The State of Western Australia v Cheinmora
[2022] WADC 40
•7 DECEMBER 2023
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 be very heavily intoxicated, and he was not satisfied she understood her rights or why she was in custody. Detective Nunn said Ms Cheinmora was able to talk but her words were slurred, and she said she had been drinking since Tuesday and had not slept for 24 hours.
Detective Nunn obtained an extension of the time within which he could detain Ms Cheinmora.
The police records show that from 8.12.33 pm on the 17 March through to 7.22.09 am on the 18 March, that is for an 11½ hour period Ms Cheinmora was observed approximately every half an hour and was seen to be awake at 22.02 pm, 23.22 pm and at 3.25 am. For the rest of the time, she was observed to be sleeping.
Detective Nunn spoke to Ms Cheinmora at 8.05 am on the 18 March and advised her of the s 137 and s 138 CIA rights. Detective Nunn said he was in close proximity to Ms Cheinmora and did not notice any alcohol smell and she did not appear groggy. He told her that if she needed more sleep, they had plenty of time however he said she was anxious to speak to him. He had been notified by the lockup keeper that she was asking to speak to the detectives (hearsay as to the fact but relevant to Detective Nunn's state of mind).
Detective Nunn said Ms Cheinmora asked when they were going to do the interview and what was going on. He explained that it was her choice whether to speak and they would offer her an opportunity to do an interview but she did not have to do the interview and she could seek legal advice before she decided.
Subsequently at 8.24 am Ms Cheinmora obtained legal advice from the Custody Notification Service, a service run by the Aboriginal Legal Service. Detective Nunn said that after Ms Cheinmora received legal advice he again told her that it was her choice as to whether she did an interview but they were offering her the opportunity to do the interview. Detective Nunn said he was surprised how eager Ms Cheinmora was to be interviewed.
The EROI (Exhibit 3)
During the EROI Ms Cheinmora says the main language that she speaks is English. She said she also speaks two other languages but told the officer that she does not talk 'languages' but talks English and reaffirms that English is her main language.
Ms Cheinmora replied affirmatively when asked if she was happy that she had had enough sleep. When asked if she was sick or injured she replied 'no' and said she just wants to get the interview over and done with.
Ms Cheinmora was provided with a sausage roll and asked if she wanted to have her food first and replied, 'I just want to do this and then I eat'. She also said she 'could not think like this', a statement which was not clarified by the officer.
Detective Nunn advises Ms Cheinmora of her s 137 and s 138 CIA rights and explained what she was charged with and then delivered the caution. Detective Nunn agreed that he did not tell her that she could answer some questions but not others. He did not ask her to explain in her own words the second limb of the caution. It would have been preferable if that occurred.
Ms Cheinmora, inter alia, says, she knows her age, and tells the police when she last had alcohol and food, and says she wishes to wait for her sausage roll to cool before she eats it. She describes the knife that she admits she picked up and tells the police that the victim was wearing a double shirt, that is one shirt on top and one shirt on bottom.
Ms Cheinmora tells the police that she does not know what year in school she reached but is pretty sure she went to school. She cannot recall when she finished school but said it was a long time ago. She remembered going on a school excursion where they saw camels but nominates Perth as the destination of the excursion.
Ms Cheinmora, tells the police she cannot remember talking to them the day before as she was drunk. Ms Cheinmora says that she just wants to get it 'over and done with' and that she wants to 'do this and then eat' and whilst being told of her right to have an interview friend tells the police that she just wants to 'start with this thing please'.
She tells the police that her and her partner had been at another house and then obtained a lift back to their house. She went to the kitchen, got the knife from the sink and said she does not know what happened from there. At one stage Ms Cheinmora, said that the victim came to her but then says she does not remember that part, referring to the stabbing. She said that there was no argument with her partner.
Ms Cheinmora, said that he walked towards her and said 'ow'. She took his shirt off and noticed the bleeding. He lay on the floor and said he was in pain. She held his hand and kissed him. He said he did not want her to go to jail and told her to hide the knife and told her they had to have a plan to tell the police and to make up a story about how he got his injury.
Ms Cheinmora said she went to the hospital with Mr Taylor.
She said she had lots of alcohol and was very drunk as was Mr Taylor and said her father was asleep at the house at the time of the incident.
Ms Cheinmora tells the officers that when she was first questioned both her and Mr Taylor told the same story that they had agreed upon. She said she was sorry for telling lies to the police.
Ms Cheinmora was not overawed by the police and volunteered a number of gratuitous statements. For example, saying that she did not do drugs, only alcohol. She told the police that she wanted to help and volunteered that she wanted to go to the house to show the police where she was in the kitchen and wanted the police to video her in the kitchen. When Detective Nunn stopped recounting what the victim said she invited him to continue. She asked Detective Nunn to repeat something she did not understand and asked him to get her phone and clothing when they went back to her house. She was aware of her surroundings and when there was an unusual noise in the interview room she can be seen, as can the officers, looking around for the source of the noise.
Ms Cheinmora told the police Mr Taylor always hits her really fast and made reference to being already scared and to defending herself. She said that Mr Taylor, who she described as muscly and big followed her into the kitchen. She said she did not know whether he did it to himself or she did it and did not know if he came at her but said he had a habit of doing that 'little act'.
Ms Cheinmora told the police that she knew what a threat is. When asked whether the police told her she would not be released until she did the interview she replied that had not occurred and that it would be blackmail. When asked whether she was forced to do the interview she said that it was good.
The defendant's objections
The defence says that the EROI was not voluntary because Ms Cheinmora:
1.had limited schooling, comprehension and ability to speak English;
2.did not understand her CIA rights;
3.did not understand the offence for which she was an arrested suspect;
4.was not advised that she did not have to participate in an EROI and believed she had a positive obligation to participate in the EROI;
5.did not understand the second limb of the caution; and
6.was tired and unwell which affected her ability to understand that she did not have to participate in the interview and her CIA rights, the charge and the second limb of the caution.
The law
The principles relating to the voluntariness of EROI and their exclusion on the grounds of fairness or because their prejudicial value outweighs 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.
To be admissible as evidence a confessional statement must be made voluntarily. It is presumed that a confessional statement is voluntary if there is nothing to suggest that it is involuntary. If the issue of voluntariness is raised, the State must prove voluntariness on the balance of probabilities. If a confessional statement is not voluntary, it is not admissible in the State's case. Subject to the CIA, if a confessional statement is voluntary, it is prima facie admissible.
Even if a confessional statement is made voluntarily, it may be excluded in the exercise of the court's residual discretion if:
1.it would be unfair to the accused to admit evidence of the statement;
2.it is against public policy to admit evidence of the statement; or
3.the prejudicial effect of the evidence is greater than its probative value.
The onus of proving facts which justify the exercise of the residual discretion in favour of excluding a voluntarily made confessional statement rests with the accused on the balance of probabilities.
It is 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.
Was the EROI voluntary?
None of the matters raised by the defence go to the question of voluntariness, some are relevant to the CIA and all are relevant to the exercise of the unfairness and public policy discretion.
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:
This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.
Dealing with the statement that:
It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will.
the court in Luo observed that the focus of that statement is on whether the will of the accused has been overborne or an inducement has been held out by a person in authority.
Luo rejected the proposition that a statement is voluntary only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent.
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 caution at all or a failure by an accused 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.
If it be proven that Ms Cheinmora did not understand the caution or appreciate that she did not have to answer questions that would not make the admissions involuntary for the purposes of the common law exclusionary rule but those factors would be relevant to the exercise of the residual discretion to exclude the admission on the unfairness or public policy discretions.
The State have satisfied me that the EROI was not obtained by an inducement or duress, intimidation, persistent importunity, or sustained or undue pressure, accordingly the EROI cannot be said to be involuntarily obtained.
I will now consider each of the matters raised by the defendant.
Ground 1: Limited schooling, comprehension and ability to speak English
It is established that Ms Cheinmora was 'pretty sure' she went to school. She did not know what year she had completed at school. She did not know what year she had left school. She remembered going on excursion but said the excursion was to Perth when clearly the inference is that it was to Broome. She said it was a long time since she went to school.
Ms Cheinmara speaks on occasions at quite a rapid rate and on occasions it is quite hard to understand what is being said. However she was able to make her position clear relating to what she says happened, what she could not recall happening, what she was told by the victim to do after the incident, and what she told the police immediately after the incident.
I find she had sufficient ability to communicate in the meaningful manner with the police officers.
Ms Cheinmora clearly has the ability to speak English. She nominated that as her main language. It is obvious from the answers that she gave that she can communicate in English. She obviously has the ability to understand concepts. When asked whether she knew what a threat was, she replied 'like if you force me to' and when asked if the police had said anything like 'if you do not do this interview, then you are not going to get bail, you are going to have to stay in jail'. She replied 'no' and described that statement as 'that's blackmail'. I find that there is nothing in relation to Ms Cheinmora's schooling, comprehension or ability to speak English which affects her ability to understand her CIA rights, the charge, the second limb of the caution or the fact that she did not have to participate in the EROI.
Ground 2: Ms Cheinmora did not understand her s 137 and s 138 Criminal Investigation Act rights
Pursuant to s 137 and s 138 of the CIA Ms Cheinmora was entitled to any necessary medical treatment, to a reasonable degree of privacy from the mass media, to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of her whereabouts. Further if she is for any reason unable to understand or communicate in spoken English sufficiently, she was entitled to be assisted in doing so by an interpreter or other qualified person and not to be interviewed until an interpreter or other qualified person was available. In addition she was entitled to be informed of the offence she is suspected of having committed, to be cautioned before being interviewed and to a reasonable opportunity to communicate or attempt to communicate with a legal practitioner.
There is absolutely nothing to indicate that Ms Cheinmora required any medical treatment or was not provided any reasonable degree of privacy from mass media.
Ms Cheinmora was advised of her rights to speak to a friend or a relative to advise them that she was with the police however she was not asked to reaffirm in her own words that right and not questioned to ascertain that she understood that right. Although she was advised that she could notify her friends or relative that she was with the police, I am not satisfied that she understood this statutory right.
Ms Cheinmora was advised of that right in a compendious statement containing a mixture of announcements of facts, rights and comments involving approximately 16 concepts. In that one statement Ms Cheinmora was advised what she was arrested for, told in layman's terms what grievous bodily harm and aggravation meant. She was advised the investigation related to the stabbing of her partner, and of her rights to speak to a lawyer and a friend, to receive medical attention, and assistance from an interpreter, to be protected from media attention and advised of the offence she was under arrest for. Ms Cheinmora was further advised of the right to be cautioned and the right to silence and told she did not have to say anything if she did not want to. She was told that it was being recorded by camera and microphone and notes were being taken and advised that her rights were ongoing rights. Ms Cheinmora was instructed to let the officers know if she needed an interpreter, or if she is feeling sick or wished to speak to 'the people' again. A statement was made that she had spoken to a lawyer and that the officer had read through her rights a couple of times and she had said that she was happy to talk to him. All of this was done in the one compendious statement before Ms Cheinmora interrupted to enquire if her partner was alright.
Although she was advised that she could notify her friends or relative that she was with the police, in circumstances where that right was delivered in the compendious statement containing a mixture of facts, rights and comments that I have just referred to I am not satisfied that she understood this statutory right. Ms Cheinmora should have been asked to repeat in her own words what she understood by that right or further questioned to ascertain that she understood that right and to that extent her CIA rights were breached.
When Ms Cheinmora was asked what was the main language she spoke she nominated English. Although she said that she spoke other languages she told the officers 'I don't talk language I just English you know' and she reaffirms that English is the main language. She was clearly capable of understanding the nature of the questions and putting forward her version of the events as to what she says occurred at the time of the incident and the discussions with the victim in relation to putting a false account to the officers. She was able to tell the police that she wanted them to go to a residence and video her in her kitchen.
There was no reason for the police to believe that Ms Cheinmora was unable to understand or communicate in spoken English sufficiently, to require the assistance of an interpreter or to require that she not be interviewed until an interpreter was present.
Ms Cheinmora was informed of the offence she was suspected of having committed. The offence was constituted by her alleging stabbing her partner with the knife causing serious injury. She clearly knew that was what she was being questioned about, that is obvious from the answers she made.
In relation to the caution, I have set out my conclusions in other paragraphs of this judgment.
Ms Cheinmora was given a reasonable opportunity to communicate with a lawyer and did so before she participated in the electronic record of interview.
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 and done and told them she did not want to have food before the interview was complete. When advised that she could have an interview friend present she said she wanted to get on with it. She was advised that she could have toilet breaks or coffee breaks. She wanted to be interviewed.
Ground 3: Ms Cheinmora did not understand the offence for which she was an arrested suspect
I accept that phrases like grievous bodily harm and circumstances of aggravation may not have been understood.
Ms Cheinmora enquired about her partner's health during the course of the interview. She told the police that she saw the blood, that she had been in the hospital with him, she knew how he had been injured, that is with a knife.
I find Ms Cheinmora understood that she was arrested and being questioned over the allegation that she had stabbed her partner with a knife and that her partner suffered serious injury as a result. In my view that demonstrates that she understood the offence for which she was an arrested suspect.
Ground 4: Ms Cheinmora was not advised that she did not have to participate in an EROI and believed she had a positive obligation to participate in it
Detective Nunn was an impressive witness and gave the impression of being a conscientious and capable police officer. I accept his evidence that at 8.05 am he explained to Ms Cheinmora, her CIA rights and in particular told her while she was in the cell that it was her choice as to whether she participated in an EROI and that she did not have to do an interview with him but would be given the opportunity to do so and told her she could receive legal advice before she decided.
I find Detective Nunn then afforded Ms Cheinmora the opportunity of speaking to a lawyer and after she spoke to a lawyer said, in the presence of two other officers, words to the effect, that it was her choice whether she participated in the interview but they were going to give her an opportunity to do the interview.
I am satisfied that Ms Cheinmora understood that she did not have to participate in that interview.
At pages 37 - 38 of the EROI Detective Nunn says:
OFFICER NUNN: … Do you remember me saying to you at the start when we were in the lockup area that we can't threaten or promise you - - -
CHEINMORA: Yeah.
OFFICER NUNN: - - - for - - -
CHEINMORA: Yeah.
OFFICER NUNN: - - - doing the interview?
CHEINMORA: Yeah.
OFFICER NUNN: It's got to be of your own free choice.
CHEINMORA: Yeah, my own, yeah.
OFFICER NUNN: I said, 'I can't make you, Anthony can't make you,' and there was another police officer, Gavin, in there. And I said, 'He can't make you. It's got to be your own choice,' okay. So, has this interview been of your own choice? Everything you said then of your - - -
CHEINMORA: Yeah.
OFFICER NUNN: Own choice ...
Clearly this was a compound statement/question whereby Ms Cheinmora was being asked both whether she recalls the officer saying those things to her earlier and whether the interview has been of her own choice and the weight to be attached to the answer is thereby diminished. However I accept Detective Nunn's evidence that what he was referring to in that question was what he had said to her in the presence of the two other officers after she had received legal advice.
The EROI must be considered in its entire context. Detective Nunn effectively asked Ms Cheinmora if they had said anything to her like 'if you do this interview then you are going to go home today and if you are not going to you are not going to go home'. Ms Cheinmora's reply was 'not like that'.
It was then put to her that the officers had effectively said that they could not make her do the interview, it had to be of her own free choice, and she replied 'yes'.
It would have been preferrable if at the commencement of the EROI, Ms Cheinmora was asked to reaffirm in her own words that she understood that she did not have to participate in the EROI. Having considered the EROI in its entirety I am satisfied that Ms Cheinmora was advised and understood that she did not have to participate in the EROI.
Ms Cheinmora did not give evidence at the directions hearing and there is no evidence to support the claim that she believed she had a positive obligation to participate in the EROI.
Ground 5: Ms Cheinmora did not understand the second limb of the caution
The defendant says that Ms Cheinmora was not properly cautioned, in particular as she did not understand the second limb of the caution, that is that the recording of her statements could be used in evidence.
In EYO v The State of Western Australia the court said [68]:
The caution that a police officer is obliged to give to an arrested suspect has two limbs. The first limb is that the suspect has a right not to answer any questions put to him or her by police. The second limb is that is the suspect answers any questions the answer may be given in evidence. The importance of the second limb of the caution is to ensure that the suspect understands the effect or consequence of answering any question put by police. Comprehension of the second limb of the caution is as important as comprehension of the first limb.
In EYO the Court of Appeal do not state the second limb of the caution must include a statement that the answer may be given in evidence against 'you'. See also TheState of Western Australia v Meehan [2018] WADC 98.
The defence point out that Detective Nunn said to Ms Cheinmora at pages 11 - 12:
OFFICER NUNN: … Anything you say is going to be recorded by the camera and recorded by the microphones here. And I'll making some writings and so will Anthony. Any one of those recordings can be used as evidence in court, you understand that?
CHEINMORA: Yes.
OFFICER NUNN: Okay. What does that mean to you?
CHEINMORA: I don't have to talk
OFFICER NUNN: That's right and where can this be played?
CHEINMORA: When I want to.
OFFICER NUNN: Yep. Do you - Can I play this in court, this recording?
CHEINMORA: Yes, if I talk, if I say - - -
OFFICER NUNN: If you - if you talk and tell us what happens, this recording can be played in court, okay? And that means the - the judge can see it and the jury can see it. And they can see what you're telling us today. So, if you decide to talk to me. it's like you're telling the court what's happened as well, all right?
CHEINMORA: Yeah.
OFFICER NUNN: And that would be called evidence, okay?
CHEINMORA: Yeah, that's would be more, like, you know?
OFFICER NUNN: Yep, all right. Um, anything else?
OFFICER GARCIA: Um, do you understand that it's being recorded?
CHEINMORA: Yes.
OFFICER GARCIA: How's it being recorded?
CHEINMORA: Hm?
OFFICER GARCIA: How - how - How's our conversation being recorded at the moment?
CHEINMORA: All right, good.
OFFICER NUNN: I know, but did - - -
ChEINMORA Oh.
OFFICER GARCIA: - - - do you know what's recording our conversation? So, remember we said to you ‑ ‑ ‑
CHEINMORA: Yeah, that video there.
OFFICER GARCIA: Video up there, okay. And microphones, okay.
CHEINMORA: Mike, yeah.
OFFICER GARCIA: Yep, okay, just so you know that every thing's recorded all right. There's no-one else here.
Having viewed the EROI, I am satisfied that Ms Cheinmora understood that she did not have to answer questions (A: I don't have to talk, officer) and what she said was being recorded (Q: Do you understand that it's being record. A: Yes. A: That video there. A: Mike yeah) and that it could be played in court (Q: Can I play this in court, this recording? A: Yes, if I talk, if I say. Q: And that would be called evidence. Okay? A: Yeah. That's would be more like you know).
Ms Cheinmora answers indicate positively that she was aware there was a video in the room and that she did not have to talk and that if she talked the video could be played in court and she answered affirmatively to whether she understood that the judge and jury could see it and it was like she was telling the court what had happened.
EYO was a completely different case. In that case the court found that the conduct of the police officers was whittling down the caution by continuing with the interview when the appellant had repeatedly stated that he wished to remain silent and therefore the officers failed to respect the appellant's choice to stay silent.
In this case Ms Cheinmora told the police that she wanted to cooperate and told them on a number of occasions that she wanted them to get on with it. It is not a case where the police were whittling away her right of silence and that the defence have failed to establish that she did not understand the second limb of the caution.
It would have been preferable for the officers to have asked Ms Cheinmora to explain in her own words what she understood of the second limb of the caution. However they did break it down into its various components, ie that it was being recorded, that it could be played in court as evidence and to each of these broken down components Ms Cheinmora replied affirmatively as to whether she understood.
I am satisfied that Ms Cheinmora did understand the second limb of the caution.
Ground 6: Ms Cheinmora was tired and unwell which affected her ability to understand her Criminal Investigation Act rights, the charge, the second limb of the caution and the fact she did not have to participate in the interview
These allegations are in essence particulars supporting grounds 2, 3, 4 and 5.
It is not in dispute that Ms Cheinmora was arrested at 6.45 pm on the 17 March 2021 and by 7.30 pm the detectives had reached the view that she was so heavily intoxicated that she could not understand the seriousness of the allegations and her rights. She was then not interviewed until 8.30 am the next morning. The police custody records show that for the vast majority of the half hourly inspections between 8.00 pm through to 7.30 am the next morning she was asleep.
Ms Cheinmora had received legal advice before she participated in the interview. There is nothing from anything she says during the course of the interview that indicates that she is tired or unwell. She is the one that is telling the police officers repeatedly in essence, to get on with the interview. She is offered an opportunity to eat her sausage roll before the interview proceeds but declines. She says she has eaten. She is offered toilet and coffee and food breaks but declines. She volunteers to show the police where the knife is. I accept that at one stage she can be seen yawning.
It is clear that Ms Cheinmora knew what she was being asked about. She knew that it was being suggested that she had stabbed her partner. She was able to give a coherent account of what she says occurred. She was able to ask the officers to repeat a question. She was aware of her surroundings.
There is no doubt that the unfairness discretion can be exercised, inter alia, if Ms Cheinmora's mental or physical condition or state of intoxication deprived her of understanding what she was admitting to, or her mind is so disordered and irresponsive that it would be dangerous to pay any attention to what was said, or she is so unaware of her surroundings or the identity of the questioner or the gist of the questions or she was incapable of choosing whether to speak or she did not understand the question or what she was doing or was unable to provide a reasonable response to those questions or had an inability to comprehend the situation in which she was placed when answering questions. I am not satisfied that any of those propositions apply to Ms Cheinmora.
The defendant has not satisfied me that Ms Cheinmora was suffering from the after effects of alcohol or under the effects of alcohol at the time of the interview.
I find nothing to support the submission that any tiredness or illness has affected her ability to understand her criminal investigation rights, the charge, the second limb of the caution or her knowledge of her right not to participate in the interview. There is no merit in the allegation contained in ground 6.
Other matters
Ms Oliver referred to the Anunga guidelines: R v Anunga (1976) 11 ALR 412. EYO makes it clear they do not have the force of law in Western Australia but they do give a good indication as to what is fair and are relevant to both the assessment of the voluntariness of the EROI and the exercise of the unfairness discretion.
The guidelines generally speaking say the police should endeavour to obtain independent proof of the commission of the offence and the accused should be offered a meal and other refreshments and where necessary clothing should be provided forthwith.
The guidelines refer to providing access to legal assistance and an interpreter, and a prisoner's friend. The guidelines stress that great care should be taken administering the caution and Indigenous persons should be asked to say what is meant by the caution phrase by phrase rather than just asked 'do you understand that?'. Questions should be formulated that do not suggest the answer.
The guidelines also refer to proceeding with the EROI only when it is clear that the accused has understood the right to remain silent and is not disabled by illness, drunkenness or tiredness.
In relation to those issues there was no need to supply substitute clothing. Ms Cheinmora was given assistance to and did speak to a lawyer. She was not interrogated when she was disabled by illness, drunkenness or tiredness. She was offered a meal. The police did obtain independent proof of the commission of the offence from another source (the statement of Mr Turner). The answers to the questions were not suggested in any way. Ms Cheinmora was able to communicate in English. She was offered an interview friend but wanted to get on with it. In relation to the administering of the caution, I have found that she understood her right to remain silent and that what she said was being recorded and could be used in a court.
Section 155 of the Criminal Investigation Act
Having found that there was a breach of the CIA, in that although she was advised that she would be given a reasonable opportunity to notify her friends or relative that she was with the police, in circumstances where that right was delivered in a compendious statement containing a mixture of facts, rights and comments I am not satisfied that she knew of this statutory right.
Having found that there was a breach of the CIA the EROI would not be admissible unless the court is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
The court must take into account, inter alia, any objection to the evidence being admitted, the seriousness of the offence, the seriousness of any contravention, whether the contravention was intentional or reckless or arose from an honest and reasonable mistake of fact, the probative value of the evidence and any other matter the court thinks fit.
The probative value of the evidence alone does not by itself justify its submission.
Ms Cheinmora objects to the evidence being admitted.
The offence is a serious offence carrying a maximum penalty of 14 years and involving the use of a weapon namely a knife to stab a fellow citizen causing grievous bodily harm.
The contravention of the act was not the failure to advise Ms Cheinmora of the right but the failure to ensure that Ms Cheinmora understood that right. The contravention should not have occurred, but it occurred in circumstances where Ms Cheinmora had been given access to legal advice and refreshment and in circumstances where she had indicated on numerous occasions that she was happy to proceed with the interview. I find that she was prepared to cooperate with the police. All her other rights were complied with and she was treated with respect and courtesy during the interview but nevertheless it remains a serious contravention.
The contravention was not intentional. It was not reckless it was a momentary careless oversight in the circumstances where her right was put compendiously with other rights and although some efforts were made to ascertain whether she understood the other rights that process was not followed in relation to this right. It would have only taken a matter of minutes, if that, to ensure that she understood that by having Ms Cheinmora repeat in her own words what she understood by that right or asking further questions to ensure that she did. There is no evidence to show that the officers' conduct causing the breach was encouraged or tolerated by those in higher authority.
I am satisfied that Ms Cheinmora's statements in the EROI are cogent and can be relied upon.
The probative value of the evidence is of some significance but not overwhelmingly so. Ms Cheinmora admits she had the knife but cannot recall if she stabbed Mr Turner. Independently of the EROI Mr Turner's statement if repeated in evidence is capable of establishing that Ms Cheinmora stabbed him. I am satisfied that the infringement did not alter the context of the interview and find that Ms Cheinmora would have proceeded with the interview in any event.
I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
I also consider whether any of the matters raised by the defence go to the question of voluntariness despite my view that they relate, in the circumstances of this case, to the exercise of the unfairness and public policy common law discretions.
The State have satisfied me on the balance of probabilities that the EROI has been voluntarily obtained. Consistent with the reasons I have given the only matter that defence could rely upon in this regard is the failure by Detective Nunn to ascertain that Ms Cheinmora understood her right to communicate with a friend or relative to advise them where she was and this failure would not lead me to find that the interview was involuntary.
Irrespective of the CIA, I also consider whether any of the matters raised by the defendant would lead me to exercise the common law discretion to exclude the electronic record of interview. Again the only matter that defence could rely upon in this regard is the failure by Detective Nunn to ascertain that Ms Cheinmora understood her right to communicate with a friend or relative to advise them where she was and for the reasons I now express this would not lead me to exercise my discretion to exclude the interview.
The common law unfairness discretion
The purpose of the common law unfairness discretion is to exclude evidence for unfairness so as to protect the rights and privileges of the accused person. The discretion is concerned with the rights of Ms Cheinmora, not whether the police officers acted fairly or unfairly.
In the exercise of the unfairness discretion, the reliability of the confession is a relevant but not a determinative consideration. A reliable confession may nevertheless be excluded due to other factors. Where an interview is both reliable and voluntary, an accused bears a high onus to establish that the unfairness discretion should be invoked.
The issue is whether it would be unfair to Ms Cheinmora to use her admissions against her. The discretion is primarily concerned 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.
In the exercise of this discretion matters such as of the seriousness of the offence, the probative value of the evidence, 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.
I am not satisfied that it would be unfair to Ms Cheinmora to use her admissions against her.
The common law public policy discretion
The public policy discretion is concerned with matters of public interest and involves consideration of public policy that can lead a court to conclude that it is unacceptable to admit the evidence.
The public policy discretion focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would not create unfairness to the accused. The purpose of this discretion is the protection of the public interest.
The discretion involves striking a balance between the public interest in placing the court in possession of all relevant evidence and the desirable goal of bringing convictions to wrongdoers with the competing consideration of not 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.
The public policy discretion is necessary to protect the process of the court in administering justice and serves a policy in deterring inappropriate conduct by investigators.
Fairness is relevant to the discretion but is not the sole focus. The considerations of the public policy are to be applied in the circumstances of the case including weighing factors, including but not limited to the cogency of the evidence, the importance of the evidence in the proceedings, the nature and seriousness of the offence, the nature of the infringing 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.
I would not exercise my discretion to exclude the interview by evoking the public policy discretion.
The common law probative value/prejudicial effect discretion
As it is not suggested that the probative value of Ms Cheinmora's EROI is outweighed by the prejudicial effect of that evidence the court's common law discretion to exclude on that basis need not be considered.
I dismiss the defence application to exclude the EROI.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
13 MAY 2022
0
16
1