be able to leave immediately and go home? Was that discussed outside?---No, I don't recall to any great extent a conversation about him leaving. There may have been a conversation about him being ill because it was pretty obvious he was ill. I didn't want to keep him in the station any longer than what was necessary.
To your knowledge he wasn't interviewed that night, was he? I think you've - - -?Well, they were spoken to at the house which was a field interview of sorts. That was my understanding but no, he wasn't spoken to back at the police station.
Was it in terms of, 'Unless you make a statement Colin was going to be charged with the cannabis offence'?---No, definitely not.
But you told her outside, even on your own account you've given us today, that Colin was going to be charged?---Yes, that's right.
(Page 9)
- Unless she spoke on the video?---No. Well, that's not how it should be put.
But that's the gist of it, isn't it?---The gist of it, as I've said and I said it to her, in the absence of any other explanation we have no choice but to charge him. If she wanted to tell me that he had no involvement and if that was the case that there was no other evidence of him being involved. then no. he wouldn't be charged."
15 Detective Sergeant Squirres gave evidence at the voir dire as follows:
"Are you able then to say what your recollection of that conversation is?---It was basically a conversation that - it started off the accused wanted to give some information about the dealings that she'd been involved in and involving another person, a person by the name of Stephen Buiks, and during that conversation about that person and what her dealings with him was it came to a point of the conversation where she mentioned about her husband being charged. And during that conversation it was explained to her, as a matter of fact and as a matter of how we saw the law, that in the event of no explanation from anybody about the drugs or the hydroponic set-ups being located in the houses, that we would basically have no choice but to charge those people who were in what we consider control of the premises and the drugs and the hydroponic set-ups.
Is that the extent of your recollection of the conversation?---She did at that point say that her husband had nothing to do with it and Detective Sergeant Blackshaw had explained to her that if that was the case, then we needed her to say that on video before we could consider not charging her husband, because it was something that - you know, it's okay for her to say that off the record to us but that's not evidence, so that was basically as it was left and it was left up to her to do what she liked in regard to that.
And is that the end of your recollection of the conversation?---Pretty much, yes.
What occurred after that conversation?---We then went in and conducted the video interview which was played - - -"
(Page 10)
16 During the course of the video-taped interview the appellant was asked a question about the Booragoon premises. Detective Sergeant Blackshaw asked who the equipment that was found there belonged to, and the appellant asked to turn the video off "for a second". Several more questions were directed to this subject which were not answered. She was then asked whether the house had ever been tenanted by anyone else and she said that it had been, and then the following transpired:
"Q. Can you tell me who that person was, or people? You don't wish to say?
A. It didn't - -
A. If you don't want to answer something, don't answer it?
A. No, I said I'd be as co-operative as - -
Q. Yes.
A. - - possible because I can't have Colin sitting here - -
Q. I understand that.
A. - - you know, tonight.
Q. Yes; as long as you understand - -
A. So if you say to me, 'No, he can't come out unless you answer that question,' I'm quite prepared to tell you later. I'll come and talk to you, okay, but you told me to be honest with the houses - -
Q. I just - - because the conversation we're having now might look a bit odd to anyone else watching it at a later date, what I'll - - we'll go over what the conversation was previously that you and I had, okay? Do you agree that we had a previous conversation during which time you asked me hat was going to happen to your husband.
A. That's correct.
Q. And at that time I said, 'Well, Colin's going to be charged - -'
A. That's correct.
(Page 11)
- Q. 'with you, because the house at Booragoon was jointly owned - - '
A. That's correct.
Q. '- - and we found a cannabis crop inside the house.
A. That's correct.
Q. And in the absence of any admissions from any person then we have to charge both people with what's inside, okay?
A. You said that I could own up to it.
Q. That's not quite the words we used, but what I - -
A. No, but basically, you know - -
Q. I just said - - it's like if drugs are found in a person's house and there's two people inside the house, and neither person wants to admit that they're on the drug - -
A. My husband didn't - -
Q. No, I'm just giving you another hypothetical.
A. Yeah. Yeah.
Q. We charge both those people with possession of the drug, because they have control over it; it's basically control over that drug, okay? Now that's a hypothetical. Now the same applies - -
A. I'm sorry, I - -
Q. - - to you at Booragoon. You both own the house. You both have control over what's inside the house, and that's why I said to you before that in the absence of any other explanation you were both being charged. You then said to me that you didn't want Colin charged because he didn't have involvement in it.
A. No.
Q. Okay?
(Page 12)
- A. No.
Q. That's what you said to me, wasn't it?
A. Yeah, that's correct.
Q. And I said, if that's the case, if he doesn't have any involvement in it, then if you are willing to tell us that he had no involvement in it, and if that proves to be the case, then you [sic: he?] wouldn't be getting charged, okay? That's what I said to you, wasn't it?
A. That's correct.
Q. And if it was only you that had involvement in that cannabis then you would be the sole person charged with it.
A. That's correct.
Q. Okay, that's the conversation we had, wasn't it?
A. That's correct.
Q. I just wanted you to be sure that I - -
A. I'm sorry - -
Q. - - haven't tried to force you into any confession- -
A. No, no, no, I didn't say that.
Q. - - or anything like that. No - -
A. But I'm just - - I'm really, really tired. I feel - - I can't think.
Q. Yeah.
A. Do you know what I mean?
Q. Yeah.
A. Even what you're saying is - you probably don't understand - it's like a blur to me, what you're saying. I'm not - - I know how Colin feels, because - - whether I'm going senile, I don't know - -
(Page 13)
- Q. You do understand what's going on in here today, don't you? You understand how - -
A. Yes, but - -
Q. - - it is a serious matter. You understand that?
A. I appreciate that, yes, but I just can't compute it fast enough from what you - - you're saying. Yeah, go on.
Q. At this point I'm just trying to show you that we haven't - - I haven't tried to coerce you in any way to make -
A. No, no, no - -
Q. - - admissions that - -
A. No, I agree. I agree.
Q. Okay. I'm not bullying you into some sort of confession by saying - -
A. No. No.
Q. - - that I'm going to charge - - we're going to charge Colin.
A. No.
Q. As long as you're happy with that, all right?
A. Yes. Yes.
Q. Okay. Now in relation to the things at Riseley Street - -
S. But can you - -
Q. - - can you tell me now they came to be there, Margaret?
A. Well, at the end of the day I'm solely responsible for those plants. That's what it boils down to."
17 The appellant and Mr Colin Ritchie also gave evidence at the voir dire. I have already referred to the evidence of the appellant. Her evidence was that Detective Sergeant Blackshaw had said that she wanted her husband to go home and she was told that he could not go home until she "owned up to the houses".
(Page 14)
18 His Honour gave detailed reasons for decision for ruling that the video-taped interview was admissible. Before I turn to these reasons for decision, I should record the basis of challenge to admissibility as it was outlined to the learned trial Judge. Before any evidence was led, counsel for the appellant said to his Honour:
"At Cannington police station they [Mr and Mrs Ritchie] were placed in separate rooms and remained there for 1 and a half hours or thereabouts. The doors - they weren't cells, they were just what appears to be interview rooms and there was an officer, an unknown officer, who simply sat with Mr Ritchie throughout the afternoon in his room, whichever one it was. In the case of Margaret Ritchie, on several occasions she left the room and on one occasion she left the room and went outside - was allowed to go outside, I'm not sure what that means, but somewhere where she could have a cigarette.
It's in that situation whilst outside that she ended up having a conversation with Mr Blackshaw. Whilst outside a conversation occurred. The gist of the conversation was - when she eventually indicated she might seek some legal advice, at that stage she was told, 'Fine. We will have to charge Colin' - and for Colin to be locked in a cell that night - 'and you get all the legal advice you want.' There was an indication they had been very good to Colin. They had allowed him to sit in an airconditioned room.
I should mention that somewhere during the layout of this, where the two rooms are where Colin Ritchie and Margaret Ritchie had been, there were some cells just opposite and David Ritchie, the son of both, had been arrested at one of the properties unrelated to these matters - I'm sorry, related to these matters insofar as the operation by police was concerned, and he was actually in custody and Margaret was able to speak with him; so in other words, both Colin and Margaret would have been aware and were aware that David was there. Basically the conversation eventually went to the effect, 'Unless you made a statement Colin was going to be charged with the cannabis offences'."
19 The evidence was then led on the voir dire, and at the end of that evidence there were two versions of what had happened before the video interview began. Counsel for the appellant then made submissions with
(Page 15)
- knowledge that there were those two versions. The following is revealed in the transcript:
"MULLER DCJ: What was the inducement?
CRISPE, MR: The inducement is unless you honestly tell us, give up your right to remain silent, unless you be interviewed and tell us of your involvement honestly in relation to the houses your husband will be charged. Now, that would [sic] an inducement because - - -
MULLER DCJ: Or a threat.
CRISPE, MR: Or a threat, because it denies the person - - -
MULLER DCJ: No. I accept that unhesitatingly but the critical issue I have to decide is whether the crown has proved that those words were not said.
CRISPE, MR: I will just take you though the words and sometimes it's the body language and that is why I did pause and ask your Honour to just notice that thing that she's under some impression there's an understanding, a secret arrangement. She lowers her voice - - -
MULLER DCJ: But either the words were said or were not said.
CRISPE, MR: Yes. As to whether they were, you see, because these things they should have been recorded and so I would certainly be saying, your Honour should certainly look at it with the view that if police thought this was kosher it would have been done properly and if it wasn't done kosher then there might be a reason for that - - -
MULLER DCJ: But your client asked to speak to the police. The interview was instigated by her not by them.
CRISPE, MR: I don't think that matters at the end of the day. It really depends what was actually said and - - -
MULLER DCJ: She asked to go outside for a cigarette and in the course of that interaction asked the detective what would happen to her husband and expressed her concern about her husband. The detective told her quite rightly in my view that
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- since she and her husband were joint owners of the Booragoon property it is possible the charges would be laid against them jointly in the absence of any evidence as to who was responsible for the drug being there.
CRISPE, MR: You see, it's a question of whether that is all that was said, your Honour.
MULLER DCJ: I agree with you. I agree entirely but we go back to what I have just said. The critical question is whether the crown has proved on the balance of probabilities that the threat or inducement, whatever you term it, was or was not made."
20 From this it can be seen that counsel did not argue that the admissions were not made voluntarily, even if his Honour did not believe the appellant but believed the police version of events.
21 His Honour reserved his decision overnight and gave his decision the next morning. He correctly directed himself about the onus and standard of proof by reference to MacPherson v The Queen (1981) 147 CLR 512, and the circumstances in which an admission would not be considered voluntary by reference to MacPherson's case and R v Williams (1992) 8 WAR 265 at 272.
22 His Honour then discussed the evidence and said that the critical question was whether Detective Sergeant Blackshaw told the appellant before the interview that her husband would be charged and kept in the cell that night unless she confessed. His Honour noted that the conversation was instigated by the appellant, and that Detective Sergeant Blackshaw had no idea why she wanted to see him when she asked for the opportunity to speak to him. Thus, as his Honour said, on the evidence of the police, "there was simply no inducement or threat made to the accused", and that all Detective Sergeant Blackshaw did was answer a question the appellant put to him.
23 His Honour concluded:
"In the end I believe the Crown has discharged the onus that rests on it in proving that the interview was made voluntarily. I reject the accused's assertion that she was alone with Detective Sergeant Blackhouse [sic] outside and that Detective Squirres was not present. I unhesitatingly accept Detective Squirres' evidence that he was there and that he did not overhear the
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- conversation. I cannot believe that he would perjure himself by telling a blatant lie on an issue as significant as that.
In the end the most telling point is the repetition by Detective Sergeant Blackhouse [sic] in the video-taped record of interview of the conversation that he recalled taking place outside. … I cannot accept the accused would have agreed so emphatically with Detective Sergeant Blackhouse's [sic] account of what was said outside if it were false and she had in fact been threatened as alleged. She confirmed his summary of the conversation during the video-taped interview and at page 10 of the transcript unequivocally agreed that she had not been bullied into making a confession by the police having threatened to charge her husband.
In my view it is extremely improbable that the accused would have said what she did if she had been threatened as she alleged she was."
24 The particulars of this ground of appeal allege that the learned trial Judge erred in:
"(a) Reversing the onus of proof in finding that he could not believe that Detective Squires [sic] would perjure himself in his evidence.
(b) Relying on matters which were not in evidence to ground his conclusion that the Cannington video taped interview was admissible.
(c) The decision to admit the Cannington video interview ignored the weight of all the evidence and the contradictory nature of the evidence given by the crown witness.
(d) The Cannington video taped interview should not have been admitted in view of the threat and or inducement made by Detective Sergeant Blackshaw to the Appellant prior to the video taped interview."
25 The appellant in oral submissions sought to make three points. First, she contended that her account of what happened in the conversation before the video-recorded interview should have been accepted by his Honour. Secondly she argues that even if Detective Sergeant
(Page 18)
- Blackshaw's evidence (as corroborated by Detective Sergeant Squirres) was accepted, then what Detective Sergeant Blackshaw said amounted to a threat or inducement which meant that the admissions made during the video interview were not made voluntarily. Finally, the appellant adds that she was in no fit state to be interviewed because she was taking medication and was worried about her husband, who was ill and who had been held for a considerable time at the police station.
26 There can be no criticism of the police in this case about the lack of video-taping of the conversation which took place before the video-recorded interview. As the learned trial Judge said, this was a conversation instigated by the appellant. However, this case provides an example of the importance of the police recording on video anything which had taken place off video which is relevant to the interview. In this case what happened before the video-recorded interview was not related at the commencement of the video interview. See Nicholls v The Queen; Coates v The Queen (2005) 79 ALJR 468 per Gummow and Callinan JJ at 502 and 508 - 509. Detective Sergeant Blackshaw said this was because "At the time … it was such a brief conversation it didn't seem as relevant as what it does now." The fact is, however, that the events which occurred before the video interview were eventually referred to during the video-recorded interview. The appellant did agree with the version of the conversation which was put to her by Detective Sergeant Blackshaw. I can understand that, if as the appellant contends, she was wanting to make admissions merely in order to save her husband from being charged, it would not be consistent for her to make admissions and then to claim that they were not voluntary admissions. Nevertheless, the fact is that she did agree with what Detective Sergeant Blackshaw said the pre-video conversation was about.
27 During the interview she was cautioned and expressed her willingness to participate in the interview. She said she understood the nature of the caution and the fact that the admissions could be used against her. She stated that she had told the truth. She said that she had not been threatened. When given the opportunity she made no complaint about her treatment by the police. She made a distinction between matters she was prepared to talk to the police about and other matters that she would not discuss, such as the identity of a male person who participated in the cultivation of the cannabis.
28 Each case has to be considered on its own facts. Voluntariness is not an issue to be determined by reference to some hypothetical standard. It requires a careful assessment of the effect of the actual circumstances
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- upon the will of the particular accused. See R v Swaffield; Paric v The Queen (1998) 192 CLR 159 at 88. There is nothing in the material before the Court which establishes that the learned trial Judge failed to use, or effectively misused the advantages he possessed as the trier of fact, or did not observe "all the incidental elements so difficult to describe which make up the atmosphere of an actual trial": Watt v Thomas [1947] AC 484 per Lord MacMillan at 490 - 491; and see Abalos v Australian Postal Commission (1990) 171 CLR 167 and Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842.
29 His Honour's comment about Detective Sergeant Squirres' to the effect that he could not believe that witness would perjure himself is merely his Honour's method of indicating that he believed Detective Sergeant Squirres' evidence. It would have been preferable to have avoided any reference to perjury (see Nicholls v The Queen; Coates v The Queen (supra) per Gummow and Callinan JJ at 508) but in the circumstances of the case there was no injustice to the appellant.
30 I now turn to refer to the specific submissions made by the appellant. First, I deal with the submission that his Honour should have accepted the appellant's evidence about what happened in the conversation before the video interview commenced. I have already dealt with this point. The learned trial Judge had to make a decision about which evidence he accepted. His Honour believed the police witnesses and not the appellant. In my opinion he made no error in reaching that conclusion. The evidence given by the police about the pre-video conversation appears to be entirely credible and is corroborated by the appellant herself in the video interview.
31 Secondly, it is contended that even if the police evidence be accepted, that amounted to an inducement or threat which made the admissions recorded in the video interview inadmissible. In my opinion, what Detective Sergeant Blackshaw said was nothing more than a statement of fact; an answer to a question which had been put directly to him. In my opinion that does not amount to an inducement or threat which makes the admissions inadmissible.
32 Finally, there was the contention made in this appeal that the appellant was not in any fit state to be interviewed. This was not a contention made to his Honour. In any event, the appellant said on video that she was not feeling ill and that she was not on medication. There is nothing in her demeanour as shown on the video which the appellant points to, to suggest that she was not in a fit state to be interviewed. She
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- was at times tense, but most, if not all suspects being interviewed in a police station will feel under stress. This will be so whether they are guilty of the offences under consideration or whether they are innocent. A suspect will often also be concerned about extraneous matters. Many thoughts will crowd in on the suspect. The police must make an assessment about whether the suspect is in a fit state to be interviewed but merely because a suspect is suffering stress is no reason not to conduct an interview. In this case the appellant was undoubtedly concerned about her husband who was unwell and concerned about whether he would be charged. She was concerned that he had been brought to the police station and was being held there and I can well understand the possibility that this set of circumstances weighed on the mind of the appellant while she was at the police station. However these circumstances do not establish that the appellant was unfit to be interviewed.
33 Finally, I refer to particular (b) to this ground of appeal. There were no "matters which were not in evidence" which his Honour relied on. His decision refers only to what was said in evidence. In my opinion, there is no merit in this ground of appeal.
Ground 1A - Failure of the trial Judge to admit the video-tape of the Como search interview
34 The reference to the Como search interview is a reference to the video-recording of the interview which was conducted by the police on the morning of 24 August 2001 at the appellant's home in Como. During that interview she made no admissions.
35 On this appeal it is contended that this video-tape "should have been presented at the voir dire" and "subsequently at the trial when oral evidence of pertinent matters were raised in the cross-examination of the Appellant" (see grounds of appeal). The appellant contends that this video-tape should have been introduced into evidence by the prosecutor and the learned trial Judge should have directed that the video be presented at the voir dire and at the trial. The appellant contends that:
"The Como video was important to try and explain why someone who would steadfastly refuse to answer the police questions would suddenly change her whole attitude after a 10 minute conversation at Cannington."
36 In my opinion there is no merit in this ground. The appellant was represented by experienced counsel at both the voir dire and the trial. Defence counsel cross-examined police officers about the content of the
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- Como search video but chose not to adduce it into evidence. The State was not obliged to lead evidence of, or tender the search video, and it was not for the Judge to give any direction of that kind. I would therefore dismiss this ground.
Ground 3 - Admission of similar fact evidence
37 The appellant admitted on the video-recorded interview at the Cannington police station that she was involved in the cannabis operation at Booragoon. That doubtless explains why she pleaded guilty to the offences committed at Booragoon. The hydroponic set-up at Booragoon was an elaborate one. The appellant however denied that she had anything to do with the cannabis growing set-up at the Thornlie address.
38 The prosecution therefore disclosed, before the trial proper commenced, that it would lead evidence that the set-up in both places was similar and that the evidence of the similarity should go to the jury. The subject was canvassed by his Honour and counsel. His Honour said that he would leave it to the appellant's counsel to object if counsel thought it necessary. The State accepts that there was a ruling and that the jury were accordingly directed on the use of similar fact evidence. The appellant, in her original submissions and in the further submission she was given leave to file, denies it was a ruling and complains that there should have been one excluding the evidence.
39 It matters little whether there was a ruling or whether there should have been a ruling. The issue is whether the evidence was rightly admitted.
40 The basis for the admission of similar fact evidence lies in it possessing a particular probative value or cogency because it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. If similar fact evidence is relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: see Hoch v The Queen (1988) 165 CLR 292 at 294. The evidence of the similar facts may be admitted where it bears a striking similarity to the facts in the case alleged against the appellant: Pfennig v The Queen (1995) 182 CLR 461 at 481. If the evidence reveals striking similarities, it may raise as a matter of commonsense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution: Sutton v The Queen (1984) 153 CLR 528 and Perry v The Queen (1982) 150 CLR 580 at 586 - 587.
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41 The nature of the hydroponic set-ups in both the Thornlie and the Booragoon properties were strikingly similar because of the following features:
(a) mains power had been bypassed in both operations;
(b) the lights used were the same. Both had lights individually attached to rails operated on a pulley system using an orange nylon rope;
(c) identical transformers were used to power the lights;
(d) there was identical silver reflective foil;
(e) there was the same organisation of pots placed on milk crates to allow room for PVC plumbing;
(f) there were identical plastic pots used;
(g) there was an identical layout of PVC piping providing reticulation to the pots;
(h) there was identical type and colour of plastic tanks used to store the chemical fertilizer; and
(i) identical plant fertilizer was used.
42 In my opinion the learned trial Judge did not err in allowing the evidence of the Booragoon premises to be led.
Ground 4 - The direction to the jury on similar fact evidence
43 The appellant contends that his Honour erred in his summing-up to the jury. It was submitted by the appellant that the direction to the jury should have been more explicit and "less damming" [sic]. The appellant submits that "For example the learned trial Judge says that the Booragoon matter is to look at the similarity of operation but he says at p 368 of his summing up … that 'she admits she was' involved with the Booragoon operation although for the purpose of the trial the appellant was not charged with that operation." His Honour was of course correct to refer to the fact that the appellant admitted that she was involved with the Booragoon operation. If the similarity of the set-up in each case was to be led to prove the appellant's involvement with the Thornlie offence, the prosecution had to, and were permitted to, prove that the appellant admitted she was involved in the Booragoon operation.
44 The appellant also submits that the evidence about the similarity was "extensive" and "should have been clearly been either forbidden due to its prejudicial nature or a clear direction as to the acceptance of any part of it
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- by the Jury in their deliberations". This submission shows a misunderstanding on the part of the appellant about why similar fact evidence is admitted.
45 As to the direction, his Honour directed that the jury should only act on similarities which were striking and pronounced and directed that even if the jury was satisfied the accused was involved in the Booragoon operation as she admitted that she was, that they must not conclude from that finding alone that she was a person with a propensity or disposition to cultivate cannabis and therefore to be likely to be guilty of the Thornlie venture. In my opinion his Honour's direction was a correct direction. I would dismiss this ground of appeal.
Ground 5 - Evidence of Graeme Mader
46 Graeme Mader gave evidence in support of the applicant that he was the sole cultivator of the cannabis found at the Thornlie premises. When Mr Mader pleaded guilty before the trial of the appellant, submissions were made on his behalf that both he and the appellant participated in the cultivation of the cannabis at Thornlie. Accordingly, he was cross-examined about this by reference to the sentencing transcript. The cross-examination of Mr Mader by prosecuting counsel proceeded as follows:
"Okay. So correct me if I've got it wrong, Margaret really had nothing to do with that house at Thornlie, it was all David in terms of your dealings with that house. Is that correct?---Yes, with my dealings it was just to David, yeah.
I see. Okay. You gave evidence that you were charged about the plants growing in the Thornlie house?---Yes.
And you were charged in relation to the cannabis found at Wembley Downs?---Well, they were both the same.
Yes, and you pleaded guilty to those charges?---Yes.
And that was in the District Court similar to this court? There was a judge there lawyers wearing this sort of costume?---Yeah, next door.
Yes, but there was no jury in the court because you were pleading ?---No.
guilty?---No.
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- And you had lawyer speaking on your behalf, didn't you, when you pleaded guilty?---Legal aid lawyer, yes.
Yes, and it was a Ms Amsden, a legal aid lawyer?---Yes.
And I don't know whether or not you're aware of this but what gets said in court is produced on a transcript. Are you aware of that?---I suppose it's taped.
Yes. Okay. And just so you know what I'm reading from, I'm reading from the transcript of when you went to the District Court and pleaded guilty and I'll ask you this firstly, you appeared in the District Court on Friday, 9 November 2001 and you pleaded guilty?---I don't know the exact date but I did plead guilty.
Would you accept it? I'm reading from the transcript?---Yeah, yeah, yeah.
…
So you spent some time with Ms Amsden before you went to court?---Yes, yes.
And then when you pleaded guilty, Ms Amsden said some things on your behalf, didn't she?---Yes.
Also before things were said on your behalf, there was a crown prosecutor in the court who read out the facts of the charges. Do you remember that?---Is that another lawyer, are you talking about?
Yes?---Yes.
Somebody basically playing my role, the crown prosecutor?---Yes.
You pleaded guilty?---Yes.
The prosecutor read out the facts, what the charges were all about?---They read out something, yes.
And then your lawyer stood up and spoke on your behalf and said things about yourself and your involvement. Is that right?---Yes, yes.
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- Do you remember the prosecutor on 6 December saying this in the court:
The facts in relation to count 1 on the indictment are that in this matter a co-offender by the name of Ritchie purchased residential premises at 201 Warton Road in Thornlie on 11
CRISPE, MR: I rise at this stage. obviously if they're factual matters - I'm not sure where my friend is going but I accept that there are matters he can raise here, but to introduce a summary of facts as if it's something - I just leave it there. I don't think this is necessarily the method of establishing what are the issues there. Certain things can be asked but it's not a matter of recounting everything that was read out in the statement of material facts for obvious reasons.
DIXON, MR: I might be able to switch things around
CRISPE, MR: It's an allegation
MULLER DCJ: Yes. You can select the material that you need to put to the witness but of course it only becomes relevant to the extent that he either adopts or disavows it.
DIXON, MR: Yes.
Can you recall after those facts were read that your lawyer said this:
The facts as they have been outlined by my learned friend with the comments made earlier constitute the subject matter of the offences and Mr Mader's involvement.
Do you recall that being said?---It's 2 years ago now.
I'm reading from the transcript. Do you dispute that that was said by your lawyer?---No, I'm not disputing it; no.
So on 6 December your lawyer stood up and said the facts read to the court are basically accepted by you and constitute your involvement in the matter?---With all honesty I was that nervous in the court that I just - if my lawyer said, you know, that's the way to go, I just went.
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- MULLER DCJ: But you had spoken to your lawyer before appearing in court and given your lawyer instructions. Hadn't you told your lawyer your side of the story?---Yes, I did.
DIXON, MR: And your lawyer accepted the facts read out in the court ?---Yes.
-- on your behalf?---Yes.
And the facts read to the court
MULLER DCJ: Paraphrase if you would.
DIXON, MR: - - was that your sister Margaret Ritchie established a hydroponic cannabis operation at the house and cultivated cannabis with the intention of providing the same to others, and the co offender Ritchie provided equipment and advice to yourself as to how to cultivate cannabis and you converted a room in the house for cultivation?---No.
MULLER DCJ: Firstly, do you remember that statement of fact being made to the court by the prosecutor at your plea of guilty?---I just don't recall 2 years ago, I'm sorry.
Can you recall what was said in your own court case?---No, sir; no.
Put the facts to him again please.
DIXON, MR: The facts in relation to count 1 on the indictment are that in this matter a co offender by the name of Ritchie purchased residential premises …….. a room in the house for cultivation.
MULLER DCJ: First of all, do you recall those facts being put before the court in that way on the occasion you pleaded guilty?---I don't, sir, no, because I was so nervous.
DIXON, MR: Do you dispute that that was what was said by the crown prosecutor?---I'm not disputing that that's what was said but that's not the truth."
47 Objection was taken to this cross-examination on behalf of the appellant. The learned trial Judge ruled on the relevance and adoption of the transcript material.
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48 In summing up, his Honour recalled the evidence of Mr Mader during cross-examination and what was said at his plea of guilty. He directed the jury that what was said in those proceedings was not evidence of the truth of what was said at the time. His Honour instructed the jury that it could not be used as evidence that Mr Mader cultivated cannabis at Thornlie with the assistance of his sister. It would become evidence against the appellant if Mr Mader had agreed before the jury under oath with what had been said at the sentencing exercise. His Honour instructed the jury that because Mr Mader did not agree with what was said and denied that it was the truth, then the only relevance of the evidence is that it might reflect upon the credit of Mr Mader. His Honour said:
"If you conclude that what was said at the sentencing of the witness must have reflected what the witness accepted to be the truth at that time and that the evidence he gave in this Court today is materially inconsistent with what was said on the earlier occasion, you may use this inconsistency and assess the credibility of the witness accordingly."
49 I see no error in the use that was made of Mr Mader's evidence or the direction given by his Honour.
50 In the appellant's written submissions and in the first particular to the ground, the point is taken that his Honour should not have allowed the cross-examination of Mr Mader from extracts of the transcript without placing the whole of the document as evidence before the jury. In my opinion his Honour did not err in allowing cross-examination to proceed as it did. Section 21 of the Evidence Act 1906 permits a witness under cross-examination to be asked whether he had made a former statement relative to the subject-matter of the proceeding and inconsistent with his present testimony. The prior inconsistent statement the subject of inquiry was a statement or statements made by Mr Mader to his counsel, the proof of those statements being revealed by inference from the submissions made by Ms Amsden. If Mr Mader had not distinctly admitted that he made such statements, then the prosecution would have been entitled under s 21 to prove that he did make those statements by proving the transcript of what was said by his counsel from which it could be inferred that he gave instructions to his counsel in those terms. Because he admitted that Ms Amsden's submissions were accurately related by counsel for the prosecution in the trial in this action, it was not necessary for there to be proof of the transcript.
51 I would therefore dismiss this ground of appeal.
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Ground 5 - The learned Judge erred in failing to make a ruling as to the person in possession of the material at 35 Slalom Drive, Wembley Downs
52 The appellant contends that the material at Wembley Downs belonged to Graeme Mader, that he stated so at the trial, and that it is "not possible for the appellant to be found guilty as also being in possession of the same material".
53 In fact, possession of cannabis can be had in a variety of way. It can be exclusively held by one person or jointly by several persons: Davis v The State of Western Australia [2005] WASCA 47. The learned trial Judge was well aware of the contention that only part of the cannabis at Wembley Downs belonged to the appellant. Both counsel for the State and the appellant made submissions that a special verdict should be brought in on this issue. The learned Judge so directed the jury.
54 The jury then found that the appellant was in possession of the entire amount of the cannabis seized at the Wembley Downs premises. In my opinion, his Honour did not err in any respect and this ground should be dismissed.
Ground 6 - The learned trial Judge erred in law and in fact in finding that the appellant could be found guilty of being a seller and supplier of cannabis
55 The appellant was asked to explain what was meant by this ground. It was pointed out to her that the trial Judge did not make a finding as alleged; that the findings of fact were made by the jury. The appellant was asked whether there was any complaint about the directions given by the learned trial Judge. She said that there was no complaint about his directions. The appellant was therefore complaining only about the finding which was made by the jury.
56 The appellant submitted that the bulk of the plant material found at Wembley Downs was not something which could be sold or was of a saleable quality. She submitted that the bulk of the material consisted of branches, stems and wet material, and of no value. The respondent points to the fact that the cannabis material seized at Wembley Downs was analysed by the State Botanist and a certificate of analysis was tendered which showed that the material was cannabis and weighed 7 kilograms.
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57 There being more than 100 grams of the prohibited drug, a presumption was established, pursuant to s 11 and Sch V of the Misuse of Drugs Act, of an intention to sell or supply it.
58 The appellant therefore seems to be arguing that she had evidence to rebut the presumption. However, the appellant frankly admitted that her evidence about the bulk of the cannabis being unsaleable was based on what she had been told by fellow inmates while she was in prison. No such evidence was led at the trial.
59 I would therefore dismiss this ground.
Ground 7? - Cultivation of cannabis at the Thornlie residence
60 There was not in fact any ground 7, but in the appellant's written submissions the points referred to below were addressed, and have been answered by the respondent in its submissions.
61 First the appellant submits that because she was the only person charged on the indictment that she could not be convicted under s 7 of the Criminal Code. The State's case against the appellant in relation to the cannabis at the Thornlie property was that she was a s 7 offender. This was made clear in the State's opening address. His Honour directed that it had to be proved that the accused knew that Mr Mader was engaged in the cultivation of cannabis with intent to sell or supply the material to another and with this express knowledge, did an act to aid or enable him to commit that offence.
62 It does not of course matter that Mr Mader was not jointly charged. So that aspect of this "ground" must be dismissed.
63 The appellant submits also that there was no evidence that the appellant "knew" about what Mr Mader "intended to do". I read this as a contention that it had not been demonstrated that the appellant had express knowledge that Mr Mader had cultivated cannabis with intent to sell or supply. I am satisfied there was evidence of such knowledge. Such evidence emerged in the video interview at Cannington where she admitted that Mr Mader had set up the Thornlie property and that if he wanted help he would telephone and she would then give him help (t/s 34 and 37). There is no merit in this point.
64 I would therefore dismiss the appeal. Insofar as it is an application for leave to appeal, I would dismiss the application.
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65 MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of Pullin JA. I agree with those reasons and I agree that the appeal should be dismissed. Insofar as there is any application for leave to appeal, it should also be dismissed.
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