The State of Western Australia v Clifton - [2012] WASC 302

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- CLIFTON [2012] WASC 302

CORAM: McKECHNIE J

HEARD: 13 AUGUST 2012

DELIVERED : 27 AUGUST 2012

FILE NO/S: INS 29 of 2012

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DARREN JAMES CLIFTON
Accused

Catchwords:

Criminal law and procedure - Admissions and confessions - Accused suffering frontal lobe brain damage - Impaired understanding - Whether EROI voluntary - Whether so unfair as to be excluded

Legislation:

Criminal Investigation Act 2006 (WA), s 155

Result:

Application dismissed

Category: B

Representation:

Counsel:

Prosecution : Ms K Robinson
Accused: Mr G W Massey

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Holborn Lenhoff Massey

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

MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
R v Ostojic (1978) 18 SASR 188
R v Parker (1990) 19 NSWLR 177
R v Swaffield (1998) 192 CLR 195
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Wright v The State of Western Australia [2010] WASCA 199; 203 A Crim R 339

McKECHNIE J:

How this issue comes to court

The accused is to be tried on indictment that on 30 January 2011 in Esperance he destroyed a motor vehicle by fire and further that he lit a fire under such circumstances as to be likely to injure persons or endanger or damage property. The trial is listed for 27 August 2012.
The accused applies for an order that the State be prohibited from tendering into evidence the EROI of the accused conducted on 8 March 2011.

The issues

Is the EROI voluntary?
Yes
Should the EROI be excluded in discretion?
No

The accused's background

The accused is now aged 41 and was 40 at the time of interview.
He left school in Year 10 and after a time developed a successful window cleaning business with a turnover of over $500,000 a year and many employees. But in 1998 he was injured in a car accident and sustained irreversible frontal lobe brain damage. This caused a change in personality and ultimately, as a result of poor decisions consequent on his injury, he lost his business in 2003. His family have enduring power of attorney and he is reliant on his parents and his brother Robert for assistance, although he is able to live alone and care for his animals, of which there are many. Since 2003 he has been under the care of a psychiatrist, Dr Martin Chapman. In his report dated 8 July 2011:
Mr Clifton is well known to me and has been attending this practice for the past seven years. He has long-standing diagnoses of (a) Frontal lobe syndrome following a motor vehicle accident (b) organic affected disorder as a result of the former. He has been prescribed Sertraline 100mgs and Sodium valporate 1500mgs daily and is generally compliant with medication. As a result of his injury he has not been able to work for the past five years and is receiving salary continuation payments.
The impact of the head injury has been damage to his frontal lobes, which has resulted in marked behavioural changes. These include poor judgment, impulsivity, decreased ability to plan, mood fluctuations, concrete thinking and difficulties with abstraction. He has been easily influenced by others in his interactions and there is a pattern of betting (sic) rather easily lead (sic) into activities. Due to his difficulties with his brother and family have assumed responsibility for most of his day-to-day decisions.
At the time of the EROI the accused had recommenced his medication after a period of abstinence although he had taken Zoloft that morning:
I don't like taking tablets because I'm - I used to be very health conscious. I never took a tablet my whole life, not even a painkiller, and it took Dr Chapman many years to - and my family to convince me to stick to the medication I needed and to get it adjusted and, yeah, I just went on a bit of a spasm of I'll be right. I'll see how I go for a while, you know, but not a good idea (ts 50).

The circumstances of the alleged offences

The statement of material facts alleges:
On Sunday the 2nd January 2011, the owner of a Hyundai Excel registration number 1AHE 647 and the accused made plans to take this vehicle from where it was parked in Yangebup and destroy it and claim insurance (subject to further charges).
The vehicle's ignition was hot wired and the accused had two containers of petrol on the rear seat and he drove to Esperance over night.
At about 9:00 am, on Monday the 3rd of January 2011, the accused drove the vehicle to Wylie Bay Road, Esperance near the Wylie Bay Refuse site.
The accused spun the vehicle around on Wylie Bay Road and it slid off the road into the bush where it became bogged and the vehicle was doused with petrol form the containers on the rear seat.
The accused then phoned an associate in Esperance to tow the vehicle back on to the road verge.
The accused associate attended and they tried to tow the vehicle onto the road by using the seatbelts out of the vehicle, however they were unsuccessful and a passing motorist assisted and the vehicle was towed to the road verge, but still in dried grass and bordering bushland.
After the motorist left, the vehicle was set on fire by an unknown means and the accused and associate drove off in the associate's vehicle.
As a result of the vehicle being set alight the grass on the verge caught on fire and spread to the adjoining bush. At the time the weather conditions were 21.7 degrees Celsius and 20 kph North East wind. This assisted the fire spreading into the bushland and once it took hold the fire destroyed approximately 110 hectares of vegetation.
To bring the fire under control local bushfire brigade, FESA, heavy machinery and a helicopter was utilized. Police and SES conducted road blocks and closed local beaches.

How the EROI came about

The police took a statement from Luke Frank Crawford on 31 January 2011 which appeared to implicate the accused.
At about 7.22 am on 8 March 2011, Detective Hutcheson and Senior Constable Stephen, both of Esperance Police, attended the accused's address in Carramar and executed a search warrant.
In evidence the accused said that he was expecting to be visited by police over another matter and was caught off guard, was unsettled and confused. He did not have breakfast. He was taken back to the Joondalup Police Station. At 10.07 am the interview commenced. The accused says he was not given anything to eat until after the interview concluded at 3.25 pm. The accused had his father as a support person for a time before his father was replaced by his brother.

The EROI

The lead interviewer was Senior Constable Stephen. After obtaining details of the accused and acknowledging the presence of his father he asked a series of standard questions including whether the accused was suffering from illness or injury. The accused responded:
Uh, uh, frontal lobe and depression and uh a bad back.
Asked to explain, he said:
'Cause my frontal lobe affects my, my reasoning, my, my thinking, my understanding, my comprehending, my memory and, uh - year (ts 4).
He said he was on medication, Epilim and Zoloft and had a crook back and sciatica from a motor vehicle accident a year before the interview.
He agreed that he was advised that he was under arrest on suspicion of stealing and that his rights had been given to him.
A caution was then administered:
Q.I'm going to give you a caution before I ask any questions. Okay? But, like I say, I wish to talk to you about the stealing of some items of dive tanks, surfboards and stealing of a motor vehicle which occurred in early - late December of last year in 2010. Okay? But before I do, however, I'll advise you that you're not obliged to say anything unless you wish to do so and anything you do say or do will be recorded and may be given in evidence. You can answer some questions and not others. Do you understand what I've just said?
A.Uh, yes.
Q.All right. In your own words, can you just explain what that means to you, that caution?
A.You're gunna make mention to me about items that have been reported stolen and asking me what the situation is with 'em and also too I believe there's something to do with a motor vehicle as well that was stolen.
Q.Mm'hm. Okay. So just I'll go through it again. This is like your rights. Okay? So, um, I'm just advising you that you're not obliged to say anything unless you wish to do so. Okay? So you can either talk or you don't have to talk. Do you understand that?
A.Yes.
Q.All right. Okay. But if you do say something, it's gunna be recorded on that machine there.
A.Okay.
Q.Okay? And when it's recorded, it can be given in evidence. All right? So just those two, what does that mean to you now?
A.Um, that what I say is as good as gold in relation to the recording, uh, so if I say something then there's - that's it. I can't change my story.
Q.Okay. And I'll just go straight to the third one. I'll go back over them again. As I say, you can answer some questions and not others. Do you know what that means?
A.That I don't have to answer every question.
Q.Mm'hm.
A.I can say 'pass'.
Q.So you can answer some and - or you can answer all of 'em or you can answer none at all. That's up to you, whatever you want to do. Do you understand that?
A.Right.
Q.So if I ask you a question, do you have to answer it?
A.No (ts 6 - 7).
After explaining that the interview would be recorded to DVD the accused acknowledging that it could be played in court, the interviewer continued:
Q.So I'll just ask a couple of more simple questions. Do you have to talk to us?
A.Yes.
Q.I'll start again.
A.Well, I don't have to answer everything.
Q.Mm'hm.
A.But I do need to cooperate and, and help out whatever way I can.
Q.Okay. If you - I know you said before you wanted to talk, all right, but do you have to?
A.No.
Q.Right. So if I ask you a question, do you have to answer me?
A.No. That's right, isn't it.
Q.It's up to you. It's your, it's your choice whether you talk to myself - - -
A.Yeah.
Q.- - - or Detective Hutcheson.
A.Yep.
Q.Okay. You don't have to talk to us if you don't want to.
A.No, I've (indistinct) well, no, that's fine. Yeah.
Q.I want to, I want to make sure that you know that, if you don't, if you don't - - -
A.Yea.
Q.- - - want to talk to me, you just tell me (indistinct).
A.No, I've got no problems.
Q.If you want to talk to me, you talk to me.
A.Yeah.
Q.It's your choice. The only one that can make that decision is you.
A.Yeah (ts 7 - 8).
The interviewer then questioned the accused's father and asked:
Q.As you satisfied that he knows what we're talking about.
MR R C CLIFTON: He does to a degree, but if it's going through, I don't know.
A.If you ask me a - and this is it - if you ask me a question and I don't necessarily have to answer it.
Q.Mm'hm. Yeah.
A.I can if I want (ts 8 - 9).
Constable Hutcheson then intervened:
Could I break it down for you? You don't have to speak to us at all. If you say 'that's it' then we finish up. You walk out of this room. Okay? So you don't have to do this. That's the whole thing. It's up to you whether you want to do the interview. So you can say, 'Yep. I'm happy to do it,' and with that is - so if we ask you questions, you can say, 'I'll answer 'em.' You can say, 'I'm not answering your question,' or you can answer some and not others. So you understand that?
A.Yes.
Q.So if I ask you a question or Brad asks you a question, do you have to answer it?
A.No.
Q.Exactly. You don't have to answer anything from here on in.
A.But I'll say - - -\
Q.It's up to you.
A.- - - if I, if I make a comment like, 'No, I don't want to say anything,' then that's a - - -
A.That's it.
A.- - - making me look like I'm - - -
Q.It doesn't make you look like - - -
A.(indistinct)
Q.It doesn't make you look like - it is your right. That's why we go through this. It is your right to either speak to us or not to speak to us. We can't force you to do that. We can't make you do this interview. That's why we ask you if you want to do it and it's up to you and that's why we give you this caution - - -
A.Yeah.
Q.- - - for you to understand that you don't have to speak to us if you don't want to. It's up to you and that's why we break it down and say - - -
A.Okay.
Q.If we ask you a question, do you have to answer it? No, you don't have to answer any of our questions.
A.Well, in relation to what I do know - - -
Q.Yeah.
A.- - - I'm happy to talk to you about.
Q.Okay.
A.In relation to what I don't know anything about - - -
Q.Yep.
A.- - - then I obviously wouldn't be - - -
Q.Able to answer it.
A.- - - me waffling on and answering anything because I don't know the (indistinct).
Q.No, no problem with that, but you just have to be very, very clear that if we ask you a question, you don't have to answer it. You don't have to do this interview.
A.Okay.
Q.Are you prepared to continue with the interview?
A.Yeah, I'm happy to help out - - -
Q.Yeah.
A.- - - so that you guys can do you investigations and - - -
Q.Yeah.
A.- - - the, the, the dive gear can be retrieved.
Q.Yeah. But there is other matters as well to speak to you - - -
A.And, and the other matters, whatever they may be.
Q.Yeah. Yep. All right (ts 9 - 10).
The interviewer then directed attention to the car:
We might start with this one here. This offence occurred - this is a stealing of a car - In Yangebup on 8 January 2011.
The interviewers took some trouble to ascertain whether the accused clearly understood that he was not obliged to say anything and that he could chose to answer questions or not. However, they had been alerted that the accused had suffered a frontal lobe injury and received an equivocal response from his father as to whether the accused was understanding his rights. Moreover, they obtained some inconsistent answers to standard questions albeit that at the conclusion the accused appeared to understand his rights, in particular his right not to answer questions.
The accused commenced (ts 10) by saying, 'I don't know anything about stealing of a motor vehicle'. He then launched into a long explanation about Luke, backpackers and a vehicle which he and Luke found in the bush which appeared to be stolen and was covered in fuel (the first explanation).
The first explanation was he had tried to move a vehicle which appeared to have been stolen and was covered in fuel. Other people helped him and they pulled the vehicle out and he thought, 'Right, job accomplished'. Later he was told that the car had caught on fire and later again that it had burnt a whole lot of bush. In other words the first explanation was essentially exculpatory.
He told police that he went from Perth to Esperance with a couple of backpacking guys who picked him up from his home. The first explanation was quite detailed. For example, he said the backpackers were driving a brown Tarago. One was from Italy and they told him in detail where they had been. One was German. Somewhere into the interview, after describing the actions of he and Luke, the following occurs:
Q.So how did you - what I'm saying, you had Luke's car (indistinct) and the white car, how did you try and get it out?
A.He had it tied on the back somehow, I think. Yeah.
Q.Okay. But you can't remember how?
A.No. I'm really not going to be of an more good to you on this, guys. Sorry.
Q.Mm'hm.
A.I've tried to help you the best I can.
Q.Yeah.
A.I'll just be going around in circles and I'll be confusing you - - -
Q.Okay.
A.- - - and I'll, I'll be confusing myself and telling more than like - you know what I mean?
Q.Mm.
A.'Cause I do that.
Q.Yeah.
A.I babble (ts 37 - 38).
Shortly after Mr Clifton, the accused's father, indicated that he had to make a phone call and the interview was suspended. When it resumed the accused's older brother, Rodney Clifton, was present. The caution was not re‑administered.
Finally the police indicated that they did not believe his story:
Q.And you're telling us you go down with these backpackers, which I don't think exist, at 5 o'clock in the morning. I think it's more likely you've taken this car and driven to Esperance and you've arrived there early in the morning because the car's been set on fire at about 9 o'clock. This backpacker story is not looking that good when you're leaving at 5.00 in the morning and his car's already on fire at 9.00 and you said you were in that car before it was on fire. Do you understand what I'm saying?
A.Yes.
Q.Do you want to tell us what really happened?
A.Can I get you to stop the thing for a moment?
Q.If you're gunna say something about that's happened - - -
A.Nuh.
Q.- - - (indistinct) we leave it on.
A.Okay. No, I won't say anything about what's happened at the moment. No, I'll wait.
Q.Is there any reason for that?
A.I just want to talk to my brother.
Q.Okay. All right. If you want to talk to your brother - - -
A.Some advice, yeah.
Q.Yep. We can, we can stop the machine.
A.It's nothing major. It's just - yeah, just a simple question.
Q.Mm'hm. Yeah. No worries. All right. We'll stop the proceedings - - -
A.Can I have a - - -
Q.- - - or we can leave it running if you want to go outside and have a chat to your brother.
A.Um - - -
Q.Or do you want - I'll stop it if you want me to.
A.Well, just telling what happened. I don't - - -
Q.I know you're scared of telling us just what happened.
DETECTIVE SENIOR CONSTABLE HUTCHESON: Just be honest.
SENIOR CONSTABLE STEPHEN: I can tell you more about what's happened 'cause I think I know more about this.
A.Yeah. I think you're on the ball. Okay?
Q.Yeah.
A.Um, and, and I mean what I partly said is, is, is incorrect - most of it's correct.
Q.Yep.
A.Okay. Okay. I don't want to get this Shane into any - - -
Q.Yeah, I know you don't.
A.- - - brother.
Q.I know you don't.
A.But, yes, I did take his car up to Esperance.
DETECTIVE SENIOR CONSTABLE HUTCHESON: Yep.
A.Okay? So I withdraw the comments about the backpackers.
Q.That's all right. You just - - -
A.Okay? Now, from there what happened is anything in relation to Luke working on the boat is all correct and everything like that (ts 51 - 52).
The accused conceded some details in relation to the car and then advanced a second explanation:
A.And then basically, yeah, from there - yeah. The fact that it caught on fire and it burnt - the flames did occur after we had left the premises or left the place.
Q.Mm.
A.And, yeah, so whether it was a result of something igniting the fuel that was in the car, I don't know, or - I don't know what the, the scenario is. I mean, arson or whatever would've been out there and checked it all out and they will report, so they'll be able to tell you more than me. All I know is that there was petrol on the inside of the car, okay, 'cause I've a wet bum from it (ts 53).
Q.Mm.
A.And there was a small jerry can or petrol in the red ute.
Q.Mm'hm. Okay. So what happened with the jerry can in the red ute?
A.Uh, well, the car got obviously doused with fuel.
Q.Mm'hm.
A.And, yeah.
Q.How did that happen? How did it get doused with fuel?
A.Well, as we had it on the side of the - no, it was actually in the bush at that stage. Um, Luke said he (indistinct).
Q.Okay.
A.And I went, 'Mm. No, I don't know about that. How am I gunna get home?'
Q.Mm.
A.He said, 'I'll - you can take the ute,' and then that's when he changed his mind and said, 'No, look, you take the bus.' (ts 53).

He continued to deny lighting the fire:
A.And I said, 'No, look. I'll take the ute because the ute's gotta got back to Perth. It's your dad's.' And, uh, that's why I got to bring the ute back and he wasn't happy about that. Now, he put the petrol in the car. Uh, none of us sort of lit it that I know of. Okay? Um, if I lit it, I'd tell ya. If he lit it, I would tell ya. Um, how it ignited, I don't know. Maybe the wires touched. Maybe, maybe something - I don't know, but, uh - yeah. But I don't think - we pulled it out from the bush (indistinct) (ts 54).
He was then challenged:
Q.But what was the arrangement? Darren, you're not, you're not telling us the whole story here.
A.Okay.
Q.I know that (indistinct).
A.Whether he had, whether he had, whether he had the idea of reporting it as, as being stolen, whether he had the idea of it - um, hoping we'd hit a kangaroo on the way up or hoping that something happened to it or something, I don't know, uh, whether he was planning on asking me to do something with it, I don't know.
SENIOR CONSTABLE STEPHEN: I think you do know. I really do. I think you're trying to sugar coat it. You made an agreement with him and you've taken the car and the car's never come back. I'm sure if we interviewed Shane - - -
A.Yeah, that - well, that's correct. Yeah.
Q.Yeah. Tell us what this agreement was.
A.Okay.
MR R T CLIFTON: Just tell the officer the truth, Darren.
SENIOR CONSTABLE STEPHEN: Yeah. I can't get you to say that, but - - -
DETECTIVE SENIOR CONSTABLE HUTCHESON: No, no.
A.Yeah.
SENIOR CONSTABLE STEPHEN: - - - we're just trying to (indistinct) I know - look, I can see you've got a problem because your - - -
A.I don't know.
Q.- - - brother's here - - -
A.No, no, no, it's not that. It's just that I don't like getting people into trouble.
Q.I know.
A.And I know I'm getting myself in big trouble here.
Q.And you know what, Darren, people getting you into trouble?
A.I know.
Q.Mm. So you - why protect them?
A.(indistinct) stupid.
Q.I know what (indistinct) tell you what happened, but I can't do that.
A.No.
Q.I've got to let you tell your side.
A.See, 'cause I've been stupid and gone along with it - - -
Q.I understand, mate. I understand.
The accused then advanced a third explanation. This explanation is inculpatory:
A.Okay. Right. My car, my car I lent to Luke was, was damaged.
Q.Yep.
A.Shane said, 'Darren, take my car.'
Q.Yeah.
A.Um, 'Look it needs to be written off. Can you and Luke arrange for that to get done?' 'cause Luke wanted some drugs. Okay? Luke - I've got, I've got messages on my phone with Luke sending them saying he wants an ounce or whatever from Shane, rah, rah, rah.
Q.Yeah.
A.And Shane doesn't deal with 'em, right.
Q.Yeah.
A.So, you know, I want to be off the record. I don't want to get involved with Shane and whatever he's involved with or anything like that. I was talking generally in relation to how he was going with his lungs and he - - -
Q.Yeah.
A.- - - seems like a nice guy.
Q.Yep.
A.But that - I said to him, 'Look, I'll take your car up to Esperance and Luke and I will sort out whatever we can do for you. I'll leave it for Luke to do. I don't want a part of it.' Okay. It didn't work out like that.
Q.Yeah.
A.'Cause I was skylarking around in it.
Q.Yeah.
A.Okay? And I got - I went to do a U-ey, okay - - -
Q.Yeah.
A.- - - and I got it stuck in the bush.
Q.Yep.
A.Okay? It was at that stage that Luke said, 'Well, look, we might as well do it here,' and I said, 'Well, I didn't want to get involved with this because you' - you know, at that stage it was already hot wired, yeah.
Q.Mm.
A.So Luke got the petrol, put it on the car and everything, yeah, and I said, 'Look, we can't do it here because of the bush.'
Q.The bush, yep.
A.Because mum and dad live on the bush and, you know, all the animals and whatever else and - not only that, but human resources. So that's when I said, 'Look, let's pull it out off, off the road. If you're gunna do anything, it's got to be off the road.' Yeah? Now, from that time onwards, okay, how it ignited, I don't know. Okay? All I know is that I hopped in the red ute 'cause it was the red ute that - you know, we had spoken to the chap - - -
Q.Yeah.
A.- - - who I mentioned.
Q.Yep.
A.And we drove off and, uh, Luke said, 'Oh, the car's on fire,' and I said, 'It's not, is it?' He said, 'Yeah,' and I looked around, fair enough there's smoke coming up (ts 55 - 58).
A matter of concern is that the exhortation to tell the truth by his brother was not immediately countermanded by an unequivocal statement that it was up to the accused whether he answered the question or not and how he answered. Troubling also is Constable Hutcheson's earlier exhortation to be honest. However, the accused's brother is not a person in authority. The statement, 'Just be honest' did not act on the accused's mind because he then advanced the second, still exculpatory explanation.

Is the confession voluntary?

The fundamental principle is that an accused must respond in a free exercise of a choice to speak or remain silent. An accused whose will is overborne so that effectively he has no choice but to speak will not be making a voluntary admission. When an accused has an obvious mental deficit then there is an obligation to be very careful to ensure that he is speaking in exercise of a free choice.

The relevant legal principles

The law as to voluntariness is well settled: R v Swaffield (1998) 192 CLR 195; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396. The law in relation to the discretion to exclude is less settled though the principles of unfairness potentially enlivened here are uncontroversial. It remains an open question as to the extent to which the Criminal Investigation Act 2006 (WA) s 155 is engaged: Wright v The State of Western Australia [2010] WASCA 199; 203 A Crim R 339. However, the answer makes no difference to the present facts.
There are relevant principles to be extracted from cases involving some intellectual impairment.

R v Williams (1992) 8 WAR 265

In R v Williams the accused had been drinking quite a lot during the day and during the interview periodically banged his head against the wall and window and had to leave the room for air during which time he mumbled to himself. The judge held that the record of interview was voluntary but excluded it in the exercise of his discretion. The majority (Rowland and Owen JJ) set out the principles which govern both the question of voluntariness and discretion, referring to the relevant statement of principle by the High Court: See MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512.
In relation to unfairness their Honours said:
The test is a broad one: is the reception of the evidence unfair to the accused in the relevant sense? Whether there is such unfairness can only be judged when all the relevant circumstances are examined and this includes circumstances that might not have been apparent to the parties at the time when the confession was obtained [271] - [273].
Their Honours also dealt with reliability noting:
However, it is not determinative and there may be cases where an otherwise reliable account will be excluded due to either factor. Such other factors must, of course, go to the issue of relevant unfairness, that is, unfairness of such a nature whether procedural or substantive, as might jeopardise the right of an accused to a fair trial. It would follow that in the face of a confessional statement found to be reliable, the onus on the accused of establishing the relevant unfairness is necessarily high [273] ‑ [274].

R v Parker (1990) 19 NSWLR 177

In Parker, Gleeson CJ (Hunt and Loveday JJ agreeing) set out five relevant principles:
1.The fact that an accused person who has allegedly confessed to committing a crime was, at the time of the alleged confession, suffering from some form of unsoundness of mind or psychiatric disorder may, depending upon the circumstances, be of importance in considering the evidentiary value of the confession, and may in some circumstances deprive it of all evidentiary value: Jackson v The Queen (1962) 108 CLR 591. It does not, however, necessarily make evidence of the confession inadmissible: Sinclair v The King (1946) 73 CLR 316 and R v Starecki [1960] VR 141. As Dixon J observed in Sinclair, an insane person is not necessarily an incompetent witness. Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth.
2.Even if such evidence is admissible, a consideration of the quality of the evidence may, in a given case, result in a conclusion that a verdict founded upon it is unsafe and unsatisfactory: Morris v The Queen (1987) 163 CLR 454.
3.The intellectual capacity of the accused, or the existence of some disease or disorder of the mind, may go to the issue of whether the confession was voluntary and may in that respect bear upon the admissibility of the evidence. It may be relevant to the question whether the confession was made in the exercise of free choice, as for example, where an accused is incapable of making such a free choice, or of understanding his right to choose between speaking and remaining silent. Depending upon the circumstances, it may have an important bearing upon whether the statement was made as the result of duress, intimidation or undue insistence or pressure. The circumstances in which such a fact may be relevant to an issue as to the voluntariness of a confession are multifarious: cf R v Lee (1950) 82 CLR 133 and Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10.
4.Further, even if the confessional evidence is admissible, the intellectual or mental state of the accused may, in a number of possible ways, go to the exercise of a trial judge's discretion to reject the evidence: cf McDermott v The King (1948) 76 CLR 501 R v Lee . It may, for example, touch upon the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself, and the fairness involved in permitting the statement to be used against the accused.
5.A person's vocabulary and standard of comprehension may also be of relevance in determining an issue as to whether such a person in fact made or intended the admissions attributed to him: Murphy v The Queen (1989) 167 CLR 94. (183).

R v Ostojic (1978) 18 SASR 188

In Ostojic Wells J said:
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 a 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 (197).

Application of principle to the facts

It is not possible to fully judge the reliability of the accused's eventual confession without hearing evidence. However, to some extent the deposition tends to confirm the general reliability of the eventual confession.
In his evidence, the accused indicated that he was brought up to respect the police and that he and others should assist them. This is what it is said he was doing in the interview.
A decision to speak to police may be the result of different motivations. The fact that speaking to the police may be against a person's interest does not indicate involuntariness, and Mr Massey did not suggest that it did. A desire to help, provided that the person's will is not overborne, is simply a motivation even if that desire may be more fully expressed in a person with the intellectual deficit of the accused. The accused in evidence:
Mr Clifton, what's your understanding about the police? Do you have to talk to them?---I have a lot of respect for the police and I've always made sure I give them the thumbs up or a g'day or tell them they're doing a good job, and I mean, they're like a headmaster figure to me in the sense that they're there for the public, they're there for the pupils, so to speak, and you know, if there's any problems the police are there. We don't go sort things out yourself, we use the legal system.
If they ask you a question do you have to answer it?---Well, yes, I was under the impression you do.
You said you were under the impression you did. When were you under that impression?---I've always been raised with good honourable tell the truth, don't lie, through studying the Bible and being raised by Christian parents, and basically that's applied all the time, and up to such time that I've seeked legal advice I've been advised that I can seek advice before talking first to the police. That make sense? (ts 48)
However the accused did not do this. He knew the police were enquiring about a vehicle allegedly stolen from Yangebup on 3 January. He knew the vehicle had been burned. He did not tell the truth. He used the opportunity to try and exculpate himself. Eventually after two explanations were plainly not believed, he advanced a third inculpatory explanation. Even in the third explanation the accused minimises his involvement somewhat.
Mr Massey pointed to the fact that the police did not mention that they wished to interview the accused in relation to the fire but about the stealing of some items of dive tanks, surfboards and stealing of a motor vehicle. However, the police did specifically direct him to the stealing of the motor vehicle. In his first substantive response, the accused told the police that the car had been burnt though not by him. The accused then told an untrue story with considerable detail concerning his trip to Esperance with backpackers. When confronted with incredulity in respect of this story he changed and conceded that it was untrue but then told police more details still, however denying any involvement with burning the vehicle. There was no unfairness.

The medical evidence

Dr Chapman gave evidence as to the effect of frontal lobe damage both generally and particularly as manifested by the accused who has been under his care. Dr Chapman's report dated 8 July 2011, already quoted, details the damage and its effects. Whether or not the police, having been put on notice by the reference to frontal lobe damage, should have enquired further, if necessary, from the accused's medical practitioner, the fact is that this evidence was unavailable to them.
Dr Chapman having watched the EROI expanded in evidence:
What's the ability of a layman to form an assessment as to whether or not Mr Clifton knows what's going on?---It would be quite difficult. Without knowing the specific background of his case and the specific nature of his injury it would be very hard for anyone to properly form basically a judgment on competence (ts 32).
Dr Chapman gave evidence as to the accused's ability to consent which he described as questionable:
[W]hat did you understand or what did you mean by his ability to consent to the video interview would be questionable?---Because he hadn't had his regular medication but also because of his long‑standing brain damage. One of the issues has been his ability to care for himself, both financially but in other means, which is demonstrated by the enduring power of attorney, so my concerns would be whether he truly understood the nature of the process and whether he was truly able to comprehend the potential consequences of what he was doing at the time. It is noted that family members were present, however - and again, this is just, in practise in many cases we would be consulted as to the person's mental state prior to such an interview going ahead, to see whether they are actual stable at the time, and that didn't occur (ts 33).
That wish to please, described by Dr Chapman, has two origins:
I think it's a combination of the head injury which has left him fairly simple and also his pre‑existing personality which has always been affable (ts 37).
Overall Dr Chapman had concerns about the accused's ability to fully comprehend what he was going through:
He can certainly concentrate for, say, 20 minutes but his ability to concentrate for five hours based on his head injury would be limited (ts 39).
Dr Chapman conceded:
My only concern with the video interview process was the lack of time for him to be prepared to fully understand what was happening, and my main concern was the time for preparation (ts 40).
Dr Chapman believes that despite the accused's impaired judgment he is able to make a conscious decision to tell the truth or not tell the truth.

Conclusion

I have watched portion of the EROI, that is the relevant parts in relation to the indictable charges. I have read the balance of the transcript. The accused comes across as affable and helpful though this is deceptive. He wove an intricate exculpatory story. The explanation, though admittedly untrue is logical and coherent. It does not have the hallmarks of confabulation but seems to be a deliberate attempt to advance an innocent explanation.
There are aspects of the EROI which are troubling. The accused has a brain injury and he told the interviewers about this. Questions to his father did not clarify the extent of the accused's ability to exercise a free choice to speak or remain silent. When the interviewee's friend changed from father to brother, there was no attempt to acquaint the brother with the accused's rights. There was an unfortunate exhortation to 'be honest'.
As against that, the interviewers did question the accused for some time before being satisfied that he apparently understood his right to speak or remain silent.
The interviewers were not intimidating or overbearing. They were entitled to challenge the accused's explanation and did so, but not in a way which put him under wrongful pressure or overrode his right to silence.
The content of the EROI is important. It is coherent. The subject matter is not complex. I have noted the accused's comments about his memory in the EROI and Dr Chapman's evidence. The accused did not exhibit memory deficits during the EROI.
I am affirmatively persuaded that the accused knew he was not obliged to answer any question and that he knew he could chose not to answer any or all questions.
An important factor is whether there is evidence that an accused's will is overborne, eroding the right of choice. There is no such evidence here. On the contrary, the accused used the EROI as an opportunity to divert police, not once but twice, as he gave them false explanations.
No doubt things might have been done better. But cases raising issues of voluntariness are decided on the application of general principle to specific facts.
In this case the facts persuade me on the balance of probabilities that the EROI was voluntary.
There is some unfairness in a general sense not due to impropriety of police but the accused's brain damage.
Dr Chapman raised legitimate concerns about the effect of the brain damage on the accused's ability and the length of the interview. The relevant admissions occurred after about two hours even though the interview was much longer.
Having been alerted to the accused's condition, it would have been prudent to have arranged for his psychiatrist to be consulted.
The accused lives alone and is able to make some decisions for himself and the many animals for whom he cares. I acknowledge though that his ability to live in the community is due in great measure to his parents and brother who hold power of attorney. By reason of his injury the accused is a poor decision‑maker.

Notwithstanding some unfairness inherent in his condition, and the consequent interaction with his rights and powers when being interviewed, I am nevertheless firmly of the view that the EROI is not unfair to the extent that the interests of justice require its exclusion.
The application is dismissed.