The State of Western Australia v Bell
[2014] WASC 173
•26 JUNE 2014
THE STATE OF WESTERN AUSTRALIA -v- BELL [2014] WASC 173
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 173 | |
| Case No: | INS:220/2013 | 28 APRIL 2014 | |
| Coram: | HALL J | 26/06/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MERVYN KENNETH DOUGLAS BELL |
Catchwords: | Criminal law Application to exclude evidence of police interview Whether admissions voluntary Whether evidence should be excluded in exercise of unfairness discretion |
Legislation: | Nil |
Case References: | Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257 Cornelius v The King (1936) 55 CLR 235 Duke v The Queen (1989) 180 CLR 508; (1989) 38 A Crim R 305 MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 519 McDermott v The King (1948) 76 CLR 501 Plevac (1995) 84 A Crim R 570 R v Ireland (1970) 126 CLR 321 R v Lee (1950) 82 CLR 133 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 Wendo v The Queen (1963) 109 CLR 559 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
MERVYN KENNETH DOUGLAS BELL
Defence
Catchwords:
Criminal law - Application to exclude evidence of police interview - Whether admissions voluntary - Whether evidence should be excluded in exercise of unfairness discretion
Legislation:
Nil
Result:
Application refused
Category: B
Representation:
Counsel:
Prosecution : Ms A L Forrester
Defence : Mr J Meyer
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : John Meyers
Case(s) referred to in judgment(s):
Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257
Cornelius v The King (1936) 55 CLR 235
Duke v The Queen (1989) 180 CLR 508; (1989) 38 A Crim R 305
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 519
McDermott v The King (1948) 76 CLR 501
Plevac (1995) 84 A Crim R 570
R v Ireland (1970) 126 CLR 321
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Wendo v The Queen (1963) 109 CLR 559
1 HALL J: The accused is charged that on or about 20 March 2013 he murdered Charles Alan William Edward Derschow-Mullaley. He was arrested by police on the same day, taken to the Karratha Police Station and there interviewed. A second interview took place the following day.
2 By application dated 16 March 2014 the accused has applied for evidence of the electronically recorded interviews to be excluded. The grounds of the application are, firstly, that the interviews were not made voluntarily by the accused and, secondly, that the interviews should be excluded in the exercise of discretion on the grounds of unfairness.
3 The State does not intend to adduce evidence of the first interview on 20 March 2013. It accepts that that interview contains no relevant evidence. It will, however, be necessary to consider that interview because it places the second interview on the following day into context.
4 In regard to the issue of voluntariness the accused's claim is that he did not wish to answer questions put to him by the police but that his will was overborne by persistent questioning. Further, it is said that the accused's ability to freely exercise a choice as to whether to participate in the interview was affected by his emotional state, his tiredness, his lack of food, his confinement at the Karratha Police Station and his desire to have his mother present when he was interviewed. These latter factors are also relied upon in support of the submission that the interviews should be excluded in the exercise of the unfairness discretion.
Relevant law
5 An admission by an accused person is only admissible in evidence if it is made voluntarily. This does not mean 'volunteered', it means made in the exercise of a free choice to speak or be silent: R v Lee (1950) 82 CLR 133, 149 and MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 519.
6 Where the issue of voluntariness is raised the prosecution bears the onus of establishing on the balance of probabilities that the confession was made voluntarily: Wendo v The Queen (1963) 109 CLR 559, 572 - 573.
7 In McDermott v The King (1948) 76 CLR 501, Dixon J said that to say a confessional statement has been made voluntarily:
[M]eans substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary (511).
8 In Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257, Brennan J said:
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 … upon the will which determines admissibility. 'Voluntary' does not mean 'volunteered', but 'made in the exercise of a free choice to speak or be silent'.
So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused (307).
9 In the present case the accused claims that his will was overborne because he was persistently badgered by the police to participate in an interview. It may be accepted that coercion can occur by means other than physical. In Cornelius v The King (1936) 55 CLR 235, the High Court said:
[N]o doubt can be felt that interrogation may be made the means or occasion of imposing upon a suspected person such a mental and physical strain for so long a time that any statement he is thus caused to make should be attributed not to his own will, but to his inability further to endure the ordeal and his readiness to do anything to terminate it. The difficulty of defining a standard in such a matter is necessarily almost insuperable (252).
10 A voluntary confession can also be excluded in the exercise of the court's discretion if it is unfair to the accused to admit it or the admission of the evidence is contrary to public policy. The possibility of unreliability is an important aspect of the unfairness discretion, but it is not the only consideration. In Duke v The Queen (1989) 180 CLR 508; (1989) 38 A Crim R 305, Brennan J said:
The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded (513).
- See also R v Swaffield [1998] HCA 1; (1998) 192 CLR 159.
11 Police should not persist with an interrogation of a suspect who has indicated that he or she does not wish to answer further questions: R v Ireland (1970) 126 CLR 321, 332 - 333. However, if a suspect says that he does not wish to answer, or will not answer, any further questions, that does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible: Plevac (1995) 84 A Crim R 570, 580. Persistence in these circumstances may afford a ground for considering the exercise of the judicial discretion to exclude evidence.
Factual circumstances
12 A chronology of events was tendered by consent at the directions hearing. The State also called three police officers and tendered recordings of the interviews with the accused on 20 March and 21 March 2013. The accused also gave evidence at the directions hearing. The following factual circumstances can be distilled from that evidence.
13 On the afternoon of 20 March 2013 the accused took the deceased child to the Fortescue River Roadhouse and sought medical assistance. An ambulance was called and conveyed the deceased to Karratha Hospital. The accused also got into the ambulance.
14 On the road to Karratha the ambulance was met by a police car carrying Detective Sergeant Jeramy Davies and Detective Senior Constable Gregory Cunningham. At about 3.14 pm the ambulance pulled over. A paramedic advised the police officers that the child was deceased and that the accused was in the front of the ambulance. Detective Sergeant Davies opened the passenger's door and asked the accused to step out. He was then asked to take a seat in the back of the police vehicle. Detective Sergeant Davies went around to the other side of the vehicle and sat next to the accused and attempted to talk to him. He described the accused as being 'fairly non-responsive'. He said that the accused 'sat in the seat, with his head in his hands, sort of rocking back and forth, just saying, 'Charlie boy, Charlie boy', you know, those sorts of things'. Senior Constable Cunningham gave evidence to similar effect.
15 The accused was not formally arrested at this point. The reasons for this appear to be the difficulty in communicating with him and the unavailability of a secure vehicle. A secure vehicle was requested and arrived within about five or 10 minutes. At that stage the accused looked up and Sergeant Davies was able to communicate with him. The accused was then advised that he was under arrest and informed of his rights. The arrest occurred at approximately 3.35 pm.
16 The accused was then placed in the secure vehicle and conveyed to the Karratha Police Station. He arrived there shortly after 4.00 pm. After being processed the accused was observed to be vomiting and hyperventilating and an ambulance was called. He vomited again at 4.19 pm.
17 At 4.41 pm paramedic officers attended at the police station and assessed the accused. He said that he was just upset. The paramedics advised the police that he was fit to remain in custody and that all of his vital signs were fine. At this time he had been placed into an interview room with a mattress and a blanket.
18 At 9.20 pm Detectives Davies and Cunningham went to see the accused in the interview room. He requested a cigarette and was taken to the exercise yard for that purpose. Detective Cunningham reminded the accused of his rights and what he was under arrest for. The accused then said that he would like to telephone his lawyer. He gave the police officers the name of a legal firm and was placed back in the interview room whilst Detective Cunningham obtained contact details for the legal firm in question.
19 At about 10.00 pm the accused was provided with the number and a telephone and made a call to somebody at the firm. The accused was left alone to make his call to his lawyer and the nature and contents of that call were not known to the police. In evidence at the directions hearing, the accused has said that whilst he spoke to somebody on the phone he was unable to speak to a lawyer that evening and was told to ring back the following day.
20 Shortly after making the telephone call, the accused was provided with a meal, though he did not eat it. About 20 minutes later, at 10.30 pm, he asked for and was provided with another cigarette. He was then told by Detectives Davies and Cunningham that they wanted to ask him some questions and he was taken to the interview room.
21 The first recorded interview commenced at 10.39 pm. It was a relatively short interview. The accused was advised of his rights, including that he did not have to answer questions unless he wished to do so. He was asked to explain the caution in his own words to ensure that he understood it. After doing so, he was then asked to tell the police what had happened. The following exchange occurred:
Q. … Um what I'd like you to do um is tell me um in your own words about what happened to young Charles today.
A. I wish not to answer no question.
Q. You don't want to answer that question? All right. Can I ask you to tell me about um what happened in Broome? You were in Broome last night and you tell us you had some drinks. About what happened up in Broome last night.
A. I don't wish to discuss that.
Q. You don't wish to discuss that. Obviously, um Mervyn, what we are trying to do is find out what happened to young Charles. And we know that you took him into the Fortescue Roadhouse today seeking some help. And what we'd like to know is what led you to take him in there. Why were you taking him in there to get help? What happened before that?
A. I don't wish to discuss anything until I speak to my lawyer.
Q. Mmm. Did you cause any injuries to him?
A. Hopefully not.
Q. No. No [indistinct]. Tell me about that.
A. Um like I said to you, I, hopefully I never caused anything, and I don't wish to speak until I speak to my lawyer.
Q. Yep. Okay. Well, you've already had a chat to your lawyer, is that right?
A. Yep.
Q. Yep. Um so - - -
A. It's not, it's not worth me makin' a, one statement and then makin' another statement, so - - -
Q. Yep. Oh that's okay. And we're not, we, we can't make you answer any questions, Mervyn. That's not our job. So what we're doing is giving you the opportunity to say exactly what you would like to say. You can, you can tell us anything you want, not answer any more questions. So we're just giving you that opportunity.
A. I understand.
Q. Yeah. It's a serious matter we're here for. So, you know, we're only doing the right thing by giving you this opportunity. Is there anything you'd like to say?
A. Well, what about?
Q. About Charles. You can tell us anything you want about Charles.
A. And like I told you just before.
Q. Yep. You're telling me a few likes like, the thing you told me just before.
A. Yeah, well, you know. Speak to my lawyer.
Q. Oh speak to your lawyer.
SGT DAVIES: Merv, can you tell me who Charles is? Is, is that something you'd be prepared to, to answer?
A. I am not answering no questions, okay.
Q. All right. Were you, were you present when the injuries occurred to Charles?
A. Like I said, I do not wish to speak until I speak to my lawyer.
Q. Okay. Do you agree that you took him to the Fortescue Roadhouse to try and get him help?
A. Like I said, I don't wish to say anything until I speak to my lawyer.
Q. Okay. All right. No problem. Um look, you're exercising your, your rights. That's fine. Um before we do turn off the tape I'll just give you an opportunity to say anything you want to about, about Charles or about what happened. Mervyn, is there anything you would like to say at all?
A. No.
22 The interview was then concluded. The final questions included one which asked whether the accused had any complaints about the way he had been treated, to which he answered 'No'. The accused was then left in the interview room and allowed to sleep using the mattress and blanket he had been provided with earlier. There was a police guard outside the door and the light was turned off. The accused was checked at 1.30 am, 4.00 am, 5.30 am and 7.00 am and appeared to be sleeping or resting.
23 Detective Senior Constable Grant Smith arrived at the Karratha Police Station on the morning of 21 March 2013 to assist with the investigation. At 8.20 am Detectives Smith and Cunningham went to the interview room. The accused appeared to be asleep and they woke him up. Detective Smith introduced himself and explained 'the process of what was going to happen' and offered the accused food and drink, which he refused. He asked for a cigarette and was taken to the exercise yard for this purpose.
24 There was a further conversation in the exercise yard which Detective Smith described in the following terms:
Whilst we were in the exercise yard, I just explained the process to him about what was going to happen today. I explained to him that it may be a long day, depending on what happens. I also asked him for his mobile phone number and who that carrier was that the mobile phone number was with.
At that point during this initial interaction with him, did you ask him if he wanted to participate in a record of interview?---No, I did not.
Did you tell him that you were seeking to interview him?---Yes, we told him whether we would do an interview but didn't give him an option to do an interview.
At the time that you were speaking to him then, were you aware of a previous request on his part to speak to a lawyer?---Yes, I was.
And did you know that he hadn't yet had that further opportunity to speak to a lawyer?---Yes, I did, yes.
Did you intend at any point or did you tell him at any point that you intended to interview him before he had that further opportunity?---Definitely not, no.
25 The accused was then returned to the interview room to rest. He asked for a further cigarette at 8.35 am and was taken to the exercise yard by a uniformed officer for that purpose. He was also provided with a cup of tea at his request. In the meantime, Detectives Smith and Cunningham made attempts to contact the accused's lawyer. Messages were left at 9.51 am and 10.00 am. At 11.50 am Detective Smith went to the interview room and woke the accused up and offered him food and drink, which was again declined. Detective Smith then spoke to the accused again at 12.25 pm and told him that he could speak to his lawyer. He was given access to a telephone and the opportunity to speak to his lawyer. He was also permitted to telephone his mother. Shortly after these telephone calls, at 12.58 pm, the second interview commenced.
26 At the start of the second interview, the accused confirmed that he had spoken to his lawyer and his mother. He was reminded of his rights and confirmed his understanding of the caution. He was asked whether he wished to have anyone sit in with him and said that he would like his mother. He then confirmed that his mother was in Busselton at that time. Detective Smith responded by saying that it was not practical to arrange for his mother's attendance but that the police could organise for somebody else to come and sit with him if he was feeling uncomfortable. The accused asked whether this meant the Aboriginal Legal Service and was told that it could be ALS or an Aboriginal elder. He then confirmed that he was happy to speak to the police without anyone else present and was not hungry and did not want anything to eat.
27 When asked his level of education the accused said that he finished school at year 10 and did years 11 and 12 at TAFE. He confirmed that he can read and write English and had not had any alcohol in the last 24 hours. The accused then answered questions regarding what had happened to the deceased child. He continued to answer questions for some time. Throughout this time he was quietly spoken with his head down, but spoke clearly and was responsive to the questions put.
28 The questions were not asked in a bullying or intimidating way and there was nothing to indicate reluctance on the part of the accused until about three-quarters of an hour into the interview. The accused then, quite suddenly, stated that he did not wish to answer any more questions:
A. And like that I said, I'm not answering no more questions. Done.
Q. Why not, mate?
A. I'm done. I said that I'm, I'm fucking feeling, you know.
Q. But how, what are you feeling, mate? Are you feeling all right or - - -
A. I'm feeling angry, okay, pissed off and angry and every, everything what happened.
Q. Well, tell us how you're feeling then, mate.
A. And that's it and that's - - -
Q. What are you, what are you - - -
A. [indistinct] but the conversation is over.
Q. What are you pissed off about?
A. The video, it's over, done and that's it.
Q. Because there's a couple of things I'd wanna know, like, when you saw the injuries, what did you - - -
A. So with every, with everybody else - - -
Q. What did you - - -
A. And so would everybody else.
Q. Yeah, exactly. Exactly. And that's why I'm gonna ask you these questions, Merv, alright.
A. Yeah, well - - -
Q. When you - - -
A. You've got enough out of me at the moment and so - - -
Q. Mmm.
A. That's it and like I told you, I don't feel like speaking no more and that's it and the conversation - - -
Q. All right.
A. Is over, the video [indistinct] - - -
Q. When you saw the injuries, what did you think?
A. The video interview is done and that's it.
Q. Why didn't you take him to a hospital, mate? And that's a pretty simple question. You obviously liked him enough that you wanted to take him down - - -
A. Well, now, I, I see what you're doing. You're trying to go off onto another situation and from this situation from another situation and so that's it. And you, you're trying to fuck my head up and I'm not having it and so that's it. I'm done.
Q. Merv, I'll tell you now I'm trying to - - -
A. And I know how youse work, alright - - -
Q. I'm not trying to stuff with your head - - -
A. I know how youse work and I'm not that dumb.
29 Shortly after this the accused asked if he could go outside and have a cigarette because he was 'stressing out'. Detective Smith then said:
DETECTIVE SMITH: I'll tell you what, how about we, we cease it for a while until you stop stressing out and we'll give you a cigarette and all that?
A. Yeah.
Q. And then we'll decide where we go from there. How does that sound, mate? All right then.
30 The interview was suspended at 1.41 pm and the accused was taken to the exercise yard. Whilst there he had three cigarettes and was provided with a can of soft drink. He was offered, but again refused, a meal. According to Detective Cunningham, the accused calmed down during the break and resumed the same manner he had been in earlier in the day.
31 At 2.03 pm the accused was taken back to the interview room. He was not asked whether he wished to continue with the interview, but he did not indicate that he did not want to. On the recommencement the accused was asked whether anyone had threatened him or promised him anything during the break. He was also asked whether he had any complaints about the way he had been dealt with during the break. He answered 'no' to all of these questions. He then continued to answer questions regarding the matters under investigation. His demeanour was very similar to that displayed in the earlier part of the interview. Whilst quietly spoken, he was clear and responsive. There was no apparent unwillingness to answer the questions and no complaints made about the process.
32 About half an hour later, at 2.37 pm, the interview was suspended again. This occurred when the accused asked for a break. He was again permitted to go out to the exercise yard and have a cigarette and was left in the company of a uniformed officer. This break lasted nearly an hour and the accused was taken back to the interview room and allowed to rest on the mattress. During this time Detectives Smith and Cunningham left to make an assessment of what they had been told by the accused, with a view to challenging him on aspects of his account.
33 The interview was resumed at 3.31 pm and Detectives Smith and Cunningham returned to the interview room. Again the initial questions related to whether there had been any threats or promises and whether the accused had any complaints about the way he had been treated. Again he answered 'no' to these questions. He then proceeded to answer further questions about the events.
34 His demeanour was very much as it had been previously. He expressed no unwillingness to answer questions until 4.02 pm when he clearly stated 'that's it' and 'I'm done'. The police continued to ask him questions and the accused then said 'Charge me with whatever you want to charge me with and just get it over and done with'. The interview finished shortly thereafter.
35 In the concluding questions, the following exchange occurs:
Q. All that que-, answer that you gave us, were they given of your own free will?
A. Um, well, you sat here and just kept pestering me all night, today, interview, interview, interview, interview.
Q. Did, but have all the questions you've answered - - -
A. And the only way I can get youse off my back is just to fucking give in to the interview with youse.
Q. What do you mean by that?
A. I don't know, participate in your interview.
Q. All right. E-, explain what you mean by that to us. All right. 'Cause we've got to clear this up.
A. Well, I didn't want to talk, but youse kept wanting to, you take me out there for a smoke, I'm, like, just have a yarn, whatever, this and that there.
Q. Did you anyone threaten you at all?
A. No, you never threatened me.
Q. Did you speak to your lawyer?
A. Yeah, I spoke to my lawyer.
Q. Did myself and Greg explain to you that - - -
A. Yep.
Q. Speak to your lawyer and speak to your mum?
A. Yes, but youse kept coming back [indistinct] are you ready now? No. We'll wait twenty five minutes, fifteen minutes. Come back again, are you ready?
Q. So we come back and ask you whether you were ready to speak to us or not?
A. Yep.
Q. Do you - - -
A. And youse came back, like, I don't know, three times a day, four, five times a day.
Q. Do you remember you saying to us [indistinct] want to speak to my lawyer first. We said no worries, we'll try and organise a lawyer for you. Are you willing to speak to us? I want to speak to my lawyer first.
A. I said yes, maybe after that.
Q. You said yes, maybe after that. Yep. And after you sp-, - - -
A. But youse kept going on oh do you want to do this, do you want to do that. I don't want to do nothing, I just want to fucking have a rest, take me jail, I don't give a fuck. Have your food, have whatever, just - - -
Q. Did we keep offering you food when we were speaking to you?
A. Yep.
Q. And drinks and cigarettes?
A. Yep.
Q. Yep. And did we tell you that it was your choice on what you did?
A. Yep.
Q. We did?
A. I haven't had nothing to eat for the last three days.
Q. And what, when we've offered you food - - -
A. No. I am not going to take food off you.
Q. You didn't want food from us.
A. I'm not going to eat sausages.
Q. All right.
A. I'm not going to take McDonald's or Chicken Treat off you.
Q. Yep.
DETECTIVE CUNNINGHAM: Were you offered other stuff? Sausage rolls?
A. Yep.
Q. Sandwiches.
A. Yep.
DETECTIVE SMITH: Yep. And you agree we said it was your choice in what you do? Like, you wanted to speak to a lawyer and you wanted to speak to your mum.
A. Youse agreed on me wanting to speak to them.
Q. So we said yes, you should speak to your lawyer?
A. Yep.
Q. Yep. All right.
A. And whatever. So you got what you wanted now. Where do you want to take it from here?
Q. Have you got anything else you want to say at all?
A. No.
Evidence of the accused
36 The accused gave evidence at the directions hearing. In his evidence he said that he understood the caution and understood that he was not obliged to speak to the police but said that he had made it clear from the start that he did not wish to participate in an interview. He said that the reason that he answered the questions was because:
I felt like I had no choice. They were - just kept coming back, asking me, "Come on, let's do the interview," rah, rah, rah, and I felt like I was stuck between a rock and a hard place. Then, yes, I felt pressured to do the interview (ts 65).
37 When asked to explain the nature of the pressure the accused said that whenever he asked to have a cigarette and the police took him to the exercise yard they would say 'All right, let's get this interview started' and then when he was in the interview room they 'kept approaching me'. He said that they never gave him a choice not to participate. He said that he participated 'because they wouldn't leave me alone'. He said they 'kept persisting and that's why I was getting stressed, because I didn't want to participate, but they just kept hammering me with all these questions'.
38 The accused said that during the breaks the police were pressing him to continue by saying words to the effect 'we're almost done, mate, we're almost done. We're almost there. You're almost finished the interview. Not long now and then you can have a rest'. He said they also said 'Come on, mate. It's all good, mate. You know, you can say what you want [indistinct] interview so one can understand where you're - what has happened, where you're coming from and so you can tell your part of the story'.
39 The accused accepted that he was not asked about participating in an interview between approximately 11.00 pm on 20 March 2013 (when the first interview finished) and 8.20 am on 21 March 2013. He accepted that he was given an opportunity to speak to his lawyer in the early afternoon of 21 March 2012 before the second interview. He could not recall whether he had complained to his lawyer about being pressured to participate in the interview. He thought it was most likely that his lawyer had advised him not to say anything. He conceded that he made no complaints about the interview process until the very end.
40 The accused accepted that after the first interview on 20 March 2013 he had told the police officers that the lawyer he needed to speak to was not available until the next day and that he may speak to the police after speaking to his lawyer. He placed emphasis on the word 'may' as indicating this was only a possibility. He agreed that he had an understanding of the way police interviews worked and that he was a person who could stand up for himself. Notwithstanding that, he maintained that he felt that he had no choice but to participate in the interview.
Findings
41 The undisputed evidence is that the accused was upset and uncommunicative at the time of his arrest. However, the first interview did not take place until seven hours later. By that time he appeared to be quiet but composed. He clearly understood his right not to participate in the interview and exercised that right. He also understood his right to communicate with a lawyer and insisted upon doing so before speaking further with the police.
42 It is notable that the accused did not exclude the possibility that he would participate in an interview after telephoning his lawyer on 20 March 2013. Indeed his statement that he 'may' speak to the police the following day after speaking again to his lawyer did not suggest that he had made any final decision to exercise his right to silence. Nor was there any reason for the police to think that any such final decision had been made. The suggestion by the accused that he unequivocally told the police from the beginning that he did not wish to be interviewed is not correct.
43 The accused says that by the time he was arrested he had been several days without sleep and by the time of the second interview had been three days without eating. However, prior to the second interview, the undisputed evidence is that the accused was left in the interview room between 11.00 pm on 20 March until 8.20 am the following morning. Whilst it is possible, as he says, that he did not sleep this entire time, he certainly had an opportunity to rest. The appearance of the accused in the second interview does not suggest that he was not in a fit state to participate or to understand and exercise his rights. Whilst his demeanour is quiet and subdued, his answers are clear and responsive to the questions. There is no overt appearance of fatigue. The undisputed records show that he was offered food and drink on a number of occasions and declined, other than to accept a cup of tea and a soft drink.
44 The accused complains that he was not allowed to have an interview friend. This is not correct. The only person he asked for was his mother. His mother was in Busselton at the time and, as Detective Smith correctly noted, arranging her attendance was impractical. The accused was under arrest and being detained for the purpose of being interviewed. Whilst the detention period was extended by a magistrate, it was neither in the interests of the accused nor the police for that period to be extended unnecessarily. In any event, the accused confirmed that he was happy to proceed without an interview friend. To the extent that reference was made to the accused's Aboriginal heritage, it should be noted that there is no suggestion that he was living a traditional lifestyle or that he was at any disadvantage in regards to spoken English. Indeed, he appeared to have a good ability to comprehend and speak English.
45 As regards the claims by the accused, both at the end of the interview and in his evidence that he was pestered by the police, this is contradicted by the evidence of the police officers. There is nothing to suggest that he was 'pestered' on 20 March 2013. When he indicated that he did not wish to participate in an interview until he had spoken to his lawyer, his wishes in that regard were respected. He was placed alone in the interview room at 11.00 pm that night and left there until 8.20 am the next day. At that time, Detective Smith introduced himself and told him of the intention of conducting an interview. However, the accused was not interviewed before first being given a further opportunity to contact his lawyer. That did not occur until after midday and the second interview commenced shortly thereafter. I do not accept the accused's evidence that he was pestered during this period. I accept the evidence of Detectives Smith and Cunningham that they did not intend to conduct an interview until after the accused had spoken again to his lawyer and did not ask him to do so.
46 As regards the breaks in the second interview, the police witnesses all denied that there had been any 'pestering' of the accused to continue with the interview. Sergeant Davies said that he took the can of soft drink to the accused in the first break. He chatted to the accused in the exercise yard but denied placing any pressure on the accused to continue with the interview. Sergeant Davies had known of the accused when he had formerly been posted in the south west. He agreed in cross-examination that life in the south west was what they chatted about. That was the last occasion that Sergeant Davies had any contact with the accused. During the second break, Detectives Smith and Cunningham had no contact with the accused. They also denied that he had been pestered to continue with the interview. The suggestions made by the accused in his evidence of things said to him during the breaks by the police witnesses were not put to any of them in cross-examination. I did not find the accused to be a credible witness in this regard and I accept the evidence of the police witnesses that the accused was not 'pestered' to participate or continue with the interview as he claims.
47 There is no basis in fact for the accused's claims that he was continually pestered. I do not accept that he had a belief in that regard or that he felt pressured to participate. His complaints at the end of the second interview are inconsistent with his demeanour during that interview and with the absence of any earlier complaint.
48 Prior to the first break in the second interview on 21 March 2012, the accused clearly expressed his wish not to continue with the interview. Generally speaking, it would be improper for the police to persist with questioning a person who has made such a clear indication of his wishes. Those wishes should be respected and the police should not pressure a suspect to change their position. However, it is always open to a suspect to change their mind. A suspect may well decide, on reflection, that it is in their interests to continue to participate.
49 In this case the accused was clearly upset at the time that the first break occurred. He was given an opportunity to collect his thoughts and have a cigarette. I do not accept that there was any pressure placed on him during this break to continue with the interview. On resumption the accused made no complaints and answers the questions put to him without any appearance of unwillingness.
Conclusion
50 The accused's will was not overborne. He understood his right to silence and exercised it when it suited him to do so. I am satisfied on the balance of probabilities that the answers given in the interview of 21 March 2013 were made voluntarily by the accused and in the exercise of his choice to speak or not to speak.
51 I am not satisfied that this is an appropriate case in which to exercise the discretion to exclude the interview on the grounds of unfairness. I have taken into account the personal circumstances of the accused, including his mental state, lack of sleep, lack of food, education and intellect and it is not apparent that the accused was in any way taken advantage of by the police. There is no suggestion that his detention was unlawful or that he was not afforded his rights under the Criminal Investigation Act 2006 (WA). Whilst the police did persist with the interview after the first break and after the accused had indicated that he did not wish to continue, I am satisfied that this is because the accused wished to proceed and not because the police were deliberately failing to respect the accused's rights. It would not be unfair to the accused to admit the interview and I therefore decline to exercise my discretion to exclude it.
52 There were some passages referred to in the application which it is said are irrelevant and should be excluded. On the hearing it was conceded by counsel for the State that those passages should be edited and it was unnecessary for me to make a ruling in that regard.
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