Speed v The Queen - [2001] WASCA 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SPEED -v- THE QUEEN [2001] WASCA 125

CORAM: KENNEDY J
PIDGEON J
WALLWORK J

HEARD: 2 MARCH & 30 OCTOBER 2000

DELIVERED : 22 FEBRUARY 2001

PUBLISHED : 26 APRIL 2001

FILE NO/S: CCA 223 of 1999
CCA 224 of 1999

BETWEEN: MARGARET IRENE SPEED
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Two counts of wilfully damaging property by fire - Whether videotaped record of interview should have been admitted into evidence - Whether edited version only should have been admitted - Unedited version admitted at request of appellant - Adequacy of direction as to lies - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal against convictions allowed
Appeal allowed
Convictions quashed
New trial ordered

Representation:

Counsel:

Applicant: Ms C S Amsden
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

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

Cotic v The Queen [2000] WASCA 414
Edwards v The Queen (1993) 178 CLR 193
McDermott v The King (1948) 76 CLR 501
Osland v The Queen (1998) 197 CLR 316
Vale v The Queen [2000] WASCA 21
Wilde v The Queen (1987‑1988) 164 CLR 365
Zoneff v The Queen (2000) 200 CLR 234

Case(s) also cited:

Director of Public Prosecutions v Starr [1999] VSC 143
Fletcher v The Queen [1999] WASCA 18
G v The Queen (1999) 197 CLR 414
Histon v The Queen, unreported; CCA SCt of WA; Library No 970197; 1 May 1997
Nestorov v The Queen [1999] WASCA 303
R v Catts (1996) 85 A Crim R 171
R v Challoner (2000) 110 A Crim R 102
R v Crooks, unreported; CA SCt of Qld; CA No 483 of 1998; 28 May 1999
R v S (A Child) (1992) 60 A Crim R 121
R v Schneider-Markham, unreported; CCA SCt of WA; Library No 930561; 6 October 1993
R v Swaffield (1998) 192 CLR 159
Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997

KENNEDY J: I have had the opportunity of reading in draft the reasons to be published by Pidgeon J, in which the facts are set out.
At the commencement of the applicant's record of interview, following the usual caution, the applicant expressed her willingness to answer questions. There was no submission on behalf of the applicant that her record of interview with the police should be excluded from being given in evidence on the ground that it was not voluntarily made. Nor was there any submission that the record of interview should be excluded in the exercise of his Honour's discretion. The only objection voiced on behalf of the applicant to the tendering of the video record of interview was that it contained no admissions, "or anything that could be construed as admissions", by the applicant and, further, that it did not really add anything to the Crown case. Nevertheless, the method of interview employed by the detectives is open to criticism. There was persistent questioning, not only by one detective, but by both detectives. They frequently interrupted the applicant's answers. They also expressed their own beliefs in the applicant's being the offender and commented, adversely to the applicant, upon the evidence which they had already assembled, putting to her what they claimed to be the contents of statements which they had already secured from other persons. She stated on one occasion that the interview had gone on too long, and made a number of other comments about her feelings and about the length of time the interview was taking, but at no time did she decline to continue to answer the questions being put to her. Throughout the interview, the applicant repeatedly and emphatically denied her guilt and she gave no appearance in the video recording of being overborne.
The Crown conceded that the record of interview did not contain any express confessions of guilt in relation to the lighting of the two fires, but it was maintained that it contained statements by the applicant which the Crown would seek to rely on as lies, on the basis that they conflicted substantially with what other witnesses called by the Crown would be saying. In reality, there were a number of admissions made in the course of the interview by the applicant in a Crown case which relied upon circumstantial evidence. In particular, there was an admission by the applicant that she had been down in the undercroft very shortly before the first fire was detected.
The following exchange took place between his Honour and counsel for the applicant after both counsel had made their submissions regarding the admissibility of the video recording:
"HIS HONOUR: If the Crown is relying upon implied admissions, lies as implied admissions of guilt, then that is sufficient to amount to a circumstance the jury can take into account, isn't it?
COUNSEL: Yes. My only request would be that the unedited version be provided."
The Crown had prepared an edited version of the videotaped record of interview, its view being that the record should be edited by reason of its containing prejudicial matters, comprising comments by the detectives which might influence the jury to their way of thinking. There was also a statement by the applicant in relation to whether or not someone had called her a manic depressive. Nevertheless, the Crown prosecutor accepted that, if counsel for the applicant wished the whole text to go in, then the Crown had no difficulty with it.
Counsel for the applicant put to his Honour that there was nothing in the editing which did any harm to the applicant's defence, and that if the videotape were to be played as an exhibit, the jury should have the benefit of seeing it in its entirety. Counsel for the applicant clearly saw a forensic advantage in letting in the whole of the interview, a view which had some substance having regard to the manner in which the interview was conducted, a matter upon which counsel subsequently made critical comments to the jury. Counsel indicated to his Honour that she saw no prejudice whatsoever in the unedited version and added that she had discussed the matter with her client and that she was basically in agreement with this course being followed. She also emphasised that the admission into evidence of the unedited version of the record provided a basis for commenting on the manner in which the police investigations had been conducted, which, she said, was important.
At the time the learned trial Judge made the decision to admit the record of interview, it was reasonable, in my view, for him so to rule.
Following the ruling, the Crown prosecutor identified a number of alleged lies which, she said, she would be asking the jury to treat as implied admissions of guilt. Five examples were provided to his Honour:
(i)The accused was asked in the interview about the circumstances surrounding the fire on 2 May 1987. She had said she was tending a resident when the fire alarm went off. The Crown case was that Sister Kobelke was in the area where the accused said this resident was being attended to, and that there was no sign of the accused at that time.
(ii)The accused said that the window in Room 12, which is the room where the fire occurred on 2 May 1997, was open. She said further that she noticed that the window was open during a security check prior to the fire being detected. The Crown contended that there was no such discovery. Undoubtedly, the accused did not alert Sister Kobelke to the window being open at the time when the security check was undertaken. This was claimed to be another lie told by the accused.
(iii)In relation to the fire on 18 December 1996, the accused said that she heard the roller door to the undercroft being operated. She went down and found it slightly open. She closed it. This was contrary to what the witnesses would say, inasmuch as, if it had happened, it would have been heard by the people in Abbey Wing, which is the area of the nursing home immediately above the undercroft.
(iv)The accused said that she followed Sister Kobelke towards the fireboard, but later on she said that she did not follow her. The Crown said that this could lead the jury to find that the accused's credibility was lessened.
(v)The accused admitted that what she had put in the statement which she had made approximately four days before the interview in relation to her following Sister Kobelke was not an accurate statement.
Reference was also made by the Crown prosecutor to what were said to be other admissions implicating the applicant. These included her admitting she was a smoker and could be seen using a cigarette lighter. Her statement that she had heard Sister Kobelke going to the fireboard was said to be inconsistent with her saying that she had followed Sister Kobelke. The applicant also admitted that she was probably talking about fires an hour or so before the fire in Room 12 had been detected. The Crown prosecutor referred to the fact that she did not go to help the first patient in Room 12 after the fire had been detected and had talked about getting a fire extinguisher. However, she then said that she had actually gone to get the fire extinguisher when the second patient was being taken out of the room, which, the Crown prosecutor claimed, was another inconsistency in her version of the events. Finally, the Crown prosecutor referred to a discussion about the fact that the accused had made a comment that the kitchen door in the Cheb Wing was open when she had not been in a position to see the door, and she had given inconsistent accounts of where she was, and how it was that she was able to say that this door was open.
In her opening address to the jury, the Crown prosecutor, referring to the record of interview, said that whilst the applicant had denied lighting the fires, what she had said about the circumstances, particularly in relation to the second fire, conflicted to such an extent with what the other witnesses had said about the circumstances that the jury would be entitled to find that she had lied to the police. The Crown case was said to be that if she were found to have lied to the police, the jury might find that she had done so in an effort to conceal her guilt. The lies were not at that stage particularised, nor were there any details provided to the jury as to the necessary requirements before a lie told by the accused could be taken to be an implied admission of guilt. The Crown prosecutor went on to say that, within the videotaped record of interview, when she was talking about the circumstances at the time of the fires, her version changed from one minute to the next, and that this was another factor which the jury could take into consideration when determining whether the applicant was a credible person when she said that she did not light the fires.
In the cross-examination of the applicant, the Crown prosecutor questioned her at length regarding the inconsistencies in her statements both in her record of interview and in her evidence. At no time, however, was it put to the applicant that she was deliberately lying, or that she was deliberately lying because she recognised that to tell the truth would be to acknowledge her guilt.
In her closing address, the Crown prosecutor submitted that, in relation to the first fire, and referring to the applicant's explanation for being down in the undercroft prior to the discovery of the fire, the conclusion to be drawn was that the applicant had lied when she said she had heard a noise, the reason for the lie being to conceal what she was in fact doing down in the undercroft. She then asked the jury to find that the accused had been lying about what she was doing down in the undercroft, given that no one else in a position to hear the noise had heard anything before she went down. Later, she referred to lies indicating consciousness of guilt. This was, however, said in a general context. She indicated that the trial Judge would give a direction about how they were to look at lies if they found there were such lies.
Counsel went on to stress, in relation to the second fire, that the applicant was anxious to convince the police that the window to the room was open, with the implication being that an intruder had left the home through the window, that she had given varying measurements as to the extent to which the curtains were open, so as to reveal that the window itself was open. The evidence of Detective Sergeant Cunningham was that the curtains had been closed at the time of the fire. It was therefore submitted that the applicant wanted to deflect attention from herself, she having a consciousness of guilt.
A little later the Crown prosecutor said:
"You can see on the video record of interview how evasive she is when the police are simply asking the question: 'Well, you say Kobelke went on her way to the fireboard. Tell us how you knew.' She doesn't tell them clearly. Another instance where the accused is not being open with the police and the Crown says you may conclude that's because she's hiding her guilt."
The Crown case in relation to the alleged lies was put forward in a manner which was likely to confuse the jury. The word "lies" was far too frequently used without any adequate distinction between "lies" which were relied upon as going merely to credibility and those which were said to indicate guilt.
The directions given by the learned trial Judge in relation to the alleged lies were as follows:
"Normally, people cannot be convicted simply because they tell lies, but in some circumstances a lie may be an implied [admission] of guilt. In other words, a person tells a lie because they know that they have done something wrong, and they are telling the lie to get off the hook.
That is the only time that you can use a lie in proof of a case and it is part of the circumstances of a case because we know that a lie is a deliberate untruth, which is proved to be a deliberate untruth if you accept the evidence of somebody else who says the opposite of somebody different or if the person later admits that what they have said is untrue.
That may be distinguished I think from what may be referred to as an internal inconsistency, when a person says one thing at one time while they are being spoken to, and another thing at another time. It is also to be distinguished from confusion when, in answer to a question, a person may miss the point or a person may answer the wrong question or whatever. The person is confused about what the question is about or what the question is on about or, because of nervousness, fails to answer the question asked."
His Honour gave some examples of what, during the course of the trial, had been said by the Crown to be lies and he posed the question: "Is all that is said to be suspicious on the video record of interview, in answers given by Mrs Speed, deliberate untruthfulness, or is it due to some confusion or stress?"
His Honour continued:
"Anyhow, the Crown says that it relies upon the lies on the video as an implied admission of her guilt and it relies upon what it says is lies told by her to you in her evidence when you compare them to evidence given to you by other people, if you accept that, as an implied admission of guilt.
As I said, ordinarily telling a lie merely affects the credit of a person who tells the lie. If somebody tells you a lie, then you don't believe them the next time they tell you something and you look at them a bit more carefully, but here it goes a little more than that because the Crown says that the reason she told the lies that she did tell, which I will refer to and which the Crown has referred to, was because she knew she had done something wrong and she was trying to cover it up and that the only reason was that she was guilty and she feared the truth coming out.
When you're considering these lies which we will be talking about, you must also consider, are there any other reasons for the person lying, if you find them to be lying, other than they realise their guilt or they fear the truth. There are other reasons such as nervousness, confusion, internal inconsistencies, which are not lies at all but simply part of confusion or lies told due to stress and by being pressed and your answers not being accepted and getting yourself in deeper and deeper. Are these explanations which are not inconsistent of guilt? (sic) Are they explanations which may be accepted when a person who is not guilty is being persistently questioned in the way that she was for two and a half hours despite her repeated denials that she had done anything wrong?
In relation to the evidence that she gave yesterday, the Crown says she told you a lie about finding the door up in the undercroft in relation to the first count and the Crown says you should find that to be a lie because of the fact that no one else saw the door up and the door was down when Sister Petagna - clearly was down when Sister Petagna went down there because Mrs Speed said that she had closed it, but the Crown says that was a lie and it was a lie because nobody heard the noise of the roller door being operated when she said she closed the door, although - sorry, not Sister Petagna - sorry Sister Petagna, that she heard - there were people who should have been in the vicinity to be able to hear the noise the door made when it was being closed, even if it was being closed 10 inches, and the lie was to deflect blame from her and leave the possibility open that an intruder had got into the undercroft. Another explanation may be that all that was true that Mrs Speed said and other people simply didn't hear it because they were doing other things or trolleys were rattling or whatever.
In relation to the second count, the Crown says she told a lie when she said she was attending to Mrs Ellis and that was a lie because Sister Kobelke did not hear any call for assistance from Mrs Ellis and she was in an area where she could have heard and the area was quiet.
In relation to the window being open in Room 12, that was also a lie because if you accept the evidence of the staff who had done the check of Room 12, the Cheb staff and Mr Robinson, that window was shut and that was before the detection of the fire. I have already made mention of the report and the evidence she gave about following Sister Kobelke up the passageway. Is that a lie or was that simply being evasive?
In relation to the first charge, the Crown says she is telling lies about why she was in the undercroft and what she had done down there simply to cover up the fact that she was down there to light the boxes and cause the damage that was caused down there, and that she was lying when she said she put the chain back on the bar if you accept Sister Petagna's evidence that when she went down there to open the door to the firemen the chain was loose.
In relation to inconsistencies between what she said on the video on one occasion and on another occasion, that may have an impact on your assessment of her credibility if you find that the inconsistencies were suspicious and could only be caused because of making up a story as she went along. If there were inconsistencies because of her being stressed or because her wishing to bolster up a valid denial because of its non-acceptance by the officers who were clearly not accepting that what she was saying, the inconsistencies may not be such a hard profile in your assessment of her credibility."
At the conclusion of his Honour's summing‑up, the Crown prosecutor suggested that the learned trial Judge had not clearly set out the criteria necessary for the jury to take into account and that he had talked about how the Crown viewed various things, but that he had not told them that a lie had to be an untruth, and that it had to be deliberate. His Honour then further directed the jury:
"Before you can use a lie you can only take it into account if you are satisfied, having regard to the circumstances and the events about which the lie is told, that the lie reveals a knowledge that an offence has been committed, and, secondly, that the lie was told because the person telling the lie, in this case the Crown says Mrs Speed, knows that the truth of the matter about which she lied would implicate her in the offence and because she realised that she was guilty or that she feared what telling the truth would bring. It has to be the case that the lie has to be proved to be a lie by other evidence which you accept as being credible and believable. In other words, in order to find that she is lying you have to accept the evidence of somebody else who says the opposite to what she has been saying about the particular matter you are considering."
He concluded by warning the jury that there may be reasons for a person telling a lie apart from a realisation of guilt.

In Edwards v The Queen (1993) 178 CLR 193, at 209, Deane, Dawson and Gaudron JJ said:
"When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' [Dearman v Dearman (1908) 7 CLR 549 at 555 per Griffith CJ] or as corroborative evidence.
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him [Eade v The King (1924) 34 CLR, at 158]. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him' [Reg v Tripodi [1961] VR, at 193]."
At 210 ‑ 211, their Honours continued:
"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest …. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it … and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt …. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect."
In Osland v The Queen (1998) 197 CLR 316, at 333, note 59, Gaudron and Gummow JJ usefully summarised the import of Edwards' case so far as it was relevant to the case before them:
"[W]here a lie is relied on to prove guilt, the trial judge must first identify the lie, and the circumstances and events relied on by the Crown to indicate that it constitutes an admission against interest. Secondly, the jury must be told it may take the lie into account only if satisfied, having regard to those circumstances and events, that the lie reveals the accused's knowledge of the offence charged or an aspect of it. Thirdly, the jury must be told that there may be reasons other than realisation of guilt why the accused told the lie. Fourthly, the jury should then be told that if it accepts the lie was told for a reason other than realisation of guilt, it cannot regard the lie as an admission against interest …."
The High Court returned to this subject in Zoneff v The Queen (2000) 200 CLR 234. At 244, Gleeson CJ, Gaudron, Gummow and Callinan JJ said:
"The meaning of the phrase 'consciousness of guilt', the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards-type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy. The Court of Appeal in Victoria in a series of cases, R v Morgan [unreported: 13 August 1996], R v Renzella [[1977] 2 VR 88], R v Laz [[1998] 1 VR 453], R v Erdei [[1998] 2 VR 606], R v Cervelli [[1998] 3 VR 776] and R v Konstandopoulos [[1998] 4 VR 381] has sought to grapple with the problems. But as Hayne JA in Morgan [(unreported, Court of Appeal (Vict); 13 August 1996) at 4] suggests, rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated.
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should given an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards [(1993) 178 CLR 193 at 211], 'the accused knew that the truth … would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle).
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require clarification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged [See Osland v The Queen (1998) 197 CLR 316 at 333-334, per Gaudron and Gummow JJ].
This was an unusual case. The prosecutor did not, during cross-examination, in terms, or in our view, by implication, suggest that any answer given was a lie, told out of consciousness of guilt (a phrase we use for convenience). Moreover, as the prosecutor did not address the jury, no such suggestion was made at any later stage of the trial."
In my opinion, in this case, in which the Crown was seeking to rely upon a substantial number of lies, the learned trial Judge's directions fell short of what was required, although it should be noted that the decision in Zoneff was decided by the High Court subsequent to the trial in the present case. Having identified five lies which the Crown relied upon as implied admissions of guilt, in the circumstances of this case, it was necessary for his Honour clearly to exclude all the other lies which had been claimed by the Crown to have been told by the applicant as not being capable of amounting to implied admissions of guilt. It would then have been appropriate for his Honour to have instructed the jury that if they found that those other lies had been told, then they could treat them as going to the credibility of the applicant.
When his Honour came to identify the second and third lies, he failed to identify the circumstances and events that were said to indicate that they constituted admissions against interest and merely restated the Crown's contention that they were lies. There was no guidance given to the jury as to how these lies implicated the applicant in the commission of the offence in a situation where it was critical that the directions be addressed to the facts of the case.
The directions regarding the lies amounting to admissions of guilt were essentially expressed in terms of what the Crown relied upon, as is quite normally the case; but there was no reference by his Honour to the case for the defence. In fact, there is little to be found in the final address of counsel for the applicant on this particular matter. She did, however, stress that an honest witness can be a mistaken witness, as well as stressing that the applicant had chosen to participate in the police interview and that she had throughout maintained her innocence. Her counsel had submitted that there was nothing before the jury to suggest from the interview or from her evidence that the applicant was a person who should not be believed. Accordingly, at least implicitly, the applicant was denying that she had lied either in the interview or in her evidence. That was not, however, put to the jury by his Honour.
In the end, I have concluded that the ground of appeal relating to the direction as to lies has been made out. Standing alone, it may be accepted that the directions with respect to the two alleged lies told by the applicant in relation to her presence in the undercroft before the first fire were satisfactory, however, it appears to me that they cannot be isolated from the problems affecting the significant number of other "lies" upon which the Crown was seeking to rely. There was, I consider, a risk of misunderstanding on the part of the jury. Although the Crown case was a strong case, based upon circumstantial evidence, I am unable to conclude that the applicant has not lost a chance of acquittal. The appeal in this matter being as of right, although in form it is an application for leave to

appeal, I would allow the appeal and quash the convictions. Whilst I would direct a new trial on each count, having regard to the period which the applicant has already spent in custody, it will be for the Director of Public Prosecutions to give careful consideration to whether the new trial should be undertaken.

PIDGEON J: The applicant is a nursing assistant born in 1952. It was alleged that, on 18 December 1996, in the undercroft of the nursing home where she was then working, she lit a fire that caused damage to a number of boxes of documents. She was charged with wilfully damaging that property by fire contrary to the provisions of s 444(2) of the Criminal Code. It was alleged further that, on 2 May 1997 she lit another fire in a room where two residents were in bed, damaging the curtain between the residents and other material in the room and was charged with a similar offence. On 6 September 1999, she stood trial before Judge Healy and a jury in the District Court. She was convicted following a five day trial and sentenced to a total effective term of 7 years imprisonment. She is seeking leave to appeal against both her conviction and sentence.
There are two grounds of appeal against conviction claiming, firstly, that his Honour erred in admitting into evidence a video of her interview with the investigating officers and, secondly, that his Honour gave an insufficient direction as to the use the jury were to make of lies allegedly told by the applicant. A proposed ground that the verdict was unsafe and unsatisfactory was deleted from the amended grounds which were substituted at the second hearing of this appeal.

Crown case - first fire -18 December 1996

The Crown case was that the applicant was employed as a nursing assistant at the Concorde Home, which had, normally, ninety two residents. Many were bedridden and the others, who were classified as independent, had limited mobility and either needed assistance to walk or needed to use a walking aid. Persons who are fully mobile would go to a hostel and would not be admitted to a home of this type. The home had 51 rooms for the residents and there were two wings. One, known as the Cheb Wing, was situated at the southern end of the home and the other known as the Abbey Wing was at the northern end. The home was on ground falling to the north which meant that the Abbey wing was on a high foundation. Within this foundation, on the eastern side of the building, was a large undercroft. It was used as a garage and had a double width garage roller door opening onto a driveway which led to the street. Cars parked there during the day but not at night. There was a notice

saying that vehicles must be removed by 4.00 pm as the undercroft must be locked at night. The home had agreed to store in the undercroft, on a temporary basis, the records belonging to the National Association of Nursing Homes and Private Hospitals Incorporated as this body was changing its offices. The records were stored in boxes along the back wall of the undercroft. There was access to the undercroft from the Abbey wing by a stairway of 15 steps from a corridor near the boundary of the two wings. It was a steep staircase and the residents, because of their limited mobility, could not negotiate it. The door from the corridor at the top of the staircase was kept locked with the key placed on a small metal plate behind a wooden ledge to the left of the door. It was hidden in this manner from the residents.

During the late evening of 18 December 1996 the boxes were found to be on fire. The fire was extinguished by the staff with fire extinguishers. The Fire Brigade arrived and completed extinguishing the fire. A number of boxes were burnt. It was the Crown case that the applicant lit this fire.
The staff normally on duty at night were a registered nurse and a nursing assistant in the Abbey wing and a registered nurse and two nursing assistants in the Cheb wing, as that wing had more residents. On the afternoon shift of the day of the fire Sister McGuffie was the registered nurse in the Abbey wing and she was to be relieved by Sister Petagna (Mrs A G Rowe) at 10 pm to work the night shift. The applicant commenced duty at 9 pm to work the night shift and assisted in the Abbey wing. Sister McGuffie said, in evidence, that it was her duty to lock the undercroft. She said that at 7.00 pm she went down the staircase to lock the roller door. She described it as a heavy metal door raised and lowered by a chain. She had to physically pull the chain down and then when the roller door was down she wrapped the chain around a bracket on the wall. Sister McGuffie went back up the stairs and her next task was to shut and lock the door at the top of the staircase. She locked this door and put the key in its proper place. She then locked the front door and the other doors giving access to the home from outside.
Sister Petagna reported for duty at 9.40 pm and she and Sister McGuffie went into the office of the Abbey wing to arrange the handover. This office is in a narrow enclosure between the staircase and the wall of an inner courtyard. Sister Petagna and Sister McGuffie left the office at about 10.00 pm and they each saw that the door at the top of the staircase leading to the undercroft was open with its key in the lock. This was a noticeable breach of security causing some surprise. Sister McGuffie had passed the door some 15 minutes earlier and said it was not open then. The two decided to go down the stairs to investigate. As they were about to descend the stairs they noticed the applicant coming up the stairs. This would call for an explanation as it was not part of the routine for staff to be in the undercroft at night. The applicant said to them that she thought she had heard a loud noise down in the undercroft and she went down to have a look and said that it seemed all right. She was asked if she found anything and she replied that she had not. Sister McGuffie said, "We'll lock the door and put the key back if it's all right down there." Sister McGuffie then went home and Sister Petagna took over.
The door at the top of the staircase was again found to be open about seven minutes later in the following circumstances. Sister Kinsman, who worked in the other wing, needed an insulin syringe so she came down to the office in the Abbey wing to obtain one. As she reached the head of the staircase she noticed that the door was open with its key in its lock. She called out, "What's the door doing open ‑ why is the door open?" She was not calling out to anyone in particular, but she anticipated that those working in the Abbey Wing would be in the office adjoining the staircase. When she called out, Sister Petagna and the applicant came out of the Abbey wing office. Sister Petagna said she had just locked the door a few moments earlier. Sister Petagna estimated this length of time at between five and seven minutes. She said that she did not notice what the applicant was doing during that time and had assumed she was doing her normal duties.
Sister Petagna and Sister Kinsman then went down the stairway. They each saw a flickering light underneath the door at the bottom of the staircase, which leads into the undercroft. Sister Petagna was leading with Sister Kinsman following and a third person, who Sister Kinsman thought was the applicant was behind them. Sister Kinsman said this person said "Feel the door in case it is a fire". Sister Kinsman, on the stairway repeated this. Sister Petagna said that she went into a fire training mode, felt the bottom door and opened it and saw that the boxes were on fire. She called out "It's a fire". The two assistants from the Abbey wing also appeared. Sister Kinsman, with their assistance, took over the fire fighting role while Sister Petagna rang the fire brigade and also the Matron, who was at her residence. Sister Kinsman asked the applicant to go outside and wait for the fire brigade so as to direct it to the undercroft which was not readily visible from the street. Sister Petagna checked the home to make sure there were no intruders or wandering patients. She also placed other fire extinguishers at the top of the stairs to make sure those fighting the fire had enough. She heard someone say that the fire was out. She then went down the stairs to open the roller door to let the fire brigade in. She said that it was closed right down to the ground but the chain was not on the metal bar which usually secures it.
The fire brigade arrived at about 10.40 pm. The officer in charge said the fire was still burning and was put out. Some of the staff thought that it was already out. After the fire brigade left, Sister Kinsman went into the Cheb office, at the other end of the building, to do an incident report. She said that while she was in this office, the applicant entered and asked if she needed to do an incident report for the fire. She told the applicant to see Sister Petagna. The applicant told Sister Kinsman that while she was with one of the residents, Mrs Ellis, in room 38 she had heard the noise. She said that she went downstairs and closed the undercroft roller door which had been raised about a foot. This was the first time the applicant said she found the roller door partly open.
The other two nursing assistants each gave evidence as to what they were doing at the time and as to what they saw happen. The fire brigade officer, who gave evidence, said that he could not find a reason for the fire to have started and because of this he said that it had commenced in suspicious circumstances. This fire was not, at the time, brought to the attention of the arson squad.
The roller door is a wide one, at least two cars lengths and is operated by a continuous chain attached to a pulley at the top. It is necessary to pull on the chain to turn the pulley which in turn raises the door from the top. The evidence showed it would make a lot of noise. The door cannot be opened from the outside. This is the position even if the chain inside is not wrapped around its bracket. On the following day the applicant started duty at a quarter to nine and saw Sister McGuffy who was about to go off duty. The applicant said to Sister McGuffy, "I didn't tell you last night but when I went down there to check, the door was open about that much." She then indicated ten inches. Sister McGuffy said, "Why didn't you tell me last night?" to which the applicant gave no reply.

The circumstances relied upon by the Crown to show that the applicant lit the fire were that about seven minutes before the fire was seen to be well under way the applicant was seen coming up the staircase and had in her possession a cigarette lighter as she was a smoker. It was contrary to routine for her to be in the undercroft and it called for an explanation even if there had been no fire. The explanation she ultimately gave that she found the roller door partly open was on the Crown case false. It had been closed at 7 pm. It could not be opened from the outside without being forced and noticeably damaged. There was no one who could have opened it from inside apart from the staff. It would have been a breach of duty for a member of the staff at that time of night to go down and open it. The roller door could not have been opened at the time the applicant said she heard a noise as the activities of the other members of the staff were accounted for. The explanation that the roller door was open was given to Sister Kinsman after the fire. It was inconsistent with what the applicant told Sister Petagna and Sister Kinsman when the applicant was first seen coming up the stairs. The applicant was then asked if she had found anything and she replied that she had not. The residents could not get past the locked door at the top of the stairs. It would have been impossible for them to go down the stairs and up again and they would have been seen as wandering patients if they tried. The hospital was locked and no intruders were seen inside when the hospital was searched shortly after the first fire was noticed. No-one else could have been downstairs at the time the fire started other than the applicant or another member of the staff. The two nurses from the Cheb wing gave evidence as to what they were doing in the Cheb wing. They did not go to the other wing until they heard of the fire. The inference the Crown asked to be drawn from the fact that the door at the top of the stairs was opened the second time was that the applicant opened it to draw attention to the fire so that it would be put out.

Crown case - second Fire - 2 May 1997

The second fire occurred about 1.40am on 2 May 1997 in room 12 in the Cheb Wing. Two immobile residents, who did not smoke, were in bed and their beds were separated by a curtain. This curtain and part of the bedding of one of the occupants was found to be alight. I shall refer, at this stage, to the circumstantial evidence relied on by the Crown. The expert evidence was that the fire was deliberately lit as there were two fire seats causing two independent fires. One was at the bedside curtain between the two occupants. The other was at the window curtain. This eliminated accident. There were no intruders as the hospital and grounds had been thoroughly searched in circumstances to which I shall later refer. The residents were in bed and none was capable of moving to room 12. The only person capable of lighting the fire in the manner it was would be one of the five staff. Four of them could give clear accounts of what they were doing. The account given by the applicant contained lies. Room 12 was in the Cheb wing and the applicant was seen to be near that room when the two Cheb assistants left the area. The next significant area of circumstantial evidence, on the Crown case, was that the applicant, prior to the fire, fabricated a situation to suggest that there was an intruder. This caused the search, to which I have referred to have been carried out.
The evidence led by the Crown to prove these circumstances was that the applicant was working the night shift in the Abbey wing and was the assistant to Sister Kobelke, who commenced work at 9.45 pm taking over from Sister McGuffie. The applicant had already commenced her shift. Those on duty in the Cheb wing were Sister Sylvester, Nurse Prideaux and Nurse Smith. Sister Kobelke was about to pick up a load of continence pads for distribution the next morning when the applicant came into the Abbey office. The applicant asked Sister Kobelke if she would like a cup of coffee. Sister Kobelke agreed and they went into a lounge in the Cheb Wing near the front door. Sister Kobelke said the residents were all in bed. The applicant and Sister Kobelke spent five to ten minutes having coffee. Sister Kobelke went back to the Abbey office, but she did not know where the applicant went. After about ten minutes the applicant came into the Abbey office and said she heard somebody knocking at the back door and she asked Sister Kobelke if she would go with her to check. Sister Kobelke had not heard any knocking. They went to the back door. Sister Kobelke said that she could not see or hear anything so she told the applicant not to open the door, but to get the nurses from the Cheb Wing and that they would all investigate. They switched on the outside lights and they could not see or hear anything. Sister Sylvester suggested they do a security check. This involved going around the inside of the home to make sure all doors and windows were secure. Sister Kobelke said that she and the applicant then went down a corridor in the Abbey Wing to check that area. She said the applicant appeared to be rushing around and rushing ahead and to be one room ahead of her checking windows. They finished checking the Abbey Wing and started to head towards the Cheb Wing. They commenced to check rooms in the Cheb Wing and the applicant was one room ahead of her. Sister Kobelke said that when she got to the end of the Abbey Wing the applicant went into room 13. She came back to Sister Kobelke and told her that there was a window in room 13 which was unlocked and open. They together went into room 13 and the applicant stuck her leg in and out of the window to show it was not closed. There were two occupants in the room who were in bed. They then closed the window and locked it. When they left room 13 Sister Kobelke called out to the other staff that they were going to check the front door which would be further to the south and is on the eastern side of the home. The applicant said she would check the front door and Sister Kobelke would check the kitchen. Sister Kobelke went into the kitchen and she noticed that the kitchen door was open on to the outside. She went outside for a moment and realised that she should not be outside so she went back in trying to close the door. She then heard the applicant calling out about the door being open and at that stage she said that the applicant was "out the back somewhere". She then heard the applicant calling out to the other girls from the Cheb Wing telling them that the kitchen door was wide open. Sister Kobelke said she shut and latched this door.
Nurse Prideaux, who was one of the assistants in the Cheb wing, told them that her string bag was missing so Sister Sylvester decided to call the security company. A security officer, Mr Gustaf Robinson, said that he received the call at 12.05am, when he was told a bag had been stolen. He arrived at the front door of the home at 12.10am and spoke to the staff. He was taken into the kitchen to examine the door which was open. Sister Kobelke said that she had closed and latched this door when she had earlier found it open. He said that it could not be opened from the outside and had no marks on it to show that it had been forced. The inference is that it must have been opened from the inside each time it had been opened. He then did a full external check, searching the grounds with a torch and checking the windows. He found all windows closed and locked with the exception of two sliding windows at the rear of the premises. These were closed but could be opened from the outside. These two rear sliding windows are of no relevance.
Sister Kobelke said that she and the applicant then went back to their own area in the Abbey Wing and sat down and had a cup of coffee. The applicant started to tell her about the fire which had occurred 18 December 1996 and was complaining that nobody really worried about it too much. The applicant introduced this subject into the conversation shortly before the second fire started. Sister Kobelke told her that there was a fire lecture coming up and she would put the applicant's name down to attend it. The applicant did not reply and got up and walked out of the room. Sister Kobelke said this occurred about 1.00 ‑ 1.30 am. Sister Kobelke went back and started working again in the office. The applicant came into Sister Kobelke's office and sought permission to be out of the area for a short period as she wished to see Nurse Jean Smith, who was assisting nurse in the Cheb Wing. Sister Kobelke agreed. The applicant did not return and Sister Kobelke was starting to become annoyed as she thought a resident could ring a bell and the applicant would not be available to answer it. The applicant did not return and Sister Kobelke could not hear her in the Abbey area. The fire alarm then went off. This was about 1.40am. Sister Kobelke checked some corridors and started to walk towards the front of the hospital to examine the fire board which has an indicator board which would show where the fire was. On her way she saw a glow and went to room 12 and saw that the middle curtain, which separates the two occupants of the room, alight. She went out, opened a fire door in one of the corridors and called out where the fire was. She ran back to room 12 and saw the bedclothes of the resident closest to the door were alight with flames coming from a blanket. The resident was an elderly resident who could not walk on her own. Sister Kobelke got the resident to sit up on the edge of the bed and she dragged her out of the room and put her near room 14 where the tea facilities were. As she was dragging the resident towards the tea-room, Sister Kobelke saw the applicant between room 12 and 13. She said, "She was sort of looking in towards room 12." Sister Kobelke called out, "Help, help, help me with the residents. Help me take the residents out." The applicant did not respond and disappeared. Sister Kobelke then ran back into room 12 to try and get the second resident out. The fire by this stage was up to the top of the curtain towards the ceiling and had gone into the ceiling fan. This resident also could not walk by herself so Sister Kobelke started to drag her out of the room. The applicant at this stage was outside room 12 and said she would get a fire extinguisher. Sister Kobelke told her in strong terms to forget the fire extinguisher and to help take the residents out before they all burnt to death. The applicant then assisted in dragging the second resident out. Sister Sylvester arrived with a fire extinguisher and attempted to put the fire out but was unable to do so. The fire brigade arrived and put the fire out. By then, the matron had arrived and sent the applicant to the Royal Perth Hospital for treatment for smoke inhalation.
Nurse Prideaux gave evidence that she was an enrolled nurse who commenced work at 9.00 pm on 1 May 1997. Her task was to assist Sister Sylvester and Nurse Smith in the Cheb Wing. She said that when she came on duty at 9pm she checked the kitchen door and it was locked. At about 11.20 pm she did a late night round of the residents. After about half an hour she reached room 24 when she heard the applicant from the Abbey Wing calling that someone was knocking at the back door of the Abbey Wing. No one else had heard knocking. The evidence was that it was very quiet at that time of night. Nurse Prideaux and Nurse Smith could not leave the resident they were attending, but they noticed Sister Sylvester leave the room and go down towards the Abbey Wing. Sister Sylvester came back and said that they were to do a security check. She heard that the kitchen door was open which caused her some concern as she had left a string bag in the adjoining dining area. When she got to the area she saw the string bag was not there. She said they then called the security company and the security officer arrived. She had a coffee and then went back to finish her round. During the course of this round she went into room 12 to settle and turn the two residents. She checked the windows and she said they were shut and secure. She said this occurred at about half past twelve or possibly a quarter to one. She said that neither of the residents in that room were smokers. Their mobility was so limited that they needed two nurses to turn them and get out of bed. She then checked room 13. She completed her round and as she was coming back down the corridor she saw the applicant standing near room 13, apparently drinking a cup of coffee. She then left that area as her round was complete. A restless patient came out of room 31, which was in another area, and was given a sedative and put back to bed. This was about 1.30am. The three persons working in the Cheb area then went into the kitchen, which is in the Cheb Wing to have a cup of coffee. The group included Nurse Smith who was the person the applicant said she wished to see when she sought permission to leave the Abbey Wing. They each said that the applicant definitely did not come into that area and Nurse Smith said the applicant did not speak to her. Nurse Prideaux said at about 1.40 am, which was about 10 minutes later, she put some sausage rolls into the microwave and seconds after that the fire alarm sounded. She immediately thought this was due to the sausage rolls being placed in the microwave. She read the fire board which was close by which indicated that the fire was in room 12. However, by then, the fire doors in the corridor had shut. She was surprised that it was in room 12 as she had so recently been in the room and everything was in order. Her evidence as to what then happened corresponded to what I have already described.
The Crown referred to a further matter that, on the Crown's view, strengthened the circumstantial evidence. The first was the disappearance and re‑appearance of Nurse Prideaux's string bag. This was found at 6.30 am on the following morning, 2 May on top of a bush. When the security officer reported the previous evening in response to the phone call, he conducted a thorough search of that area and there was no sign of a string bag.
A further incident occurred on 9 May. Nurse Prideaux came on duty at 9.00 pm and was working in the Cheb Wing with Sister Sylvester and Nurse Smith. The applicant was working in the Abbey Wing. Nurse Prideaux had been working for about 45 minutes and decided to do a routine security check and she noticed a door open in the Cosy Corner Lounge. This lounge is on the western side and would appear to straddle the boundary between the Cheb Wing and the Abbey Wing. She then saw a note on the dining room table in the Cosy Corner Lounge. This note read, "See you all at next Bombfire". It was written with a large red texta pen on paper available to the nurses in their respective offices. Nurse Prideaux took the note to Sister Sylvester who rang the police. They then came back to the Cosy Corner and Nurse Prideaux noticed scribble under the fire extinguisher and also arrows on the floor moving out towards the sliding doors.
Nurse Prideaux gave evidence which would indicate the applicant had the opportunity to place the note there. Nurse Prideaux said that in the previous three quarters of an hour she was in the linen room folding linen. The linen room is in the Cheb Wing and is towards the north of the building. She said that during the three quarters of an hour, while she was in the linen room, the applicant came into the linen room three times at intervals of about ten minutes. She said that she came up for no particular reason. Nurse Prideaux said that usually the applicant comes up for linen, but on this particular night she did not. Nurse Prideaux asked the applicant if she wanted linen and the applicant said no because they had not finished folding all the linen and she would get it later. The extent of the significance of this is that the applicant had come out of the area where she normally worked for no apparent reason and secondly, and it can be put no higher than this at this stage, it would have been open to the applicant to put the note in Cosy Corner.
The applicant, in response to a request from the Matron dated 14 May, wrote an incident report in which she said, "I myself was in room 38B attending her needs, RN Kobelke was in office, when fire alarm rang. Followed RN Kobelke around the Wing from Abbey Wing to check fireboard. Fire found in room 12 by RN Kobelke." The evidence was that the resident in bed 38B was Mrs Ellis. The Crown led evidence that the applicant did not follow Sister Kobelke when she walked towards the fireboard and in cross‑examination the applicant said that she had not followed Sister Kobelke.
Detective Sergeant Cunningham, who is a qualified fire investigator, examined room 12 on the morning following the fire. He said there were two independent fires as he had located two fire seats. One was on some terylene‑type material on a curtain near the window, and the other was on a bedside curtain that divided the beds of the two occupants. He could not locate anything that indicated an accidentally caused fire and the fact that it started at two separate places would, of itself, rule out accident.
Detective Cunningham said that there was a light white terylene‑type material that was hanging in the window recess and then a heavier drape that went from the ceiling to the floor. He considered at the time of the fire that this drape curtain was closed against the window. When he was conducting the examination he saw the window and the curtain both open. He gave detailed reasons relating to smoke staining as to why he considered the heavy drape curtains were closed against the window. The defence had no dispute with Detective Cunningham's evidence.
On 21 May 1997 Detective Teather and Detective Sergeant Tristram of the Arson Squad interviewed the applicant for a period in excess of two hours and this interview was recorded on a video tape. The applicant, in this interview repeatedly denied that she lit the fires. The Crown sought to tender portions of this interview. Counsel for the defence requested the whole interview be admitted and in response to this request it was admitted into evidence.

Applicant's case

The applicant gave evidence. Her evidence‑in‑chief was comparatively short. She was referred to the two fires and denied lighting them. She gave evidence that she was happy at the home and that there were no personal circumstances that might trigger a psychiatric condition. She gave evidence on her habits in smoking. She did not, in her evidence‑in‑chief, seek to give explanations in respect of those matters which the Crown considered were compromising and called for an explanation. It was apparent that she was relying on explanations she had given in her record of interview, which was before the jury. She said in respect of her interview with the police that because of the way the interview took place and the length of time it went on for, she was quite stressed. She said that she did not believe that she said things as they happened. In cross‑examination she said she was in room 38 attending to Mrs Ellis when she heard the fire alarm.
Other matters referred to by the defence were that, after the second fire, Sister Sylvester thought the applicant was in shock. It was also submitted that there were a number of prowlers in South Perth and other persons had the opportunity to enter the hospital or light the fires. It was submitted that the applicant did not waiver from her denials in the video interview or in her cross-examination. It was submitted further that the evidence of the other witnesses taken together or separately did not implicate the applicant. What their evidence showed was that there were some windows at the nursing home which at some time did not lock. There were some doors that were open when they should not have been. The Matron said it was not a secure premise. There were prowlers and people smoked inside despite the rule that they smoke outside.

The reference by the Matron to its not being a secure premise was in the context that the home could not take Alzheimer or dementia patients. It did not necessarily mean that the home could not be locked at night.

Admissibility of the Record of Interview

Ground 1 reads:
The learned trial judge erred in law in allowing the video taped record of interview to be admitted into evidence in circumstances where -
(a)the interview contained no admissions against interest;
(b)the manner in which the interview was conducted was improper and unfair to the accused in that
(i)the police lied to the Applicant in saying 'I've spoken to Mrs Ellis. She doesn't remember you being there'.
(ii)police misrepresented the handwriting analysis in regard to the Applicant.
(iii)the police behaved in an insulting manner toward the Applicant at several points during the interview.
(iv)the police continued to question the Applicant after she said: 'It's too long I've had enough'.
Ground 1(a) raises the question whether those parts of the interview the Crown were seeking to tender were admissible evidence by reason of their not being an admission against interest and thus relevant. The Crown had indicated its intention to introduce an edited version excluding those matters that were not admissible. Counsel for the defence indicated that she objected to it as it contained no admissions and did not contain anything that would add to the Crown case. Counsel for the Crown submitted that the portions sought to be admitted were material. Although there was no admission as to the lighting of a fire, there was an admission as to circumstances the Crown were seeking to prove as part of its case. The Crown also submitted that it established that during the investigation the applicant told a number of lies which the Crown would submit was an indication of a consciousness of guilt. When the Crown submitted this the following exchange occurred. (AB157)
"COUNSEL (DEFENCE): As I have said, your Honour, there is nothing in there really that in my respectful submission implicates - - -
HIS HONOUR: If the crown is relying upon implied admissions, lies as implied admissions of guilt, then that is sufficient to amount to a circumstance the jury can take into account, isn't it?
COUNSEL (DEFENCE): Yes. My only request would be that the unedited version be provided.
HIS HONOUR: You want the unedited version to go in. You don't see there is any prejudice - - -
COUNSEL (DEFENCE): I see no prejudice whatsoever. I have discussed the matter with Mrs Speed. She is basically in agreement with that and it does provide some comment on the manner of the investigation which in my respectful submission is important.
HIS HONOUR: All right. Miss O'Connor, if that's what the accused wants -
COUNSEL (CROWN): The crown doesn't have a problem with that."
It would appear that following these observations of counsel for the defence, his Honour considered that he was not required to give any further ruling. His Honour considered and counsel for the defence agreed that if the interview established a circumstance on which the Crown sought to rely then it is admissible as it contains relevant evidence and that is clearly right. Although there was no admission as to the actual lighting of either of the two fires, there were admissions of facts that the crown was seeking to prove as facts to establish the offence. An important fact which the Crown was seeking to establish in order to show that the applicant lit the first fire was that the applicant, seven minutes before the fire was seen as being well under way, came up the stairway and had in her possession a means to light the fire, namely the cigarette lighter that she used for smoking. What she said in the interview showed that the evidence that the Crown was seeking to lead from two of its witnesses was correct. At that stage of the trial there was a possibility that a defendant may well challenge such evidence. As it transpired most of what the Crown sought to lead in respect of each of the fires was the same as what the applicant said in evidence and was part of her defence. She claimed this evidence was true and, consequently, were not lies. The portions of the interview the Crown were seeking to lead were clearly relevant.
Ground 1(b) claims that the manner in which the interview was conducted was improper and unfair to the applicant by reason of the four specific matters referred to in the particulars of the ground. Although the evidence sought to be admitted was admissible, it was claimed that his Honour in his discretion should have excluded it on the basis that it was unfair to the applicant. In normal circumstances it would not be open to this Court to find that a judge has misused a discretion when he or she has not been asked to exercise it. However, the circumstances of this trial go much further. Counsel for the defence asked for the whole video interview to go in. His Honour then said, "You want the unedited version to go in. You don't see there is any prejudice … ." He was interrupted by counsel for the defence who said, "I see no prejudice whatsoever. I have discussed the matter with [the applicant]. She's basically in agreement with that and it does provide some comment on the manner of the investigation which in my respectful submission is important."
It is also apparent that there was a very good forensic reason for counsel for the defence to take the course she did. The interrogators had used a number of techniques, in fact it could almost be said every known technique, in order to obtain an admission that the applicant had been lighting the fires that had happened at the hospital. Despite these techniques the applicant firmly and constantly denied this proposition. The jury had the benefit of the applicant's demeanour on the screen. The techniques used included suggesting that the person lighting fires needed help and that such help was available. They said to her "If there is something you have got to tell us, Margaret I think you should tell us." She was initially asked to give her account in her own words that she did and which corresponded to her evidence. Details were then challenged as not corresponding to other known facts and therefore could not be correct developing to the stage that they did not believe her.
I shall refer to the specific complaints set out in ground 1(b) where it said that the interview was conducted in an improper and unfair manner. There are four allegations. The first particular claimed that the police lied to the applicant in saying "I've spoken to Mrs Ellis. She doesn't remember you being there." The particular question which the detective asked the applicant (AB77) was, "You see, I've spoken to Mrs Ellis. She doesn't remember you being in there." The applicant interrupted and said, "That's okay." The detective said, "She was quite coherent when I spoke to her" and the applicant, after some questions said, "Well this Mrs Ellis could forget anyhow that you've been in there really … ." The officer in cross‑examination said that he had spoken to Mrs Ellis prior to interviewing the applicant. He said that at the time she was a frail old lady. He said he asked her if she remembered if the applicant had been in the room on that particular night and Mrs Ellis replied saying "she couldn't remember, that she doesn't think she was in the room". I consider that the officer did convey to the applicant the substance of what Mrs Ellis said. The evidence would, in any event, be inadmissible as Mrs Ellis was not fit to give evidence. The Crown was not seeking to admit it and the only reason it was admitted was because of the request made by the applicant. The picture conveyed to the jury being the picture the applicant wished conveyed, was the applicant's denial of what was put to her and of the fact that Mrs Ellis, because of her frailty, would not really remember in any event.
The second particular claims that the police misrepresented the handwriting analysis in regard to the applicant. In the course of the interview the officers referred her to the note which was found on 9 May 1997 and which was on a small piece of paper written with a red texta, and which read, "See you all at next Bombfire". He asked her, "What can you tell me about that Margaret?" She replied that on that particular night she was also on duty. He said, "So you were on again?" indicating that this was a further case of her working when something unusual happened. The officers then showed her a number of incident reports and her employment application and asked if each were in her own handwriting. She readily agreed that they were. He then said, "As I said to you before we started to interview you, Margaret, we said this is the 20th century. Okay? We've got a lot of mod cons in the police force now. One of those mod cons is handwriting experts." She replied, "Yes ‑ that's okay." The following was then asked: (AB80)
"Q: Okay. What would you do, Margaret, if I said that I'd taken that note that was written on pieces of paper exactly the same as that that came out of the office that you work in, and I've had it tested. It comes out of the office that you work in. Our experts at forensic say that that handwriting is exactly the same as those handwriting samples I've just shown you.
A: That's a lie because I didn't do it. I didn't do it."
The other officer then said:
"Q: He's not saying that they have said that it is exactly. He's asking you what you would say if that's what they said.
A: I'm telling you I didn't do it. Honestly. At that particular night we don't even go in the office hardly because we're too busy doing all our other things. Honestly.
Q: As I said, Margaret, that's come from the office that you work in."
Counsel for the defence cross‑examined the detective in respect of this part of the interrogation. The detective said, in cross-examination, that the note, shortly after it was found and prior to the applicant being interviewed, was given to the officer‑in‑charge of the handwriting section with a request that a report be obtained. No report had been obtained prior to the interview, but following the interview the report obtained stated that the question whether it was the applicant's handwriting was inconclusive. As indicated in the above extract from transcript before the report had been obtained the officer said to the applicant "Our experts at forensic say that that handwriting is exactly the same as those handwriting samples I've just shown you". To which the applicant responded "That is a lie". The applicant was correct as it was a lie. The experts had not said what it was claimed that they had said. Counsel had made a sound point which could well have impressed the jury in the applicant's favour. The evidence would not have been admissible and the Crown did not seek to admit it. It was admitted because the defence sought to admit it for the purpose of showing that improper tactics were used. His Honour would not have been aware of the facts relating to the expert report until the cross-examination. Counsel for the defence made much of this in her final address. It is regrettable that such a tactic has come to light but it was a up to counsel as to what use she made of it. There would be sound reasons for bringing it to the attention of the jury.
The third particular is that the police behaved in an insulting manner towards the applicant at several points during the interview. Ms Amsden, in her written submission, submitted that the accused person was entitled to fairness and respect in accordance with the police training manual. This was violated in the instances referred to. It was submitted that such violation of an accused person's right cannot be cured by the prosecution editing parts of the interview and therefore the interview itself should not go in. This submission was not made to the trial Judge as the only objection was on relevancy.
It would not be contrary to basic rights for an investigator, within reason, to challenge what a suspect is saying, particularly, as in this case, the officers had other information to show that what the applicant was saying was wrong. They had evidence that the applicant had not followed Sister Kobelke and this the applicant later admitted. The applicant said that the window to room 12 was open at the time of the fire indicating that an intruder could have got out that way. The officers had other evidence to show that this could not be the position, which they put to the applicant. If an admission is made in response to a leading question, then it would be a matter to determine in the circumstances of the case, whether the admission is a safe one and another of the factors would be the type of person being interrogated. In this instance it was claimed the applicant was of low intelligence. The situation, however, does not arise in this case. No matter what was said and how it was said, the applicant did not yield. She did not make the admissions the investigators were seeking to elicit from her.
The fourth and final particular contained in ground 1(d) is that the police continued to question the applicant after she said, "It's too long I've had enough." The officer's response was to ask her, "Do you want to stop now or do you want to just answer a few more questions?" The applicant replied, "Have you got any more questions to ask?" He then made reference to her claim of following Sister Kobelke and of the window being open in room 12 and said, "Everything you've told us so far hasn't been the truth has it?" She replied again that she did not do it and she was then asked, "But nothing you've told us so far has been the truth as far as those things has it?" to which she said, "Yes it has." There followed further questioning which went over much the same ground as before in which there were no further admissions. His Honour, if asked may well have exercised his discretion to exclude the balance of the video. The defence requested that it go in. It contained a further assertion of truth in the face of hostile questioning.
Counsel for the defence in her address to the jury, asked the jury to look at particular parts of the video tape in the jury room and to examine the interaction that took place between the detective and Mrs Speed in regard to "Mrs Ellis' importance". Counsel said that there was nothing before the jury on the video tape, or that was said in the witness box, to show that the applicant was a woman who should not be believed. Counsel then referred to a number of instances which she regarded as hostile questioning and said to the jury that if a person is not telling the truth, it is very hard to withstand that kind of questioning. Counsel concluded by saying that the applicant did not waiver or vary in the interview. She did not waiver in cross‑examination today and counsel said, "I would say to you that there is an enormous amount of confidence that comes from being able to say honestly 'I'm not that kind of person I didn't do it' and that was consistently maintained by this woman for 27 months."
His Honour gave very fair directions as to how the jury were to use the video tape in the light of the way the defence asked it to be presented. He explained it was evidence in the trial and that the jury were to make their own assessment as to whether or not they thought that the video interview was completely fair in the way that it was conducted, or whether if not, it could have caused some stress to a person who is innocent to account for some of the inconsistencies on which the Crown were relying. His Honour told the jury when outlining her defence that during the interview "On at least 20 occasions she didn't light the second fire using different words, "I didn't do it ‑ I'm not involved ‑ it's not me ‑ your pointing to the wrong person ‑ I didn't do it ‑ I feel really bad if I am getting blamed for it ‑ That nothing to do with it."
The ground must be resolved on the basis that the evidence referred to in the ground was admitted at the trial at the request of the defence for a very sound reason. Important aspects of the defence were based on it. A relevant principle referred to by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685 was that as a general rule, an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions or involved errors of judgment or even negligence. Exceptions were then discussed which would not apply in this case. In the present case counsel acted in accordance with instructions and conducted the case with competence. There was a prospect that the jury would have been impressed by the way the applicant conducted herself in the record of interview and with her consistency. In these circumstances it is not open to suggest to this Court that the record of interview should not have been admitted. If the trial Judge refused the request of counsel for the defence, then it could be argued that his Honour denied the accused a chance of acquittal by not permitting the defence to take the line counsel wished to adopt.
Direction as to lies
Ground 2 reads:
The direction to the jury on the use to be made of evidence of lies was inadequate in that the learned trial judge -
(a)failed to identify each lie and the circumstances and events relied on by the Crown to indicate that the lie constituted an admission against interest:
(b)failed to direct the jury that the lie must relate to a material issue and can be taken into account only if the jury is satisfied that the lie reveals the accused's knowledge of the offence charged or an aspect of it.
(c)failed to direct the jury that if it accepts the lie was told for a reason other than realisation of guilt, it cannot regard the lie as an admission against interest."
His Honour gave a general direction as to the part lies play in these circumstances. The direction followed Edwards v The Queen (1993) 178 CLR 193. His Honour said that ordinarily the telling of a lie merely affects the credit of a person who tells it. He said, however, that it can go further and that the Crown claimed that the reason she told the lies "was because she knew she had done something wrong and she was trying to cover it up and that the only reason was that she was guilty and she feared the truth coming out." His Honour commenced by saying (AB 559)
"Normally, people cannot be convicted simply because they tell lies, but in some circumstances a lie may be an implied admission of guilt. In other words, a person tells a lie because they know that they have done something wrong, and they are telling the lie to get off the hook.
That is the only time that you can use a lie in proof of a case and it is part of the circumstances of a case, because we know that a lie is a deliberate untruth, which is proved to be a deliberate untruth if you accept the evidence of somebody else who says the opposite of somebody different or if the person later admits that what they have said is untrue.
That may be distinguished I think from what may be referred to as an internal inconsistency, when a person says one thing at one time while they are being spoken to, and another thing at another time. It is also to be distinguished from confusion when, in answer to a question, a person may miss the point or a person may answer the wrong question or whatever. The person is confused about what the question is about or what the questioner is on about or, because of nervousness, fails to answer the question asked."
His Honour then gave instances of that occurring at the trial. He continued (AB561)
"Anyhow, the Crown says that it relies upon the lies on the video as an implied admission of her guilt and it relies upon what it says is lies told by her to you in her evidence when you compare them to evidence given to you by other people, if you accept that, as an implied admission of guilt.
As I said, ordinarily telling a lie merely affects the credit of a person who tells the lie. If somebody tells you a lie, then you don't believe them the next time they tell you something and you look at them a bit more carefully, but here it goes a little more than that because the crown says that the reason she told the lies that she did tell, which I will refer to and which the crown has referred to, was because she knew she had done something wrong and she was trying to cover it up and that the only reason was that she was guilty and she feared the truth coming out.
When you're considering these lies, which we will be talking about, you must also consider, are there any other reasons for the person lying, if you find them to be lying, other than they realise their guilt or they fear the truth. There are other reasons such as nervousness, confusion, internal inconsistencies, which are not lies at all but simply part of confusion or lies told due to stress and by being pressed and your answers not being accepted and getting yourself in deeper and deeper. Are those explanations which are not inconsistent of guilt? Are they explanations which may be accepted when a person who is not guilty is being persistently questioned in the way that she was for 2 and a half hours despite her repeated denials that she had done anything wrong?"

When the applicant said something following that comment, the officer said: "Yeah, but what's that got to do with this? Graham is asking you a series of questions." The applicant answered: "Yeah".
The officer said: "And you're stumbling over what he's asking you."
The applicant said she was not really stumbling. The officer said: "But you're backtracking."
Two questions later the officer said:
"OK. You're just not, in my mind, answering the questions as you should be. You're stumbling over a few things, and when Graham is pointing a different version out to you as to what he's been told, you're sort of drifting on and drifting off a bit. If there's something that you've got to tell us Margaret, I think you should tell us."
Two pages further on in the transcript the officer said: "You see, I've spoken to Mrs Ellis. She doesn't remember you going in there. She was quite …."
The applicant said: "That's OK."
The officer said: "She was quite coherent when I spoke to her."
The applicant answered: "Yeah".
The officer said: "She seemed very bright; quite cheerful for her age. She doesn't remember you being in there."
The applicant said: "Well this Mrs Ellis could forget anyhow that you've been in there really. I mean …."
The officer said: "But you seem to be forgetting a lot of things too Margaret … it’s a significant event that happened three weeks ago."
The second question after that reads:
"So you can remember the little things that you want to remember, but not the important things. Not things that we deem as important. You see what I'm saying?"
Two pages further on the officer said: "OK. What would you do, Margaret, if I said that I'd taken that note that was written on pieces of paper exactly the same as that that came out of the office that you work in, and I've had it tested. It comes out of the office that you work in. Our experts at forensics say that that writing is exactly the same as those handwriting samples I've just shown you." (My emphasis).
The applicant answered: "That's a lie because I didn't do it. I didn't do it."
An officer said: "He's not saying that they said that it is exactly. He's asking you what you would say if that's what they said."
The fact was that the experts at forensic had not said that the handwriting was exactly the same as the handwriting samples which had been shown to the applicant.
A little further on one of the officers said:
"Every incident that has happened at the hospital when a door has been found open and a noise has been heard or something has happened, you are the one that finds it. You're the one who hears noises at the door. You are the one who finds doors open. You're the one who finds things unlocked."
The applicant answered: "I didn't find the door open that particular night."
The officer said: "That particular night you didn't. Not that one, no. Someone else did. But it had also been checked five minutes prior and it was secured and locked."
The applicant said: "No. Honestly, I, I … am not involved in any of this. I'm telling you honestly."
The officer said: "Well, Margaret you're going to have to excuse me, but I'm very sceptical. So far everything is pointing to you. As I said, I've got one or two more things to do to finish the whole thing off." The applicant said: "Yeah."
A little later on the applicant said: "I'm feeling terrible. Absolutely dreadful." The officer said: "The thing is we've got to sort it out now, Margaret, because - as Tom said - it's not going to go away. I'm going to keep on going and going and going on this." (my emphasis).
The applicant said: "Mm, Mm."
The questioner said: "Alright, when it comes to things like this, I'm a bulldog. I won't let go. I'm going to keep on going through with it. OK? At the moment I believe it is you."
The applicant said: "No its not."
The officer said: "Is there anybody or anything that you can think of that could point us elsewhere? I mean you work there. We don't work there. What we've done is speak to staff, speak to the patients there."
Half a page further on in the transcript the officer said:
"It's just that at this stage all the evidence which we've gathered is pointing in one direction and that's towards you. If there's a reason for that - maybe somebody's trying to frame you or get even with you for whatever reason - you've got to help us out and let us know, so that we can swing the inquiry somewhere else. But at the moment everything is pointing to you and we've got no other reason at this stage, or any other option or line of inquiry, if you like, to go somewhere else."
The applicant answered: "Yeah. You're pointing the pen at the wrong person."
Nine pages further on in the transcript, after having questioned the applicant about her movements after the fire alarm went off, the officer said: "Alright. Now what you've told us twice is that you followed her."
The applicant answered: "I went … maybe I didn't follow her."
The officer said:
"Well, either you did or you didn't. If you did, why does she turn round and look for help and then call for help? OK? Very simple. Now if you're telling lies about this, what else are you telling us lies about Margaret?"
The applicant said: "I'm not telling you lies."
The officer said: "Did you follow her or didn't you follow her?"
The questioning continued and the officer said: "I'm not asking whether you went there afterwards. I'm asking you whether you followed her there. The applicant answered: "No". The officer said: "Why have you told us that you did - twice? Why have you said in your statement to the hospital that you followed her there?"
The questioning continued.
Two pages further on the officer said:
"This incident happened on 2 May. OK. We're talking 19 days ago. But you can remember now that you didn't follow her around. Yeah? No matter what excuse or whatever you give for the discrepancy - OK? Do you agree that you didn't literally follow this lady to where you said you did?"
The applicant said: "No. Not straight away."
The officer said: "She went there on her own and you've gone there after her. That's all. You've just made a mountain out of a molehill. I just want to know why there's the discrepancy there. Why you haven't told us the truth Margaret."
The questioning continued and the applicant said: "I just feel bad that I'm getting blamed for doing it." She was then offered refreshments.
A page further on in the transcript of the video the applicant said: "How much longer is it going to be?"
The officer said: "I don't know. Not much longer. If at any time …."
Two pages further on the applicant noted something written on the bottom of a form and asked about it. The applicant said: "I'm not a manic depressant. Honestly I'm not."
The officer said:
"That's it. Who is to say it's directed at you? All I can think is that maybe Graham's talking to somebody else who was sitting here - OK? One of the other people who we've interviewed - and he may have thought - you know is this person a manic depressant?"
When the applicant continued to query what had been written, the officer said: "No. That's what I'm saying. Don't get too upset thinking it may have been somebody at your office who has written it."
The applicant continued to question the officers as to how those words had got on her form. She said she was not a manic depressive. The officer said that he did not think she was and that he didn't think the staff that she worked with thought she was and that he wouldn't take too much notice of it.
It was then said: "We've established that you didn't follow Nurse Gibelchi, haven't we?" The answer was given: "Yeah". A question was asked: "OK. So what you wrote here was not true? You didn't follow her".
The answer was: "Not straight away. No."
The officer said: If I followed somebody I'd have them in sight. Do you agree with that?"
The applicant said: "I see what you mean. I've written it wrongly."
It was again put to the applicant: "If you follow someone you have them in sight."
The applicant said: "That's right."
It was then put to her that she didn't have the nurse in sight and she said "No".
The applicant was then further questioned concerning how she had known the nurse was going to the fire board. A little further on the officer said:
"Like we said before - OK, we just had a bit of a break. It's concerning me that there's something which you are not telling us. We deal with fires all the time."
The officer then said:
"You appreciate that? Being with the Arson Squad we investigate fires. OK? Now I don't think for one minute that if this was you that you had any intention of hurting any person. OK? For whatever reason - if it was you - I think its been a cry out for attention. I don't know why. That's something which is going to have to be found out by somebody other than the police. OK? Some sort of medical doctor. It's unfortunate that these things have happened and that whatever problems you may have got or had - if it was you - it's unfortunate that it's taken this sort of situation - you know this sort of cry for help - before anybody sat up and taken notice. Maybe before this happened maybe there was …."
The applicant said: "Tom, I'm not having a problem."
The officer then told the applicant that different people have different reasons for lighting fires. He attempted to explain the situation about people who light fires. It was then put to the applicant: "But like I said to you before Margaret, it's got to be one of you people that were on duty that night who are involved in it…." The officer further commented on why people light fires and ended up saying: "Now, if this was you lighting these fires…."
The applicant said: "It's not."
A further discussion ensued. The applicant tried to impress upon the officer that it was not her who had started the fire and that she loved to work and loved working for elderly people.
The questioning continued. Nine pages further on the applicant said: "No, I'm telling you I didn't do it."
The officer said: "You took the flyscreen off Margaret. That's how you knew the flyscreen was off."
The applicant denied that.
The officer said:
"Well Margaret you haven't given me a satisfactory explanation how you can go into a smoked filled room that's dimly lit with panicking people and you can see a window that is open with the flyscreen off with the curtain closed."
The questioning continued. The applicant said: "I just feel at the moment that you're blaming me for it."
And a little further on the officer said: "What we're trying to do now is clear up any little problems which have come up during the questions which don't appear to be the correct answers as to what information we've been given. You see? A few things which you are telling us don't appear to be either the truth or you appear to have got confused with." The questioning continued. Two pages further on in the transcript the officer said:
"No. Look whether it had a flyscreen on it or not is totally irrelevant. It's just that you've got this strange way of getting to the answer. You throw up all these little dark and curly bloody answers and then suddenly you come up with what I see is a reasonable explanation, but it just confuses me as to why you didn't give us that straight away: why you've had to throw up all these little hairy fairy reasons as to why you didn't think there was a flyscreen there if you knew it was not on there because you checked and found the window open."
The applicant said: "When I did the security."
The officer said:
"Ay, that's fine. We could have been home and in bed hours ago. It's just that when you throw up these little things it makes us wonder why your throwing them up …."
The applicant said: "No. I'm telling you I didn't do it. I have not done any of it. None of it."
The applicant was further questioned. Three pages further on in the transcript the applicant was asked: "Can you answer that for me? Why didn't you make such a big thing of finding this window open?"
The applicant said: "I don't know."
The officer said: "I think we're getting deeper and deeper here aren't we?"
The applicant answered: "No".
The officer said:
"I think we are Margaret. There's a lot of things coming out which seem to me and to Graham to certainly sound strange. Down the track if anybody else happens to be listening to this and watching this video …."
The applicant answered: "Yeah".
The officer said: "OK. I'm sure to them it may sound strange as well. OK? We could take … like Graham said at the beginning, it may be used in evidence against you. OK? Now that may mean …."
The applicant said: "What are you talking about?"
The officer said: "If you are charged with these matters. OK? If. I'm not saying 'yes or no', I'm saying …."
The applicant said: "How can I be charged with it when I never did it?"
The officer then said: "No, no, just a minute. What I'm saying to you is, if you were charged with these matters … if we consider that there is sufficient evidence to charge you with these fires - OK - and it meant that you went to court, at some stage a magistrate and/or a judge would watch this video and it might be played to a jury. OK. Do you know what a jury is?
The applicant said: "Mm mm."
The officer said:
"OK. They may sit there and listen and watch everything we've been discussing for nearly two hours now and they could form their own opinion as to whether or not they think the answers that you've given are reasonable or whether they think they're a bit strange, the same as we do. OK? …."
The officer continued to talk to the applicant.
The applicant said:
"Yeah. Well I have been here for ages."
The officer said:
"You've been here for an hour and 46 minutes. I appreciate that. It wouldn't have taken this long if we hadn't have had to beat around the bush about silly little things like the window, the flyscreen and following this person to that room. You know just silly things. OK. I think it's probably a good hour since we have actually asked you whether you lit the fires - and you've denied that. But now we're just going back now over the ground trying to build up what did happen on the night. Just little things about what you say to us happened on the night are being blown completely out of all proportion you know? That's why you've been here for so long now. I know it's late. I apologise for that."
The applicant said: "It's too long. I've had enough."
The officer then said:
"Well that's fine. It's like we said before when I said to you when we were making a cup of coffee - if you've had enough just tell us and we'll stop. We'll turn the video off. But as you feel like you've had enough, that's fine. You're not under any obligation at all to sit there and to answer our questions. We don't take it personally. Anybody who looks at this tape down the track would think 'she must be guilty because she doesn't want to answer questions.' That doesn't come into it at all. If you say now "Tom, Graham, that's it. I've had enough. I want to go home - that's it. We'll turn the video off, put our gear away and take you home. You will be home by half past 8. Alright." (My emphasis).
In my view the approach taken by the police officers to the questioning of the applicant was out of order.
In McDermott v The King (1948) 76 CLR 501 at 511 Dixon J said:
"It may be accepted that if a statement is made as a result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary"
See also the reasons of Malcolm CJ in Vale v The Queen [2000] WASCA 21.
The applicant continued to say that she had not committed the offences. She was asked if she wanted to stop then or did she want to answer just a few more questions. She said: "Have you got more questions to ask?" The officer said: "Just basically Margaret - as Tom just said - we've been here so long but everything you have told us hasn't been the truth has it? As far as following, windows, all that sort of thing." The applicant said: "I didn't do it."
The officer then said: "But nothing you've told us so far has been the truth as far as those things has it?"
The applicant answered: "Yes it has."
The applicant was further questioned and cross‑examined on her answers. Eight pages further on in the transcript the officer said: "Margaret, you're getting yourself deeper and deeper here".
The applicant then said: "Has everybody else been 'drilled' like this, or is it just me?"
The officer said: "No, they haven't because we've had straightforward, easy to understand, questions and answers from them. We haven't had 16 answers to every question that we've had to bloody run through and sort out what's going on. Now did you see Julie shutting the back door? Yes or no?"
The applicant answered: "No. I would have heard it. I …."
The officer said: "No, no. Did you see Judy shut the back door? Yes or no?"
The applicant said: "I can't …."
The officer said: "That's fairly basic, that is. Either you did or you didn't."
The applicant said: "No".
A little further on the applicant said: "This is all getting too much for me." The applicant was further questioned. She was then told: "It's 20 past 8. We don't want to keep you here any longer than what we have to do. Alright? We've just got a couple of things here - not to do with this. Just to finalise the interview. Things that we've got to ask you. Another five minutes and then we will be done.
The applicant said: "This seems like it's going on forever."
The officer said: "It's gone on for two hours. Alright? We started at 6.15, it's now 20 past 8. The officer asked: "Is there anything you want to say to use now about any of this.
The applicant said: "Just that I didn't do it. I just feel like you are blaming me and I didn't do it. You told me before that it was pointing at me. I didn't do it. I've got no reason to do it. I'm happy working there."
When asked if she had any complaints about the way she had been treated the applicant said: "No, no". She then said "I've got to work tomorrow."
The interview then concluded at 8.25 pm.
In my opinion in this case, in the words of Dixon J in McDermott which have been referred to above, the applicant was subjected to duress, persistent importunity, sustained insistence and pressure. The applicant's statement could not be said to be voluntary.
Because of that, in my view, the video interview should not have been admitted into evidence and the learned trial Judge was in error in allowing it to be adduced.
In Wilde v The Queen (1987‑1988) 164 CLR 365 at 371, Brennan, Dawson and Toohey JJ said:
"Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted', to use the phrase of Fullegar J in Mraz v The Queen (1955) 93 CLR 493 at 514 or 'a real chance of acquittal', to use the phrase of Barwick CJ in Reg v Storey (1978) 140 CLR 364 at 376. Unless it can be said that had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen (1977) 137 CLR 517 at 524; Reg v Storey (supra); Gallagher v The Queen (1986) 160 CLR 392 at p 412‑413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen (supra). The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case."

In my view there is nothing in this case to suggest that the applicant would inevitably have been convicted had the video interview not been admitted into evidence.
I would therefore allow the appeal and quash the convictions on this ground.
I also agree with the reasons for judgment and the conclusions of Kennedy J concerning the questions arising from the statements of the applicant which the prosecution contended were lies. I further agree with his Honour's comments concerning a new trial.