The State of Western Australia v Bickley - [2024] WADC 29

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BICKLEY [2024] WADC 29
CORAM:   PRIOR DCJ
HEARD:   24 APRIL 2024
DELIVERED          :   7 MAY 2024
FILE NO/S:   IND 241 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

MITCHELL GLENN BICKLEY

Catchwords:

Pre-text call - Voluntariness - Unfairness - Record of interview - Relevance - Prejudicial - Nature of evidence against probative value

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 320(2)

Result:

Accused's application to exclude pre-text call dismissed
Accused's application to edit record of interview partially successful

Representation:

Counsel:

The State of Western Australia	:	Ms F M Clare
Accused	:	Ms J A Trewarn

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	JAT Legal

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

Clarke v The State of Western Australia [2013] WASCA 67
Hough v Ah Sam (1912) 15 CLR 452
McDermott v The King (1948) 76 CLR 501
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
The State of Western Australia v McBride [2015] WASC 275
Wendo v The Queen (1963) 109 CLR 559

PRIOR DCJ:

Introduction

The accused, Mitchell Glenn Bickley is charged with two offences pursuant to s 320(2) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code). The charges are, that on two separate occasions between 1 January 2017 and 25 May 2018 at a house in Baldivis he sexually penetrated a child, XZ who was under the age of 13 years by penetrating her vagina with his penis.
The State case is, on the dates the offences were committed by Mr Bickley, he was living at a house in Baldivis with the child, XZ, XZ's mother and her then partner at the time. The State case is that XZ was aged between 4 ‑ 5 years of age when the two offences took place.
On 26 April 2022 before Mr Bickley was charged with the two offences contained on the indictment, he participated in a pre-text call which was conducted between himself and the mother of XZ.
Mr Bickley objects to the admissibility of this pre‑text phone call on the basis any admissions in that phone call were involuntarily made by him or in the alternative if the court is satisfied that Mr Bickley's admissions were voluntary the admissions should be excluded on the grounds of unfairness to him.
The accused, Mr Bickley also participated in a record of interview with investigating police officers at the Sex Offender Management Office on 19 May 2022. The parties have been able to agree on a number of edits to the record of interview by consent, but there are three specific areas of discussion in the record of interview that the State says should remain in the record of interview as part of the prosecution case which the defence objects to. These areas of discussion can be broadly described as the following:
1.Mr Bickley's statements about his previous prohibited drug usage and the impact that usage had on his behaviour.
2.Mr Bickley's statements that around the time of the alleged offences he had a high libido and masturbated a number of times on a daily basis.
3.Mr Bickley's statements that he considered he was a risk to children around the time of the alleged offences in particular, when he had been using prohibited drugs which increased his libido.
The relevant disputed parts of the record of interview are highlighted in yellow on pages 25 ‑ 31, 61, 69 ‑ 72 and 72 of the transcript.

Pre‑text call

(a) Involuntariness

The only evidence each party relies on in relation to the rulings required concerning the admissibility of the pre‑text call is the pre‑text call itself.
I have been provided with a transcript of the pre‑text call indicating edits to the pre‑text call which have been agreed by the parties and parts of the pre‑text call which Mr Bickley says should be edited but the State opposes.
At the directions hearing, I also listened to a CD of the pre‑text call which is now Exhibit 1.
In considering Mr Bickley's application in relation to the pre‑text call, I am assisted by the applicable legal principles summarised by Corboy J in The State of Western Australia v McBride [2015] WASC 275 [11].
What expressed or implied admissions are made, and the nature of the admissions in a pre‑text call, is a matter for the jury to consider after appropriate directions are given by the trial judge including inferential reasoning directions in a criminal trial. A trial judge can also give directions of how a jury should make factual findings as to what admissions are made by an accused.
Mr Bickley does not submit that in the pre‑text call he did not make any expressed or implied admissions. The challenge to the pre‑text call by Mr Bickley is based only on involuntariness or unfairness.
The pre‑text call starts at 11.04 am on 26 April 2022 and runs for one hour and four minutes. It is obvious in the pre‑text call that when XZ's mother rings Mr Bickley, he is at his work premises as on some occasions during the call he pauses to speak to people who are either fellow employees or customers.
In relation to any confession or statement made by an accused person which contains admissions by the accused against their interest, the law is clear that such statement must be voluntary, in other words it is made in the exercise of their free choice to speak or remain silent.
Generally, the prosecution bears the onus of establishing on the balance of probabilities that the confession or admissions are made voluntarily, however, if there is nothing to suggest the confession or admissions were involuntary, the presumption is that they were voluntary and the onus is discharged: Wendo v The Queen (1963) 109 CLR 559, 572 - 573; Hough v Ah Sam (1912) 15 CLR 452, 457 (Barton J). It is this presumption which the State relies on in response to the application by Mr Bickley as the State says the pre‑text call itself, in relation to what was said and how it was said by Mr Bickley and XZ's mother, does not suggest that the admissions he made were involuntary.
For a confession to be involuntary it has to have been obtained as a result of duress, intimidation, persistent importunity, sustained, undue insistence, pressure or the result of an inducement taking the form of some fear or prejudice or hope of advantage exercised or held out by a person in authority: McDermott v The King (1948) 76 CLR 501, 511 (Dixon J).
The ultimate question for me to consider as to the issue of voluntariness is whether on the evidence of the pre‑text call alone, was the will of Mr Bickley overborne, or whether he has confessed or made admissions against his interests by his own free choice.
In determining whether Mr Bickley's will in making admissions had been in fact overborne, I consider what he said in the pre‑text call, his manner and attitude, also the manner and attitude of the person who called him, XZ's mother.
In considering whether the admissions made by Mr Bickley in the pre‑text call were involuntary, I have taken into account the fact that Mr Bickley was 36 years of age at the time of the pre‑text call and the person he spoke to being XZ's mother, was 27 years old.
There is no evidence Mr Bickley suffers from any mental or physical disability.
My analysis of the pre-text call and what in fact the accused says in answer to questions or comments from XZ's mother is the following:
1.Mr Bickley is reasonably confident and forthright throughout the one hour and four minutes of the phone call.
2.The conversation between Mr Bickley and XZ's mother is continuous and free flowing except when Mr Bickley pauses to speak to work colleagues or customers.
3.Mr Bickley is the person who ends the conversation with XZ's mother. This confirms he knows he can terminate the call at any stage.
4.XZ's mother is not in a position of authority when the pre‑text call is made, she is merely the mother of XZ. XZ's mother is not an agent of the police. The police merely provided the means of recording the conversation with Mr Bickley. XZ was approximately 8 years of age at the time of the phone call and 4 ‑ 5 years of age at the time of the alleged offences. XZ therefore was not a suitable person to make a pre‑text call with Mr Bickley.
5.Although on a number of occasions throughout the pre-text call XZ's mother is robust, swears and raises her voice when speaking to Mr Bickley, he continues to communicate with her. He does not indicate he is intimidated or embarrassed. At some stages, Mr Bickley is argumentative with XZ's mother and makes denials.
6.The tone and volume of XZ's mother's speaking voice in the pre‑text call has to be considered in view of the fact that she is the mother of a young child where it has been alleged that Mr Bickley has sexually penetrated her child in her home on two occasions.
7.In my experience it is not uncommon for persons who ring accused people by way of a pre‑text call to become emotive in their discussions with the accused. Often voices are raised, swearing occurs and strong accusations are made.
8.During the pre-text call, Mr Bickley raises the possibility with XZ's mother that she is recording the call. Despite raising this possibility, Mr Bickley continues to speak to XZ's mother. His acknowledgement of the possibility of being recorded also indicates he had some awareness that he needs to be careful of what he says to XZ's mother.
9.There is no obligation on XZ's mother to be totally truthful to Mr Bickley during the call. She does not have to disclose whether the call is being recorded or whether a complaint has been made to the police concerning Mr Bickley and XZ.
10.At times during the pre-text call Mr Bickley controls the conversation with XZ's mother. He swears at XZ's mother and asks for clarification of her comments. He remains relatively calm in the totality of the call.
11.Mr Bickley on a number of occasions is prepared to restrict what he will say to XZ's mother over the telephone in preference to a face-to-face conversation with her.
12.Mr Bickley has a previous record, familiarity with the police and regulatory authorities, being a registered sex offender. It is therefore reasonable to infer he has some knowledge of his legal rights and the criminal justice system.
When I consider the matters I have just referred to, and generally the pre-text call in its totality, I am not satisfied on that evidence what was said by Mr Bickley was involuntary.

(b) Unfairness

Mr Bickley's counsel relies on the same submissions she has made as to involuntariness to support the application that if what was said by Mr Bickley was voluntary, it should be excluded by me exercising my discretion on the ground of unfairness.
The use by police of pre-text calls as an investigative technique is not inherently unfair: Clarke v The State of Western Australia [2013] WASCA 67 [19] - [21].
In considering whether the pre-text call should be excluded on the basis of unfairness, I need to consider the prejudicial effect of this evidence against the probative value of the admissions made by Mr Bickley during the call.
As Brennan CJ observed in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159:
The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods' (185 - 186).
(footnotes omitted)
Mr Bickley bears the onus of proof in establishing on the balance of probabilities that the pre-text call should be excluded on the ground of unfairness: R v Lee (1950) 82 CLR 133, 152 - 155.
Mr Bickley does not submit any admissions made by him in the pre‑text call are unreliable. It is also conceded there is probative value in what he says by way of implied admissions in the pre‑text call.
I am satisfied the probative value of the evidence of any implied or tacit admissions Mr Bickley makes in the pre‑text call far outweighs any prejudicial effect to him. The implied admissions of Mr Bickley may indicate he had a sexual interest in the child, XZ, and acted on that interest when he had the opportunity.
For the same reasons I have cited in coming to my finding that what Mr Bickley said in the pre-text call was voluntary, I find that Mr Bickley has failed to satisfy me on the balance of probabilities that the pre‑text call should be excluded on the basis of unfairness to him.
As a result of my rulings, all comments highlighted in yellow in the transcript of the pre‑text call should not be edited from the pre-text call unless both counsel agree.

Disputed edits to the record of interview

A significant part of Mr Bickley's application for the edits he made to his record of interview on 19 May 2022 arise from his previous conviction of a sexual offence involving a child.
On 9 November 2018 at Perth Children's Court, Mr Bickley was convicted of an offence of indecently dealing with a child. The offence occurred on 1 March 2003 when Mr Bickley was aged 16.
Mr Bickley's counsel submits that any admissions he makes in his record of interview relating to his past history with children may relate to his conviction for the offence he committed as a juvenile and not his behaviour the subject of charges on the indictment concerning the child XZ which is alleged to have occurred in 2017 ‑ 2018.
The parties have already agreed that the record of interview should be edited to remove discussion by Mr Bickley about his previous offending behaviour as a juvenile.
Mr Bickley's counsel submits that the prejudicial nature of Mr Bickley's comments exceed their probative value. In the alternative, the comments are not relevant to the matters likely to be in issue in this trial.
It is submitted they are generally comments about Mr Bickley's previous prohibited drug use and sexual behaviour.
It is further submitted Mr Bickley's comments about his issues with children relate to his historical juvenile offending and not the allegations concerning the child, XZ. It is further submitted if these comments remain in his record of interview Mr Bickley will be forced to give evidence to explain the context of his comments about his past issues with children.
Counsel for the State submits that the totality of Mr Bickley's comments in the three areas in dispute gives context to what Mr Bickley says and can be viewed that he is expressly or implicitly admitting he has offended against the child, XZ. It is further submitted some of these comments by Mr Bickley are lies which relate to his credibility or demonstrate a consciousness of guilt.
In my view, the comments Mr Bickley makes about masturbating should be removed from the record of interview. This is also my view if these comments were combined with the two other issues in dispute. I consider Mr Bickley's comments about this form of behaviour is too remote from the alleged behaviour that he sexually penetrated a 4 ‑ 5‑year‑old child.
The comments about Mr Bickley's sexual behaviour in the record of interview highlighted in yellow, from the middle of page 70 in the transcript to towards the end of page 72, should be edited out of the record of interview.
As to the comments Mr Bickley makes about his behaviour towards children, these comments should remain in the record of interview.
The State should not be precluded from leading this evidence merely because Mr Bickley has a historical juvenile conviction relating to children. It is for Mr Bickley to decide how he deals with these comments in his defence.
Mr Bickley's comments about his drug use and its impact on his behaviour relate to his use of the prohibited drug methylamphetamine. In my view, these comments should remain in the record of interview. The probative value of the comments exceeds their prejudicial nature. The comments at pages 25 ‑ 31 of the transcript of the record of interview about his drug usage at the Baldivis address and its impact on him, give context to his comments about his issues with children.
The comments highlighted in yellow in the transcript of Mr Bickley's record of interview at pages 25 ‑ 31, 61, 69, the top of page 72 and 82, should remain in the record of interview.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
6 MAY 2024