The State of Western Australia v Chatfield
[2005] WASC 285
THE STATE OF WESTERN AUSTRALIA -v- CHATFIELD [2005] WASC 285
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 285 | |
| Case No: | INS:79/2005 | 1 & 7 DECEMBER 2005 | |
| Coram: | SIMMONDS J | 21/12/05 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA NERIDAH PEARL CHATFIELD |
Catchwords: | Criminal law and procedure Evidence Admissibility of evidence of admissions made by the accused Whether admissions were voluntarily made Whether admitting the evidence would be unfair Public policy considerations Whether there was "reasonable excuse" for a non-videotape recording of an interview with the accused Evidence not to be admitted |
Legislation: | Bail Act 1982 (WA), s 5, s 6 Criminal Code 1913 (WA), s 570D |
Case References: | Binning v Lehman [2002] WASCA 255 Bunning v Cross (1978) 141 CLR 54 Cleland v The Queen (1982) 151 CLR 1 Foster v The Queen (1993) 113 ALR 1 McDermott v The King (1948) 76 CLR 501 Nicholls v The Queen [2005] HCA 1 Norton v The Queen [2001] WASCA 207 Pollard v The Queen (1992) 110 ALR 305 R v Buchanan [1966] VR 9 R v Ireland (1970) 126 CLR 321 R v Ostojic (1978) 18 SASR 188 R v Swaffield (1998) 192 CLR 159 R v Williams (1992) 8 WAR 265 R v Yerkovich [2004] WASC 62 Van der Meer v The Queen (1988) 62 ALJR 656 Williams v The Queen (1986) 161 CLR 278 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- The State
AND
NERIDAH PEARL CHATFIELD
The Accused
Catchwords:
Criminal law and procedure - Evidence - Admissibility of evidence of admissions made by the accused - Whether admissions were voluntarily made - Whether admitting the evidence would be unfair - Public policy considerations - Whether there was "reasonable excuse" for a non-videotape recording of an interview with the accused - Evidence not to be admitted
Legislation:
Bail Act 1982 (WA), s 5, s 6
Criminal Code 1913 (WA), s 570D
Result:
Application allowed
(Page 2)
Category: B
Representation:
Counsel:
The State : Mr B D Meertens
The Accused : Mr D P A Moen
Solicitors:
The State : State Director of Public Prosecutions
The Accused : Laurie Levy
Case(s) referred to in judgment(s):
Binning v Lehman [2002] WASCA 255
Bunning v Cross (1978) 141 CLR 54
Cleland v The Queen (1982) 151 CLR 1
Foster v The Queen (1993) 113 ALR 1
McDermott v The King (1948) 76 CLR 501
Nicholls v The Queen [2005] HCA 1
Norton v The Queen [2001] WASCA 207
Pollard v The Queen (1992) 110 ALR 305
R v Buchanan [1966] VR 9
R v Ireland (1970) 126 CLR 321
R v Ostojic (1978) 18 SASR 188
R v Swaffield (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
R v Yerkovich [2004] WASC 62
Van der Meer v The Queen (1988) 62 ALJR 656
Williams v The Queen (1986) 161 CLR 278
Case(s) also cited:
Nil
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1 SIMMONDS J: This is a matter that came before me on a voir dire concerned with the admissibility of certain records of exchanges between police officers and the accused, as well as statements by the accused to which one of these police officers was in a position to testify. The accused faces trial, on 26 January 2006, on a charge of an attempt unlawfully to kill a Ms Robyn Robertson, and further in the alternative on the same date and at the same place unlawfully wounding her with intent to do her grievous bodily harm. The records are two audio recordings on the evening of the alleged offences, one made as the accused was conveyed by ambulance to hospital for treatment of injury to one of her eyes, and the other at the hospital that evening. The remaining record is a video record of interview made early the following morning at the Perth Central Police Station.
2 This proceeding raises questions of the exclusion of material with confession elements obtained while the accused was in what could be described as a stressed condition, both physically and mentally.
Background
3 The events allegedly constituting the offence for which the accused faces trial occurred on the afternoon of 11 November 2004. They involved the accused allegedly stabbing the victim at a residence in Westfield. Constable Bickford and his partner, Constable Turner, were then called to the Armadale Kelmscott Memorial Hospital, where they spoke with the victim. As a result of this conversation they went to the residence at which the events allegedly occurred, arriving there about 4.45 pm. Further information received by them at that residence led them to another residence nearby. There Constable Bickford found the accused, sitting on the ground at the entrance to the residence, covered in a "fair bit" of blood. Constable Bickford's partner, Constable Turner, left him at about this point to return to the residence at which the events allegedly happened.
4 Constable Bickford proceeded to "pat search" the accused. At about that time he asked the accused if she was the person of her name. I will return to the circumstances in which Constable Bickford had already obtained that name.
5 Constable Bickford then handcuffed the accused's hands behind her back. He testified that he told her at about this time she was under arrest. It is clear to me that at this point he had reasonable grounds to suspect she had committed the offence. Constable Bickford referred in this regard to a "succinct link-up of events" leading him to believe that she was so
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- responsible. Further, he testified, over the objection of counsel for the accused, that in a conversation with the victim in the hospital beforehand to which I have previously referred, he had been given the accused's name as the person who "did this".
6 At the point of arresting the accused, Constable Bickford testified he "cautioned" her. Constable Bickford testified it was standard police operating procedure that if any question or an admission presented itself the person should be cautioned. He cautioned her by saying "you're not obliged to say anything unless you wish to do so but if you do, it will be recorded and may be given in evidence in court".
7 He then asked her questions about her injuries, as an ambulance arrived.
8 Constable Bickford at this time observed that the accused appeared to be intoxicated, although he also testified that he could smell nothing on her breath, her speech was not slurred, and she was able to walk to the waiting ambulance unassisted, although with Constable Bickford having his hand under her arm on the side on which he accompanied her.
9 The accused after a brief examination by the ambulance officer was taken into the ambulance where she was strapped into a stretcher by the ambulance officer. The handcuffs were still in place, it seems, with her hands behind her back.
10 Constable Bickford accompanied the accused into the ambulance and while she was strapped into the stretcher. He then stepped out of the ambulance for a brief exchange with the person he observed as having been inside the house at which the accused was found. Constable Bickford then re-entered the ambulance to accompany the accused to hospital.
11 During the examination of the accused by the ambulance officer before she was placed in the ambulance, which occurred in the driveway of the residence at which she was found, Constable Bickford switched on what he described and produced at the voir dire as a digital voice recorder. He switched it on at about 5.14 pm. This began the first of two audio recordings whose admissibility, and possible exclusion, is before me.
12 The digital voice recorder was a device about 5 centimetres by 10 centimetres by 1 centimetre. He placed the device in a breast pocket of his uniform. He had acquired the device himself, it not being police issue.
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- The device does not use cassettes or other removal storage media. To play back recordings made on the device using other equipment, the recordings need to be transferred to suitable media. This recording, and the subsequent one which I reach below, were transferred to an audio cassette that was played back in court and made available to me (Exhibit 1). Constable Bickford made a transcript of both audio recordings, which was Exhibit 2 in the voir dire. This transcript included timings, which appear to be accurate.
13 Constable Bickford made no written notes of any of the conversations he had with the accused, including those the subject of the audio recordings.
14 About seven minutes into the first recording, as the accused began to describe a physical exchange with the victim, Constable Bickford reminded the accused of the earlier caution he had administered to her, referred to above. He told her he was recording what she said on the recording device, which he said he showed the accused at that point. He testified he had not previously shown her the device. After showing her the device, he laid it just underneath her chin. As he did this, he said to her that he was "just going to caution you again, alright" and he proceeded to tell her she did not have to say anything, and that anything she did say would be recorded and might be given as evidence in court. The accused is then heard describing stabbing the victim "because she bashed me".
15 The first recording ended after about 20 minutes, at 5.35 pm, with the arrival of the ambulance at the Armadale Kelmscott Memorial Hospital.
16 Constable Bickford remained with the accused most of the time she was at the hospital. She was taken from that hospital, at about 10 pm, to the Armadale Police Station.
17 At 8.35 pm, while the accused was at the hospital, in her hospital bed, she indicated to Constable Bickford she wanted to say something and Constable Bickford cautioned her again, in similar terms to those used in the ambulance. As part of this he also produced the recording device to her. It is not clear from the evidence where the device was then placed. The accused is heard describing feeling threatened by the victim, and being pushed into doing "it deliberately".
18 A Detective Senior Constable King was another police officer involved in the case. He also spoke with the accused at the hospital on the night of 11 November. He conducted the video record of interview with
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- the accused at the Perth Central Police Station the following morning, of 12 November 2004. Detective Senior Constable King is attached to the Kensington Detectives office.
19 Detective Senior Constable King arrived at the hospital at about 7 pm on 11 November 2004. He spoke with both the accused and the victim. Both (at that stage, at least) were in the same emergency room at the hospital. Detective Senior Constable King asked the accused, who was holding her eye, how she was. The accused replied with words to the effect that she wished she had "done the job properly and killed her". Although the person so referred to was not named, the accused had indicated in the victim's direction. Detective Senior Constable King said he could smell alcohol on the accused's breath. He also noted she went through "varying mood swings" over the course of the time he was at the hospital. He testified he spent most of the time he was at the hospital with the victim.
20 Detective Senior Constable King testified he did not interview the accused at the hospital, or later that evening when he saw the accused again at the Armadale Police Station. Detective Senior Constable King testified he had not interviewed the accused at the hospital because he had first wanted to learn from the victim more about what had happened in the stabbing incident, and he decided not to interview her at Armadale Police Station because of her varying mood swings and her intoxication, which he associated with those mood swings as their cause. Indeed, he explained to the accused herself in the subsequent video record of interview that "I deemed it not --- you weren't fit to be talking last night".
21 The accused was transported from the Armadale Police Station to the Perth Watch House at about 11 pm on 11 November 2004. The following morning, at 8.40 am at the Perth Central Police Station, Detective Senior Constable King with his partner Detective Graham conducted a video taped interview of the accused. The accused confirmed to Detective Senior Constable King that, notwithstanding she was feeling "sick", she was feeling "up to talking to me this morning about what happened last night". Detective Senior Constable King cautioned the accused that she did not have to say anything, and reminded her she was being recorded on videotape. After some difficulty in having her reflect back to him her proper understanding of the caution, a matter to which I return below, he asked her a series of questions about the lead up to and features of the stabbing incident.
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22 During the videotaped interview, the accused appears often to be unresponsive to the questions, replying with "I don't know" or similar. This included such a response when asked "did you inflict the injuries on [the accused]?"
23 However, the accused did confirm that the victim had been "picking on" her, "both" physically and mentally. The accused also confirmed that she had "fought" with the victim. The accused had a weapon while doing so and "it was a knife".
These Proceedings
24 On this voir dire the accused objects to the two audio recordings, and the video recording, being admitted into evidence at the trial. At the hearing before me, the State sought a determination of the admissibility of the statements of the accused at the Armadale Kelmscott Hospital that had been noted by Detective Senior Constable King, as I indicated above. Counsel for the accused was content to have the matter of those statements so dealt with.
25 These proceedings raised two issues. One, which arises for all the material to which objection is taken, is the admissibility of that material at common law. The other issue, which arises only for the material which was not video recorded, is the application of the constraint on admission of material in Code, s 570D.
26 I deal with those issues, in that order, in what follows.
Admissibility at Common Law: General Principles
27 As the parties agreed the principal authority is R v Swaffield (1998) 192 CLR 159. The principle emerging from that case has been located in the following paragraph from the joint judgment of Toohey, Gaudron and Gummow JJ (at [69]):
"It is appropriate now to see how the argument developed in the present appeals. When the Court resumed after the first day's hearing, the Chief Justice asked counsel to consider whether the present rules in relation to the admissibility of confessions are satisfactory and whether it would be a better approach to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on
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- the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards."
28 See Binning v Lehman [2002] WASCA 255, Wheeler J at [12].
29 I will need to say more about each of three elements in the paragraph from Swaffield. All three, it was said, were potentially engaged by the exchanges, in the audio and video recordings at least. This tends to illustrate the overlap of the three elements which has often been noted: see for example, Binning (supra), Wheeler J at [12].
Admissibility at Common Law: Voluntariness
30 Voluntariness must be established by the prosecution, and is the character of the confession made "in the exercise of a free choice to speak or be silent" (Gibbs CJ, Cleland v The Queen (1982) 151 CLR 1 at 5, cited with approval in Van der Meer v The Queen (1988) 62 ALJR 656 at 665 per Wilson, Dawson and Toohey JJ). The standard of proof in Western Australia is the balance of probabilities: Brown, Criminal Law in Western Australia at [s570D.7]. A confession is not voluntary where the will of the person making it has been overborne: McDermott v The King (1948) 76 CLR 501, at 512 per Dixon J, cited in Swaffield (supra) at [75] per Toohey, Gaudron and Gummow JJ. Lack of voluntariness may emerge from the inferred effects of the way the police conducted their exchange with the person concerned. Thus, a confession would be involuntary in the legal sense where it was procured as a result of "duress, intimidation, persistent importunity or sustained or undue insistence or pressure" (McDermott, at 511, per Dixon J). Lack of voluntariness may also emerge, it seems, from the condition of the person, such as a sufficient level of intoxication, mental deficiency or otherwise as to indicate the person lacked the capacity to exercise a judgment whether or not to exercise her free choice whether or not to speak: R v Buchanan [1966] VR 9 at 11 per Winneke CJ and 15, per Scholl J, Pape J agreeing with both. In the case of the lack of capacity referred to the matter is particularly one of degree: R v Ostojic (1978) 18 SASR 188 at 197, per Wells J, Hogarth and King JJ agreeing; R v Williams (1992) 8 WAR 265 at 275 per Rowland and Owen JJ.
31 Considerable emphasis was laid in this case on whether on 11 November 2004 the accused's level of intoxication, noted in different ways by Constable Bickford and Detective Senior Constable King, particularly by reference to the accused's "mood swings", when considered with the pain and discomfort which the injury to her eye was
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- causing her. She says in the video record of interview that she had received painkilling medication for it at the hospital, but not otherwise. The issue before me was whether her condition at any of those times (and if so, which) was such as to deprive the accused of her capacity to exercise her free choice whether or not to speak.
32 There was also the further factor, in respect of the first audio recording, in the ambulance, of the accused's confinement there. That confinement consisted in being strapped to a stretcher in the ambulance, with her hands handcuffed behind her back. This confinement, the recording indicated, was something the accused protested against (Exhibit 2 TS 6).
33 With respect to the video record of interview, there were no indications of intoxication. But there were clear signs of physical and mental distress, referred to by the accused herself. These apparently were attributable to a hangover, and to the shock caused by the news of the loss of the accused's mother. She had received that news while in custody at the Perth Central Police Station.
34 Having considered all of these circumstances, I have concluded, however that the State has discharged its burden in respect of voluntariness for all of the statements here. I particularly note that the admissions the subject of the audio recordings and the statements noted by Detective Senior Constable King were proffered by the accused, not the result of a line of questioning. The exchanges in the audio recordings have the character both of a free flow and of rationality which would point away from an exchange with a person unable to exercise her free choice whether or not to speak.
35 Thus, in the first audio recording, in the ambulance, the following exchange occurs, after the accused had sought reassurance as to the care of her children:
"Constable BICKFORD: There [sic] being looked after as far as we know, alright, I will make sure that we confirm it in a minute, alright? I will just make sure of that, but I am pretty sure that they're ok, ok Marie?
CHATFIELD: Thankyou very much officer.
Constable BICKFORD: No worries.
(00:12:00)
(Page 10)
- CHATFIELD: I'm not trying to be an asshole, I know you are only trying to do your job hey.
Constable BICKFORD: No, no you haven't been mean to me at all, I appreciate that, its good, ok? I appreciate your honesty.
CHATFIELD: I never meant for this to happen, (undecipherable)…She tried to stab me first man.
Constable BICKFORD: How did she do that?
CHATFIELD: She bashed me, and I said, you ain't going to stab me, I said I'll stick this knife right through you.
Constable BICKFORD: Yep. What did you guys argue over? What was the argument over?
CHATFIELD: Oh, we argued over who the hell do you think you are, I ain't that, as tough as you, put it that way. It was just a stupid argument.
Constable BICKFORD: So it was sort of like…
CHATFIELD: It was ridiculous.
Constable BICKFORD: So it was sort of who was tougher sort of thing?
CHATFIELD: Yeah, I, don't, don't push me mate coz I'll fuckin' stab you hey, I'll stab you, I'll stab you as much as you'll stab me.
Constable BICKFORD: Yep. Did she have a knife or was she just…?
CHATFIELD: But, but the things I don't think she intentionally meant to use it and neither did I, but it was just one of those things you know?
Constable BICKFORD: You just recon [sic] it got out of hand hey?
CHATFIELD: Just got out of hand brother. Just out of hand.
Constable BICKFORD: Yeah well we will probably take those handcuffs off you when we get to the hospital alright, so I
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- know they are probably hurting your arms but we have to do that to you…(undecipherable)
CHATFIELD: I want to know if my babies are alright, that's all I…(undecipherable)
Constable BICKFORD: I told you that already ok, I told you they're alright.
CHATFIELD: The kids saw when I was stabbing her."
36 In the second audio recording, the following exchange occurs after Constable Bickford had administered his caution:
"Constable BICKFORD: Yep? Alright so, so tell me if you want to, it's entirely up to you, you can tell me what you just said.
CHATFIELD: I get like so sick of her, wanting to threaten me and say how much she was going to bash me.
Constable BICKFORD: Yep.
CHATFIELD: And how much she is gonna shove her fist down my fucking throat you know, excuse my language.
Constable BICKFORD: Yep.
CHATFIELD: Um…did you know how many times you can sit back and cop crap from somebody before you actually react on it?
(00:01:00)
Constable BICKFORD: Yeah, not many some people. Sometimes a lot, I don't know.
CHATFIELD: Yeah well mine took, she took the final blow. Okay?
Constable BICKFORD: Yep
CHATFIELD: Well it was either me or her. Okay? It was either me or her.
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- Constable BICKFORD: Alright well go on…so you said to me before that you did it deliberately.
CHATFIELD: Yeah I did.
Constable BICKFORD: Can you tell me more about that?
CHATFIELD: I did it deliberately because she pushed me to do it."
37 There is of course no character of a prompted exchange in relation to the statements made by the accused in the hospital and noted by Detective Senior Constable King. However, to the extent voluntariness requires that the accused's will is overborne by forces acting on her (weakened) condition (see Brown, Criminal Law in Western Australia at [s570D.9]), there would be no issue of voluntariness here. In any event, those statements, that she had a sore eye, and she wished she had "done the job properly and killed her", are consistent with what the accused told Detective Senior Constable Bickford in the two audio recordings about the background to what occurred between the accused and the victim.
38 The statements made in the video record of interview are rather less the product of a free flow of exchange, and rather more halting and unsure responses to prompting. However, there is nothing in the responses that indicates the accused was incapable of making a choice whether or not to supply the details she did, and that her will had been overborne.
39 Thus, in the video record of interview, the following is typical of the exchanges between the accused and Detective Senior Constable King:
"Q. Okay. Was she picking on you physically or mentally?
A. Both.
Q. Both. Okay. Can you try and - - tell me what happened, Neridah.
A. Oh, it's too hard to explain. I - -
Q. Well, just in your own words - -
A. Dunno.
Q. - - just try and simplify it if - - if it's too hard to explain as to what happened.
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- A. Just - - we just argued and fought.
Q. All right. Did you have a - - did you have a weapon when you fought with her?
A. Mm. Yeah.
Q. And what did you have?
A. I - - I - - I can't remember.
Q. Well, what sort of weapon was it? I think you do remember. It's - - I don't think it's something - -
A. Um - -
Q. I don't think you'd forget something like that.
A. Ah - -
Q. Can you tell me what the weapon was, Neridah?
A. It was a knife.
Q. A knife. What sort - -
A. I don't know.
Q. - - of - - what sort of knife?
A. I don't know.
Q. Okay. Where did you get the knife from?
A. I don't know."
Admissibility at Common Law: Unfairness
40 This is the term applied to the consideration referred to in Swaffield (supra) in terms of reliability. However, there is a fuller description of the consideration as follows, which takes the matter beyond reliability alone (at [78], per Toohey, Gaudron and Gummow JJ, footnotes omitted):
"Unreliability is an important aspect of the unfairness discretion but it is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be
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- occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence. Thus, in McDermott [McDermott v The King (1948) 76 CLR 501], where the accused did not admit his guilt, but admitted making admissions of guilt to others, it was hypothesised by Williams J that it might have been unfair to admit his statement if the persons to whom the admissions were made were not called as witnesses. In R v Amad [[1962] VR 545], Smith J rejected admissions which were voluntary and which the accused accepted were true because the manner in which he was questioned led to apparent inconsistencies which might be used to impair his credit as a witness. And the significance of forensic disadvantage is to be seen in Foster [(1993) 113 ALR 1 at 7] where the inability of the accused to have his version of events corroborated was taken into account."
41 The consideration of unfairness calls for the exercise of a discretionary judgment whether to exclude otherwise admissible material, and the burden of persuasion lies on the defence: Brown (supra) at [s570D.9].
42 The authority show that the condition of the accused may be such that, although voluntariness is established, that condition in the circumstances may make it unfair to admit the statement is made: Ostojic (supra), at 197, per Welds J, Hogarth and King JJ agreeing, a passage to which I will return below; and Williams (1992) (supra), at 275, per Rowland and Owen JJ. While it would be relevant, there is no requirement for impropriety in the way the police act. Thus, in an otherwise appropriate dealing with a person in a weakened condition, what the police knew of that condition is not necessarily determinative: see Williams (1992) at 273, per Rowland and Owen JJ.
43 It was put to me that the level of intoxication here was not so great as to make this an appropriate case for the exercise of jurisdiction to exclude. No difference was made by her injuries, where there was no indication she had received more than painkilling medication. There was no pressure exerted on the accused on 11 November 2004 to say what she had said, although undoubtedly some of what she had said was prompted by Constable Bickford as indicated in the audio recordings. Her statements were coherent, consistent and logical. There were none of the aberrant behaviours noted in Williams (1992) (supra), which included the person there banging his head against the wall, absenting himself from the
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- exchanges periodically and mumbling to himself. There was no reason for Constable Bickford or Detective Senior Constable King to enquire further, although there may have been a reason to avoid applying any pressure to the accused on that night. Indeed, she was able to supply some collateral detail, albeit with some initial difficulty, in the form of her mobile phone number.
44 The question is indeed one of degree. I find it easiest to answer in respect of the first exchange, in the ambulance. In that case, it seems to me, the accused was someone who was in a state of significant intoxication and injury. She was also uncomfortably confined, as she had indicated at least initially to those present. I have also noted her anxiety to gain reassurance from Constable Bickford that her children would be looked after, as indicated in the passage from the audio recording quoted above.
45 While there may have been good reason for her confinement, for her own protection and that of those in the ambulance with her, it seems to me unfair to an accused in that position to admit confession or statements made in such circumstances. There is reason to be concerned about the reliability of what she might have volunteered to the policemen who had her in custody in such circumstances.
46 I note at this point that there is no material before me from which I would conclude Constable Bickford took conscious advantage of the accused's condition or position. Nor do I consider the fact he used an audio recording device as he did – of which the accused lost sight and then awareness – to be a matter contributing to any unfairness. In respect of the accused's loss of awareness of the audio recording device, I note the following from the audio recording toward the end of the journey to the hospital.
"Constable BICKFORD: I'm going to stop talking to you now on this recorder ok, I've told you that remember?
CHATFIELD: That's a tape recorder?
Constable BICKFORD: Yes it's a voice recorder, instead of writing it down, its just been recorded on here, I'll write it down later, ok?
CHATFIELD: I didn't know you were recording.
(Page 16)
- Constable BICKFORD: Pretty tiny…I told you I was, you probably weren't, you probably weren't…do you remember that?
CHATFIELD: I'm just not with it mate.
Constable BICKFORD: Do you remember me telling you that?
CHATFIELD: It doesn't matter anyway.
Constable BICKFORD: Ok.
CHATFIELD: I've got nothing to hide mate."
47 There was no surreptitious use of the device in the ambulance. Whether or not there might be other circumstances in which the use of a recording device like this one would make for unfairness is a matter I do not need to address.
48 Also, although the contrary was pressed on me, I find that the accused had not been placed or kept in custody for the purpose of gaining information from her. There is much authority that placement in custody simply to gain information is not permissible: see Foster v The Queen (1993) 113 ALR 1 at 8, per Mason CJ, Deane, Dawson and Gaudron JJ. However, there is no such placement where there was a determination to charge and the basis for doing so, as here: see Foster at 8. There is also clear authority that it is not appropriate to keep a person in custody for the purpose of investigation, thereby producing a longer delay in having them brought before Justices to answer the charge: Williams v The Queen (1986) 161 CLR 278 at 289, per Mason and Brennan JJ, quoted with approval in Norton v The Queen [2001] WASCA 207 at [94] per Roberts-Smith J, Wallwork and Pidgeon JJ agreeing. This does not prevent questioning during the period that it otherwise would reasonably take to place the accused before Justices: Williams at 300 – 301, per Mason and Brennan JJ, quoted with approval in Norton at [97] per Roberts-Smith J. The accused here was undoubtedly in custody. Constable Bickford had decided to arrest her, apparently on a charge at least of unlawful wounding, as I have explained. This was based on other information he had received from the victim, and from the blood on the accused. The delay until her presentation before a court the following day was due initially to the need to treat her medical condition and subsequently, it was put to me by the State, the unavailability of a court. While the matter of when the accused was put before a court was not in
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- evidence before me, it was not shown to me it was delayed by reason of the obtaining of information from the accused.
49 It was also pressed on me that there had been a failure to comply with the provisions of the Bail Act 1982 (WA), s 5 and s 6. Those provisions require an arresting officer "as soon as is practicable" to bring an accused person before an authorised officer or a Justice to have her case for bail for her initial appearance considered. It was put to me for the State that there had been a consideration and refusal of bail by Detective Senior Constable King at the Armadale Police Station on 11 November 2004, while the accused was there. However, it was not made clear to me that Detective Senior Constable King was an "authorised officer" for the purposes of Bail Act, s 3(1) "authorised officer", read with "authorised police officer". It does not seem to me, however, that that conclusion is a matter of significance. This is as it was not established before me that the accused had not been put before a court as soon as practicable. In those circumstances, I do not consider that there has been shown to me a failure to comply with the Bail Act provisions referred to.
50 I also note the difference in the condition of intoxication of the accused on 11 November 2004 as noted by Constable Bickford, prior to the accused being placed in the ambulance, and Detective Senior Constable King later that evening, when the accused was at the Armadale Kelmscott Memorial Hospital. It was put to me that her condition of intoxication may well have worsened over the time period between these two observations. There may be some support for that observation in the severity of the mood swings the accused was subject to, in the first audio recording for the ambulance journey, compared with the second audio recording, for the time in the hospital bed. However, in view of the stress to which the accused was subject in the ambulance resulting from her confinement as I have described it there, I do not consider that there was any material change in her condition for the purposes of the exercise of my discretion under the present heading. I particularly note the exchanges in the ambulance towards the end of the journey which I quoted above.
51 In respect of the other statements made by the accused while she was intoxicated, those noted by Detective Senior Constable King, the question is a closer one. The accused was not in Detective Senior Constable King's custody. She was, however, in Constable Bickford's custody, and was exhibiting the behaviour in the form of mood swings which had helped to give Detective Senior Constable King pause in relation to interviewing her. In those circumstances, in the exercise of the unfairness discretion, I
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- would exclude the evidence of the statements noted by Detective Senior Constable King.
52 That leaves the statements in the video record of interview. I am satisfied that at that time she was not intoxicated, the initial treatment of her injury had been completed (although there is a reference in the interview to a further medical consultation on the injury to occur that day), and the opportunity to put her before a court had not been shown to have arisen.
53 However, it is evident from the video record of interview that she was in a considerably distressed condition. She frequently holds her head, and at times puts it on the table. She is (as I have indicated) frequently unresponsive (except in saying "I dunno" or similar). She indicates to Detective Senior Constable King she is hung-over, after consuming "quite a bit of alcohol last night", and is affected by the news of the death of her mother received not long beforehand. Detective Senior Constable King is shown to have had some difficulty getting the accused to correctly acknowledge the terms of the caution he sought to administer to her, as the following exchange indicates:
"Q. All right. I want to talk to you about the incident where, ah, your friend, Boyne Robinson, was stabbed last night in Westfield. Before I ask you any questions in relation to that, Neridah, I must caution you. Now - - tell you that you don't have to say anything if you don't want to. Okay? Anything that you say is being recorded on videotape, and it can be used in court as evidence. Do you understand what that caution means?
A. Yeah.
Q. Just - - can I just get you to explain it in your own words so I know - -
A. Yes.
Q. - - you understand?
A. Yes.
Q. I need you to explain it to me, Neridah, so I know you understand.
A. Well, it's what? - - anything I say - - what - -
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- Q. Okay. Do - - do you have to answer any of my questions?
A. Pardon?
Q. Do you have to answer any of my questions?
A. Yeah.
Q. No, you don't.
A. No?
Q. No.
A. Oh.
Q. You can answer some of my questions, all my questions, or none of my questions.
A. Yeah.
Q. Okay? You don't - - if I ask you a question, you don't have to answer it.
A. All right.
Q. Do you understand that?
A. I do.
Q. So if I ask you a question, do you have to answer it?
A. No.
Q. No. And did you understand what I say when I - - when it's being recorded?
A. Yeah.
Q. Okay. And do you understand the concept of - - of it being recorded on a videotape?
A. Yeah.
Q. Okay. Now, what do you understand about it being played as evidence in court?
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- A. Ah - - no.
Q. Okay. Do you know how court operates?
A. Er - - just - - yeah, I suppose so, sort of. Yeah.
Q. Sort of? All right. Well, you have a magistrate in court - -
A. Yeah.
Q. - - and if you're charged with something you get brought before the magistrate to answer - -
A. Yeah.
Q. - - the charges.
A. Mm hm.
Q. Okay. What we're doing in this room is - - is a formal interview. Whatever you say is being recorded on this tape. Now, I can take that tape and play it in court to a magistrate, or a judge and jury - -
A. Yeah.
Q. - - and this tape can be then used as evidence against you.
A. Yeah.
Q. You understand that?
A. Mm hm.
Q. So I can show them whatever we - - whatever's said in here can be played to the magistrate and say, "Well, this is what Neridah Chatfield told us." Okay?
A. Yeah.
Q. And the - - the jury can see that - - a judge and jury can see that if it goes that - - to that.
A. Yeah.
Q. Is there any part of that you don't understand, Neridah?
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- A. No.
Q. All right. So just to confirm again, do you have to answer any of my questions?
A. No."
54 Finally, the interview terminates when Detective Senior Constable King says "I don't think there's much point in going any further with this", followed by some further brief exchanges.
55 In all of the circumstances just described, and in particular taking account of the accused's apparent physical and emotional condition at the time of the interview and its effects on her responsiveness, I have concluded it would be unfair to the accused to have what she said in those circumstances in evidence. I refer to the dictum ofWells J, Hogarth and King JJ agreeing, in Ostojic (supra), at 197:
"But I can imagine cases in which a trial judge might exercise this discretionary power where no impropriety existed. A suspect might be suffering hidden, but naturally occurring, pain; he might have sustained severe shock as the result of a recent personal bereavement which showed itself only in some slight vagueness and yet would have destroyed for the time being his power to answer with his ordinary intelligence."
Admissibility at Common Law: Public Policy Discretion
56 At the hearing before me, there was significant argument addressed to this exclusionary discretion. The conclusion I have just arrived at with respect to the unfairness exclusionary discretion makes it strictly unnecessary to consider further this basis for exclusion. I should indicate, however, my view of the matter based on the submissions put to me.
57 I note that the focus of this discretion to exclude otherwise admissible evidence appears to be on "large matters of public policy", including in particular the actions of the police in the circumstances, with "the relevance and importance" of any resultant unfairness to the accused depending upon "the circumstances of the particular case": Foster (supra) at 7, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ; see also Foster at 10, in their joint judgment, and Swaffield (supra), at [73] per Toohey, Gaudron and Gummow JJ. Again, it seems the burden of persuasion in this respect is on the defence.
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58 It seems to me this branch of my discretion is not enlivened. There is no question shown to have arisen here, in my view, of any "unlawful" treatment of the accused, given my earlier conclusion concerning the obtaining of information from the accused during her detention in custody: see R v Ireland (1970) 126 CLR 321 at 334 – 335, per Barwick CJ, and Pollard v The Queen (1992) 110 ALR 305 at 389, per Mason CJ at 399 per Brennan, Dawson and Gaudron JJ and at 403 – 406 per Deane J, both of which were referred to in Foster, at 7 note 12 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.
59 It appears to have been contended before me, with respect to the exchanges with the accused captured in the audio recordings and the videotape record of interview, that they represented improper persistence in the face of the accused's evident signs of weakness. However, I am not convinced there was any persistence here that was improper, in the sense that it represented "too high a price" for such evidence as it produced: Ireland, (supra) at 335, per Barwick CJ. This is given the efforts of the police officers involved to caution the accused, and the absence of signs of pressure on her during their exchanges with her. See also Bunning v Cross (1978) 141 CLR 54 at 77 per Steven and Aitken JJ (the discretion would be appropriately exercised in cases of "wholesale and deliberate disregard" of "safeguards" for the protection of individuals introduced by governments), referred to in Foster at 7 note 12.
Admissibility in Code, s 570D
60 At the hearing I asked for submissions in the application for the provision, in case I reached the conclusion relevant that the evidence should not be regarded as material that was inadmissible or to be excluded on any of the previous basis. In view of my conclusions as to exclusion at common law, the application of this provision does not arise. In any event its application would be limited to the evidence other than the video record of interview. However, in deference to the arguments put to me at the hearing in relation to the provision I should indicate my view of its application here.
61 The provision makes inadmissible evidence of any admission by an accused on charges for a "serious offence" where there were "reasonable grounds to suspect that he or she had committed the offence" unless certain conditions are met. The accused here was charged on a "serious offence" (s 570D(1), and it seems to me in the circumstances the reasonable grounds referred to (in s 570D(3)) were present at all material times.
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62 The statutory conditions for the admissibility of admissions by the accused in those circumstances are in s 570D(2) as follows:
"(a) the evidence is a videotape on which is a recording of the admission; or
(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence."
63 In my view, there was a "reasonable excuse" within s 570D(2)(b) for there not being a recording on videotape of the admission. This was because the admission was made "when it was not practicable to videotape it" (s 570D(4)(a)). As I have indicated the admissions were proffered by the accused either in the ambulance or in the hospital and were either prompted or following a caution, or both. At those times it was not part of police procedure to have the police officer in question equipped with video recording equipment. This is not a case of statements made after video recording equipment had been switched off, or of a reasonable opportunity not being pursued to offer the accused the option of having what she was about to say videotaped. Compare R v Yerkovich [2004] WASC 62 per Roberts-Smith J, where there is an extensive review of the authorities.
64 The accused was given the opportunity to confirm what she had said the previous day at the video interview the following morning, but she responded she could not recall what she had said, in the ambulance or in the hospital, as she was "too out of it". Compare Nicholls v The Queen [2005] HCA 1, at [106] - [108], per McHugh J, [156] – [157], per Gummow and Callinan JJ and [218] – [220], per Kirby J. That response does, however, direct attention to the considerations material to the fairness discretion.
Conclusion
65 I rule that all of the material whose reception into evidence is objected to, the two audio recordings, the statements made to Detective Senior Constable King to which I have referred, and the video record of interview in the morning of 12 November 2004, should not be admitted into evidence at the trial of the accused.
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