Siddon v State of Western Australia

[2008] WASC 100

SIDDON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 100

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 100
Published:	03/06/2008
Case No:	IND BRO:88/2007	Heard:	31 MARCH & 1 APRIL 2008
Coram:	McKECHNIE J	Delivered:	3/04/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Record of interview involuntary
Category:	A
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Parties:	JOHNNY SIDDON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Voluntariness of confession Anunga Rules Relevance
Legislation:	Criminal Procedure Act 2004 (WA), s 98
Case References:	Gibson v Brooking [1983] WAR 70 R v Anunga (1976) 11 ALR 412 R v Lee (1950) 82 CLR 133 Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SIDDON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 100 CORAM : McKECHNIE J HEARD : 31 MARCH & 1 APRIL 2008 DELIVERED : 3 APRIL 2008 PUBLISHED : 3 JUNE 2008 FILE NO/S : IND BRO 88 of 2007 BETWEEN : JOHNNY SIDDON

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Voluntariness of confession - Anunga Rules - Relevance

Legislation:

Criminal Procedure Act 2004 (WA), s 98

Result:

Record of interview involuntary

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Category: A

Representation:

Counsel:

Applicant : Mr R W Richardson
Respondent : Mr C Williams

Solicitors:

Applicant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)

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

Gibson v Brooking [1983] WAR 70
R v Anunga (1976) 11 ALR 412
R v Lee (1950) 82 CLR 133
Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10


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1 McKECHNIE J: The applicant ('accused') applies for orders that the video record of interview with the accused on 25 January 2007 be excluded from evidence in the trial on the grounds either that it is involuntary or that it would be unfair to admit it on the grounds of public policy and should be declared inadmissible in the exercise of the court's discretion.

The need for voluntariness - legal principles

2 The parties' written outlines of submissions reveal a common understanding as to the legal principles involved. While the state's submissions tend to emphasise more recent decisions of the High Court, especially in circumstances not usually found in the standard record of interview, the underlying principle, which all parties accept, is that found in R v Lee (1950) 82 CLR 133, 149. The word 'voluntary' in the relevant connection does not mean volunteered. It means made in the exercise of a free choice to speak or be silent.

3 People do make confessions to crimes or other wrongful behaviour and admissions against interest. The law allows admissibility of such admissions if the prosecution establishes that the probabilities are that the person has spoken in the free exercise of a choice to speak or remain silent. A person is not obliged to incriminate themselves. If they do so voluntarily, however, that evidence will be admissible. Voluntariness is thus a precondition to admissibility for the state to establish on the balance of probabilities.

4 The administration of a caution is not an essential precondition to voluntariness. The essential precondition is the exercise of a free choice. Cases can be found where a caution was not administered but the court was satisfied that the person who spoke did so voluntarily. To opposite effect, the administration of a caution does not automatically lead to the conclusion that a confession was voluntary. There are cases where, despite the administration of a caution, a person has not been shown to have understood their right to speak or remain silent.

5 There are classic factors which almost lead to a presumption against voluntariness. So it is that a confession obtained under threat or by torture will almost inevitably be held to be involuntary, at least in this country. A confession obtained under inducement, unless that inducement is removed, will likely be involuntary. Although such factors are categories of involuntariness, the circumstances in which a confession will be held to be involuntary are limited only by the facts of particular cases, for it is only by an examination of actual circumstances that a conclusion can be

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drawn to the requisite standard of proof, namely, the balance of probabilities, whether a confession is voluntary.

Facts and findings

6 The prosecution called two witnesses at the directions hearing, Constables Isbister and Carder. The video record of interview was also tendered. In December 2006 Isbister was recalled to duty and took a statement from the complainant. She then attempted to locate the accused, making several efforts to do so. On 24 January 2007, at 5.41 pm, she attended a house at number 18 in the Mindi Rardi Community. She spoke with the accused, but because he was intoxicated, she said she would come and pick him up the next day.

7 Counsel for the accused objected to the following question and answer:

What did this police officer say to you?---He advised me that the accused had attended the station earlier in the day wanting to speak with me, and that he could be found at his sister's house which is at 56 McLarty Road, Fitzroy Crossing. (ts 52)

8 Having heard the evidence, I uphold the objection on the basis that the answer is hearsay and is not proof of the facts contained within the statement. To move forward, in the record of interview the question is asked:

Yeah, all right. Did you come down to the police station on an earlier day to speak to police? (ts 6)

and the answer recorded is:

Hmm.

9 This was accompanied by a nod of the head. Having regard to the general manner of the accused and to other questions on the record of interview, I am not satisfied that this particular response represents a reasoned agreement to the proposition that he had been to the police station earlier.

10 I return to the narrative. Isbister and Carder ascertained that the accused was at 56 McLarty Road, which turned out to be two houses from the police station - a one minute walk, according to Isbister, and a very short 30 second or so drive, according to Carder. According to Isbister, when she arrived at McLarty Road:

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I saw the accused sitting in the front yard on the grass with a couple of other people. (ts 53)

11 She spoke to the accused:

I just asked him if he could accompany us to the police station so we could do a video record of interview in relation to the alleged indecent dealing. He was sober at the time and he agreed to accompany us.

12 Isbister was asked and answered as follows:

Did Mr Siddon indicate to you that he did not want to attend the police station?---No, he did not.

Was he under arrest?---No, he wasn't. (ts 54)

13 It is necessary to examine the issue whether the accused was under arrest. In cross-examination (ts 65) Isbister confirmed that having taken a statement from the complainant she formed the view that the accused had probably committed the offence of indecent dealing. On the day before the interview Isbister told the accused:

I just told him we needed to speak to him regarding the incident that we had. Just said who it was involving and 'We need to speak to you about what happened to [Y]'. (ts 50)

14 Further:

I told him we needed to speak to him when he was sober I said I would come back the next day when I started afternoon shift and would pick him up.

15 After Isbister said she obtained the accused's agreement to accompany them he was placed in the back of a marked police Landcruiser or 'troopy'. He was placed in the cage and the door was secured. Although there are of course good reasons for placing a person in the cage rather than the cab, and also for securing the door, the fact remains that effectively the accused was in custody from the moment Isbister spoke to him on 25 January 2007. This is confirmed by the custody record tendered into evidence and I do not disregard the explanation by Isbister in reaching this finding as to that record.

16 Isbister gave inconsistent evidence as to whether she told the accused at any stage he was under arrest. At one point she said it was her usual practice and at another point she said she had told him. Isbister's memory as to events that were not recorded contemporaneously are such that I am not able to accept, on the balance of probabilities, her recollection of

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conversations except where they are recorded, such as the record of interview.

17 In particular, I am not persuaded that at any time the accused was advised that he was not under arrest or that he was otherwise free to go. The circumstances in fact strongly suggest otherwise. A decision was made to take a police vehicle to collect the accused for an interview when he was only two houses away. He was then restrained in the police vehicle, driven back to the police station and placed in the lockup. The only available conclusion is that he was in custody at the time of the record of interview. In these circumstances there needs to be emphatic demonstration to a person that they are not in custody and are free to go or stay at their choice. In this case there was no such emphatic demonstration. The contrary applies.

The record of interview - the caution

18 The record of interview discloses that the accused gave his date of birth making him 42 at the time of the interview. He went to high school at Fitzroy finishing at about the age of 15. He cannot read or write English. He indicated that he could understand what was being said. My impression of his answers on the record of interview, while often spoken in a low tone and occasionally indistinct, is that generally he can understand the question being asked of him sufficiently to make a response. He indicated that he was not drunk at the time and he did not want an interpreter.

19 The importance of the interview was, however, undermined by a question asked by Isbister:

Do you need someone to come and sit with you while we have quick chat?---No. Now all right. (ts 81)

20 To describe what was about to follow as 'a bit of a chat' is a misrepresentation of what was going to take place. I am not satisfied that the accused exercised an informed choice in relation to having a person with him at interview. The interview was, as accepted, not a quick chat. Instead it was a formal interview relating to a serious allegation. The diminution of its importance means that I am not satisfied that the accused understood his rights to have a support person available.

The Anunga Rules

21 The exact status of the Anunga Rules (R v Anunga (1976) 11 ALR 412) in Western Australia has been the subject of differing views. In

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Gibson v Brooking [1983] WAR 70 their effect on Western Australian law is probably at its lowest, however the tide has been flowing the other way recognising that it is important also to bear in mind the obligations of the police to make a full and complete investigation of crime. The Commissioner of Police has adopted them in the Commissioner's Orders and Procedures Manual. While they may not be binding, they are guidelines for police in the questioning of suspects. Failure to follow the guidelines may give a strong indication that an interview is not voluntary.

22 Isbister's knowledge of the Anunga Rules was rudimentary at best. She recalled receiving lectures on them at the Police Academy. She has now been a police officer for exactly five years. Her recollection of them in court was incomplete. The caution appears at page 7 of the transcript of the record of interview. While the accused agrees at first with statements, when asked to explain what it means he shows considerable hesitancy. When asked, 'If I ask you a question do you think you have to answer it?'. He said, 'Ah, sometime'. When asked to speak up and the interviewer says, 'Yeah, you don't have to answer any question if you don't want to because you don't have to, because this is just your chance to say your story. So if I ask you a question that you don't like do you have to answer it?---No'.

23 Further on, Constable Johnson, the other interviewing officer, said:

We're not going to force you to do anything, all right?---All right.

It's up to you.

24 I have little information on the accused, apart from my observation of him, largely in court, although silent here, and on the record of interview. Reviewing the video, I am left with the impression that only lip service was paid to the need to ensure that the accused understood his right to answer questions.

25 The initial answer and explanation should have sent alarm bells ringing, notwithstanding the following answer. Instead of persisting with ensuring that the accused comprehended his rights, Isbister asked Johnson for his opinion which was, 'Yeah, I think he understands'.

26 Thereafter the interview proceeds in an unexceptional form with the accused answering questions from Isbister. At page 21 of the interview, the question is asked appropriately:

Okay. You have grabbed her breast?---No.

(Page 8)

Why do you think she should say that you have?---Mm?

Why do you think that she said you have grabbed her breast?---[X] make it up.

Make it up?---Mm.

27 Thereafter the interview changes course to a degree when after a further denial of touching the complainant's breast, Isbister says:

I find it a bit hard to believe that you can't remember what happened when you told us everything else that happened that night, and then you can't remember this.

28 The interview then continues after a short time when the question is:

Have you touched [Y]?---Mm, I can't remember if I have.

Okay. I think you do know, Johnny. I think you need to tell me what you did. Do you think you've done something wrong?---Yeah.

Yeah, what? Why do you think you've done something wrong?---Don't know.

29 This was followed shortly afterwards:

I just need to hear, you know, your own words - what you did that night.

Shortly after, Constable Johnson intervenes to question the accused. The accused is not further cautioned. After some questions, the question is asked:

Johnny, I don't believe you can't remember, mate, all right, so just tell me whereabouts you touched her.

30 The transcript records:

(indistinct) breasts (indistinct) -

31 which is also my listening to the interview.

You touched her on the breasts. Are you sure, or was that just because Constable Kellie said that? Do you remember doing that, or no?

32 The accused could then not remember how many times. In Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, Mason CJ said:

Whether the suspect wishes to take advantage of the opportunity given to him is a matter for him to decide. And it is vital that the law should ensure that his freedom of choice is respected.

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33 In the present case, I am not satisfied on the balance of probabilities that the initial caution was understood by the accused. He was not properly informed of his right to have another person present. When the interview descends into questions which appear to have as their aim the breaking down of the account which the accused wished to give, largely of non-remembrance, I am not satisfied that the answers given were in the exercise of his free choice.

34 As a consequence, I conclude that the video record of interview was made involuntarily and is therefore inadmissible. This conclusion is reinforced by the unlawful detention of the accused for the purpose of questioning and the failure to emphatically inform him that he was free to leave.

35 The prosecution has failed to establish the accused was not overborne by his arrest in custody to such an extent that, in the end, he acquiesced to the questions posed to him. The record of interview is therefore ruled inadmissible.