The State of Western Australia v Campbell - [2019] WADC 77

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CAMPBELL [2019] WADC 77
CORAM:   HERRON DCJ
HEARD:   29 APRIL 2019
DELIVERED          :   14 JUNE 2019
FILE NO/S:   IND 1288 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
GLENN EDWARD CAMPBELL

Catchwords:

Unrecorded admissions by accused to police officer - video camera available - Whether admissions made before there were reasonable grounds to suspect the accused had committed an offence - Whether a reasonable excuse for failure to audio visually record admissions - Whether discretion should be exercised to admit admissions - Section 118 and s 155 Criminal Procedure Act 2006

Legislation:

Criminal Procedure Act 2006 (WA), s 118, s 155

Result:

State not permitted to adduce evidence of unrecorded admissions

Representation:

Counsel:

Applicant	:	Mr D T Carlson
Accused	:	Mr S D Freitag SC

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	Terry Dobson Legal

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

Blum v The State of Western Australia [No 2] [2012] WASCA 40
Wright v The State of Western Australia (2010) 43 WAR 1

HERRON DCJ:

Introduction

On 7 February 2017 the accused, Glen Edward Campbell, was stopped and spoken to by a police officer after he was seen alighting from a vehicle parked in the car park of the South Lakes Leisure Centre. While he was being spoken to the police officer formed a suspicion that Mr Campbell was involved in some sort of drug offending activity. Also while he was being spoken to Mr Campbell was informed he was being placed under arrest on suspicion of being in possession of prohibited drugs. He was also advised the vehicle in which he had been travelling was going to be searched.
While Mr Campbell was being spoken to by the police officer the State says he made admissions against interest in relation to a package which was later found by police in the footwell of the left front passenger seat of the vehicle which contained 27.3 grams of methylamphetamine.
The State says the admissions made by Mr Campbell are that:
(a)there were drugs in a plastic bag in the car;
(b)the drugs were methylamphetamine; and
(c)there was about an ounce of methylamphetamine.
(the admissions)[1]
[1] For the purpose of the hearing before me there was no challenge that those admissions were made.
The admissions were not audiovisually recorded. Pursuant to s 118 of the Criminal Investigation Act 2006 (WA) (CIA) Mr Campbell objects to the admissibility of the admissions because they were not audiovisually recorded as they ought to have been, the admissions being made, it is submitted, after there were 'reasonable grounds to suspect' that Mr Campbell had committed a relevant offence.
Further, Mr Campbell argues that there is no 'reasonable excuse' for the absence of an audiovisual recording of the admissions. Mr Campbell also argues that, having regard to the criteria in s 155(3) of the CIA, the court, if it forms the view that the admissions are not admissible, ought not to exercise its discretion to admit the evidence.
For the reasons which follow I am satisfied:
1.That when Mr Campbell told police of the matters said to constitute the admissions, he was relevantly a 'suspect' as defined in s 115 of the CIA.
2.What he said to the police officer was an 'admission' as defined in s 118(1).
3.That the admissions were made after the police officer had 'reasonable grounds to suspect' and did suspect that Mr Campbell had committed a relevant offence.
4.That there is no 'reasonable excuse' for the absence of an audiovisual recording of the admissions for the purposes of s 118(3)(b)(i) of the CIA.
5.That the evidence of the admissions is therefore not admissible pursuant to s 118(3) of the CIA.
Further, I decline to exercise my discretion pursuant to s 155(2) of the CIA to admit the evidence of the admissions.

The evidence

The police stop a vehicle in which Mr Campbell is travelling

On 7 February 2017 at about 1.00 pm two police officers, Senior Constable Herbert and First Class Constable Te Kahu, while conducting patrols in the South Lake area in a marked police vehicle, saw a black BMW sedan turn off South Lake Drive into the carpark of the South Lake Leisure Centre. The vehicle was travelling in the same direction as the police vehicle but was behind the police vehicle. Senior Constable Herbert observed the vehicle through his rear view mirror. Senior Constable Herbert thought it was odd that the vehicle turned off South Lake Drive as it was approaching the police vehicle and as a result did a U‑turn and drove into the car park into which the BMW had driven. When the police officers drove into the car park the BMW was observed parked in a car bay on the western side of the car park next to an oval or open grassed area. Two males were observed in the vehicle. Senior Constable Herbert drove slowly around the car park two or three times while keeping the BMW under observation. Given the time of day and that people using the leisure centre were normally children and their parents, the police officers' interest was aroused.
After the male in the left passenger seat exited the car and started to walk towards the oval area, which Senior Constable Herbert thought was odd, he stopped the police vehicle directly behind the BMW and walked towards and stopped the passenger. Senior Constable Herbert informed the male he was doing a traffic stop and asked him to come back to the police vehicle. Senior Constable Herbert then obtained the male's details which were Glenn Edward Campbell and asked Constable Te Kahu to check the details in the onboard police computer, TARDIS.
The police computer revealed an alert text for Mr Campbell with a priority reading of 'very high'. The alert text read:
Intelligence suggests CAMPBELL may be involved in the sell / supply of Methylamphetamine.
Intelligence suggests CAMPBELL may be dealing with Matthew YOW 08/MAR/1987.[2]
[2] ts 58, 44 – 47.
The activation date for the alert was 4 September 2016 with an expiry date on 3 December 2016. The text was created by Simon Goddard.[3] The alert text was read by both Senior Constable Herbert and Constable Te Kahu.
[3] ts 44 – 47.

The police suspect Mr Campbell has committed an offence

When Senior Constable Herbert first observed the BMW in his rear vision mirror he formed the view that it looked like the vehicle was trying to avoid the police and he became suspicious about the behaviour of the vehicle occupants. Those suspicions increased when he saw there were two males in the BMW which parked in the leisure centre car park during the day when children were using the leisure centre. When the passenger alighted and started to walk away, Senior Constable Herbert's suspicions increased. He thought it was an odd thing to do. His suspicions were heightened when he saw the contents of the alert. At that point he suspected Mr Campbell of being a drug dealer.[4]
[4] ts 71.
Under cross‑examination Senior Constable Herbert agreed that at the point in time in which he read the alert on the police computer system he had reasonable grounds to then search Mr Campbell under the Misuse of Drugs Act 1981 (WA) (MDA).[5] He formed the suspicion that Mr Campbell might be committing a drug offence and with that state of mind, then searched Mr Campbell.[6] When he searched Mr Campbell, Senior Constable Herbert found on Mr Campbell $3,800 in cash in $50 notes. He also found two mobile phones on Mr Campbell – a white Sony mobile phone and a black Sony phone which were in Mr Campbell's pocket.[7]
[5] ts 71.
[6] ts 72.
[7] ts 72.
When he found the cash and the two mobile phones on Mr Campbell Senior Constable Herbert's suspicions Mr Campbell was involved in drug offending were further heightened. He formed the view that the cash might be the proceeds of unlawful activity such as drug dealing.[8]
[8] ts 72.
He asked Mr Campbell why he had so much cash on him and Mr Campbell replied that he did not trust banks.[9] Senior Constable Herbert did not believe that explanation.[10]
[9] ts 58.
[10] ts 75.
Senior Constable Herbert accepted the sum of $3,800 related to more than a gram of methylamphetamine but was not sure how many grams.[11] He said that at that time he thought something was happening to do with prohibited drugs but did not know if it was drug dealing. He did not know what he had at that time and whether it involved an indictable offence of dealing in methylamphetamine.[12]
[11] ts 73.
[12] ts 74.
By the time Senior Constable Herbert formed the view that there were grounds for him to search the BMW he asked Mr Campbell whether there were any drugs or other items they needed to be aware of because they were going to search the vehicle.[13] Senior Constable Herbert agreed that by that time he had formed a reasonable suspicion that a drug offence was being committed which gave him authority to search the vehicle.[14]
[13] ts 75.
[14] ts 76.
In his evidence-in-chief Senior Constable Herbert said there was a video camera in the police vehicle which the police take with them when they are out on patrol, which he described as an evidence gatherer. The camera is used to record evidence at a party, or it can be used for traffic stops. It is also used when a vehicle is searched once items are found. The camera is kept in the rear of the vehicle with the kit bags. The camera is readily accessible when the police need to use it.[15]
[15] ts 68.
Despite that evidence, when Senior Constable Herbert decided he was going to search the vehicle and informed Mr Campbell that he was going to search the vehicle, Senior Constable Herbert did not retrieve the video camera from the police vehicle to use before searching the vehicle or before asking any further questions of Mr Campbell.[16]
[16] ts 76.
When Senior Constable Herbert informed Mr Campbell he was going to search the vehicle he asked him whether he wanted to declare anything such as whether he had any drugs. Mr Campbell responded he had some drugs and syringes in a grey bag.[17] He then placed Mr Campbell under arrest as a suspect for possessing a prohibited drug.[18] After he had arrested Mr Campbell, Senior Constable Herbert asked Mr Campbell what type of drugs there were and how much.[19] Mr Campbell responded that there was about an ounce of methylamphetamine in the grey bag.[20]
[17] ts 58 – 59, 76 - 77.
[18] ts 59, 62, 77.
[19] ts 77, 79.
[20] ts 58 – 59, 77, 79.
The admissions made by Mr Campbell which the State seeks to rely upon are:
(a)there were drugs in a plastic bag in the car;
(b)the drugs were methylamphetamine; and
(c)there was about an ounce of methylamphetamine.

Legislation

It is convenient to now set out the relevant statutory provisions.

Criminal Investigation Act 2006 (WA)

118. Admission in serious case inadmissible unless recorded
(1)In this section —
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
…
reasonable excuse, for the absence of an audiovisual recording of an admission, includes —
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)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.

(2)This section applies in respect of a suspect who is —
(a)a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or
(b)an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.

(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless —
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission —
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.

(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.

The word 'suspect' is defined in s 115 to mean 'a person suspected of having committed an offence, whether or not he or she has been charged with the offence.'
The expression 'reasonably suspects' is defined in s 3 as having the meaning given by s 4. Section 4 states:
4. Reasonably suspects, meaning of
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non‑existent), when judged objectively, are reasonable.
By s 3 'offence' means any offence under a written law.
Section 6 states:
6. Other written laws, this Act’s relationship with
(1)Unless the contrary intention appears in this Act or another written law —
(a)this Act does not affect the operation of any other written law; and
(b)the powers conferred by this Act on a person are in addition to and do not derogate from any powers conferred on the person by any other written law.
…
(3)If a provision in this Act is inconsistent with a provision in another Act, the provision in the other Act prevails.
Section 155 of the CIA reads:
155. Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless 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.
When Senior Constable Herbert decided to search both Mr Campbell and the vehicle in which he had been travelling, he did so pursuant to s 23 of the MDA.
Section 23 reads:
23. Powers of police officers when things suspected of being used in commission of offences
(1)Subject to this section, if there are reasonable grounds to suspect that any thing whatsoever —
(a)with respect to which an offence has been, or is suspected to have been, or may be committed; or
(b)which has been, or is suspected to have been, or may be used for the purpose of committing an offence; or
(c)which may provide evidence in respect of an offence,
is in the possession of a person, a police officer may, using such force as is reasonably necessary and with such assistance as he considers necessary, stop and detain the person and search him together with any baggage, package, vehicle or other thing of any kind whatsoever found in his possession, and for that purpose may stop and detain any vehicle.
(2)A person shall not be searched under subsection (1) except by —
(a)a person of the same sex as the firstmentioned person; or
(b)a medical practitioner.
(3)A police officer who wishes to search a person under subsection (1) may, if it is not then and there practicable to comply with subsection (2) in relation to the person —
(a)detain the person until; or
(b)detain the person and convey him to a place where,
it is practicable for subsection (2) to be complied with in relation to the person.
(4)A person shall not be detained, or detained and conveyed, under subsection (3) for longer than is reasonably necessary under the circumstances for the purpose of complying with subsection (2) in relation to the person.

Analysis

Criminal Investigation Act – s 118(4)

It is first necessary to determine whether the admissions relied upon by the State are in fact an 'admission' as defined in s 118(1). That in turn involves a determination of whether Mr Campbell was a 'suspect' as defined in s 115.
As I later explain in these reasons, I find that once Senior Constable Herbert had seen the alert on the police computer indicating that Mr Campbell may be involved in selling or supplying methylamphetamine and dealing with another person, and certainly by the time Mr Campbell was searched and found to be in possession of $3,800 and two mobile phones, Senior Constable Herbert suspected Mr Campbell of having committed an offence. It follows Mr Campbell was a 'suspect' as defined in s 115. I am therefore of the view that when Mr Campbell was questioned after he had been searched, what he said to Senior Constable Herbert were admissions as defined.

Reasonable grounds to suspect – s 118(4) CIA

Because, by s 118(4), s 118(3) does not apply to an admission by a person made before there were reasonable grounds to suspect he had committed the offence, it is next necessary to determine whether the police officer, Senior Constable Herbert, had reasonable grounds to suspect Mr Campbell had committed an offence and, if so, when those reasonable grounds existed and when was the suspicion formed.
In my view the words 'the offence' in s 118(4) must refer to the 'indictable offence', referred to in s 118(2)(b). Relevantly, in the circumstances of this case, the indictable offence is possession of methylamphetamine with intent to sell or supply pursuant to s 6(1)(a) MDA in an amount greater than 4 grams.[21]
[21] Section 9(1)(a), sch 3 MDA
I respectfully adopt what Hall J said in The State of Western Australia v Gibson [2014] WASC 240 [38]:
… Suspicion is a state of conjecture or surmise where proof is lacking. Facts which can be the basis of a reasonable suspicion may be insufficient to ground a belief. A suspicion must have some factual basis but it may be merely a positive feeling of actual apprehension or mistrust or a slight opinion without sufficient evidence to establish it: George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115. In South Australia it has been held that fairness will require a caution if the person's possible involvement in the crime remains under consideration, even though they may not be regarded as a suspect: R v Buetti (1997) 70 SASR 370, 378.
Although the expression 'reasonably suspects' is defined in s 4 of the CIA, the expression 'reasonable grounds to suspect' in s 118(4) is not defined. As whether there is any significance in the different expressions was not the subject of any detailed submissions before me, I express no concluded view. However, it seems to me nothing turns on the different expressions. It is, in my view, clear from the wording of s 118(4) that the grounds for a person suspecting must, when judged objectively, be reasonable at the time of having grounds for suspecting the person has committed the offence.

I find that once Senior Constable Herbert had seen the alert on the police computer and, upon searching Mr Campbell, found the cash and two mobile phones on him, Senior Constable Herbert had reasonable grounds to suspect and did suspect, that Mr Campbell had committed a serious drug offence. The combination of the alert on the police computer and the amount of cash and the two mobile phones caused Senior Constable Herbert to suspect that Mr Campbell was not simply involved in some minor drug offending such as possession of a small quantity of prohibited drugs for his own use, but was involved in much more serious drug offending. The quantity of cash was consistent with the police alert that Mr Campbell may be involved in the sale or supply of methylamphetamine and dealing with another person.
Further, in my view given the circumstances in which the police followed the BMW into the car park and Mr Campbell was seen exiting the left front passenger side of the vehicle and walking towards the adjacent grassed area, as soon as the police read the police computer alert after they obtained Mr Campbell's details, there were reasonable grounds to suspect Mr Campbell was involved in serious drug dealing before he was searched. I am satisfied that before he searched Mr Campbell, Senior Constable Herbert determined he was going to search the vehicle pursuant to the MDA. In my view there were reasonable grounds for Senior Constable Herbert to have reached that position before he searched Mr Campbell. Certainly, by the time he searched Mr Campbell and found the significant quantity of cash and the two mobile phones, Senior Constable Herbert was always going to search the vehicle.
It follows that because there were reasonable grounds to suspect that Mr Campbell had committed an indictable offence of selling or supplying methylamphetamine once he had seen the police alert and because at that time Senior Constable Herbert suspected Mr Campbell had committed a relevant offence, that Mr Campbell was 'a suspect' and any 'admissions' made by Mr Campbell after that point in time ought to have been audiovisually recorded. At the latest, any admissions made by Mr Campbell, after he had been personally searched, ought to have been recorded.
Therefore the admissions made by Mr Campbell are:
(a)there were drugs in a plastic bag in the car;
(b)the drugs were methylamphetamine; and
(c)there was about an ounce of methylamphetamine.
They ought to have been recorded. Those admissions were not, for the purposes of s 118(4), made before there were reasonable grounds to suspect that Mr Campbell had committed a relevant offence. It therefore follows that s 118(3) applies to the admissions made by Mr Campbell.

Reasonable excuse – s 118(3)(b)(i) of the CIA

So I then turn to consider whether pursuant to s 118(3)(b), there is a basis for ruling the admissions are admissible at the trial of the offences charged on the indictment. Dealing first with s 118(3)(b)(i) which reads:
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless —
…
(b)in the absence of an audiovisual recording of the admission —
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
The onus is therefore on the prosecution to prove, on the balance of probabilities, that there is a reasonable excuse for the absence of an audiovisual recording.[22]
[22] Wright v The State of Western Australia [52].
The definition of 'reasonable excuse' in s 118(1) is not exhaustive: Wright v The State of Western Australia (2010) 43 WAR 1 [145] (Blaxell J). However, the only basis upon which the State submits there was a 'reasonable excuse' for the absence of an audiovisual recording of the admissions is pursuant to s 118(1)(a) of the definition of reasonable excuse which reads:
(1)In this section —
…
reasonable excuse, for the absence of an audiovisual recording of an admission, includes —
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
Senior Constable Herbert accepted the video camera which was in the police vehicle was accessible and if the police needed it they could have used it.[23] He explained he didn't use the camera because at the time he was just having a general chat with Mr Campbell.[24] He said that if during a traffic stop drugs are located, police then use the camera to caution the accused. They video the items in situ in the vehicle and the items being seized and placed in a security movement envelope.[25] When he located the shopping bag in the footwell of the left front passenger seat in the vehicle Senior Constable Herbert then made a decision to leave the bag in situ and he phoned the Fremantle Detectives who advised they would attend and take over the investigation. They arrived about 45 minutes later and what happened from then was recorded on video.[26] Senior Constable Herbert did not have any further conversation with the accused after he located the bag in the vehicle.[27]
[23] ts 68.
[24] ts 69.
[25] ts 69.
[26] ts 67, 69 – 70.
[27] ts 70.
In response to a question from me as to why, once he had formed a suspicion that Mr Campbell was involved in drug dealing, he did not then obtain the video camera and record any further interaction with Mr Campbell, Senior Constable Herbert said he was only going to search the vehicle to see if what Mr Campbell had told him was the truth. That is, that there were in fact drugs in the car, because in the past he had been involved in stopping cars in which people said there were drugs in there but it has turned out that there was nothing in the vehicle.[28] He conceded, looking back, he could have audiovisually recorded any further interaction with Mr Campbell once he had formed the suspicion that Mr Campbell was involved in drug dealing.[29]
[28] ts 84 – 85.
[29] ts 85
In effect, what Senior Constable Herbert said was that he did not want to risk wasting police resources without first checking to make sure that what Mr Campbell told him was the truth, that is, that there were in fact drugs in the car. Because he and Constable Te Kahu were involved in patrolling duties, they were not in a position to become involved in the investigation of a suspected serious drug offence and it would be necessary to handover any investigation to detectives or other police officers who were more properly tasked with undertaking such an investigation. Before involving other police officers he wanted to first make sure that there was the need for an investigation to be undertaken. Until he saw the package containing the methylamphetamine in the footwell of the front passenger seat of the vehicle he did not believe there was the need for an investigation. That is despite what he had observed and been told by Mr Campbell and despite the suspicion that he had formed that Mr Campbell was involved in drug dealing.
In my view, Senior Constable Herbert did not, when he inquired of Mr Campbell whether there was anything of interest such as drugs in the vehicle and placed Mr Campbell under arrest as a suspect of being in possession of a prohibited drug, turn his mind to the need to audiovisually record the conversation with Mr Campbell. He approached the matter that day on the basis that although he had reasonable grounds for suspecting Mr Campbell was involved in drug dealing, he wanted to first confirm that suspicion before then turning his mind to how the police should become involved, if at all. I make no criticism of Senior Constable Herbert for proceeding in the way in which he did. I accept he believed he was approaching the manner in a practical way and until his suspicion was confirmed he did not turn his mind to the need to audiovisually record what next happened. Once his suspicion was confirmed when he saw the package containing the drugs, Senior Constable Herbert quite properly contacted the Fremantle Detectives and had no further interaction with Mr Campbell, other than to detain him, until other police officers arrived and took over the investigation.
The meaning of the expression 'was not practicable' was considered by Blaxell J in Wright v Western Australia [147] – [152] as follows:
147Furthermore the ordinary meaning of 'reasonable excuse' (in the context of the absence of a recording) is obviously capable of a wider application than the four specified examples in the definition. For all of these reasons I consider that the definition leaves open the possibility of circumstances not within those four examples which could give rise to a 'reasonable excuse'.
148The first specified reasonable excuse in the definition is that it was not 'practicable' to make an audiovisual recording of the admission. The ordinary meaning of 'practicable' is 'capable of being put into practice, done, or effected, esp. with the available means or with reason or prudence; feasible' (The Macquarie Dictionary (2nd ed) 1388). Consistent with this meaning, the issue whether a given task is 'practicable', involves an enquiry as to the means and resources available to accomplish it.
149That Parliament had this concern is confirmed by the Second Reading Speech of the Minister when the legislation was being introduced. The Bill had failed to adopt the recommendation of a Royal Commission that the execution of all search warrants be video-taped, and the Minister's stated reason for this was that it was 'logistically impracticable'. During the Second Reading debate in the Legislative Council there was also the following statement by the Parliamentary Secretary responsible for the Bill:
To videotape all search warrants would require an extra officer to assist in all cases. In remote areas some police stations only have two officers. Therefore, a search warrant would effectively have to be executed by one officer while the other officer operated the video camera. If we were to give effect to this provision should the house proceed down this path, we would need to ensure that all officers have access to a video camera and that would place significant additional financial cost on the police service because it would have to purchase additional recording equipment.
…
It may have the effect that only one search could be executed at any one time. Some larger police stations would require a significant number of video cameras to ensure that officers could access the equipment.
On the issue of practicability, the question of the duration of a search arises. Currently, when officers record the execution of search warrants, they record the entry and advice to the occupant that the video camera will be turned on when questions are asked and items located. If an officer were to continuously videotape, a lot of the tape would be used, because there may be delays while difficult areas are accessed by the officers. (Hansard 6990)
Parliament nevertheless amended the Bill to include the present s 45(2) requiring that an audiovisual recording of the execution of a search warrant be made if 'reasonable practicable'. This was a compromise which the Parliamentary Secretary in the Legislative Council described as:
[A] set of words that is least operationally restrictive for the police and still encourages them, where possible, to use a video recording. (Hansard 7320)
150It can be assumed that Parliament had the same concerns about video recording of admissions as it did in respect of search warrants. Accordingly, the question of whether or not it was 'practicable' to record an admission will always involve a consideration of what resources (in terms of personnel and equipment) were available.
151Other relevant factors may be the time that was available to organise those resources, the degree of expectation that an admission might be made, and whether or not this justified the effort and cost involved in utilizing the resources.
152This determination as to 'practicability' must necessarily be made in hindsight based upon the investigating officers' knowledge of the relevant circumstances prior to the admission being made. It may be that the admission was entirely foreseeable, or alternatively that it could not have been reasonably anticipated. In the end, the essential question is whether it would have been reasonable for the investigating officer to have had audiovisual equipment and personnel on hand ready to record the admission, at the time, and in all of the circumstances in which it was in fact made. If the answer to that question is in the negative, then the admission was made when it was 'not practicable' to make an audiovisual recording of it.
(emphasis added)
The phrase 'reasonable excuse' specifically relates to practical difficulties in undertaking a recording.[30]
[30] The State of Western Australia v Gibson [169].
Having regard to the essential question as explained by Blaxell J at [152], and having regard to the fact that the police had a video camera in the police vehicle which was parked immediately behind the BMW in which Mr Campbell had been a passenger, and also having regard to Senior Constable Herbert's concession that it would have been good if he had used the video camera, I am of the view that it was reasonably practicable for him to have used the camera before he asked any questions of Mr Campbell after they had seen the police alert, or at the least, after Mr Campbell had been searched.
I can readily accept that there might be circumstances when it is not practicable for police officers to audiovisually record interaction with a person who is spoken to at a police stop because there are only two police officers available and there are concerns about the behaviour of the person who has been stopped, for example, if the person is acting aggressively or there are concerns about flight risk, even if a camera is available. However, those circumstances do not apply in this case. Mr Campbell did not attempt to flee once Senior Constable Herbert approached and first spoke to him. Mr Campbell was compliant with the police directions. He answered the questions. He was not acting aggressively. Neither was the driver of the vehicle acting aggressively or in a manner that would have caused the police officers concern. There was therefore nothing to practically prevent Senior Constable Herbert from arranging for Constable Te Kahu to obtain the camera from the police vehicle which was parked immediately behind the parked BMW and audiovisually record Senior Constable Herbert's questioning of Mr Campbell. Senior Constable Herbert accepted that he has in the past used a camera in such circumstances.
In summary, in my view the State has not established any basis for there being a reasonable excuse for the absence of an audiovisual recording on the basis it was not practicable to make such a recording.
It is not suggested there is any other basis for there being a reasonable excuse for the absence of an audiovisual recording of the admissions. I therefore find there is no reasonable excuse for the absence of a recording.

Section 155 CIA – discretion to admit inadmissible evidence

I now turn to consider whether, pursuant to s 118(3)(b)(ii), I may nevertheless decide to admit the evidence of the admissions on the basis that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence pursuant to s 155 of the CIA. In making that decision I acknowledge I am required to take into account the considerations set out in s 155(3) as follows:
155.Inadmissible evidence, court may allow admission
…
(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.
Turning to consider each of those matters. In relation to s 155(3)(a) Mr Campbell does object to the evidence of his admissions being given at the trial.
In relation to s 155(3)(b) Mr Campbell has been charged with serious drug offending of being in possession of methylamphetamine with intent to sell or supply. The quantity of the methylamphetamine is 27.3 grams at a purity of 80%.[31] If Mr Campbell is convicted of that offence he will inevitably be sentenced to a term of immediate imprisonment.
[31] Certificate of approved analyst, prosecution brief 123.
Turning then to s 155(3)(c) and the seriousness of the contravention of s 118 of the CIA. I have regard to the underlying purpose of s 118 which is to encourage the audiovisual recording of admissions which promotes the policy of minimising the opportunities for police 'verballing'.[32]
[32] Wright [137] – [138]; Blum v The State of Western Australia [No 2] [2012] WASCA 40 [62] (Mazza J), s 118(3)(b)(i)
In my view, in circumstances where I have found that it was reasonably practicable for the police questioning of Mr Campbell to be audiovisually recorded once the police had seen the alert on the police computer, and certainly once the police had searched Mr Campbell and found the cash and mobile phones on him, and although I accept there was no improper motive reason for failing to audiovisually record the admissions, I am satisfied it was a serious contravention of s 118.
In relation to s 155(3)(d), I am satisfied the contravention was not intentional. It may, have been reckless. As I have found, Senior Constable Herbert did not turn his mind to the need to audiovisually record his interaction with Mr Campbell once he reasonably suspected Mr Campbell was committing or had committed a serious drug offence, that is, being in possession of methylamphetamine with intent to sell or supply which was the suspected offending referred to in the police computer alert.
The failure to audiovisually record the admissions did not rise from an honest and reasonable mistake of fact.
Turning then to s 155(3)(e), the probative value of the evidence of the admissions is high. Mr Campbell is charged with two counts of being in possession of methylamphetamine with intent to sell or supply and a further count of being in possession of MDMA with intent to sell or supply. Count 1 relates to the methylamphetamine found in the front passenger footwell of the BMW. Counts 2 and 3 relate to methylamphetamine and MDMA found by police when they searched Mr Campbell's house later that day. I understand Mr Campbell later participated in an audiovisually recorded interview at the car park and later at his house when it was searched by police. The evidence of those interviews is not before me and I do not know what, if anything, Mr Campbell said during those interviews. At the hearing before me I was informed by defence counsel that the likely issue at trial in relation to count 1 is whether Mr Campbell knew there was methylamphetamine in the bag. It is likely he will admit, or at least there will be no issue, that he was in physical possession of the bag but the issue will be whether he had knowledge of its contents. Further, whether he had an intention to exercise custody or control over the methylamphetamine.
In those circumstances, the admissions that Mr Campbell knew there was methylamphetamine in the bag and that it was in an amount of about an ounce are highly probative. In my view a proper statutory construction of s 155(3)(e) is that the greater the probative value of the evidence, the greater the desirability of admitting the evidence, that is, the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. However, by s 155(4):
(4)The probative value of the evidence does not by itself justify its admission.

In my view, despite the significant probative value of the evidence of Mr Campbell's unrecorded admissions, I am not satisfied that the desirability of admitting that evidence outweighs the undesirability of admitting the evidence, particularly in circumstances where I am satisfied the police could readily have, and ought to have, audiovisually recorded their interaction with and questioning of Mr Campbell from, at the latest, the time when they searched him.
Accordingly, I decline to exercise my discretion to admit the evidence of the admissions pursuant to s 155 of the CIA.
I dismiss the State's application to lead evidence of the admissions, as particularised at [3] above, made by Mr Campbell to Senior Constable Herbert on 7 February 2017 which were not audiovisually recorded.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
13 JUNE 2019