The State of Western Australia v Bella
[2014] WASC 78
•12 MARCH 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BELLA [2014] WASC 78
CORAM: HALL J
HEARD: 4 MARCH 2014
DELIVERED : 4 MARCH 2014
PUBLISHED : 12 MARCH 2014
FILE NO/S: INS 189 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BEN YUSSOF AHMAD BEN BELLA
Defence
Catchwords:
Criminal law - Evidence - Unrecorded conversation with accused - Whether reasonable excuse for failing to record conversation - Whether discretion to admit otherwise inadmissible evidence should be exercised
Legislation:
Criminal Investigation Act 2006 (WA), s 118, s 155
Result:
Evidence ruled inadmissible
Category: B
Representation:
Counsel:
Prosecution : Ms C A Fletcher
Defence: Mr J A Davies
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Lumlan & Associates
Case(s) referred to in judgment(s):
Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339
HALL J: On 4 March 2014 I refused an application by the prosecution to lead evidence of an alleged unrecorded admission. I stated that written reasons for that ruling would be provided in due course.
Background
The accused is charged together with Kane Bevan Haydon‑Wood on an indictment containing three counts. The three counts are alleged to arise out of two events that occurred a week apart in April 2013. Counts 1 and 2 arise in connection with the first event and count 3 arises out of the second event. The accused is jointly charged with the co‑accused on the first count. Only the co‑accused is charged with the second and third counts.
The prosecution case is that on or about 16 April 2013 both accused entered a place without consent carrying firearms and pointed them at four people and demanded money. This conduct is alleged to constitute the first count of aggravated burglary contrary to s 401(2)(a) of the Criminal Code (WA). The prosecution alleges that as the two men left the co‑accused shot at the four people, hitting one and thereby wounding that person. This action is the subject of count 2 which alleges that the co‑accused committed an offence of unlawful wounding contrary to s 301(1) of the Criminal Code. The third count relates only to the co‑accused and to activities that occurred on a later date and is immaterial for present purposes.
On 19 April 2013 at approximately 3.40 pm police arrested the accused following his attendance at Mirrabooka Police Station. He was informed he was a suspect in connection with the unlawful wounding that occurred on or about 16 April 2013. He was then placed under arrest, told of his rights and cautioned. The accused was interviewed by police between 5.17 pm and 5.30 pm. To nearly every question that he was asked in relation to the alleged offences the accused replied, 'No comment'. At the end of the interview one of the police officers told the accused that they intended to consider what information was available and what, if any, charges would be preferred against the accused.
After the conclusion of the interview the accused was permitted to go outside for a cigarette. The two police officers who had conducted the interview went with him. They were Detective Senior Constable Reeder and Detective First Class Constable Lay. The witness statements of officers Reeder and Lay were tendered by consent on the hearing of this application.
According to the second statement of Detective Reeder his purpose in taking the accused outside for a cigarette was to build 'rapport'. He said that there was a conversation with the accused about 'general things', such as his apprenticeship, his girlfriend and his relationship with his girlfriend's father.
Detective Reeder states that he then asked what the accused thought of his girlfriend's father and what he thought he (the girlfriend's father) would want him to do. The accused is then alleged to have said, 'It was Kane'. In an earlier statement Detective Reeder gave a different account of what was said by the accused, but it must be assumed that the most recent statement reflects the evidence that the officer would give at a trial.
Detective Reeder states that the comment by the accused was not really 'out of the blue' as he seemed to be wanting to talk about it or 'releasing'. The officer states that he realised that it was necessary to 'go back and record' any admissions. The accused then returned with the officers to the interview room where he was asked further questions regarding the alleged admission. This further interview was recorded but the recording has been lost. According to Detective Reeder the accused agreed that he had been talking to the officers whilst he had a cigarette and that they had talked about 'general things'. However, the accused refused to make any comment about the alleged admission he had made outside.
Detective Lay gives a different account of the conversation. He states that whilst outside he asked the accused something like, 'it was a very distinctive car (used in the incident). You are seen by people in it. Who were you with?' Detective Lay states that the accused responded by saying, 'I drove. Kane shot'. He states that he then asked the accused, 'Who?' and that the reply was, 'You know'. There was a pause and the officer then asked, 'Haydon‑Wood' and the accused is alleged to have responded by saying, 'Yeah'.
Detective Lay agrees that he and Detective Reeder then accompanied the accused back to the interview room. He also agrees that the accused responded by saying no comment when asked further questions. He says that he mistakenly failed to collect the set of disks that recorded the second interview. When he later located them they were blank and he believes that the recording equipment malfunctioned. Some days later he made a notation in the running sheet regarding the alleged admission. The running sheet contains no entries on the day of the interview indicating that any admission had been made.
Relevant law
There is no dispute that the alleged admissions by the accused were not recorded. Evidence of such an admission is not admissible if there is no audio visual recording of it unless the prosecution proves, on the balance of probabilities that there was a reasonable excuse for the absence of a recording or if the court exercises the discretion in s 155 of the Criminal Investigation Act 2006 (WA) to admit evidence that is otherwise inadmissible: See s 118 of the Criminal Investigation Act.
Reasonable excuse is defined in s 118(1) of the Act as including:
(a)the admission was made when it was not practicable to make an audio visual recording of it;
(b)equipment to make an audio visual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audio visual recording being made of the admission;
(d)the equipment used to make an audio visual recording of the admission malfunctioned.
This is a non‑exclusive list and allows for the possibility of other reasonable excuses. However, in this case the prosecution relies on two of those possibilities. Firstly, it is submitted that it was not practicable to make an audio visual recording of the alleged admission. Secondly, it is submitted that the accused did not consent to an audio visual recording being made of the admission.
If it is not established that there was a reasonable excuse for failing to record the alleged admission in this case, then the prosecution seeks that the discretion to admit otherwise inadmissible evidence under s 155 of the Criminal Investigation Act should be exercised. That section applies if under another section of the Act provision is made for evidence that is otherwise inadmissible to be admitted under s 155. In such circumstances the court may decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In making a decision the court must take into account the following factors referred to in s 155(3):
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
The probative value of the evidence does not by itself justify its admission: s 155(4).
The effect of these provisions is that, prima facie, evidence of an admission by a suspect is not admissible unless there is an audio visual recording of the admission. The evidence will be admissible in the absence of an audio visual recording if the prosecution proves that there is a reasonable excuse for the absence or the court decides otherwise under s 155 of the Act: Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 [51] (McLure P, Buss JA agreeing).
Application to the present case
The first thing that should be noted is that the police witnesses are not consistent in regard to what they say was said by the accused during the break. On the basis of Detective Reeder's evidence, what was said by the accused was not an admission at all but rather an accusation made against the co‑accused. That evidence is merely hearsay and not admissible in any event. The only evidence as to any admission comes from Detective Lay. However, the inconsistency between the two officers must, at the very least, cast doubt upon the reliability of this evidence. That is a relevant consideration in circumstances where, as here, the accused denies that he made any such admission.
The relevant circumstances bearing on the question of whether there was a reasonable excuse for failing to record the alleged admission are as follows:
1.The officers who conducted the interview were experienced police officers who understood the requirement for any admissions to be recorded.
2.The break in the interview was not one that was initiated by the accused. There is nothing to suggest that he wished to have a break, asked for the recording equipment to be turned off or had any desire to speak to the officers about the incident outside the interview room.
3.The unrecorded conversation was initiated by the officers and not by the accused. It was the officers who directed the questions to the subject of the allegations. Where such questions are put there must be a reasonable expectation that an admission may be made. As Detective Reeder candidly conceded this was not a case where the alleged admission was blurted out or was unexpected.
4.Whilst there is a suggestion that the recording equipment may later have malfunctioned, it was conceded on the hearing of this application that at the time the alleged unrecorded admission was made recording equipment was readily available in close proximity and this was known by the police officers.
5.There is nothing to suggest that at the time that the alleged admission was made the accused had refused to consent to recording. Such a conclusion cannot be drawn from the fact that on return to the interview room the accused made no comment to further questions. His conduct is equally consistent with no admission having been made at all.
This is not a case where it could be said that the accused made a spontaneous admission that the interviewing officers did not anticipate. Nor is it a case where the failure to record was due to a refusal to consent or the unavailability of equipment. Accordingly, there was no reasonable excuse for failing to record the questioning that occurred outside the interview room and evidence of that questioning is, prima facie, inadmissible.
As to whether the discretion under s 155 should be exercised, the relevant factors are as follows:
1.The accused disputes that the admission was made and objects to the evidence being admitted.
2.The offence with which the accused is charged, namely aggravated burglary, is without doubt a very serious offence.
3.The failure to record an alleged admission is a serious matter. It is in the interest of justice for admissions to be recorded so that what was said by a suspect can be accurately and independently verified. The importance of that factor is underlined where the evidence of the police officers as to what was said is not consistent.
4.The officers made a deliberate and considered decision to engage the accused in a conversation about the allegations in a setting where no recording equipment was present and they might anticipate that the accused's guard was down. This was done in circumstances where the officers were conscious of the requirement that any admissions needed to be recorded in order to be admissible. I note that police officers are generally scrupulous to avoid any conversations about substantive issues where the recording equipment is not operating. This is not a case where the failure to record was unintentional or arose from any honest or reasonable mistake of fact.
5.If the evidence of Detective Lay was preferred over that of Detective Reeder then the probative value of the evidence is high. This, of course, assumes that the admission as alleged by Detective Lay was made and was true. However, the probative value of such evidence does not by itself justify its admission. Provisions such as s 118 exist to guard against the possibility that accused persons will be convicted on the basis of unreliable evidence.
6.The probative value of the evidence also needs to be seen in the context of the other evidence available to the prosecution at trial. The prosecution case does not depend critically upon the alleged admission. Identification evidence is available from a number of witnesses which, if accepted, could establish that the accused was one of the two offenders.
Conclusion
For the above reasons I was not satisfied to the requisite standard that there was a reasonable excuse for failing to record the conversation that occurred outside the interview room. Nor was I satisfied that this was a proper case in which to exercise the discretion to admit evidence that was otherwise inadmissible under s 118 of the Act. In those circumstances I ruled that the evidence was inadmissible at the trial of the accused.
0