The State of Western Australia v Camus
[2013] WASC 158
THE STATE OF WESTERN AUSTRALIA -v- CAMUS [2013] WASC 158
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 158 | |
| Case No: | INS:131/2012 | 25 & 26 MARCH & 22 APRIL 2013 | |
| Coram: | MARTIN CJ | 1/05/13 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA THOMAS CAMUS |
Catchwords: | Criminal law Application to exclude video record of interview Unfairness Tiredness Admissions Cross-examination |
Legislation: | Criminal Investigation Act 2006 (WA), s 137, s 138 Criminal Procedure Act 2004 (WA), s 98 |
Case References: | Arthurs v The State of Western Australia [2007] WASC 209 B (a child) v Potts (1992) 59 A Crim R 136 Duke v The Queen (1989) 180 CLR 508 MacPherson v The Queen [1981] HCA 46, (1981) 147 CLR 512 Mahmood v The State of Western Australia (2008) 232 CLR 397 Malgil v The State of Western Australia [2008] WASC 290 McDermott v The King (1948) 76 CLR 501 Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 R v Bodsworth [1968] 2 NSWR 132 R v Bruce [1988] VR 579 R v Clarke (1997) 97 A Crim R 414 R v Cuenco [2007] VSCA 41; (2007) 16 VR 118 R v Lee (1950) 82 CLR 133 R v O'Neill (1988) 48 SASR 51 R v Phan (2001) 53 NSWLR 480; (2001) 123 A Crim R 30 R v Plevac (1995) 84 A Crim R 570 R v Smith [1964] VR 95 R v Soma (2003) 212 CLR 299 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 R v Williams [1987] 2 Qd R 777 Slater v The State of Western Australia [2009] WASC 144 Slatterie v Pooley (1840) 6 M & W 664; (1840) 151 ER 579 The State of Western Australia v Silich [2011] WASCA 135 The State of Western Australia v Smith [2010] WASC 279 Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656 Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559 Woon v The Queen (1964) 109 CLR 529 Wright v The State of Western Australia [2010] WASCA 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THOMAS CAMUS
Respondent
Catchwords:
Criminal law - Application to exclude video record of interview - Unfairness - Tiredness - Admissions - Cross-examination
Legislation:
Criminal Investigation Act 2006 (WA), s 137, s 138
Criminal Procedure Act 2004 (WA), s 98
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant : Ms A J Burrows & Mr M Cvetkoski
Respondent : Ms H E Prince & Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers Pty Ltd
Case(s) referred to in judgment(s):
Arthurs v The State of Western Australia [2007] WASC 209
B (a child) v Potts (1992) 59 A Crim R 136
Duke v The Queen (1989) 180 CLR 508
MacPherson v The Queen [1981] HCA 46, (1981) 147 CLR 512
Mahmood v The State of Western Australia (2008) 232 CLR 397
Malgil v The State of Western Australia [2008] WASC 290
McDermott v The King (1948) 76 CLR 501
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
R v Bodsworth [1968] 2 NSWR 132
R v Bruce [1988] VR 579
R v Clarke (1997) 97 A Crim R 414
R v Cuenco [2007] VSCA 41; (2007) 16 VR 118
R v Lee (1950) 82 CLR 133
R v O'Neill (1988) 48 SASR 51
R v Phan (2001) 53 NSWLR 480; (2001) 123 A Crim R 30
R v Plevac (1995) 84 A Crim R 570
R v Smith [1964] VR 95
R v Soma (2003) 212 CLR 299
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Williams [1987] 2 Qd R 777
Slater v The State of Western Australia [2009] WASC 144
Slatterie v Pooley (1840) 6 M & W 664; (1840) 151 ER 579
The State of Western Australia v Silich [2011] WASCA 135
The State of Western Australia v Smith [2010] WASC 279
Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
Woon v The Queen (1964) 109 CLR 529
Wright v The State of Western Australia [2010] WASCA 199
- MARTIN CJ:
Summary
1 The accused applied for the determination prior to trial of the admissibility of video records of his interview by police pursuant to s 98 of the Criminal Procedure Act 2004 (WA). The application was brought on a number of grounds. Some of those grounds were abandoned, and the issues which underpinned other grounds have been resolved by agreement between the prosecution and defence.
2 In the result, by the conclusion of the hearing on 22 April 2013, only two grounds of objection remained. First, it is asserted that one of the video records of interview does not contain a confession or admission against interest, and does not therefore fall within the relevant exception to the rules with respect to the inadmissibility of out of court statements. Second, it is asserted that all the records of interview should be excluded on the ground of unfairness, because of the circumstances in which the interviews were conducted, and in particular, in the case of the first interview, on the ground that the accused was tired at the time of interview, which was protracted. In addition to the physical condition of the accused, reliance is placed upon the manner of questioning by police at points in the interview, which was said to be unfair. That is the sole ground of objection to the second interview.
3 At the conclusion of the hearing I announced my view that the objections to the admissibility of the video records of interview should be dismissed, for reasons which I would publish in due course. These are my reasons for ruling that the objections to the video records of interview should be dismissed.
The Prosecution Case
4 The accused, Thomas Camus, is charged with the murder of Kristopher Eric Dixon on 25 December 2011 at Broome. Mr Camus is a French national. At the time of the alleged offence he was living and working in Broome. It is alleged that Mr Camus was in the vicinity of the Roebuck Bay Hotel on Dampier Terrace in Broome, in company with two other French nationals; Mr Yoann Pineau and Mr Simon Diguet. The deceased, Mr Dixon, was involved in an altercation with Mr Diguet, Mr Pineau and others, which lead to Mr Pineau being knocked to the ground and sustaining injuries. The State alleges that this was witnessed by Mr Camus, and that Mr Camus and Mr Dixon went to an area next to the Roebuck Bay Hotel where Mr Camus stabbed Mr Dixon three times in the front and side of the chest, and in the abdomen, causing his death.
The police investigation
5 The evidence adduced on the application establishes the following facts. A police investigation was commenced to identify those involved. At 12.40 pm on 27 December 2011, three police officers attended Mr Camus' unit in Broome. Mr Camus opened the door, and was arrested on suspicion of murder. The officers provided Mr Camus with his arrested suspect rights in accordance with the provisions of the Criminal Investigation Act 2006 (WA) (the Act). Mr Camus advised the officers that he did not speak very good English, and the running sheets maintained by the officers record that this meant that they only had a 'basic conversation' at Mr Camus' unit due to the absence of an interpreter. The officers and Mr Camus departed to Broome Police Station at 12.45 pm.
6 Mr Camus is documented as arriving at the Broome Police Station at 12.51 pm. The running sheets show that Mr Camus was guarded by a police officer in an office at the Broome Police Station from 1.15 pm. Detective Sergeant Natalie Bennison took over watching Mr Camus at 2.07 pm, at which point Mr Camus was observed to have been asleep on the floor. Mr Camus was provided with a blanket at 4.15 pm. Mr Camus took a toilet break at 4.16 pm, and returned at 4.21 pm. He was provided with a meal at 5.14 pm and with water at 5.21 pm.
7 It had been necessary to arrange for an interpreter of the French language to be flown from Perth to Broome. At 7.15 pm, the interpreter arrived at the office. The running sheets state that with use of the interpreter, at about 7.15 pm, Mr Camus was told that he was arrested on suspicion of committing the offence of murder, and, in accordance with s 138 of the Act, his arrested suspect rightswere explained to him at this point. He was advised of his right to contact a legal practitioner, to which he asked the officer 'Do I need one?' The officer responded 'I can't advise you on that'. The officer then asked whether he wanted to call a lawyer. The running sheets record Mr Camus' reply as 'I want to continue like this'. Mr Camus was given the opportunity to contact the French consulate, which he refused. The running sheets also record that Mr Camus was cautioned, and when asked if he had to answer questions asked of him, he is said to have replied 'No' and to have said that he understood that the evidence he provided could be used in front of a judge in a trial. The oral evidence which I heard does not provide any reason to doubt the accuracy of the running sheets prepared at the time.
8 At 8.44 pm, a magistrate approved an eight-hour extension of time in respect of Mr Camus' detention prior to charge. The video-recorded police interview with Mr Camus commenced at 11.07 pm. The reasons for the delay in commencing the interview were explained by Detective Bruce Richard Bowers in his evidence. He said that the interview process with Messrs Pineau and Diguet was first completed, and one interviewer from each of those interviews was used to interview the accused after consultation with the other about information gathered in the course of the preceding interviews in preparation for the interview with the accused.
The interviews
9 The first police interview with Mr Camus was conducted by Detective Bowers and Detective Sergeant Lindsay Graham Johnson at the Broome Police Station on Tuesday, 27 December 2011 at 11.07 pm until Wednesday, 28 December 2011 at 3.20 am, with breaks from 12.00 am until 12.20 am, from 1.11 am until 1.44 am, and from 2.55 am until 3.12 am (First Interview). The application by the accused was brought on the basis that this interview should be regarded as two separate interviews, with the second interview commencing after the break between 1.11 am and 1.44 am. I reject that proposition. The break at 1.11 am was a rest and comfort break in the course of one interview. The questions asked following the break were a continuation of the line of questions asked before the break. In any event, as a result of the abandonment of a number of grounds of objection, nothing turns on the question of whether the interview is regarded as a single interview or as two interviews. Mr Camus was interviewed again on Monday, 2 January 2012 at 10.21 am until 12.20 pm (Second Interview).
10 The interviews were video recorded. The admissibility of these video records of interview is the subject of this application.
The application
11 As I have noted, after the abandonment of a number of grounds of the application, there are only two grounds upon which Mr Camus contests the admissibility of the video records of interview. The first ground is that the portion of the First Interview commencing at 1.44 am is inadmissible because it does not contain any admissions against interest. The second ground, which relates to all video records of interview, is that the court should exercise its discretion to exclude the interviews because of unfairness to the accused.
12 In relation to the video record of the First Interview, the allegations of unfairness are made on two grounds: that Mr Camus was tired at the time of the interview, which occurred late at night and in the early hours of the morning; and that police questioning at times amounted to cross-examination.
13 In relation to the video record of the Second Interview, the defence alleges unfairness on the sole basis that the interviewing officers cross-examined Mr Camus, and were sceptical about his responses.
14 At the commencement of the hearing, Mr Camus amended his application to include grounds alleging that the portion of the video record of the First Interview commencing at 1.44 am should be excluded on the grounds that it was inadmissible for involuntariness at common law, and for non-compliance with s 137 and s 138 of the Act. However, the grounds of the application alleging involuntariness and non-compliance with the Act were abandoned by counsel for Mr Camus in light of the evidence adduced during the hearing of the application (ts 165). Accordingly, the remaining grounds fall to be determined in the context of compliance with all relevant provisions of the Act, and on the basis that Mr Camus voluntarily participated in the interviews.
Does the First Interview contain admissions against interest?
15 Mr Camus contends that the portion of the First Interview commencing at 1.44 am is inadmissible because it does not contain any admissions against interest.
16 An admission is a representation adverse to the interests of that party in the outcome of the proceedings. Informal admissions are an exception to the hearsay rule. The rationale for the exception is that when a party or accused speaks against self-interest, the statement is likely to be true - see Slatterie v Pooley (1840) 6 M & W 664; (1840) 151 ER 579.
17 In R v Plevac (1995) 84 A Crim R 570, 579 - 580, the court (Badgery-Parker, Dunford and Simpson JJ) outlined a number of propositions relating to questioning of suspects' admissions. The court observed that:
…
4. The answers given by the suspect are admissible in evidence (and hence, so are the questions) if they are relevant; but not otherwise: Grills (1910) 11 CLR 400 at 413, 419; Taylor (unreported, Court of Criminal Appeal, NSW, 18 April 1995) at p 9.
5. An answer (and the question to which it is given) is relevant if it is an admission, or is capable of being regarded as an admission, of guilt or of a fact relevant to the proof of guilt: Astill (unreported, Court of Criminal Appeal, NSW, 17 July 1992) at pp 8–13.
6. If an answer is not unequivocally an admission but is capable of being regarded as such, it is a question for the jury whether it is such. Subject to the exercise of the judge's discretion, the question and answer are admissible but it is necessary that the jury be clearly and fully directed that it is a question for them as to whether the answer does or does not amount to a relevant admission: Astill at pp 11–15.
7. An answer which is not capable of being regarded as an admission is on the face of it irrelevant and therefore inadmissible: Grills at 413; Taylor at p 9.
8. However, answers of that sort may yet be admissible if they form part of an interrogation in the course of which some answers do amount to admissions or are capable of being so regarded, where the question and answers which do not themselves contain admissions are relevant to set the other questions and answers in context, and/or to show that there was no impropriety on the part of the police in the conduct of their interrogation: Taylor at pp 9–10; Barca (1975) 133 CLR 82 at 107; Grills at 418–419; Towers (unreported, Court of Criminal Appeal, NSW, 7 June 1993) at pp 10–11. (579–581)
9. In such circumstances, the trial judge must always carefully consider whether questions and answers which are not capable of amounting to relevant admissions should be excluded because they are prejudicial: Grills (1910) 11 CLR 400 at 419-420; R v Ireland (1970) 126 CLR 321 at 332; R v Lawrence; Taylor (unreported, NSWCCA, 18 April 1995); R v Astill (unreported, NSWCCA, 17 July 1992);
10. Where the questions and answers under consideration, although having in themselves no probative value but forming part of an interview and prima facie admissible as part of the context of that interview, do no more than place before the jury, in a hearsay form, assertions of fact which have already been established by other evidence or which clearly will be established by other evidence intended to be led by the Crown, their prejudicial effect will be minimal and would not ordinarily justify their exclusion: Taylor at 10.
11. Where, however, a question is asked, which contains a hearsay assertion of matter which the Crown is not in a position to prove, or which is inadmissible in evidence, and where the answer is not capable of amounting to an admission of the matter asserted by the questioner, there may be, depending on the nature of the matter stated and its relevance to the issues in the trial, very great prejudice, which may lead to the exclusion of the evidence, even if that means (because, in the context, the inadmissible material is inextricably interwoven with the admissible) that the Crown is deprived of some probative and admissible evidence: Ireland at 332; Grills at 419; but cf. Harriman at pp 603–604; 231. (emphasis added)
18 In Mahmood v The State of Western Australia (2008) 232 CLR 397, Hayne J stated that:
If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements. It is necessary, of course, to take account of statutory provisions governing admissibility of out-of-court admissions that are not recorded. But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements, whether according to what is forensically convenient or on some other basis. And in leading evidence of out-of-court assertions which the prosecution alleges are inculpatory, the prosecution must take the out-of-court assertion as a whole; the prosecution “cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case”. [39]
19 Further, where an accused gives selective answers, in the sense of answering only some of the questions asked or offering replies which are equivocal or non-committal, in some circumstances these answers may be admissible and used by the jury for the purpose of seeing whether they reveal a consciousness of guilt: see Woon v The Queen (1964) 109 CLR 529, 535 - see also R v Williams [1987] 2 Qd R 777; R v Cuenco [2007] VSCA 41; (2007) 16 VR 118 [20] - [21]. This may lead to the finding that the whole of an interrogation is admissible, including questions that the accused failed to answer (subject of course to the discretion of the trial judge to exclude prejudicial evidence with little or no probative value - R v Bruce [1988] VR 579, 593 - 594 (Gray J). However, in this case, at the conclusion of the hearing, the prosecution advised it would not contend at trial that any statements made by the accused during the interviews were lies which provide evidence of a consciousness of guilt.
20 During the portion of the First Interview commencing at 1.44 am, Mr Camus clearly made assertions that were inculpatory. The identity of the individual who inflicted the wound on Mr Dixon is in issue, requiring the State to prove beyond reasonable doubt that Mr Camus was in fact present at the scene and inflicted the wound. In the portion of the First Interview in issue, Mr Camus identified that he was present in the area of the attack when Mr Dixon was killed. He makes a number of admissions about what he was wearing, and identifies himself on the CCTV footage. These are obvious assertions against interest which are probative and relevant to a fact in issue; being the critical issue of whether it was the accused that inflicted the stab wound and caused the death of Mr Dixon. Mr Camus made other statements during this portion of the interview relating to the presence of a knife (which he asserted was his friend's knife), the steps taken to look for the knife after the incident, and with respect to the loss of his pants, which are capable of being viewed as inculpatory. Whether they are to be viewed that way is a matter for the jury.
21 It is true that some elements of the interview may be regarded as exculpatory, particularly those portions in which Mr Camus explains his actions on the night of Mr Dixon's death. However, it is well established that when there is a 'mixed' statement, containing both inculpatory and exculpatory statements by an accused, juries should have regard to the whole of the statement. In R v Soma (2003) 212 CLR 299 [31] Gleeson CJ, Gummow, Kirby and Hayne JJ said:
To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury. And consistent with what is said in Richardson v The Queen [1969] 1 QB 299; [1968] 2 All ER 761; 52 Cr App R 317 and Apostilides (1984) 154 CLR 563; 15 A Crim R 88 the prosecutor's obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so.
22 See also Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 [14] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).
Unfairness
23 A trial judge has a discretion to exclude an accused's voluntary confession if it would be unfair to the accused to admit the confession into evidence - McDermott v The King (1948) 76 CLR 501, 515; MacPherson v The Queen [1981] HCA 46, (1981) 147 CLR 512, 519 (Gibbs CJ and Wilson J). In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him - Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656, 666 (Wilson, Dawson and Toohey JJ); R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [54] (Toohey, Gaudron and Gummow JJ). The purpose of this discretion is to protect the rights and privileges of the accused, including his or her procedural rights - Swaffield [52], [78]; The State of Western Australia v Silich [2011] WASCA 135 [168]. However, when considering if admissions should be excluded for unfairness, it may be relevant to examine the propriety of the police investigation, the treatment of the accused, and the manner and circumstances in which an interview is conducted - Silich [177].
24 While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. There may be unfairness to the accused because the confession might not have been made at all, or might have been made in a different form, if the interrogation had been conducted properly - Duke v The Queen (1989) 180 CLR 508, 513 (Brennan J); Swaffield [71], [78] (Toohey, Gaudron and Gummow JJ); Wright v The State of Western Australia [2010] WASCA 199 [116].
25 An accused person who asserts that the confession was improperly or unfairly obtained bears the burden of proving facts that would justify an exercise of the discretion in his favour - R v Lee (1950) 82 CLR 133, 152 - 153; Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 565 (Taylor and Owen JJ); MacPherson, 519 (Gibbs CJ and Wilson J).
Tiredness
26 The defence argues that the First Interview should be excluded from the evidence at trial on the basis that it commenced in the late evening, at 11.07 pm, and did not conclude until the early hours of the morning. It is alleged that there was no good reason for the interview to be conducted this late at night, and that at times during the interview, Mr Camus demonstrates signs of physical tiredness including yawning and face-touching which are ignored by police.
27 It has been recognised that there may well be instances where police have acted properly but nevertheless the circumstances of a confession might result in unfairness because the accused is fatigued and is not in a fit condition to understand or answer questions asked of him - see B (a child) v Potts (1992) 59 A Crim R 136, 142 (Ipp J, Malcolm CJ and Rowland J agreeing).
28 This is not one of those cases. I have carefully reviewed the video recording of the first interview, paying particular regard to those portions of the interview which are said by the defence to reveal fatigue. Notwithstanding the hour at which the interview began, I did not observe any significant signs of tiredness or an inability to concentrate upon the questions or answers given which would justify excluding the interview on the ground of unfairness.
29 Detective Bowers, one of the officers who interviewed Mr Camus, gave evidence that the reason for the late commencement of the interview was that the investigating team wanted to first complete the interview process with Messrs Pineau and Diguet, and use one interviewer from each of those interviews, after they had consulted with one another about information gathered, to interview Mr Camus. That course was not unreasonable, and was consistent with sound investigative practice. Detective Bowers gave evidence that he satisfied himself that Mr Camus was properly rested and cared for throughout the day leading up to the interview. Detective Bennison observed Mr Camus sleeping at 2.07 pm on the date of the interview, and Mr Camus confirmed that he had slept prior to the interview (interview ts 27). There was also evidence from custody management records that Mr Camus was provided with a blanket and was resting either on the floor or in a chair. Mr Camus appeared to cope well throughout the lengthy interview. His demeanour and appearance in the course of the interview suggest that his ability to concentrate was not affected by tiredness, and that he comprehended the questions asked of him. He was an active participant in the interview, appeared to follow the course of the interview, and responded to some questions prior to interpretation. He is only seen yawning on one occasion in the First Interview, immediately prior to the break at around 1.11 am.
30 The officers monitored the status of Mr Camus during the interview, and informed Mr Camus that if he wanted a break that he should let them know and that they would accommodate him (interview ts 27). At no time did Mr Camus complain to the officers that he was too tired to carry on with the interview. After the break from 1.11 am - 1.44 am, the officers asked Mr Camus whether he was feeling tired, to which he responded 'No' (interview ts 2). Later in the interview, the officers again asked Mr Camus whether any tiredness he may have been experiencing was affecting his understanding. Again, he answered 'No' (interview ts 28).
31 Defence counsel places great store in a passage in the first interview where Mr Camus uses the word 'fatigué' in response to a question about his tiredness (interview ts 6). Counsel asserts that this was Mr Camus indicating to the officers that he was tired, and that this was ignored by the officers. However, counsel's assertion that the officers deliberately ignored the statement is not supported by the evidence. The evidence of the officers adduced at the hearing of the application was that they did not hear the word 'fatigué', and on review of the footage the comment can barely be heard. Further, it is possible to construe Mr Camus' use of the word as an attempt to clarify with the interpreter the question he was asked, rather than as a description of his own condition. Whether this is the proper construction of his statement will be a matter for the jury when assessing the weight to be given to the statements made by Mr Camus in the interview. Moreover, this statement needs to be taken in its context. Immediately prior to using the word 'fatigué', Mr Camus states that he is 'okay'. Further, and importantly, his demeanour throughout the interview and his active participation in the interview suggests that he was sufficiently alert and was in a fit condition to understand and answer questions asked of him.
32 I am therefore satisfied that the video record of the First Interview should not be excluded on the ground of unfairness based on the alleged tiredness of Mr Camus.
Cross-examination by police
33 The defence allege that the interviewers in both the Second Interview, and the portion of the First Interview commencing at 1.44 am, undertake 'blatant cross-examination' of the accused when he does not make a confession. The defence also alleges that when the officers attempts to elicit a confession are unsuccessful, they provide their own opinions.
General principles
34 In McDermott, Williams J held that (517):
[T]he mere asking by the police of a question which would only be asked in cross-examination at the trial does not, in my opinion, amount to cross-examination of the accused by the police. A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies.
35 These observations were referred to by Mason CJ in Van der Meer (661). His Honour said:
The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected.
…
[P]olice will be acting improperly if they attempt to use the occasion as an excuse for attempting to break down a prior voluntary account given by the suspect of his relationship with the critical events in relation to the crime. The injunction, expressed in the Judges' Rules and elsewhere, that a person arrested or in custody must not be cross-examined means no more than that.
36 Questioning by police is not to be regarded as unfair merely because it is persistent, nor is there any impropriety in a police officer indicating that the truth of an answer is not accepted because it does not accord with earlier answers given by the accused or with what others have said - Malgil v The State of Western Australia [2008] WASC 290 [45] (Murray J);Slater v The State of Western Australia [2009] WASC 144, 34 (Hasluck J); The State of Western Australia v Smith [2010] WASC 279 (Hall J). Police may, in the course of investigation, put to the suspect the facts as the police know, believe, or suspect them to be, in order to ascertain what, if anything, the suspect will say about them - R v O'Neill (1988) 48 SASR 51, 56; R v Plevac (1995) 84 A Crim R 570, 579; Slater [34]. As Hunt CJ said in R v Clarke (1997) 97 A Crim R 414, 419 - 420:
[A] police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure.
37 See also R v Smith [1964] VR 95, 97; R v Phan (2001) 53 NSWLR 480; (2001) 123 A Crim R 30 [54].
Statements in issue
38 The statements in the interviews that the defence alleges amount to impermissible cross-examination of the accused can be divided into a number of categories.
39 First, there are instances in which the police put to Mr Camus the facts that they know, believe or suspect in order to elicit Mr Camus' response to those facts. These questions were clearly permissible; the questioning did not amount to an attempt by the officers to 'break down' the answers provided by Mr Camus which they considered unfavourable to their case. Nor can the questioning be said to amount to intimidation or the placing of illegitimate pressure on Mr Camus. On review of the video records of interview, it is apparent that the officers are polite and are not aggressive when putting these questions to the accused. At no point does Mr Camus appear to be shaken or upset by the questioning. To the contrary, he maintains an even demeanour during the interview. There is only one instance in the First Interview where Mr Camus expresses his frustration about the questioning, stating 'I don't care anymore. I don't know', and the interview was terminated shortly thereafter. The officers' questioning merely amounted to the officers putting to Mr Camus relevant evidence, and asking for Mr Camus' response. This is legitimate, and does not provide a basis for the interviews to be excluded from evidence at trial.
40 Second, there were occasions upon which the police asserted that Mr Camus should 'speak the truth'. These statements did not amount to any form of inducement by the officers, and it has been established that '[m]erely to urge a person on moral… grounds to "speak out" or "tell the truth" is not likely to cause him to tell untruths, and it is difficult to see on what principle to be applied in today's detection of crime a statement which follows such exhortation should be excluded' - see R v Bodsworth [1968] 2 NSWR 132, 139; Arthurs v The State of Western Australia [2007] WASC 209 [16].
41 Third, there are instances where the police officers comment and express their disbelief about Mr Camus' answers:
1. at First Interview ts 25, where the officer states 'And we find it hard to believe that you cannot remember those actions';
2. at First Interview ts 29, where the officer says 'You are vague during, um, significant parts of the incident in your memory recall. We see this often. It is, it is a convenient way for people to avoid telling the truth';
3. at Second Interview ts 13 where it is stated 'I put it to you that you are too scared to speak the truth'.
4. at Second Interview ts 20, where it is stated that 'all of the evidence that is overwhelming that you are, that you are criminally responsible for the death of the victim'.
42 The State has conceded that the passages in (1), (2) and (3) above should be edited out of the interview and transcript, and that the passage in (4) should be edited to remove the objectionable commentary. With proper editing, however, there is no reason why the admission of the remainder of the interview will prejudice the accused.
Conclusion
43 For the above reasons, I concluded that edited video records of interview of the accused Mr Camus were admissible in evidence. Mr Camus' application to exclude the entirety of the video records of interview was refused for these reasons.
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