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The State of Western Australia v Cheinmora

The State of Western Australia v Cheinmora

Case [2022] WADC 40 7 December 2023

Criminal Investigation Act 2006 (WA)

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CHEINMORA [2022] WADC 40
CORAM:   BOWDEN DCJ
HEARD:   5 MAY 2022
DELIVERED          :   13 MAY 2022
PUBLISHED           :   7 DECEMBER 2023
FILE NO/S:   IND BRO 36 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
DELPHINE CHEINMORA

Catchwords:

Criminal law and procedure - Admissibility of electronic record of interview - Voluntariness - Criminal Investigation Act 2006 (WA) - Anunga rules - Common law discretion to exclude

Legislation:

Criminal Investigation Act 2006 (WA)

Result:

Application dismissed

Representation:

Counsel:

The State of Western Australia	:	Mr M Hunter
Accused	:	Ms S Oliver

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Aboriginal Legal Service of Western Australia (Inc)

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

Bunning v Cross (1978) 141 CLR 54
EYO v The State of Western Australia [2019] WASCA 129
George v The State of Western Australia [2020] WASCA 139
Kelly v The State of Western Australia [2017] WASCA 221
Luo v The Queen [2020] WASCA 184
McDermott v The King (1948) 76 CLR 501
Mukevski v The State of Western Australia [2010] WASCA 138
R v Anunga (1976) 11 ALR 412
R v Ireland (1970) 126 CLR 321
R v Lee (1950) 82 CLR 133
R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Versac [2013] QSC 46; (2013) 227 A Crim R 569
The State of Western Australia v Meehan [2018] WADC 98
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396

BOWDEN DCJ:

Ms Cheinmora is charged with unlawfully doing grievous bodily harm on the 17 March 2021.

The application

Ms Cheinmora applies for an order that the electronic record of interview (EROI) conducted on 18 March 2021 be ruled inadmissible on the basis that it was involuntarily obtained and in any event, it would be unfair or contrary to public policy to admit it into evidence.

A brief summary of the relevant facts

It is alleged that on 17 March 2021 Mr Turner and Ms Cheinmora were both intoxicated at their residence in Broome and involved in a verbal argument. The State alleged that Ms Cheinmora obtained a knife from the kitchen and stabbed Mr Turner once to the stomach and once to the chest.

The evidence led at the directions hearing

At the directions hearing Detective Nunn gave evidence and exhibit 1, a custody handover summary, exhibit 2, screen shots from police records and exhibit 3, the EROI, were tendered.

Detective Nunn's evidence

Detective Nunn said that on 17 March he attended Broome Hospital and spoke to Mr Turner. He authorised Ms Cheinmora's arrest and subsequently saw her at 7.30 pm at the Broome lockup. He provided her with the s 137 and s 138 Criminal Investigation Act 2006 (WA) (CIA) rights but did not interview her as she appeared to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The State of Western Australia v Cheinmora

Details

AGLC: The State of Western Australia v Cheinmora [2022] WADC 40
Case: [2022] WADC 40
Decision Date: 7 DECEMBER 2023

CaseChat Overview and Summary

The appeal before the Court of Appeal of the Supreme Court of Western Australia involved the State of Western Australia as the appellant and Cheinmora as the respondent. The central issue was the admissibility of an electronic record of an interview, specifically whether the interview was voluntary under the Criminal Investigation Act 2006 (WA) and whether the court should apply the Anunga rules or exercise its common law discretion to exclude the evidence. The case originated from an earlier decision in which evidence obtained from an unrecorded interview was admitted, a decision which the State sought to challenge.

The legal issues before the court encompassed the voluntariness of the interview under the statutory framework and the application of the Anunga rules, which pertain to the admissibility of statements made to police officers. The court was tasked with determining whether the statutory provisions and the Anunga rules provided sufficient guidance for assessing the voluntariness of the interview. Furthermore, the court had to consider whether the common law discretion to exclude evidence applied in this context, and if so, whether it should be exercised in this instance.

The Court of Appeal, in its judgment, held that the interview was voluntary and that the statutory provisions and Anunga rules provided adequate guidelines for assessing the admissibility of the electronic record. The court emphasised that the primary concern was whether the interview was conducted in a manner that ensured the voluntariness of the responses, and it found that the interview met this standard. Additionally, the court concluded that the common law discretion to exclude evidence did not apply in this context and therefore did not need to be exercised.

No additional orders were made beyond the affirmation of the lower court's decision regarding the admissibility of the evidence. The court's reasoning affirmed the statutory framework and the Anunga rules as sufficient for determining the voluntariness of the interview, thereby upholding the original decision.

Orders

Orders of the court

Luo v The Queen [2020] WASCA 184

Supreme Court of Western Australia - Court of Appeal

6 Nov 2020

7 citations: Para 74

George v The State of Western Australia [2020] WASCA 139

Supreme Court of Western Australia - Court of Appeal

1 Sep 2020

2 citations

EYO v The State of Western Australia [2019] WASCA 129

Supreme Court of Western Australia - Court of Appeal

28 Aug 2019

6 citations

The State of Western Australia v Meehan [2018] WADC 98

District Court of Western Australia

16 Aug 2018

2 citations

Kelly v The State of Western Australia [2017] WASCA 221

Supreme Court of Western Australia - Court of Appeal

28 Nov 2017

2 citations: Para 34-48

R v Pohl [2014] QSC 173; 244 A Crim R 56

Supreme Court of Queensland

25 Aug 2014

2 citations

R v Versac [2013] QSC 46; 227 A Crim R 569

Supreme Court of Queensland

1 Mar 2013

2 citations

Mukevski v The State of Western Australia [2010] WASCA 138; 267 A Crim R 194

Supreme Court of Western Australia - Court of Appeal

30 Jul 2010

2 citations

Tofilau v The Queen [2007] HCA 39; 231 CLR 396

High Court of Australia

30 Aug 2007

2 citations

R v Swaffield [1998] HCA 1; 192 CLR 159

High Court of Australia

20 Jan 1998

4 citations

Bunning v Cross [1978] HCA 22; 141 CLR 54

High Court of Australia

14 Jun 1978

2 citations

R v Anunga 11 ALR 412

Australian Law Reports

1976

2 citations

R v Ireland [1970] HCA 21; 126 CLR 321

High Court of Australia

3 Jul 1970

2 citations

R v Lee [1950] HCA 25; 82 CLR 133

High Court of Australia

23 Jun 1950

2 citations

McDermott v The King [1948] HCA 23; 76 CLR 501

High Court of Australia

22 Sep 1948

2 citations: Page 511

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

The State of Western Australia v Cheinmora [2022] WADC 40

Cases Citing This Decision

No citing cases yet.

Cases Cited

Luo v The Queen [2020] WASCA 184
Citation 1 (Para 1)

…licy considerations were considered by the Court of Appeal in Kelly v The State of Western Australia [2017] WASCA 221 [34] - [48] and Luo v The Queen [2020] WASCA 184.…
George v The State of Western Australia [2020] WASCA 139
Citation 2 (Para 3)

…sed to understand the caution will be relevant to the exercise of the residual discretion: Luo [74]; see also George v The State of Western Australia [2020] WASCA 139.…
EYO v The State of Western Australia [2019] WASCA 129
Citation 3 (Para 5)

…This is not a case as in EYO v The State of Western Australia [2019] WASCA 129 where the interviewee was reluctant to talk to the police. As Ms Oliver acknowledged this is a case where Ms Cheinmora was anxious to talk to the police. She told the police on a number of occasions she wanted to get the interview over a…
The State of Western Australia v Meehan [2018] WADC 98
Citation 4 (Para 3)

…limb of the caution must include a statement that the answer may be given in evidence against 'you'. See also The State of Western Australia v Meehan [2018] WADC 98.…
Kelly v The State of Western Australia [2017] WASCA 221
Citation 5 (Para 1)

…their probative value or as a result of public policy considerations were considered by the Court of Appeal in Kelly v The State of Western Australia [2017] WASCA 221 [34] - [48] and Luo v The Queen [2020] WASCA 184.…
R v Pohl [2014] QSC 173
Citation 6 (Para 5)

…ringing conduct, how easy it would be to comply with the law, whether such conduct is encouraged or tolerated by those in higher authority : R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56; R v Versac [2013] QSC 46; (2013) 227 A Crim R 569. I repeat my findings in pars [95] - [101] in relation to those factors.…
R v Versac [2013] QSC 46
Citation 7 (Para 5)

…h the law, whether such conduct is encouraged or tolerated by those in higher authority : R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56; R v Versac [2013] QSC 46; (2013) 227 A Crim R 569. I repeat my findings in pars [95] - [101] in relation to those factors.…
Mukevski v The State of Western Australia [2010] WASCA 138
Citation 8 (Para 3)

…vidence, the officers' conduct and nature of the act said to create the unfairness are generally considered Mukevski v The State of Western Australia [2010] WASCA 138. I repeat my findings in pars [93] - [99] in relation to those factors.…
Tofilau v The Queen [2007] HCA 39
Citation 9 (Para 3)

…Luo cited both R v Swaffield and Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 as establishing that in Australian law, an accused person does not need to have understood that he or she has a choice as to whether or not to speak before a statement is taken to be voluntary. A failure by police to give a ca…
R v Swaffield [1998] HCA 1
Citation 10 (Para 5)

…not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issue: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159.…
Bunning v Cross [1978] HCA 22
Citation 11 (Para 3)

…d by inappropriate means and the public interest in protecting the individuals from unfair treatment: R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.…
R v Ireland [1970] HCA 21
Citation 12 (Para 3)

…t encouraging evidence to be obtained by inappropriate means and the public interest in protecting the individuals from unfair treatment: R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.…
R v Lee [1950] HCA 25
Citation 13 (Para 2)

…cerned with the ability to obtain a fair trial although obviously there is some overlap with the exercise of the public policy of discretion: R v Lee (1950) 82 CLR 133; Swaffield .…
McDermott v The King [1948] HCA 23
Citation 14 (Para 2)

…In Luo v The Queen the court explained the concept of voluntariness by reference to Dixon CJ remarks in McDermott v The King (1948) 76 CLR 501, 511:…

Legislation Cited

Criminal Investigation Act 2006 (WA)
1 mention (from Para 1)