The State of Western Australia v Aetr - [2017] WADC 125

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- AETR [2017] WADC 125

CORAM: TROY DCJ

HEARD: 5 SEPTEMBER 2017

DELIVERED : 15 SEPTEMBER 2017

FILE NO/S: IND 12 of 2017

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
AETR

Catchwords:

Evidence - Admissibility of electronically recorded interview - Whether caution properly explained - Suggested breach of Criminal Investigation Act 2006 - Discretion to exclude - Anunga Rules - Admissibility of statement by complainant pursuant to s 106H of the Evidence Act 1906

Legislation:

Criminal Investigation Act 2006 (WA) s 137, s 138, s 154, s 155
Evidence Act 1906 (WA) s 106H

Result:

Application to exclude electronically recorded interview refused
Application to adduce, pursuant to s 106H of the Evidence Act 1906, statement made by the complainant to his mother refused

Representation:

Counsel:

The State of Western Australia : Ms D Clarke
Accused: Ms W Hughes

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Aboriginal Legal Service

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

Azar v The Queen (1991) 56 A Crim R 414
Briginshaw v Briginshaw (1938) 60 CLR 336
Clarke v The State of Western Australia [2013] WASCA 67
Collins v The Queen (1980) 31 ALR 257
Cox v The State of Western Australia [2011] WASCA 30
Gibson v The State of Western Australia [2017] WASCA 141
Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452
McDermott v The King (1948) 76 CLR 501
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Njana v The Queen (Unreported, WASCA, Library No 980042, 11 February 1998)
Norton v R [No 2] [2001] WASCA 207; (2001) 122 A Crim R 104
R v Anunga (1976) 11 ALR 412
R v Lee (1950) 82 CLR 133
R v Swaffield (1998) 192 CLR 159
R v Williams [1992] 8 WAR 265
RPM v The Queen [2004] WASCA 174
The State of Western Australia v Cox [2008] WASC 287
The State of Western Australia v EB [2011] WADC 66
The State of Western Australia v Gibson [2014] WASC 240
The State of Western Australia v GRB [2015] WADC 75
The State of Western Australia v Smith [2010] WASC 279
Tofilau v The Queen (2007) 231 CLR 396
Webb v The Queen (1994) 74 A Crim R 436

TROY DCJ:

Introduction

In the early hours of 2 January 2017 the complainant, aged 3, was with his mother, her partner, and the accused at an address in Derby. The complainant's mother put him into a bedroom to watch a movie whilst some other children slept in different rooms.
The State's case is that the accused entered the complainant's room, locked the door, and lay down on the same bed that the complainant was occupying. The accused touched the complainant on his penis over his shorts for a couple of seconds. He then put his hand down the complainant's shorts and touched his penis for two or three seconds. This gives rise to the single count of indecently dealing with a child under the age of 13 years.
At about the same time the complainant's mother decided that she wanted to go home. She went to collect the complainant but found the door locked. The door was eventually opened. The complainant's mother thought that her son looked scared.
Later that morning the complainant's mother spoke to her son and learned of the allegations. The prosecution have applied to adduce evidence of this conversation under s 106H of the Evidence Act 1906 (WA). The defence oppose the application.
Having spoken to her son, the complainant's mother then contacted the accused who came over to explain what happened. According to the mother's statement, the accused, in the context that he had been appraised that the complainant was alleging that he had been touched on the 'balls' stated that, 'Yep I did it but I didn't do anything bad. I'm sorry. I'm sorry'. The mother's partner was also present and according to him the accused said, 'I'll tell you the truth, yes I did it'.
The complainant's mother and her partner then attacked the accused. Whilst he was still at their address the complainant's mother called the police. One of the police officers who then attended was Constable Lance Simpson. According to his statement, police officers arrived at 2.15 pm on 2 January 2017 and although they searched for the accused, he could not be found.
Constable Simpson gave evidence before me at a voir dire on 5 September 2017. He stated that between that time and about 9.15 am on 5 January 2017 he endeavoured to contact the accused and on at least one occasion spoke to the accused's father.
The complainant participated in a child witness interview at the Derby Police Station at 4.47 pm on 5 January 2017 but did not disclose any relevant information.
Earlier that day, at about 9.00 am, the accused attended the Derby Police Station along with his father. Although the police were looking for him, he had not been arrested and his arrival at the police station was unscheduled. Shortly after his arrival police officers conducted an electronically recorded interview with the accused (the interview).

The interview

In the interview the accused, agreed as recorded in the written transcript at page 62 of the prosecution brief (PB 62), that about ten minutes earlier, Detective Sergeant Vanderplank met him at the front counter of the police station and advised him that he was under arrest on suspicion of indecent dealing of a child under 13. The accused agreed that Constable Simpson then brought him into the interview room.
When the interview began, Detective Sergeant Vanderplank reminded the accused that he was under arrest on suspicion of indecent dealing of a child under 13.
The interview began at 9.24 am and concluded at 10.19 am. There is no doubt that during the interview the accused made admissions. Indeed it would be open to a jury to conclude that towards the end of the interview he confessed to the offence that he has been charged with.

The basis of the defence objection to the interview

On behalf of the accused objection is taken to the interview in its entirety. The primary basis for the objection is that the admissions were involuntary. In the alternative the accused submits that there was a breach of s 138(2) of the Criminal Investigation Act 2006 (WA) (CIA) and therefore by operation of s 154 and s 155 of that Act the interview should be excluded. Alternatively again, the accused argues that the interview should be excluded at common law by operation of the unfairness discretion and/or by reason of public policy.
Although the defence rely upon four different legal bases upon which the interview should be excluded, the factual matters relied upon are common to each of these four bases. They are as follows:
•there was a failure by the police to ensure that the caution was adequately broken down;
•there was a failure by the police to ensure that the accused understood his right to silence;
•there was a failure by the police to explain to the accused what evidence was and how it could be used against him; and
•these failures must be considered against the contextual background that the Anunga Rules were thereby not complied with.

Surrounding circumstances to the interview

There was no real factual dispute concerning the relevant surrounding circumstances to the interview. At the time the accused was aged 21 having been born on 25 March 1995. He has no criminal record and had never been interviewed by the police before. The defence accepted that his command of the English language was perfectly adequate and that there was no need for an interpreter at the interview.
To that extent, at least, this case is readily distinguishable on the facts from the well-known recent case of The State of Western Australia v Gibson [2014] WASC 240. In that case Hall J ruled Mr Gibson's interview inadmissible. Mr Gibson had been charged with murder but subsequently pleaded guilty to manslaughter. On appeal his conviction was quashed: Gibson v The State of Western Australia [2017] WASCA 141.
Neither interviewing officer had ever met the accused before. Constable Simpson testified that on the morning of 5 January 2017 he attended the counter at Derby Police Station where he met the accused and the accused's father. The accused's father told Constable Simpson that he had brought his son in to speak to police (ts 28).
The accused is an Aboriginal person and the Anunga Rules applied.

General principles of voluntariness

It is a well-established rule of the common law that evidence of a confession, indeed all admissions, may not be received against an accused person unless it is shown to be voluntary.
In the absence of evidence to the contrary it is presumed that an admission against interest was made voluntarily: Clarke v The State of Western Australia [2013] WASCA 67 [18] (Pullin JA) citing Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452, 457 and R v Williams [1992] 8 WAR 265, 271.
In joining in the orders to dismiss the appeal in the case of Tofilau v The Queen (2007) 231 CLR 396 Gummow and Hayne JJ noted at [55] that the reasons of Dixon J in McDermott v The King (1948) 76 CLR 501 have rightly been taken to be the authoritative statement of the common law of Australia on the admissibility of confessions.
The overarching common law rule was described by Dixon J in McDermott v The King (511) as being that:
a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made.
This overarching common law rule was described in Tofilau as the wider concept or basal voluntariness.
This means substantially that any admission has been made in the exercise of the accused's free choice. If the accused speaks because he or she is overborne, his or her confessional statement cannot be received in evidence and it does not matter by what means he or she has been overborne.
There is an aspect of the rule with a more specific focus. As described by Gleeson CJ in Tofilau at [2] it is that if an accused's statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.
It is not suggested that this is the case in the present matter.
It is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: Tofilau [56] (Gummow and Hayne JJ).
Again, it is not suggested that this is the case in the present matter.
As the reasons of Dixon J in McDermott show, application of the rule about 'basal voluntariness' also depends upon identifying the criteria that are to found the legal conclusion that a confession was not made 'voluntarily'. The relevant conclusion is described as the will being 'overborne'. The circumstances that yield that conclusion, and provide the criteria which govern the availability of the legal conclusion, are described as 'the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure'. All are species of compulsion: Tofilau [58] (Gummow and Hayne JJ).
The word voluntary does not mean volunteered. This means substantially that it has been made in the exercise of a free choice to speak or be silent: The State of Western Australia v Gibson [161] (Hall J) citing R v Lee (1950) 82 CLR 133, 149.
Voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused: The State of Western Australia v Gibson [161] citing Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J).
In the present case the accused made it clear that he had not had anything alcoholic to drink in the previous 24 hours (PB 61). He stated that he had just got up from sleep (PB 62). As I have noted, the interview commenced at 9.24 am and lasted for less than an hour. There was only one interview. The accused had only been in custody for about 10 minutes prior to the interview commencing. The accused made it clear that he was not on any medications or drugs and he had no illnesses or injuries. He had completed year 11 at school (PB 61). He confirmed that he had had something to eat and drink before he came to the police station and he did not want anything more (PB 64).
In The State of Western Australia v Cox [2008] WASC 287 at [49] ‑ [50] Martin CJ applied the principles enunciated by the High Court in cases such as Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, to approach the discharge of the State's burden of proof from the perspective that his Honour was required to be completely satisfied that the interview was voluntary. That was because the admissions made by Mr Cox in the video record of interview were potentially very significant in relation to the case that had been put against him.
Although that decision was reversed on appeal (Cox v The State of Western Australia [2011] WASCA 30) no criticism was made of the Chief Justice's approach at [49] - [50]. Likewise, I approach matters on the basis that the admissions made by the accused in this interview are highly significant.
As Gleeson CJ observed in the Court of Criminal Appeal in New South Wales in Azar v The Queen (1991) 56 A Crim R 414 at 418:
The simplicity of words such as 'in the exercise of a free choice to speak or to remain silent' can be deceptive. There are many situations in which a person who makes an admission, if left uninfluenced by other persons or considerations, would not have done so. It does not follow that a statement made in such circumstances is involuntary.
The ultimate question is whether the will of the person making the confession has been overborne, or whether he has confessed of his own free choice. A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon J in McDermott's case, upon the will which determines admissibility: Collins v The Queen (307) (Brennan J).

The Anunga Rules

In written submissions on behalf of the accused paragraphs [144] ‑ [147] of the judgment of Hall J in The State of Western Australia v Gibson were cited as 'squarely relevant to this matter'. As Hall J noted in The State of Western Australia v Gibson at [3] the difficulties that can arise when interviewing Aboriginal suspects whose first language is not English have long been recognised. As long ago as 1976 Forster J in R v Anunga (1976) 11 ALR 412 referred to these problems and the special care that police officers needed to take in ensuring that interviews were voluntary and fair.
Breaches of the Anunga Rules may be relevant to an assessment of the voluntariness of confessional evidence by an Aboriginal person in this State: The State of Western Australia v Gibson [162].
In The State of Western Australia v Gibson, Hall J was not satisfied that the accused's participation at any stage in the police interview was voluntary. His Honour came to that conclusion firstly because as a suspect the accused should have been cautioned from the outset of the unrecorded interview. He was not and did not appreciate his right not to speak to the police. During the unrecorded interview it was alleged that the accused made an admission to the effect that he had struck the deceased with a vehicle. He was then formally arrested on suspicion of murder and an audio visual recorded interview was commenced.
In the present case the accused was as a matter of fact cautioned both before and during the interview.
Secondly, in The State of Western Australia v Gibson the accused did not understand the caution when it was later given and, in particular, did not understand his right to silence.
At [83] - [84] Hall J observed as follows:
It is plain that an interpreter was required. I accept the evidence of Ms Doyle and Dr Ingram that the accused had only a very basic level of English comprehension and speaking ability. This is supported by my own observation of the accused during the recorded police interview in Kiwirrkurra. He frequently hesitates and turns to Mr Butler to provide an interpretation of what is put to him. His language is disjointed and sometimes confusing. Many of his responses are single words which do not necessarily indicate an understanding of the questions.
Because the accused had only a very limited understanding of English the absence of an interpreter means that I cannot be confident that he understood what the police said to him about his rights. Nor can I be confident that he sufficiently understood police questions or that his answers can be accepted at face value.
None of those observations, in my view, apply to the accused. Further, unlike in The State of Western Australia v Gibson (see [116]) the accused was asked to explain in his own words what the caution meant, as recommended by the Western Australian Police Commissioner's Orders and Procedures Manual (COPs).
Thirdly, in The State of Western Australia v Gibson Mr Simon Butler, a senior member of the Kiwirrkurra Community, attended as an interview friend. During the recorded interview, Mr Butler and the accused spoke to each other in the local Aboriginal language, Pintupi. The police were not aware of what Mr Butler said to the accused.
Hall J concluded the accused's will was overborne because he was pressured by Mr Butler to answer the police questions. His Honour had earlier held at [149] that when the translated statements of Mr Butler are taken into account, the message the accused received was not that he was not obliged to speak to the police.
Hall J concluded that bearing in mind the cultural context and the kinship relationship between the accused and Mr Butler, the statements made by Mr Butler would have been understood by the accused as a direction to answer the police questions. The accused would be likely to have felt obliged to comply with such directions.
Again, this is not a factor that applies in the accused's case.
The accused's first language is English and I am satisfied that he had no difficulty in understanding everything that was said to him during the course of the interview.
Plainly Detective Sergeant Vanderplank intended to apply the guidance derived from Anunga.
In Njana v The Queen (Unreported, WASCA, Library No 980042, 11 February 1998) Scott J held:
The Anunga Rules need to be administered, having regard to the particular circumstances and they are not intended to be a rigid set of guidelines to be enforced according to their tenor. The circumstances in which tribal Aboriginal people are liable to be interrogated will vary considerably from place to place and time to time and provided the police are conscious of their overriding obligation as to fairness, a rigid compliance with the Anunga Rules is unnecessary. In my opinion, in this case, the police went out of their way to ensure that the accused was not at a disadvantage in all the circumstances of this interview.
Scott J also referred to the holding of Ipp J in Webb v The Queen (1994) 74 A Crim R 436 at 445:
In Gibson v Brooking [1983] WAR 70 at 75 Wallace J remarked that the Anunga Rules 'are not law in the State of Western Australia and in any event are not absolute'. I accept that proposition, but in appropriate circumstances the Anunga Rules give a very good indication of what ordinarily would be regarded as a fair interrogation. In Williams, Rowland and Owen JJ remarked (at 273) that 'something akin to a departure from the Judges' Rules or the Anunga Rules' can give rise to unfairness'.

Scott J concluded that the Anunga Rules should be used as guidelines within the flexibility dictated by common-sense and should be adhered to where practicable. In administering those rules it is important to bear in mind the obligations of the police with respect to the investigation of crime.
In The State of Western Australia v Gibson Hall J noted at [80] that the COPs manual provides administrative instructions, guidelines and procedures for police officers in the performance of their duties. Whilst the COPs manual does not have the force of law it does indicate accepted police practice and a failure to follow the manual may be relevant to issues of voluntariness and fairness: Norton v R [No 2] [2001] WASCA 207; (2001) 122 A Crim R 104.
It is helpful to set out verbatim the following paragraphs of the decision of Hall J in The State of Western Australia v Gibson at [162] ‑ [163]:
The Anunga Rules are not law in Western Australia however they do give a very good indication of what ordinarily would be regarded as a fair interrogation: Webb at 438 (Malcolm CJ). It is no doubt for this reason that they have been adopted in the COPs manual. Breaches of the Anunga Rules may be relevant to an assessment of the voluntariness of confessional evidence by an Aboriginal person in this State.
In Anunga Forster J made observations that remain relevant. They are particularly pertinent to the circumstances of this case because the warnings and suggestions his Honour made were not sufficiently heeded. This is despite frequent approving references in this and other courts and their incorporation into the COPs manual. For this reason they bear repeating:
I preface this statement of guidelines by pointing out that Aboriginal people often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express. Even with the use of interpreters this problem is by no means solved. Police and legal English sometimes is not translatable into the Aboriginal languages at all and there are no separate Aboriginal words for some simple words like 'in', 'at', 'on', 'by', 'with' or 'over', these being suffixes added to the word they qualify. Some words may translate literally into Aboriginal language but mean something different. 'Did you go into his house?' means to an English-speaking person, 'Did you go into the building?', but to an Aboriginal it may also mean, 'Did you go within the fence surrounding the house?'. English concepts of time, number and distance are imperfectly understood, if at all, by Aboriginal people, many of the more primitive of whom cannot tell the time by a clock. One frequently hears the answer, 'Long time', which depending on the context may be minutes, hours, days, weeks or years. In case I may be misunderstood, I should also emphasize that I am not expressing the view that Aboriginal people are any less intelligent than white people but simply that their concepts of certain things and the terms in which they are expressed may be wholly different to those of white people.
Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?
Bearing in mind these preliminary observations which are based partly upon my own knowledge and observations and partly by evidence I have heard in numerous cases I lay down the following guidelines. They apply, of course, to persons who are being questioned as suspects:
(1)When an Aboriginal person is being interrogated as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person's language should be present, and his assistance should be utilized whenever necessary to ensure complete and mutual understanding.
(2)When an Aboriginal is being interrogated it is desirable where practicable that a 'prisoner's friend' (who may also be the interpreter) be present. The 'prisoner's friend' should be someone in whom the Aboriginal has apparent confidence. He may be a mission or settlement superintendent or a member of the staff of one of these institutions who knows and is known by the Aboriginal. He may be a station owner, manager or overseer or an officer from the Department of Aboriginal Affairs. The combinations of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the 'prisoner's friend' be someone in whom the Aboriginal has confidence, by whom he will feel supported.
(3)Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand you do not have to answer questions?' Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this. The problem of the caution is a difficult one but the presence of a 'prisoner's friend' or interpreter and adequate and simple questioning about the caution should go a long way towards solving it.
(4)Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. Anything in the nature of cross-examination should be scrupulously avoided as answers to it have no probative value. It should be borne in mind that it is not only the wording of the question, which may suggest the answer, but also the manner and tone of voice which are used.
(5)Even when an apparently frank and free confession has been obtained relating to the commission of an offence, police should continue to investigate the matter in an endeavour to obtain proof of the commission of the offence from other sources. Failure to do this, among other things, led to the rejection of confessional records of interview in the cases of Nari Wheeler and Frank Jagamala.
(6)Because Aboriginal people are often nervous and ill at ease in the presence of white authority figures like policemen it is particularly important that they be offered a meal, if they are being interviewed in a police station, or in the company of police or in custody when a meal time arrives. They should also be offered tea or coffee if facilities exist for preparation of it. They should always be offered a drink of water. They should be asked if they wish to use the lavatory if they are in the company of police or under arrest.
(7)It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness or drunkenness or tiredness. Admissions so gained will probably be rejected by a court. Interrogation should not continue for an unreasonably long time.
(8)Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal states he does not wish to answer further questions or any questions the interrogation should not continue.
(9)When it is necessary to remove clothing for forensic examination or for the purposes of medical examination, steps must be taken forthwith to supply substitute clothing.
It may be thought by some that these guidelines are unduly paternal and therefore offensive to Aboriginal people. It may be thought by others that they are unduly favourable to Aboriginal people. The truth of the matter is that they are designed simply to remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police. These guidelines are not absolute rules, departure from which will necessarily lead to statements being excluded, but police officers who depart from them without reason may find statements are excluded [3] – [15].

The requirement to explain the caution

By way of contextual background s 137 of the CIA provides as follows:
137.Arrested people, rights of
(1)In this section -
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)This section applies to a person who has been arrested by an officer, no matter under what authority or written law.
(3)The arrested person is entitled -
(a)to any necessary medical treatment; and
(b)to a reasonable degree of privacy from the mass media; and
(c)to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
In this case there is no doubt that a short while before the interview, Detective Sergeant Vanderplank arrested the accused.
Section 138 of the CIA relevantly provides as follows:
138.Arrested suspects, rights of
(1)In this section -
arrested suspect means a person who is under arrest having been arrested -
(a)under section 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence; or
(b)under the Criminal Investigation (Extra‑territorial Offences) Act 1987;
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)In addition to the rights in section 137 an arrested suspect is entitled -
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect -
(a)inform the suspect of his or her rights under section 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).

The nature of the obligation to administer a caution

As Hall J noted in The State of Western Australia v Gibson at [144] the practice of cautioning a suspect arose as a means of ensuring that a confession was voluntary. A suspect interviewed by police and told that he was under no obligation to answer questions and that if he did so those answers could be used in evidence, might have difficulty in later persuading a court that his answers were not freely given. The practice of cautioning suspects was regulated in England in the Judge's Rules of 1912. Whilst those rules were only a guide to police the failure to follow them could provide grounds for concluding the interview was not voluntary or not fair. In this State an arrested suspect must be given a caution: s 138(2)(b) CIA.
Hall J further observed in The State of Western Australia v Gibson at [146] that the obligation to administer a caution to an arrested suspect will not be satisfied by merely reciting the relevant phrases in the presence of that suspect. The caution must be understood by the suspect in order for it to be relevant to the question of voluntariness. In the case of a suspect who has an insufficient understanding of English this means that an interpreter should be used to explain the caution: s 10 CIA. Asking the suspect to then explain in their own words what the caution means will ensure that the suspect understands their rights.
As I have noted in the present case there is no suggestion that the accused had an insufficient understanding of English.
The caution should be given in clear and unequivocal terms. Contradictory messages may undermine the force and effect of the caution: The State of Western Australia v Gibson [147].
In this case Detective Sergeant Vanderplank informed the accused that he was under arrest on suspicion of indecent dealing of a child under 13: PB 62.
Detective Sergeant Vanderplank stated at PB 63:
You've also got, we call is a police caution. That is that you are not obliged to say anything unless you wish to do so. Anything you do say will be recorded and may be used as evidence.
Accused: Yeah
The defence submit that the accused was never informed by police that any answers he gave may be used against him as evidence in a court or as evidence to support him being charged.
Detective Sergeant Vanderplank then continued at PB 63 to 64:
Sgt Vanderplank: all right. So we know that you understood that, can you explain that back to us?
Accused: explain ---
Sgt Vanderplank: Yeah. Do you, do you have to answer my questions?
Accused: Ah, if I want to.
Sgt Vanderplank: Exactly right, if you want to.
Accused: Yeah.
Sgt Vanderplank: So if I ask you ten questions, how many do you have to answer?
Accused: Depend how much I can answer.
Sgt Vanderplank: And, ah, well, only if you want to though.
Accused: Yeah.
Sgt Vanderplank: Yeah. Yeah. So that's, that's if you want to answer it. If you don't want to answer my questions all I ask is if you just say no comment so I know you understood that I asked you a question.
Accused: Alright.
Sgt Vanderplank: Is that fair enough?
Accused: Yep.
Sergeant Vanderplank concluded this phase of the interview by stating at PB (65):
Okay. Alright. You happy with all that there? Alright, mate. Are you happy to keep talking to us, mate, about what's gone?
(At this point the accused nodded his head)
Okay. Alright, (gives the accused's first name), um, mate, bearing in mind that you don't have to talk to me, alright?'

Application of the Anunga Rules

At [54] I set out the nine guidelines originally provided by Forster J in R v Anunga and repeated by Hall J in The State of Western Australia v Gibson at [163]. I have also discussed the authorities on the manner in which they should be applied in this jurisdiction. Applying these guidelines to the facts of the present case my conclusions are as follows.

Guideline (1)

Guideline (1) was not infringed. The accused confirmed that he was able to understand and communicate in spoken English and did not require an interpreter (PB 63). He completed year 11 at school in Derby.

Guideline (2)

Guideline (2) provides that it is desirable that where practicable a 'prisoner's friend' be present. In The State of Western Australia v Gibson Hall J observed at [148] that:
The purpose of an interview friend is to act as a support for the suspect, particularly if the suspect wants to exercise the right to silence. The friend should be a person in whom the accused has confidence, who can speak the suspect's language and who is independent of the police: R v Butler [No 1] (1991) 102 FLR 341, Njana (1998) 99 A Crim R 273. The friend should not play a role of assisting the police in the interrogation by urging or directing the suspect to answer questions. Whilst the presence of an interview friend is not required by law, it is also a factor that may bear upon the question of voluntariness.
Detective Sergeant Vanderplank testified that in the foyer he ensured that the accused understood that he was entitled to an interview friend if he wanted one (ts 22). He was not challenged in that regard.
The accused had no difficulty in communicating in English with the two police officers. He had come to the police station with his father and he confirmed (PB 63) that his family knew that he was with the police. Detective Sergeant Vanderplank informed him (PB 63):
If you want to speak to anyone, you want to speak to family member and let them know what's going on, then you can do that, alright will make that happen.
Very shortly afterwards Detective Sergeant Vanderplank referred back to the rights that he had given the accused some 10 minutes earlier and also stated:
I asked you if you wanted to have an interview friend with ya, okay. You just told me that you wanted to tell your story. Is that true?
Accused: Yeah.
In the absence of any challenge to the evidence given by Detective Sergeant Vanderplank that one of the rights explained to the accused in the foyer was the right to have an interview friend, and given the brief reminder of that right in the interview itself, I am satisfied that guideline (2) was complied with.

Guideline (3)

Guideline (3) relates to the need for great care to be taken in administering the caution.
The rationale for the need for such great care, of course, is the finding by Forster J that Aboriginal people often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express.
His Honour noted that some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?
I remind myself that the onus is on the prosecution to establish that the interview was a voluntary one. There is no evidence before me however that the accused misunderstood any aspect of the interview. I have referred to the accused's ability to converse in English. I did not discern any hesitation in respect of the questions asked of him. At the outset of the interview the accused had been informed that the interview was being recorded and that if at any time the police said something that he did not understand he should just ask them and they would explain it in a different way (PB 61).
Further, Detective Sergeant Vanderplank told the accused:
Just the biggest thing is we want to make sure that you understand what's happening. We want to be fair to you okay.
I do not take guideline (3) as supportive of the proposition that every Aboriginal person, when questioned by the police finds the standard caution quite bewildering. I do not find that the accused found the caution that was administered bewildering, ambiguous or confusing. I find that he understood that he did not have to answer the questions asked of him but what he did say would be recorded and may be used as evidence.
The accused was seated in an interview room being recorded and interviewed by an obviously senior detective and a uniformed police officer. I am satisfied that he had been aware that the police had been looking for him for some days and he came to the police station to tell his story.
He was arrested on suspicion of indecently dealing with a child under the age of 13 years and very shortly afterwards, during the interview, he was reminded of the fact that he was under arrest. I do not accept that there is any possibility that the accused thought that whatever he said to the police could not be used against him following the interview.
The accused stated at the end of the interview that it took him a couple of days to 'realise to bring out the truth and just come out and talk to you guys' (PB 90). He had given some thought to the concept of engaging with police officers. Detective Sergeant Vanderplank stated at the very end of the interview (PB 91) 'obviously we have to deal with what, what you did do' to which the accused said 'yeah' without seeking any clarification. Finally the accused was told that if he was charged a copy of the video would be made available within 14 days, and again the accused said 'yeah' (PB 92).

Detective Sergeant Vanderplank asked the accused, 'if I ask you 10 questions how many do you have to answer?'. It might be said there was some ambiguity in the response, 'depends how much I can answer'. In my view any such ambiguity was dispelled by Detective Sergeant Vanderplank then saying to the accused, 'only if you want to though' and then continuing as set out at PB 65 - 66.
The only other points in the interview when there is any possible implied suggestion that there is a requirement to answer the questions were firstly at PB 71. Detective Sergeant Vanderplank asked the accused what he ended up grabbing, to which the accused said, 'that's when I grabbed his thing'. There was a pause and Detective Sergeant Vanderplank said 'I know it's uncomfortable' to which the accused said 'yeah'. Detective Sergeant Vanderplank then said, 'I need you to tell us what you actually grabbed'.
Having carefully watched the interview during the voir dire, in my view the accused understood that what was being conveyed to him was that, although the subject matter was embarrassing, if he was answering questions, he needed to be precise about what particular body part he was referring to.
Similarly when at PB 84 the accused was asked how old the complainant was and said 'I don't know', I am satisfied that the accused would not have understood the follow-up question, 'if you had to guess' as meaning 'I require you to provide me an answer'. Rather I am satisfied he understood that he was being requested to give the best approximation of the complainant's age.
In my view the interviewing officers conveyed, and the accused understood, that he did not have to answer the questions that he was being asked. I find that the interviewing officers properly explained the caution to the accused and that he understood the caution. There was, in my opinion, no breach of guideline (3) and, further, no breach of s 138(2)(b) of the CIA.

Guideline (4)

Guideline (4) provides that great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. I reject the assertion in the written submissions on behalf of the accused at page 7 that questions with suggestive answers in them are, 'laden throughout the entirety of the interview' and were often loaded with numerous propositions. This was not a complaint that was pressed in oral submissions on behalf of the accused.
At PB 65 Detective Sergeant Vanderplank asked the appropriately open question:
can you tell me what, what sort of happened that night to bring you down to the police station?
The accused then answered that initial open question in some detail.
The interview then continued with in the main non-leading open questions, for example at PB 71, with the occasional exception when, by way of a statement, Detective Sergeant Vanderplank summarised something that he understood the accused had said by way of clarification.
Detective Sergeant Vanderplank did not misrepresent the accused's position for example at PB 72 he stated, 'so you have rolled back after grabbing him accidentally on the penis'.
There were a number of occasions when Detective Sergeant Vanderplank challenged some of the answers that the accused provided, for example why he thought he had grabbed the complainant in the wrong spot if to his mind it was an accident (PB 72). When he did challenge the accused he did not do so in an aggressive way.
There is the occasional comment that could well require excision, for example the comment by Detective Sergeant Vanderplank at PB 76:
I just don't see a rational person or a person admitting to something like this and been sad and sorry for it, if they didn't do it.
Comments such as that were not pervasive however, and whilst, as a comment, it arguably should not have been said, it is noteworthy that it did not elicit any admission from the accused at that point. He specifically denied playing with the complainant's penis at this point of the interview.
Another example of a comment by Detective Sergeant Vanderplank is at PB 78 when he stated, 'I don't think it was an accident that you grabbed him on the penis'.
Again, this comment is however met with an emphatic denial.
Detective Sergeant Vanderplank observed at PB 79, 'so what I can't understand is how is, how is he lying to you to grab him on the balls?'. I regard this as a request for an explanation, when the logistics of what is being described are not clear, as opposed to an assertion by Detective Sergeant Vanderplank that things could not physically have occurred in the manner described by the accused.
When assertions are put to the accused for his consideration he dealt with them. For example at PB 81-82:
Sgt Vanderplank: the bed actually goes up to that chest of drawers.
Accused: no, not right up. There's a little pool table on the corner.
….
Sgt Vanderplank: Okay. So you're telling me that you did everything facing this wall. So you got out of bed, faced the wall, walked all the way looking at the wall, door, lock, face the wall all the way back, climb back into the bed facing the wall and then turn the TV off over your shoulder.
Accused: No, I didn't.
Sgt Vanderplank: Well, that's what you're saying.
Accused: Here, I only face it this way when I walked to the door.
Sgt Vanderplank: Yep.
Accused: That's when I just turned around and I just went and dive into the bed.
The questions and answers at the top of page 83 concerning the position that the accused was facing is a rare example of Detective Sergeant Vanderplank and the accused talking over each other.
Detective Sergeant Vanderplank puts part of the witness statements of the complainant's mother and her partner to the accused. There are occasions when the accused denies aspects of those statements, such as the assertion that he said, 'you can hit me, go on hit me, I'm sorry I'm sorry' to the complainant's mother (PB 77).
The interview was predominantly conducted by Detective Sergeant Vanderplank. When the more junior of the two police officers, Constable Simpson asked questions, his questions were also open and non-leading, for example at PB 85. Despite being quite a large individual he was softly spoken.
I respectfully agree with the observations of Hall J in The State of Western Australia v Smith [2010] WASC 279 [10]:
Questioning by police is not to be regarded as unfair merely because it is persistent nor is there any impropriety in a police officer indicating that the truth of an answer is not accepted because it does not accord with earlier answers given by the accused or with what others have said: Malgil v The State of Western Australia [2008] WASC 290 at 45 (Murray J); Slater v The State of Western Australia [2009] WASC 144 at [34] (Hasluck J).'
At no stage in this interview did the accused indicate a wish not to answer a particular question or indeed not to participate further.
In my view Detective Sergeant Vanderplank was entitled to put the allegation in the way that he did at the top of PB 86. When he did so, it elicited significant admissions by the accused. Detective Sergeant Vanderplank then explored those admissions at PB 86 –PB 90.
I accept the State's submissions that:
•The tone and volume of the officer's voices were not aggressive or intimidating;
•Neither of the officers used body language of an aggressive or intimidating nature, although I accept that both officers were much larger than the accused;
•The pace of the interview was appropriate and not unduly hurried;
•The interviewers were polite and courteous at all times throughout the duration of the interview;
•The accused was never criticised and there were no repeated expressions of disbelief when he answered the questions, although there was the occasional comment that might be susceptible to excision;
•The interviewers did not make any explicit or implied threats, promises or inducements; and
•At no stage of the interview did the accused demonstrate that he did not understand what was being asked of him.

Guidelines (6) and (7)

Guideline (5) is not relevant for these purposes, and so I turn to guidelines (6) and (7) which stress the importance of offering food, drink and adequate rest. Detective Sergeant Vanderplank's unchallenged testimony (ts 22) was that he satisfied himself in the foyer that the accused had had food and a drink of water and that he was not unduly tired. This was confirmed at an early stage in the interview. The accused was told if that changed he should let the police know. I am satisfied that guidelines (6) and (7) were complied with.

Guideline (8)

Guideline (8) provides that should an Aboriginal person seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal person states he does not wish to answer further questions or any questions the interrogation should not continue. There is no suggestion that this guideline was breached. The accused was provided a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner PB 63.

Guideline (9)

Guideline (9) is not relevant for these purposes.

Conclusion on voluntariness

I am satisfied to the high standard referred to by Martin CJ in Cox that the admissions made by the accused were voluntary. I conclude that there was no breach of the Anunga rights in the interview with the accused. As I have stated I conclude that there was no breach of s 138 (2)(b) of the CIA or of any other part of the CIA.

Second basis to exclude interview

Section 155(2) of the CIA, the second basis upon which exclusion is sought, does not therefore arise because I have found that the evidence relied upon by the prosecution is admissible.

Third and fourth bases to exclude interview

In the circumstances of this case it is convenient to deal with these two bases together. The onus is on the accused on the balance of probabilities to establish that the admissions in the interview should be excluded in the exercise of the court's discretion, on the basis that if it is unfair to admit them and/or that the admission of the evidence is contrary to public policy.
In R v Swaffield (1998) 192 CLR 159 Brennan CJ held at [26]:
The elements, or factors relevant to the exercise, of the two discretions to exclude a voluntary confession are substantially the same. Before either discretion is enlivened there has to be some illegality or impropriety on the part of law enforcement officers that results in the making of the confession. In either case, the public interest in placing the court in possession of relevant admissible evidence is material.'
Having concluded that the interviewing officer did adequately explain the caution to the accused as he was required, and that the accused understood the caution, no illegality or impropriety has been shown to exist. It follows there is no basis to exclude the admissions that I have found to be both voluntary and in compliance with the CIA.

Conclusion on the defence application to exclude the interview

The application to exclude the evidence of the interview with the accused is therefore refused.

The State's s 106H application

The State's case is that a few hours after the alleged offence the complainant's mother asked her son to come and sit next to her. In her witness statement at pars 40 - 59 the following exchange is set out:
I said ' [giving the complainant's first name] I want to ask you something'.
I said 'Did anyone touch your balls?'
The complainant said 'Yep.'
I said 'Who?'
He said '[giving the accused's first name]'.
I said 'You for real?'
He said 'He touched my balls'.
I said 'Did anyone else touch your balls?
He did not say anyone else's name.
I pointed downwards to the private part area and looked at [her son] and said 'Anybody touch you there?'
He said '[giving the accused's first name]'.
I said 'Are you sure?'
He said 'Nuh'.
I said 'Where did [giving the accused's first name] touch you?'
He said 'He touched my balls'.
I said 'Are you telling the truth'.
He said 'No' and shook his head from left to right.
I asked him again 'Are you telling the truth?'
He said 'Yes' and nodded his head up and down.
As I have noted, the State rely upon s 106H which provides as follows:
Child's statement to another admissible in Sch. 7 proceedings
(1)In any Schedule 7 proceeding, a relevant statement may, at the discretion of the judge, be admitted in evidence if —
(a)there has been given to the accused —
(i)a copy of the statement; or
(ii)if the statement is not recorded in writing or electronically, details of the statement;
and
(b)the accused is given the opportunity to cross-examine the affected child.
(2)If a relevant statement is to be admitted, evidence of the making and content of the affected child's statement shall be given by the person to whom the affected child made the statement.
(2a)Subsection (1) does not affect the operation of section 106G.
(2b)If a person to whom an affected child made a relevant statement makes a written statement in accordance with Schedule 3 clause 4(1) of the Criminal Procedure Act 2004, the written statement is admissible.
(2c)A relevant statement recorded on a visual recording is admissible to the same extent as if it were given orally in the proceeding in accordance with the usual rules and practice of the court concerned.
(3)In this section relevant statement means a statement that —
(a)relates to any matter in issue in the proceeding; and
(b)was made by the affected child to another person before the proceeding was commenced,
whether the statement is recorded in writing or electronically or not, but does not include a visually recorded interview.
A Schedule 7 proceeding includes any sexual offences against a child.

The applicable principles on the application of s106H

The leading appellate authority on the application of s106H is RPM v The Queen [2004] WASCA 174. I have also had regard to the decisions of this court in The State of Western Australia v EB [2011] WADC 66 and The State of Western Australia v GRB [2015] WADC 75.
As noted by Davis DCJ in GRB at [18], in RPM the child complainant had given a written statement to a police officer in relation to complaints of sexual assault by the accused. When the child came to give evidence during a pre-recording by way of video link from a remote room, he did not give any evidence about the offences. The State then sought and obtained leave pursuant to s 106H to adduce the child's evidence by way of the police statement. A further pre-recording took place during which the child was cross-examined. At trial the procedure followed was that the statement of the child was read first and the jury was then played the recordings of both his examination-in-chief and the cross-examination.
The Court of Criminal Appeal unanimously dismissed the contention that the trial judge erred in the exercise of his discretion in allowing the complainant's statement to the police to be read in evidence pursuant to s 106H of the Evidence Act.
In The State of Western Australia v EB, as Davis DCJ noted, the accused was charged with three counts of indecent dealing with his daughter and a further three counts of sexually penetrating his son, JMB, who at the material time was aged 5. JMB had given a visually recorded interview (VRI) where he described an incident the subject of one of the counts relating to the accused. Although he stated that similar acts had occurred on other occasions, he did not give any particulars of them. The State applied for leave pursuant to s 106H to adduce evidence from the complainant's mother in terms of her witness statement, of statements allegedly made to her by JMB. Significantly the evidence was sought to be adduced to supplement the evidence that JMB had given in his VRI.
I accept that the complainant's statement to his mother is to be considered a 'relevant statement' within the meaning of s 106H. For such a statement to be admissible, firstly the accused must have been given either a copy of the statement or details of its contents. The accused has been given details of its contents.
Secondly the accused must be afforded the opportunity to cross-examine the affected child. The State advised me that if permitted to lead this evidence, at the trial they would call the complainant to be cross‑examined by the accused's counsel.
Thirdly, evidence of the making and content of the statement is to be given by the person to whom the child made the statement, namely the complainant's mother whom the State propose to call as a witness.
If these conditions cannot be met, the statement is inadmissible: RPM [126] (Wheeler J), [173] (McKechnie J). If the conditions are met, the onus is on the State to persuade the court to exercise its discretion in favour of the admissibility of the statement: RPM [67] (Malcolm CJ).
In my view the statement is prima facie admissible and the issue is whether the State have persuaded me to exercise my discretion in favour of its admission.
In GRB Davis DCJ set out a number of factors, gleaned from RPM, as relevant to the exercise of discretion, assuming that the statement is admissible. I respectfully agree with the criteria identified by her Honour and I apply them to the facts of this case.

The first factor relevant to the exercise of my discretion

Firstly whether the complainant has given any evidence at all in relation to the matters the subject of the indictment: RPM [50] and [79] (Malcolm CJ).
It is necessary to refer in some detail to the factual situation in RPM. The complainant, SR, was interviewed by a female police constable at Kununurra Police Station on three occasions in January 2000. His mother was present at the interview. The notes of that interview were converted into a written statement by SR which was signed by him and dated 10 February 2000. This constituted the disputed s 106H statement.
An attempt was then made to record SR's evidence on 4 April 2000. Unfortunately leading questions were asked and there was some prompting by SR's mother. As a consequence, the Crown conceded that the April 2000 video should not be admitted into evidence. The procedure adopted was that the s 106H statement was read to the jury and the video‑recordings of his examination-in-chief and cross-examination were then played to the jury.
On 24 October 2001 an attempt was made to have SR's evidence pre‑recorded on video in the presence of L A Jackson DCJ. During the course of the examination-in-chief he became unresponsive to questions regarding the allegations the subject of the indictment. The attempt to pre-record SR's evidence was then abandoned. See also the summary of events by Wheeler J in RPM at [117].
On 17 December 2001 Murray J granted the Crown's application that an edited version of the statement of SR, dated 10 February 2000, be read into evidence pursuant to s 106H. SR was subsequently cross-examined by the appellant's counsel at a further video pre-recording of his evidence on 19 June 2002.
Counsel for the appellant in RPM had contended that the purpose of s 106H was such that the procedure set out in the section should only be applied where the complainant is incapable of giving evidence at all, or where there is evidence that the child finds the experience of giving evidence extremely traumatic, which was said not to be the case there.
It was in those circumstances that Malcolm CJ held at [50] that:
There is nothing in s 106H which would limit the discretion of a Judge in the manner submitted by counsel. In any event, the first attempt to have SR give his evidence by video link failed when SR found himself unable to give any relevant evidence about the alleged offences. In my opinion, for that reason alone, it was appropriate to admit the statement under s 106H.
Malcolm CJ further noted at [79] that:
As the transcript clearly indicates, he later demonstrated that in relation to the relevant facts and events, he 'clammed up' in the witness box and was apparently incapable of giving any relevant evidence, when called to give evidence by video link from a remote room … he was entirely unresponsive when questions were put to him about the offences the subject of the indictment. It was this very unresponsiveness which led to the decision to provide the evidence by way of the procedure provided for by s 106H of the Evidence Act.

In this case the complainant has not given any evidence at all which, I accept, is a factor that favours the admissibility of the statement.
At [127] in RPM Wheeler J held:
There is a further discretion created by the very general opening words of subs (1) which allows the statement to be admitted 'at the discretion of the Judge'. While it is, in my view, unwise to attempt to fetter in any way that broad discretion, it is apparent that Parliament recognised that there might be circumstances in which the admission of such a statement would cause a degree of unfairness to an accused person which could not be cured even by an opportunity to cross-examine coupled with an appropriate direction from the trial judge.
In my view although there may well be cases, RPM being one, where the inability of the complainant to give relevant evidence other than by the s 106H statement, justifies the exercise of discretion in favour of admission, that is not to say that in every case where the s 106H statement is the only piece of evidence from the complainant him/herself, it must be admitted. To so conclude would be to ignore the broad discretion Parliament has provided to the judge considering the application.

The second factor relevant to the exercise of my discretion

Secondly, the circumstances in which and the process by which the relevant statement was taken: RPM [61] - [62] and [76] (Malcolm CJ); [128] (Wheeler J).
As Malcom CJ noted at [57]:
Constable Randall gave evidence that she took the s 106H statement from SR. The statement was taken over three days at the Kununurra police station. Constable Randall said that she made notes of what SR said so that she could get the sequence of events. A few hours were spent on the process each day for each of the three days. The statement was prepared from the notes and put on the computer. At that time Constable Randall had prior experience in a fairly large number of interviews of this kind. SR was then aged seven years. Constable Randall had been taught the technique, including the avoidance of leading questions, in the Sexual Assault Course conducted by the Detective Training Services in Perth. SR's mother was present on each occasion she met with SR.
Plainly, the circumstances in which the s106H statement were taken in RPM are far more conducive to ensuring that there is a fair trial as between the State and the accused, by guarding against suggesting answers to the witness, than was achieved in the present case.
I note that in RPM McKechnie J observed at [179] that the interests of justice will be enhanced if, where possible, the circumstances under which a s 106H statement is obtained are video-recorded. That obviously did not occur here.
Further, like the judge considering the application in EB I regard it as important that evidence in such a case should be gathered by the police rather than the complainant's mother.
In RPM, SR was ultimately invited to sign the statement, and did so. I accept that here the complainant was too young to have the same opportunity. There is no evidence that his mother took notes when speaking with her son and I regard it as innately unlikely that she would have done. Whilst it was a short conversation, it nonetheless contains a number of details which the complainant's mother would have had to hold in her memory until 6.40 pm, some eight hours later.
The circumstances in which the relevant statement were taken here is a factor that militates against admission.

The third factor relevant to the exercise of my discretion

Thirdly, whether there was any discussion with the child about the purpose of the statement and the need to tell the truth: RPM [131] (Wheeler J). Although the complainant was asked directly if he was telling the truth, the importance of telling the truth was not unambiguously conveyed to him. Nor was there any discussion about the purpose of the conversation, in the sense that could be used as evidence in a court. Again, the lack of such discussion is a factor that militates against admission.

The fourth factor relevant to the exercise of my discretion

Fourthly, whether the statement has been elicited by the use of leading questions or otherwise in circumstances which strongly suggest the contents were not in reality the statement of the child at all: RPM [127] and [132] ‑ [135] (Wheeler J). In the present case there is an immediately leading question asked by the complainant's mother. The form of the questioning is a factor that militates against admission.

The fifth factor relevant to the exercise of my discretion

Fifthly, whether there was present at the time of questioning anyone whom the child may have wished to please or influence by the responses which the child gave: RPM [132] (Wheeler J). That factor is present and again that militates against admission.

The sixth factor relevant to the exercise of my discretion

Sixthly, the probative value of the statement: RPM [61] - [62] (Malcolm CJ); [127] - [128] (Wheeler J) and [175] (McKechnie J). Here the statement does have a probative value, but the extent of that probative value should be viewed in the context that I have ruled that the prosecution are able to lead evidence of the accused's admissions to the same conduct described by the complainant.
I regard this factor as neutral.

The seventh factor relevant to the exercise of my discretion

Seventhly whether there is a degree of unfairness to the accused which could not be cured even by an opportunity to cross-examine or appropriate directions from the trial judge: RPM [127] (Wheeler J) and [174] (McKechnie J). Examples of unfairness include where the allegations in the statement are so vague and general that it is impossible for an accused to make any sensible answer to them: RPM [127] (Wheeler J).
In my view that situation does apply in the present case. The complainant's answers are somewhat inconsistent. When asked if he's 'sure', his answer is 'nuh'. When asked if he is telling the truth 'he said "No" and shook his head from left to right.' His mother asked the question again and this time, 'He said "yes" and nodded his head up and down'.
Whilst the allegations in the statement cannot be said to be so lacking in coherence and consistency that it would be unreasonable to ascribe any probative value to it: RPM [127] (Wheeler J), the probative value of the statement is in my view, in all the circumstances, slight and so outweighed by its prejudicial effect as to render its admission unfair to the accused: RPM [174] (McKechnie J). Accordingly this factor significantly militates against admission.

The eighth factor relevant to the exercise of my discretion

Eighthly whether there is the opportunity for the State to undertake a further VRI with the complainant: EB. If that opportunity exists that is a factor that tells against the exercise of discretion so as to permit the s 106H statement. Theoretically the possibility no doubt exists for the State to attempt a second VRI. Given that the complainant was unable to provide any disclosure three days after the event, the prospect that he would be able to do so at least nine months after the event is in my view almost non-existent. This factor is in favour of admission of the statement.

Conclusion on s 106H application

Considering all these factors, I am not persuaded that I should exercise my discretion in favour of the admission of the statement of the complainant's mother.

Orders

The application on behalf of the accused to exclude as inadmissible the evidence of the electronically recorded interview conducted between the police and the accused on 5 January 2017 is refused.
The application on behalf at the State to adduce, pursuant to s 106H of the Evidence Act, the statement made by the complainant to his mother on 2 January 2017 is refused.