The State of Western Australia v Brewer - [2020] WADC 67

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BREWER [2020] WADC 67
CORAM:   BOWDEN DCJ
HEARD:   15 MAY 2020
DELIVERED          :   18 MAY 2020
FILE NO/S:   IND 1591 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
MACKENZIE ROSE BREWER

Catchwords:

Application to lead evidence of an unrecorded admission

Legislation:

Criminal Investigation Act 2006 (WA)

Result:

Alleged unrecorded admissions ruled inadmissible on the basis that it was practical to record the alleged admissions and in any event it would be unfair and against public policy for the alleged unrecorded admissions to be used

Representation:

Counsel:

Applicant	:	Mr E A McClintock
Accused	:	Mr A D Plenderleith

Solicitors:

Applicant	:	Director of Public Prosecutions
Accused	:	Michael Tudori & Associates

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

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Carr v Western Australia [2007] HCA 47; (2007) 176 A Crim R 555
JRWL (a child) v The State of Western Australia [2009] WASC 285
R v Ireland (1970) 126 CLR 321
R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Versac (2013) 227 A Crim R 569
Tofilau v The Queen (2007) 231 CLR 396
Wright v The State of Western Australia [2010] WASCA 199

BOWDEN DCJ:

It is alleged that Ms Brewer possessed MDA with intent to sell or supply it to another on 3 May 2018 at Winthrop.
The State apply to lead evidence of an alleged unrecorded admission made by her to Detective Kebo.

Evidence led at the directions hearing

The evidence adduced at the directions hearing consisted of the two written statements from each of Constables Finnon and Bowman and the oral evidence of Detective Kebo. A statement of agreed facts was also tendered (exhibit 1).
The evidence can be summarised as follows.
On 3 May 2018 the police were conducting a covert surveillance operation.
Ms Brewer was not the target of the operation. An undercover police officer had arranged to purchase a quantity of drugs from the target of the operation. During the course of that operation an order was given to intercept the car driven by Ms Brewer. The car was intercepted by Constables Finnon and Bowman who advised Ms Brewer that she was under arrest although it is agreed by the parties that she may not have been advised at that time of the reason she was arrested. She was asked for her name which she provided. She was not cautioned.

The alleged unrecorded admission

Detective Kebo and another detective arrived within a minute of Ms Brewer being stopped and arrested and Detective Kebo had a short discussion with Constables Finnon and Bowman.
Detective Kebo approached Ms Brewer who was sitting on the ground next to the driver's door of the vehicle in handcuffs. She was crying and in an emotional and distressed state. Detective Kebo said that he was conducting an investigation from the moment he arrived. He introduced himself saying that he was working with the other police and said something along the lines of, 'do you understand what's going on?' Detective Kebo said this was a welfare inquiry as she was distressed and he did not have the video camera on as it was impractical and it was not standard operating procedure to have the camera operating the moment he left the police vehicle.
Ms Brewer was distressed and crying and replied words to the effect 'Yes, Yes. It is in the car' or 'it is all in the car.' Detective Kebo could not remember the exact words used by Ms Brewer. This alleged admission was not recorded. Videorecording equipment was available in one of the two police vehicles at the scene and it is common ground that all the officers knew how to operate the equipment and the equipment required only one officer to operate.
Detective Kebo later made a note of the alleged admission although the note was not shown to or adopted by Ms Brewer.
Detective Kebo says he informed Ms Brewer that she was under arrest for suspicion of possession of a prohibited drug with intent to sell or supply and informed her of her rights under s 137 and s 138 of the Criminal Investigation Act 2006 (WA) (CIA) after she made the alleged admission.

Was there a reasonable excuse for not recording the alleged admission

Section 118 of the CIA provides the evidence of the admission by a suspect is admissible in the absence of audio visual recording if:
1.the prosecution proves on the balance of probabilities that there is a reasonable excuse for the absence; or
2.the court decides it is admissible under s 155: Wright v The State of Western Australia [2010] WASCA 199.
Under s 118(1) a reasonable excuse for the absence of an audio visual recording of an admission includes:
(a)the admission was made when it was not practical to make an audio visual recording of it;
(b)the equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audiovisual recording being made of the admission;
(d)the equipment used to make an audiovisual recording of the admission malfunctioned.
The clear legislative intent of the provision is that alleged admissions are recorded and therefore the integrity of the evidence is preserved.
The essential question is whether it would have been reasonable for the investigating officer to have had audio visual equipment and personnel on hand ready to record the admission, at the time, and in all the circumstances in which it was in fact made: Wright v The State of Western Australia [152].
The vehicle driven by Ms Brewer was stopped at around about 1.30 pm. The police had recording facilities available in one of the two police vehicles at the scene. All four officers knew how to operate the equipment.
The police commenced recording other conversations with Ms Brewer at 1.45 pm and then they conducted further recorded conversations with Ms Brewer at 6.11 pm.
It is not exactly clear at what time the alleged admission was made however it must have been between within a few minutes of 1.30 pm.
There were at least four police officers present at the time of the alleged admission.
The unrecorded alleged admission was made in a conversation which was initiated by Detective Kebo when Ms Brewer was an arrested suspect and in handcuffs. The alleged admission occurred during a conversation between a police officer and an arrested person and when Detective Kebo was conducting his investigation. He said that he had suspicion about the vehicle and intended to search it. The inquiry 'Do you understand what's going on' was an investigatory inquiry and not a welfare inquiry. It was clearly a statement made in a conversation between a member of the police force and a suspect and was therefore an alleged admission made in a police interview: Carr v The State of Western Australia [2007] HCA 47, [62]; (2007) 176 A Crim R 555 approving of Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1.
There was no urgency about this conversation and no reason why the conversation could not have been delayed until the recording equipment was out of the police vehicle and operational. Ms Brewer was not a danger to police officers or attempting to escape police custody.
The police knew or ought to have known that admissions are required to be recorded.
The failure to caution Ms Brewer before she was interviewed was a breach of her CIA rights. Constable Finnon appears to have thought Constable Bowman had issued the caution and Detective Kebo appears to have thought either Constable Finnon or Constable Bowman had issued the caution.
In addition, pursuant to s 138(3)(b) an obligation is imposed on the officer in charge of the investigation to inform and afford Ms Brewer a reasonable opportunity to communicate or attempt to communicate with a lawyer or relative as soon as practicable after the accused's arrest: Wright v The State of Western Australia.
I accept that Ms Brewer was advised of that right shortly after the alleged unrecorded admission however in the circumstances she should have been advised of those rights before Detective Kebo made the inquiry. When Ms Brewer asked to speak to her mother so that her mother could contact a lawyer the request was denied on operational grounds. It is not necessary to determine whether the failure to inform and afford Ms Brewer her s 138(3)(b) rights before she was spoken to by Detective Kebo was a breach of her CIA rights.
Ms Brewer participated in recorded conversations with police officers on two other occasions, being at the roadside and later at the residence and on both of those occasions the police made no effort to confirm either the unrecorded questions they had asked or her alleged responses. Detective Kebo said he did not do this because he believed that as those admissions were not recorded they were inadmissible and she had not spoken to her lawyer.
The State says it was not practical to make an audio visual recording of the conversation because Detective Kebo spoke to Ms Brewer within moments of arriving at the scene. The State says Detective Kebo had a brief discussion with the officers who had arrested her and then asked Ms Brewer a question to ensure that notwithstanding her emotional and distressed state she understood what was occurring.
The State says Ms Brewer's response was a spontaneous admission made in circumstances where it was not possible nor practical for Detective Kebo to have made an audio visual recording of it and in circumstances where he could not reasonably have anticipated the question asked would elicit the answer given.
I reject the State's submissions. What is practicable depends on the circumstances of each case.
It is quite clear Ms Brewer's alleged admission was made in response to a question from Detective Kebo. Ms Brewer had been arrested and was in handcuffs and in police custody. She did not represent a danger to the officers.
Questioning could have been delayed until the recording equipment was taken out of the police vehicle and turned on. The delay literally would have been a matter of minutes and would have required one officer to obtain the equipment. In the circumstances where there were three other officers at the scene Detective Kebo could have delayed his question for a few minutes. This is not a case of the arresting officers being required to turn on the video before they get out of the car and apprehend the suspect. When Detective Kebo arrived on the scene he knew the vehicle had been stopped by other officers and could see that Ms Brewer was in custody. He delayed his approach to her so he could have a brief conversation with the other officers and it was reasonably practical for him to have delayed speaking to Ms Brewer for the few minutes it would have taken to have the video operational.
The State have failed to satisfy me that there was a reasonable excuse for not recording the admission.
In any event Ms Brewer was not cautioned until after the unrecorded conversation with Detective Kebo occurred in breach of her CIA rights.
The mere fact however that the alleged admission was not recorded and obtained in breach of the CIA does not preclude that alleged admission from being led in evidence.
Section 155 of the CIA provides that:
(2)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.
(3)In making a decision under subsection (2) the court must take into account -
(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.
(4)The probative value of the evidence does not by itself justify its admission.
Ms Brewer objects to the evidence being used against her.
There is no doubt that it is a serious offence, the maximum penalty for which is 25 years' imprisonment, a $100,000 fine or both.
It was a serious contravention of the Act. The whole aim of the Act is to ensure that the integrity of admissions is preserved by ensuring that they are recorded thereby avoiding the 'he said/she said' controversy that beset the court for many years prior to the introduction of this section. The issue of a caution is a fundamental right of the accused.
The contravention was not intentional or reckless but was an oversight. Detective Kebo who impressed me as a truthful and conscientious officer said it was not practical to have videoed the conversation I have found it was.
Ms Brewer did not give evidence at the directions hearing however the propositions put to Detective Brewer in cross‑examination show that the reliability of the alleged admission is disputed. The cross‑examination was along the lines that she said words to the effect of 'is it to do with the car'.
Taking the case at its highest for the State the probative value what was allegedly said is high. In a case involving possession the State must prove beyond reasonable doubt that Ms Brewer had custody or control of the substance, knew that the substance was a prohibited drug and had an intention to exercise custody or control over that substance. The alleged admission is highly probative of whether Ms Brewer knew that the substance was in the car from which the State say it can be inferred that it was in her possession. The reliability of what was allegedly said is disputed.
Significantly the officers had ample opportunity to confirm the alleged admission very shortly after it is alleged to have been made.
At 1.45 pm the officers recorded other conversations with Ms Brewer. At no stage does the officer provide Ms Brewer with the opportunity to confirm or dispute the questions he says he asked and her alleged unrecorded admission. In addition a further recording involving Ms Brewer took place at 6.11 pm and again there is no effort by the police officers to confirm the conversation and admission that they say occurred by the roadside. I accept that Detective Kebo did not do so because he believed that as the alleged admission was unrecorded it was inadmissible and as he had denied access to a lawyer it would be inappropriate to ask specific questions of Ms Brewer. The notes were not shown to Ms Brewer and she was not given an opportunity to adopt Detective Kebo's version of what occurred.
The police could have delayed questioning Ms Brewer until they were able to record the conversation or on one or both of the other occasions when they recorded their interviews with Ms Brewer she could have been given the opportunity to either confirm the alleged admission or dispute it.
I would not exercise my discretion under the CIA to admit the evidence. To admit the unrecorded alleged admission would defeat the very purpose of s 118 which is to avoid the 'he said/she said' controversy.
If I am wrong in my conclusions that there was not a reasonable excuse for the alleged admission not being recorded and that there was a breach of the CIA, I would exercise my common law general discretion to exclude the alleged admission on both the public policy discretion and on the basis that it would be unfair to Ms Brewer to admit the evidence: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; Tofilau v The Queen (2007) 231 CLR 396.
The unfairness discretion is concerned with the rights of Ms Brewer and looks to the question of whether it would be unfair to Ms Brewer to use the evidence against her. It is primarily concerned with Ms Brewer's ability to obtain a fair trial and it does not directly involve looking at the questions of whether the interviewers acted unfairly.
The public policy discretion is necessary to protect the process of the courts in administering justice and also serves the policy of deterring such conduct by investigating authorities. This discretion involves striking a balance between the public interest in placing the court in possession of all relevant evidence and the desirable goal of bringing convictions to wrongdoers with the competing considerations of not encouraging evidence to be obtained by inappropriate means and the public interest in protecting individuals from unfair treatment: R v Ireland (1970) 126 CLR 321.
The unfairness/public policy considerations often overlap.
When considering the public policy discretion, in addition to the factors relevant under the CIA, an unfairness discretion, consideration is also to be given as to whether such conduct is encouraged or tolerated by those in higher authority in the police force. In this regard there is no evidence one way or the other presented in this case. Fairness is relevant to the public policy discretion but not the sole focus. Considerations of public policy are engaged and fall to be applied in the particular circumstances of the case.
The factors involved in considering the exercise of both the public policy and fairness discretion include those that I have referred to in the exercise of the CIA discretion. No one factor dominates all must be considered. The disputed reliability of the alleged admission is a factor to consider but not necessarily determinative. There are cases where reliable admissions have been excluded because unfairness has been established: JRWL (a child) v The State of Western Australia [2009] WASC 285.
The weight to be given to the various factors such as the seriousness of the offence, the cogence of the disputed evidence, the importance of the evidence in proceedings, the nature and serious of the offence, the nature of the officer's conduct, how easy it would have been for them to either record the alleged admission or, when they were recording other conversations with Ms Brewer, have her confirm or dispute the alleged admission, are all factors to be weighed: R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56; R v Versac (2013) 227 A Crim R 569.
The onus in these circumstances is on Ms Brewer to persuade me to exercise my discretion in her favour.
I find that she has satisfied that onus and I would in any event, under common law, exclude the alleged admission for the reasons previously explained.
At most the delay in questioning would have been minutes, and the police officers had two opportunities to confirm the alleged admission on recordings that Ms Brewer voluntarily participated in. Nor did they offer her the chance of disputing the contents of the notes. Therefore it would be unfair and against public policy to allow the evidence to be used.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
18 MAY 2020