Tasmania v Treloar

[2020] TASSC 55

[2020] TASSC 55

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v Treloar [2020] TASSC 55
PARTIES:	STATE OF TASMANIA
v
TRELOAR, Brody John
FILE NO:	602/2019
DELIVERED ON:	16 September 2020
DELIVERED AT:	Launceston
HEARING DATE:	4 August 2020
JUDGMENT OF:	Brett J
CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Particular cases – Admissions – Whether circumstances in which admissions were made are unfair to the accused – Alleged unfairness because the accused suffers cognitive deficit – Whether accused able to understand rights in respect of speaking to the police and in particular

remaining silent.

Criminal Code (Tas), s 361A.
Evidence Act 2001 (Tas), s 90.
R v Medcalfe [2002] ACTSC 83; Em v The Queen [2007] HCA 46, 232 CLR 67; Tasmania v Hovington [2013]
TASSC 54, referred to.

Aust Digest Criminal Law [2684]

REPRESENTATION:

Counsel:

Appellant:	E Judd
Respondent:	A Hensley

Solicitors:

Appellant:	Director of Public Prosecutions
Respondent:	Legal Aid Commission of Tasmania

Judgment Number:	[2020] TASSC 55
Number of paragraphs:	40

Serial No 55/2020 File No 602/2019

STATE OF TASMANIA v BRODY JOHN TRELOAR

REASONS FOR RULING BRETT J
16 September 2020

1             The accused is charged on indictment with one count of arson. The particularised allegation is that on or about 22 December 2018, he unlawfully set fire to a building on Westbury Road at Prospect. He had pleaded not guilty to the charge.

2             On 25 January 2019, the accused was interviewed by two police officers in relation to his involvement in the arson. The circumstances in which the interview took place are somewhat unusual. In accordance with an arrangement with the accused, the police had travelled to a residence at Travellers Rest to meet with him. This was the house of a friend, and the accused met with the police near their vehicle at the entrance to the property. They invited him to travel with them to the police station for the purpose of an interview. He refused, but agreed with their suggestion that the interview take place in the police vehicle. The police had available to them a handheld camera which they used to record the interview.

3             Unbeknown to everyone, the recording equipment was faulty. The video component of the interview is available, but there is no sound. The interviewing officer, however, made written notes of the accused's answers, which, it can be anticipated, will be used in his evidence at trial to refresh his memory of the conversation. In the interview, the accused admitted his involvement in the arson. As I understand it, although the prosecution can prove the fact of the fire, there is no other evidence to link the accused to the arson, and the prosecution relies on these admissions to prove the case against him.

4 The defence objects to the admission into evidence of the interview. The sole basis of the objection is s 90 of the Evidence Act 2001. In particular, it is submitted that I should exercise my discretion under that section to refuse to admit evidence of the admissions contained in the interview because, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence. It is submitted that the unfairness arises because the accused suffers from cognitive deficit to such an extent that he was either unable to, or had limited capacity to understand his rights in respect of speaking to the police, and, in particular, his right to remain silent. It is not asserted that the evidence is inadmissible on any other basis, and in particular, the defence does not rely on any other exclusionary provision of the Evidence Act.

5             Counsel have asked that I determine the objection prior to empanelment of the jury, pursuant to the provisions of s 361A of the Criminal Code. I agreed to do so, and for that purpose received evidence on the voir dire.

Section 90 – the law

6             The section provides that the Court may refuse to admit evidence of an admission if "having regard to the circumstances in which the admission was made it would be unfair to a defendant to use the evidence".

7             Some general principles can be derived from cases which have considered and applied this provision. Firstly, it is accepted that the provision confers a discretion upon the Court. Its operation can be distinguished in this respect from other provisions in the Act which mandate exclusion on the basis

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of an evaluative judgment. It is a broad discretion, conferred by language which is "so general that it would not be possible in any particular case to mark out the full extent of its meaning": Em v The Queen [2007] HCA 46, 232 CLR 67, per Gleeson CJ and Heydon J at [56]. In the same case, Gummow and Hayne JJ described the discretionary power conferred by the provision as "a safety net which catches a residuary category of cases not expressly dealt with elsewhere in the Act, where use of the evidence at trial would be unfair". Their Honours noted that the notion of unfairness in the use of evidence at trial cannot be described exhaustively, and may arise in different ways. For this reason, it was helpful to first consider other relevant provisions in order to exclude the specific bases upon which exclusion of the evidence might be mandated or discretionary, and thereby confine the parameters of the unfairness said to arise under s 90. In this case, as in Em, counsel for the accused has specifically disavowed reliance on any other provision. It is not suggested that the police were guilty of illegal or improper conduct which might trigger the operation of s 138, nor is there a danger of unfair prejudice to the accused arising from the use of the evidence (ss 135 and 137). It is not suggested that the admissions have been influenced by violence or other conduct of the kind described in s 84, nor that the circumstances in which the admissions were made make it unlikely that their truth has been adversely affected, s 85. It is accepted that the police cautioned the accused in accordance with the requirements of s 139. Finally, the defence accepts that, although because of the equipment malfunction, there is not available to the Court an "audio visual record" of the interview as required by s 85A(1)(a), the malfunction amounts to a reasonable explanation within the meaning of s 85A(2)(d), and accordingly, the evidence is not excluded by that provision.

8             In Em, Gummow and Hayne JJ noted that "the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made ... as fair or unfair". Ultimately, the "question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that reveal why the use of the evidence, at the trial of the person who made the admission 'would be unfair'."

9 The basis of unfairness asserted by the defence in this case is that the accused's intellectual capacity was limited to such an extent that he was not able to understand the caution or indeed understand that he had a choice as to whether to participate in the interview with police, or to answer their questions. Further, even if he did have some understanding of his rights, he did not possess the capacity to make a real choice about those matters. The argument is not about the reliability of what he said nor even whether, had he had sufficient capacity to understand and act on his choice to speak, he would have exercised the choice not to do so. It is simply that, without adequate understanding of the caution and his rights generally, he has spoken without comprehending that he had a right not to do so. This has been accepted as a basis for exclusion under the s 90 discretion in other cases: see for example R v Medcalfe [2002] ACTSC 83. However, cf Tasmania v Hovington [2013] TASSC 54.

10           Em is also authority for the proposition that the onus of satisfying the court that the discretion should be exercised in favour of exclusion of the evidence rests on the accused. Any facts required to discharge the onus must be proved on the balance of probabilities: s 142 (1).

The facts

11           The prosecution adduced evidence on the voir dire from the two police officers who conducted the interview. The evidence of Detective Riggall is that after he had identified the accused as a suspect, he searched the police computer system to ascertain any recorded particulars concerning the accused. One of the pieces of information he was looking for was a flag as to whether there was any mental or physical health difficulty. He said that if such a difficulty had been recorded, it would have influenced the manner in which he conducted an interview with the accused.

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12           However, there were no relevant flags on the system. The only information disclosed was that the accused was a 19 year old male, who had had some minor interactions with the police in the past. He then attempted to make contact with the accused by visiting his home on a couple of occasions. This was unsuccessful and he eventually left a calling card. This led to a couple of telephone conversations with the accused's mother, during which an appointment was made for the accused to attend the police station. The accused did not attend that appointment, but did make contact with the detective by telephone. During that conversation, Detective Riggall disclosed to the accused that he was investigating a fire at Westbury Road and would like to speak to him about it. The accused told him that he was at an address in Travellers Rest and was happy to speak to him there, but did not want to attend the police station.

13           Detective Riggall and Detective Senior Constable Logan travelled to the address at Travellers Rest immediately after the conversation. The accused had asked the police not to come up to the house but to ring him when they arrived at the end of the driveway and he would come and speak with them on the street. In his evidence, the accused explained that he was at the house of a friend and did not want to embarrass the friend's parents by having the police arrive at the front door.

14           Upon arrival, Detective Riggall complied with the accused's request, and the accused met them at their vehicle. It was an unmarked police vehicle, and neither officer was in uniform. The conversation commenced with Detective Riggall saying to the accused that he wanted to speak to him about the fire at Westbury Road, to which the accused replied, "Yes, I know what you're talking about. I was there." The detective immediately administered the usual caution, to which the accused replied, "Yeah I just want to be honest with you." Detective Riggall then suggested that they should have a conversation at the police station, so that it could be recorded on video. The accused replied to this by saying, "I don't want to go to the police station. I'm not going to go down there." The detective said that he did not enquire about the accused's reasons for this, but said to him, "Oh would you be happy to have a video interview here just in the back of the police car. We won't be going anywhere. We can discuss it here and talk about it now." The accused agreed to this.

15           The police used a handheld camera to record the interview. Detective Logan operated the camera. She knelt on the front seat of the vehicle, holding the camera, while Detective Riggall and the accused sat in the rear seat. Detective Riggall was writing notes on a pad during the course of the interview. The camera was in full view of the accused throughout the interview.

16           Detective Riggall's evidence was that he ensured that the door closest to the accused was unlocked. He told him that it was unlocked and that he could "leave at any time". He also physically demonstrated to the accused the fact that the door was unlocked. He said that the accused responded by nodding.

17           His evidence was that at the commencement of the interview, he stated that it was an electronically recorded interview, that they were questioning the accused in respect of the allegation concerning the fire, and he again administered the caution. The interview then proceeded by question and answer, most if not all of which were asked by Detective Riggall. The accused made full admissions concerning his involvement in the fire.

18           Detective Riggall indicated that he employed his usual style of questioning which was to ask open ended questions, which would require the accused to provide actual information rather than simply respond with "yes" or "no" answers. The accused provided detailed information about the manner in which he set and lit the fire, and the circumstances surrounding those actions. One aspect of the accused's admissions was that he said he had been in company with another person at the relevant time, that the decision to light the fire was a joint decision, and that they had both contributed to setting and lighting the fire. The detective said that he asked the accused several times during the interview to

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identify the other person, but the accused declined to do so on each occasion. He described the accused's response as "I'm not going to answer that and then I asked him again a bit later in the interview and he said I'm not going to tell you who it is."

19           The accused was not arrested at that time. At the conclusion of the interview, the detective told him he may be proceeded against for arson, but police would first make further enquiries about the other person referred to by the accused during the interview.

20           Detective Riggall said that he was aware of procedures required of police in respect of interviews in circumstances where a person has an intellectual disability or reduced intellectual capacity. He indicated that if he was aware of such a concern, the police guidelines provide that there should be enquiry as to the degree of seriousness of the problem, and, if appropriate, the interviewee should be accompanied by a support person during the interview. However, he was not aware of any such concern in relation to the accused and did not perceive any relevant difficulty during the course of his dealings with him.

21           In cross-examination, it was put to Detective Riggall that, when the accused had told him that he did not want to attend the police station, police had responded that if he did not participate in the interview at Travellers Rest, he would be taken to the police station, but that if he co-operated he would not be, and would not be arrested. It was also asserted that at the commencement of the interview, the accused had indicated that he did not want to answer questions. The officer denied both allegations. I note that when the accused gave evidence, he did not assert either matter, and, in submissions, counsel abandoned any reliance on those allegations.

22           Detective Riggall's evidence was corroborated by Detective Logan. It was not otherwise challenged by defence counsel, nor contradicted by the accused's evidence. I accept the evidence of the police officers.

23           A further matter to which Detective Logan's evidence related was a prior interview which she had conducted with the accused in respect of a minor drug allegation. This interview was conducted on 16 October 2018, during the course of a search of premises in which the accused was located. Police found some drug-related items in a backpack which belonged to the accused, and the accused agreed to participate in an interview with Detective Logan at the house. The interview was recorded on a handheld camera held by another officer. The audio-visual record of that interview was played to me during the voir dire. The accused appears to willingly take part in the interview and freely makes relevant admissions.

24           There are two aspects of this interview which are said by the parties to have some significance in this case. The first concerns the caution which Detective Logan administers at the commencement of the interview. At the end of the caution, she attempts to clarify the accused's understanding of the caution by asking him whether he has to answer any of her questions, to which he replied, "yes". She then reminds him that he is not required to do so.

25           The second aspect is that, during the course of the interview, the accused is asked to name the supplier of the cannabis found in his possession. He refuses to do so. His actual answer was "no comment".

26           In his evidence before me, the accused stated that he was in receipt of a disability pension for a "cognitive deficit disorder". He said that he had done prior interviews with police, including one related to a driving matter and a caution for assault, and that this had happened a few years ago. Those interviews had occurred at the police station. He said that he had little recollection of what he actually said in the interview relevant to this case, but confirmed that he was "asked to do a car interview and I

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agreed to do that." He did not want to go to the police station, but had agreed to get into the car when that was suggested by the police officer. He did not dispute that the police had told him that he did not have to do the interview, but he also said, when asked if he felt that he could leave, "Oh well not really, they're cops doing an interview. I didn't think I could, no."

27           The accused denied any understanding of how the information provided by him to police could be used. He also thought that there was a difference between doing an interview at the police station and one in the car. His explanation of the difference was:

"Well I – I thought going to the actual like the station I'd get in more trouble going to

the station. They obviously had more proof of something of what was going on. So in my head, every time I've been there it's normally in trouble but in the car I've never done one so I thought it coulda been a bit more lenient or something, but wasn't actually sure."

28   The accused was asked by both counsel about his refusal to name his companion. He said:

"I didn't want to give my name or nothing either, and they kept asking me that a few
times but, I wasn't going to say nothing."

29           In cross-examination, he said in respect of his decision to make admissions, "I wouldn't just admit to something straight up." Towards the end of cross-examination, he seemed to assert that the police had put some pressure on him to provide information, but it was not clear to me whether this related to the name of his companion or the circumstances of the arson generally. He also became quite agitated with the prosecutor, questioned why he had to continue to answer the questions, and made it very clear that he was becoming distressed from having to answer what he regarded as the same question over and over.

30           I do not detect any significant discrepancy between the evidence of the police and that of the accused, concerning the factual circumstances of the interview. To the extent that the accused may have asserted that he was placed under pressure by police, I am not satisfied on the balance of probabilities that this was the case. I reiterate that I accept the evidence of the police officers concerning the conduct of the interview.

Dr O'Donnell

31          Dr Georgina O'Donnell is a forensic and clinical psychologist with considerable experience in respect of criminal cases. Her expertise is not under challenge in this case.

32           A report prepared by Dr O'Donnell was admitted into evidence and she also provided oral testimony. The report was prepared after perusing the Crown papers and speaking with the accused, but the witness acknowledged the limitation on her capacity to judge the effect of the accused's intellectual deficit on his performance in the interview, arising from the unavailability of the audio recording. She had not previously seen the earlier interview, but I permitted her to sit in court during the other evidence, including the playing of the earlier interview with Detective Logan.

33           Dr O'Donnell conducted a detailed intellectual functioning assessment of the accused for the purpose of her report. This assessment demonstrated a level of intellectual functioning described as "on the cusp of a mild intellectual disability". The majority of the scores comprising the assessment were in the borderline range, with the overall level of functioning within the bottom 6% of a peer matched standardisation sample. The accused scored in the extremely low range in respect of his verbal comprehension, in which his result was in the bottom one percentile. Dr O'Donnell described verbal comprehension as relating "to receptive and expressive language, so the ability to express oneself also

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to understand and comprehend verbal language from others". Verbal comprehension is self-evidently relevant to the capacity of the accused to understand and process information given to him by the police, including the caution.

34           Dr O'Donnell's main concern is that the accused's intellectual capacity means that, in her opinion, he was not able to "understand fully that he had the right not to participate in the interview at all or to stop it at whatever point he may have chosen to". She noted that a person with the intellectual functioning of the accused may have a bias towards pleasing people who ask questions, and, accordingly, will tend to agree with what is said and not dispute or confront the questioner. She described this as "an acquiescence bias", which she said was evident in her conversation with the accused and in the earlier interview conducted by Detective Logan. She said that the accused's response of agreeing to the interview because "they're the police", was consistent with his level of intellectual functioning, and she doubted therefore that he had an adequate understanding of his right to silence, nor his right to leave the police car. Even though the police had told him he could leave, his intellectual functioning and the acquiescence bias means that he would not have felt free to do so.

35           Dr O'Donnell agreed that the accused would understand the difference between right and wrong, that he was in trouble because of the arson and that, when making admissions to the police, he would have a partial understanding that "when you talk to the police you can get into serious trouble".

Discussion

36           I accept Dr O'Donnell's assessment of the accused's level of intellectual functioning. I accept that his intellectual capacity created deficits in respect of his ability to understand and process what was said to him by police, and, in particular, to comprehend the full extent of his right to choose whether to speak with police, whether to answer any questions put to him by them, and whether he had to remain in the vehicle during the course of the interview. There is no question that if police had been aware of the level of intellectual functioning assessed by Dr O'Donnell, it would have been desirable for the accused to have a support person with him during the interview, to check and ensure that he understood his rights.

37           However there was no support person, and no criticism is made of the police officers in that regard. The sole question for me is whether these circumstances, an interview with the accused without support in the context of his now understood level of intellectual functioning, renders it unfair to the accused for his admissions to be used at the trial, and, if so, whether the unfairness is such that I ought exercise my discretion to exclude the evidence. As Blow CJ said in Tasmania v Hovington, in which a similar judgment was required in respect of a person whose intellectual impairment was so severe that he had been found unfit to stand trial, this is essentially a "value judgment" for me.

38           In all of the circumstances, I am not persuaded that it would be unfair to the accused to use the evidence of the admissions made by him at the trial. I am satisfied that, despite his intellectual limitations, the accused had a sufficient understanding of the role of the police generally, the reason why they wanted to speak with him, and the fact that if he admitted involvement in the arson, he would be liable to "get into trouble", to preclude significant unfairness in the use of the admissions. I am satisfied that he was not placed by police under any significant pressure to engage in the interview. They complied with his request to travel to Travellers Rest to speak with him. I am satisfied that he had a general understanding that he did not have to speak with police at all, but had chosen to do so, because he wanted to admit his involvement in the fire. This is consistent with him immediately admitting that involvement as soon as the subject was raised by Detective Riggall. He follows that admission with an explanation that he just wants to be honest with them. I am satisfied that he had thought about his response before the police arrived, and had already made the decision that he would confess his involvement in the fire.

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39           I am satisfied also that he had a sufficient understanding of his right not to answer the police questions. Further, although I accept that there is some acquiescence bias, as described by Dr O'Donnell, evident in his conduct, I am satisfied that he was quite capable of asserting his views and decisions to the police. This conclusion is informed by the following:

	The accused was very clear with police that he would not go with them to the police station. It is possible that he made this choice because he regarded admissions made at the police station as more significant than those made elsewhere, but there was no clear evidence to this effect, and, in any event, I have no doubt that the accused was aware that by making the admissions which he did, he was likely to get into trouble, irrespective of where those admissions were made. The important point was that the accused was aware that he had the right to refuse to travel with police to the police station. I have difficulty, therefore, accepting that he would not have realised that he also had the right to refuse to speak to police at the house if he wished to do so.
	It is clear that the accused was well aware of his right not to answer specific questions. In both the earlier interview with Detective Logan and in the interview at the house, he refused to name others relevant to the investigation. His answer to Detective Logan was, "no comment". Dr O'Donnell said in evidence that the fact that he said "no comment" is indicative of acquiescence bias in that he felt he had to answer every question, even if it was simply to say "no comment". I respectfully disagree with Dr O'Donnell about this. It is clear to me that the accused had in fact made a positive choice not to answer the question at all, and he indicated that choice by saying "no comment". He took similar action in relation to a number of questions asked by Detective Riggall about the name of his companion on the night in question. His responses to Detective Riggall's repeated requests for him to identify this person make it clear that, at the very least, he asserted a right not to answer the question. The only possible inference is that the accused must have understood that he had the right not to answer questions and was prepared to assert that right. This selective refusal to provide requested information is also consistent with the accused having made a free choice about the provision of some information concerning his own involvement in respect of the fire.
	This level of understanding and capacity to carry the understanding into effect was also apparent when he was cross-examined by Ms Judd in this case. It was clear to me that he had the capacity to indicate when he did not understand a question, and when he was distressed or upset by the question, and consequentially to refuse to answer the question. These matters inform my assessment of his capacity during the course of the relevant interview.
	Finally, this was not a case where a level of understanding and comprehension was necessary to deduce the right to leave the police vehicle. Detective Riggall's evidence, which I have accepted, is that the accused was expressly informed of his right, and even shown that the door was unlocked. I simply do not accept that he would have been unaware that he could have left the police vehicle if he wished to do so. Again, I understand the point that his wishes may have been influenced by the acquiescence bias, but I am also satisfied that the accused had had the opportunity to think about what he would say to the police and had made a decision before the police arrived, to admit his involvement in the fire. His agreement to do the interview in the police vehicle is consistent with that choice.

40           Having regard to these matters, I am satisfied that it is not unfair to use the admissions against the accused in this trial. The evidence of the interview, both the video record of it and the evidence of the police witnesses as to what was said by the accused during it, will be admitted into evidence.