The State of Western Australia v Couzens - [2017] WASC 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- COUZENS [2017] WASC 208

CORAM: MCGRATH J

HEARD: 25 JULY 2017

DELIVERED : 28 JULY 2017

FILE NO/S: INS 393 of 2016

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DAMIEN JOHN COUZENS
Respondent
(Application 1 - s 31A evidence)
DAMIEN JOHN COUZENS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Application 2 - the record of interview)

Catchwords:

Criminal law and procedure - State's application to adduce relevant propensity and relationship evidence - s 31A of the Evidence Act 1906 (WA) - Domestic relationship - Admissibility at common law - Hearsay evidence - Discretion to exclude evidence

Criminal law and procedure - Accused's application to exclude video record of interview - Voluntariness and unfairness - Judicial discretion to exclude admission by accused

Legislation:

Criminal Investigation Act 2006 (WA)
Evidence Act 1906 (WA), s 31A

Result:

Application 1 - s 31A Evidence
Application allowed in part

Application 2 - the record of interview
Application dismissed

Category: B

Representation:

Application 1 - s 31A evidence

Counsel:

Applicant: Mr L Hobson
Respondent: Ms J T Fisher

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Justine Fisher Barrister & Solicitor

Application 2 - the record of interview

Counsel:

Applicant: Ms J T Fisher
Respondent: Mr L Hobson

Solicitors:

Applicant: Justine Fisher Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

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

APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59
Collins v The Queen (1980) 31 ALR 257
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
McDermott v The King (1948) 76 CLR 501
Preston v The State of Western Australia [2012] WASCA 64
R v Ireland (1970) 126 CLR 321
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
The State of Western Australia v Smith [2010] WASC 279
Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10
Wendo v The Queen (1963) 109 CLR 559

MCGRATH J: The accused is charged on indictment with one count of murder contrary to s 279 of the Criminal Code (WA). The accused has entered a plea of not guilty to that count and will appear before a judge and jury for trial.
I have two applications to determine. First, the State makes an application to lead evidence that the State contends constitutes propensity evidence and relationship evidence pursuant to s 31A of the Evidence Act 1906 (WA). The State submits that the evidence of five State witnesses regarding their observations concerning the conduct of the accused towards the deceased or injuries observed on the body of the deceased is admissible as both relationship evidence and propensity evidence under s 31A of the Evidence Act.
The second application is an application by the defence that the electronic record of interview conducted with the accused on 10 March 2016 by the police be excluded on the basis that it was involuntary and/or its admissibility would be unfair to the accused.

Background - the prosecution case

I have read the prosecution brief of evidence and have been provided with further information about the prosecution case during the hearing.
The prosecution in submissions summarised the prosecution case as follows:[1]
On the afternoon of 9 March 2016 the accused was at the victim's home situated at unit 8, 7 Cooper Street, Midland with the victim.
The victim had purchased drugs (methylamphetamine) earlier that day for herself and the accused. The victim took a quantity of methylamphetamine upstairs in the unit and then went to the rear yard/courtyard followed by the accused.
The prosecution case is that the accused strangled the victim in the back yard using a rope or unknown ligature, that the accused left the victim lying in the rear courtyard of the unit, went back inside and cooked some food for himself and another male person who was also at the unit.
The other male person opened the curtain which had been closed by the accused and saw the deceased on the ground and the accused was standing over her and was kicking her in the thigh to wake her up. The accused was saying to her, 'Get up'. The accused then left the courtyard and closed the curtain and then started cooking.
The other male left the unit and went to another unit in the complex with the food for approximately five minutes. When he returned, he found the accused in the back yard lying down beside the victim. The accused requested help.
St John's Ambulance officers and police officers attended the address. The victim was conveyed to the St John of God Hospital in Midland where she was pronounced deceased.
The prosecution case is that the accused used a rope or unknown ligature, placed it around the deceased's neck and strangled her with that rope or unknown ligature, intending to kill her or intending to cause bodily harm of such a nature as to endanger or be likely to endanger the life of the deceased as she subsequently died and that the cause of death as identified by the forensic pathologist was strangulation with a methylamphetamine effect.
[1] State's submissions on s 31A application [5].

The issue at trial

From the submissions of counsel it appears that the significant issue at trial is whether the accused used a rope or unknown ligature to place around the victim's neck in order to strangle the victim with an intent to cause her death or an intent to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of the deceased. The defence's position is that the accused did not strangle the deceased. The defence submits that the jury will be required to consider expert evidence that would support a conclusion that the deceased's death may have been the result of her own act or acts.

Application 1 - s 31A

The State seeks the admission, on the basis of propensity and relationship evidence, of the following proposed evidence from five State witnesses:
(1)Neecole Leeanne Downing at prosecution brief pages 33 ‑ 34 inclusive being pars 13 ‑ 22 inclusive. Alternatively, the State limits the application to pars 13 ‑ 18 inclusive.
(2)Rebecca Elizabeth Downing at prosecution brief page 330 being pars 12 ‑ 18 inclusive.
(3)Maddison Marie Ugle at prosecution brief page 82 being pars 22 and part of pars 23.
(4)Robert James Wilson at prosecution brief pages 38 ‑ 39 inclusive being pars 18 ‑ 25 inclusive. Alternatively, the State limits the application to pars 18 ‑ 21 inclusive.
(5)Stephen Craig Cooke at prosecution brief pages 2 ‑ 3 inclusive being pars 16 and 18 ‑ 25 inclusive.

Statutory provisions

Section 31A of the Evidence Act prescribes the circumstances under which the court may admit propensity evidence.
Propensity evidence is defined by s 31A(1) as meaning:
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had.
Section 31A(1) also defines relationship evidence as meaning:
Evidence as the attitude or conduct of the accused person towards another person, or class of persons, over a period of time.
Section 31A(2) provides that propensity evidence is admissible in proceedings for an offence if the court considers:
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of the risk of an unfair trial, is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

Whether the evidence is propensity evidence

The State submits that the evidence of each of the specified five State witnesses is propensity evidence, as defined. That is because it demonstrates that the accused had, at the relevant time, a tendency to engage in physical violence towards the deceased.
Further, the State submits that the evidence is relationship evidence between the accused and the deceased, which demonstrates the general attitude of the accused towards the deceased and shows a recent history of arguments and physical injuries inflicted by violence.
The accused submits that the proposed evidence does not qualify as propensity evidence or relationship evidence.
It is necessary that the evidence of each of the witnesses be considered to determine whether or not the evidence has sufficient clarity to ground the State's submission that the evidence should be received as propensity or relationship evidence.

Neecole Leeanne Downing

Ms Neecole Downing has signed a statement dated 18 March 2016. In pars 13 ‑ 22 Ms Downing stated the following:
13.I last saw [the deceased] on Thursday 3^rd March 2016.
14.I went to her unit in Cooper Street with my 21 year old daughter Rebecca.
15.I was walking up to her door and [the deceased] came out the front near the bin.
16.She wouldn't let me go inside the unit.
17.She had her hand up to the left side of her face covering up bruises.
18.She had swelling and a black eye on the left side.
19.I asked what had happened.
20.She put her head down.
21.I said 'Are you being abused?'
22.She said 'Yeah'.
I find that the pars 19 ‑ 22 that recall the statements of the deceased are hearsay and therefore inadmissible.
The only evidence that may be admissible is the evidence that is based upon the direct observations of Ms Downing, being her observations concerning the swelling and black eye on the left hand side of the deceased's face (pars 13 ‑ 18). An immediate difficulty with this evidence is that Ms Downing did not observe the cause of the bruise nor is there any other explanation able to be given by Ms Downing given the inadmissibility of pars 19 ‑ 22.
After considering the entire State brief and the further evidence, I consider that the mere observations by Ms Downing as to bruises on the face of the deceased have such ambiguity that the evidence is inadmissible and therefore does not constitute propensity or relationship evidence. If I am wrong in my determination that the proposed evidence is not propensity or relationship evidence, I find that the evidence does not have sufficient probative value to satisfy the test proscribed by s 31A of the Evidence Act.

Rebecca Elizabeth Downing

Ms Rebecca Downing has provided a statement dated 20 April 2016. Ms Rebecca Downing's evidence is similar to Ms Neecole Downing's evidence given that both recall the same meeting with the deceased.
In pars 12 ‑ 18 Ms Downing stated the following:
12.One day about a week before she died, I went to visit her at her house on Cooper Street, Midland.
13.I went with my mum Neecole and my baby son in the pram.
14.As we got there [the deceased] walked down the driveway towards us and shook her head saying 'No,No'.
15.I could see that she had a black left eye.
16.She said 'That cockhead in there belted me, pushed me down the stairs and elbowed me in the eye!'
17.She just wanted us to leave and wouldn't let us come inside.
18.I told her to come with us and she refused.
The recollection of what the deceased said, being pars 16 ‑ 18 inclusive, comprises hearsay evidence and is inadmissible.
Therefore, the proposed evidence of Ms Rebecca Downing comprises the observations regarding a black eye. Ms Rebecca Downing did not observe the cause of the injury. I have considered the evidence concerning the observation of Ms Rebecca Downing in light of the entire State brief. I consider that the evidence has such ambiguity that it is inadmissible and therefore, is not propensity or relationship evidence. If I am wrong in my determination that the proposed evidence is not propensity or relationship evidence, I find that the evidence does not have sufficient probative value to satisfy the test proscribed by s 31A of the Evidence Act.

Maddison Marie Ugle

Ms Maddison Ugle has provided a statement dated 10 March 2016. At pars 22 and 23 of that statement, Ms Ugle stated the following:
22.When I have been around my mum and Damien they never really argued and I've never seen any violence between them.
23.But I have seen my mum with black eyes before and approximately a year ago she had to wear a neck brace.
Ms Ugle offers no evidence concerning the cause of the black eyes. Indeed, it may be said that the observations regarding the injuries stands in juxtaposition to the previous observation of the witness at par 22 of her statement regarding never having heard or observed arguments or violence between the deceased and the accused.
I have considered the proposed par 22 of Ms Ugle's statement in light of the entire State brief of evidence. I consider that par 22 of the statement of Ms Ugle is propensity or relationship evidence.
I do not consider par 23 to be propensity or relationship evidence and is inadmissible due to the ambiguity of the evidence. If I am wrong in my determination that par 23 is not propensity or relationship evidence, I find that the evidence does not have sufficient probative value to satisfy the test proscribed by s 31A of the Evidence Act.

Robert James Wilson

Mr Robert Wilson has signed a statement dated 15 March 2016. At pars 18 ‑ 21 inclusive Mr Wilson stated the following:
18.Five or six days ago I was about to come out of my unit, so I looked out my window. I always look out my window before leaving my unit because things are always happening out here.
19.When I looked out I saw [the deceased's] boyfriend standing over her. She was walking backwards away from him with her arms up defending her head and face. He was getting in her face waving his arms around at her in an aggressive manner; around her face.
20.He did that until she walked backwards into the fence, slid down the fence and sat on the ground.
21.Then he walked straight into their unit and she stayed sitting on the ground. I watched all that from my front window. I couldn't hear what either of them were saying. She later moved to sit on the front porch for about two hours before going back inside.
The State also seeks the admissibility of pars 22 ‑ 25, where Mr Wilson stated the following:
22.About a week ago [the deceased] had a black eye and she said: 'Look what he did.'
23.It wasn't a conversation, she just came out and told me.
24.A few days later when she was near me asking for smokes, she clutched at her ribs on her right side.
25.She said: 'My ribs are sore.'
I consider that pars 18 ‑ 21 of Mr Wilson's statement where he makes personal observations regarding the alleged conduct of aggression by the accused to the deceased comprises propensity evidence or relationship evidence. In the circumstances, I consider the utterances of the deceased (pars 22 ‑ 25 inclusive) to be inadmissible because of their hearsay nature. Further, the evidence by Mr Wilson concerning his observations of the injuries is ambiguous as to its cause. I formed that view after considering the proposed evidence in light of the entire State brief. Accordingly, I am of the view that the evidence in pars 22 ‑ 25 inclusive is not propensity evidence or relationship evidence and therefore, should not be admitted. If I am wrong in my determination that the proposed evidence is not propensity or relationship evidence, I find that the evidence does not have sufficient probative value to satisfy the test proscribed by s 31A of the Evidence Act.
However, pars 18 ‑ 21 of Mr Wilson's statement constitute clearly propensity or relationship evidence.

Stephen Craig Cooke

Mr Stephen Cooke signed a statement dated 9 March 2016. At par 16 Mr Cook stated:
16.Every so often I would hear them argue, at times they became heated I never heard any threats or saw any physical altercations between them.
At pars 18 ‑ 25 Mr Cooke stated that:
18.On Monday 7^th January 2016, I saw [the deceased] and Dan standing out on the front verge of the units next to ours on Cooper Street.
19.I was walking back from the shops with Janelle. I could clearly hear them arguing before I reached our set of units.
20.As we approached them I could tell from their body language they were angry with each other.
21.As we walked past them I heard [the deceased] shout 'Fuck off you dog, just do it then.' She then shouted 'I can't do this anymore'.
22.I saw Dan had hold of left arm underneath her armpit. I saw [the deceased] raise her arm to push Dan's arm away.
23.[The deceased] then saw us and asked if we had a smoke, Dan then also asked us for a smoke.
24.We gave them a smoke and continued to walk home.
25.I could still hear them arguing.
I consider that this evidence, being the direct observations of Mr Cooke, is propensity evidence and relationship evidence in that there is a clear display of anger and physical touching by the accused. That direct evidence comprises pars 16, 18 ‑ 20, and 22 ‑ 25. I consider that par 21 is hearsay and therefore inadmissible.

Whether the evidence is of significant probative value

The principles relating to determining whether evidence has significant probative value were outlined in Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 and subsequently in Preston v The State of Western Australia [2012] WASCA 64 [33] ‑ [38] (Mazza JA). The evidence must be able to rationally affect, in combination with other evidence, the assessment of the probability of the existence of a fact in issue in a significant way; that is, in a manner that is important or of consequence.
I have determined that par 22 of Ms Ugle's statement, pars 18 ‑ 21 of Mr Wilson's statement and pars 16, 18 ‑ 20 and 22 ‑ 25 of Mr Cooke's statement constitute propensity or relationship evidence. I consider that the propensity evidence and relationship evidence has significant probative value. The nature of the relationship between the deceased and the accused is highly relevant. In particular, evidence that supports the contention that the accused displayed anger towards the deceased and physically touched the deceased is relevant to the facts in issue at trial.

Fair minded test

The question then is whether the fair minded person test is satisfied. The effect of s 31A(2)(b) was explained by Buss JA in LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [291], by reference to points made by Steytler P in Dair:
In Dair, Steytler P made these points about the comparison which s 31A(2)(b) requires. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

The nature and degree of the risk of an unfair trial would depend upon the particular circumstances of the case under consideration: APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59 [15].
The State submits that fair minded people would think that it is in the public interest for the propensity and relationship evidence in this case to be adduced despite any risks. If the evidence was not to be led the jury would be left in ignorance of the evidence concerning the accused's conduct and relationship with the deceased and therefore depriving the proper context in which it is said the accused is alleged to have committed the offence of murder.
Further, the State submits that the risk of an unfair trial can be neutralised by appropriate directions to the jury. A jury would invariably be given a direction concerning the use to which the propensity evidence could be used and that it could not by itself prove the case against the accused.

The accused's submissions

The accused submits that the propensity evidence in this case is prejudicial and there is a risk that the jury will place undue weight on the alleged conduct and reach a conclusion of guilt in respect of the alleged conduct on a basis other than by way of logical, dispassionate reasoning.

Conclusion in respect to the fair minded person test

In my opinion, assessed objectively, the probative value of the propensity evidence in the present case is high. The accused demonstrated in the period prior to the alleged offence that he was willing to engage in angry exchanges with the deceased and physically touch the deceased in those circumstances on the occasions observed by the witnesses Mr Wilson and Mr Cooke.
In my opinion, the probative value of the evidence which I have delineated, compared to the degree of risk of an unfair trial, is such that a fair minded person would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Therefore in my opinion the proposed evidence has significant probative value and it satisfies the fair minded test in s 31A(2)(b) of the Evidence Act.

Conclusion

Accordingly, I find that the evidence that is propensity and relationship evidence and therefore is admissible is:
(1)The proposed evidence of Ms Ugle which is outlined in her statement dated 10 March 2016 at par 22.
(2)The proposed evidence of Mr Wilson which is outlined in his statement dated 15 March 2016 at pars 18 ‑ 21 inclusive.
(3)The proposed evidence of Mr Cooke which is outlined in his statement dated 9 March 2016 at pars 16, 18 ‑ 20, and 22 ‑ 25.

Application 2 - the record of interview

I now turn to the accused's application to exclude the video record of interview on the basis of voluntariness and unfairness. During the hearing of this application the accused submitted that in the event I do not accept that the interview was involuntary or unfair then the accused objects to the line of questioning at page 131 of the transcript where an admission is made by the accused.

Relevant law - voluntariness

In order for admissions to be admissible in evidence they must be made voluntarily: McDermott v The King (1948) 76 CLR 501, 511 (Dixon J). To be voluntary the statement must be made in the exercise of free choice. Any statement made as a result of duress, intimidation, sustained insistence or pressure is not voluntary. Further, a statement made as a result of an inducement held out by a person in authority is not made voluntarily.
The prosecution bears the onus of establishing on the balance of probabilities that a confession has been made voluntarily: Wendo v The Queen (1963) 109 CLR 559, 572 ‑ 573.
The word 'voluntary' does not mean volunteered. It means made in the exercise of a free choice to speak or to be silent: R v Lee (1950) 82 CLR 133, 149. The voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused: Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J).

Voluntariness

The accused appears to rely upon the following contentions in support of the application that the interview be excluded as not being voluntary:
(1)That the accused did not understand the caution.
(2)That the accused was withdrawing from the effects of drugs and alcohol at the time the interview was conducted and therefore was confused.
(3)That the accused had mental health issues that impaired his capacity to comprehend the interview process.
(4)That the police continued the interview after the accused requested to speak to a lawyer.
The accused's submissions acknowledge that the accused does speak English and reads and writes in the English language. Further, the accused accepts that he was given a properly constructed caution concerning his rights not to participate in the interview. At no time during the interview does the accused decline to answer a question until the end of the interview when the accused states that he wishes the interview to cease. The contention of the accused is that he did not understand that caution due to his personal circumstances.
I will consider each of the contentions of the accused.

Caution and failure to understand

The contention of the accused is that he was given a caution by the officers but that he only vaguely understood that caution. The accused relies upon the questioning at the commencement of the interview when the accused says that he vaguely understands the caution.[2] That statement by the accused must be placed in its proper context. The police were asking whether the accused understood the caution given the previous evening at 6.55 pm. Subsequently, in the record of interview, the officers fully explain the caution confirming that the accused does not have to speak to the police. The accused acknowledged that he understood that right. Further, the accused acknowledged that he only had to answer questions that he wished to answer.[3] The officers explain that the accused has the right to legal representation.[4] The accused is given the caution again later in the interview.[5] He agrees he has already been given the caution.[6] The officers carefully explained the caution and confirmed that the accused understood his rights. I have reviewed the interview and it is clear that the accused gave emphatic answers to the officer's questions regarding his rights and did so in a manner that supports the conclusion that he understood the caution.

Alcohol and drug withdrawal & confusion

[2] ts 3 (video record of interview 10 March 2016).

[3] ts 4 (video record of interview 10 March 2016).

[4] ts 5 (video record of interview 10 March 2016).

[5] ts 18 (video record of interview 10 March 2016).

[6] ts 4 (video record of interview 10 March 2016).

I now turn to the contention that the accused was suffering from the withdrawal of alcohol and drugs and was confused during the interview. The police arrived at the accused's address at 2.05 pm on Wednesday, 9 March 2016.[7] There is no evidence that the accused was able to take any drugs or alcohol after that point in time. The interview commenced at 1.00 pm on Thursday, 10 March 2016 being approximately 24 hours after the apprehension of the accused.
[7] Prosecution brief of evidence, page 104 [6].
The accused's contention is that he was suffering from withdrawal symptoms of alcohol and drug use which impaired his capacity to voluntarily undertake the interview. During the interview the accused confirmed that on the day of the death of the deceased he had a 'shot' of speed[8] and that he was drinking a bottle of Royal Reserve Sherry.[9] It appears that the accused had two glasses of sherry and two cans of 300 ml spirit mixes.[10]
[8] ts 38, 52 (video record of interview 10 March 2016).
[9] ts 30 (video record of interview 10 March 2016).
[10] ts 51 (video record of interview 10 March 2016).
At page 11 of the transcript of the record of interview the officers ask the accused whether he is currently affected by alcohol to which the accused answers 'No'. The officers acknowledge in the interview that the accused was intoxicated when arrested to which the accused agreed.[11] Further, the officers state that the accused was held 'for so long' to give the accused an opportunity to be sober.[12] The accused agreed with that proposition.[13]
[11] ts 5 (video record of interview 10 March 2016).
[12] ts 12 (video record of interview 10 March 2016).
[13] ts 12 (video record of interview 10 March 2016).
The officer, at that stage, asked the accused 'are you in any way affected by drugs or medication at this time?'[14] The accused stated that 'nah, just on my medication that I've been taking for the last ten years.'[15] The accused identified that medication as diazepam. The purpose of the diazepam was to address the accused's alcohol dependency. The accused stated that he last took the diazepam two hours before the commencement of the interview with the consequence that his anxiety lowers.[16] The State subsequently confirmed that custody records show that the accused was given two tablets at 6.40 am followed by two tablets at 10.09 am whilst in custody. The officer asked whether the diazepam affects the accused's thinking to which the accused answered '[n]ah, it doesn't affect anything' and further that the drug stops him having withdrawals and keeps him calm.[17] At the conclusion of the interview the accused stated that his past use of alcohol and drugs has 'fucked; his head.[18]
[14] ts 12 (video record of interview 10 March 2016).
[15] ts 12 (video record of interview 10 March 2016).
[16] ts 12 (video record of interview 10 March 2016).
[17] ts 13 (video record of interview 10 March 2016).
[18] ts 133 (video record of interview 10 March 2016).
After carefully reviewing the interview, I do not consider that the accused's capacity was impaired due to his consumption of alcohol and drugs which consumption ended approximately 24 hours earlier. To the contrary, the accused was given an extended period to become sober and was permitted to take his medication that addresses his alcohol addiction. That medication has been used for nearly a decade.
It is contended that the accused is confused during the interview. I do not accept that contention. At the commencement of the interview the accused does wave his hands in response to being asked how he is and the accused states in reply 'head's all over the place' and that 'just trying to get my head around (indistinct).'[19] That answer appears to be a statement by the accused concerning his grief about the death of the deceased and not an inability to understand what is being discussed or the purpose of the interview. The conduct of the interview and the further answers given by the accused display a comprehensive understanding of the issues being discussed and the purpose of the interview.
[19] ts 2 (video record of interview 10 March 2016).
The accused also relies upon his statement during the interview that 'I'm not caused of it' and 'I'm not the cause of it.'[20] The accused states that the tone plainly indicates that he is asking a question rather than making a statement. This supports the accused's submission that he was confused. I do not accept that characterisation of those particular statements of the accused. I have observed and listened to the accused. He was not confused. Rather, the accused is denying his involvement in the death of the deceased.
[20] ts 4 (video record of interview 10 March 2016).
The accused also refers to him being tearful during the interview. I do not consider that is indicative of confusion. Rather, the accused appears to be upset at the death of the deceased and the consequences of that death.
The accused refers to the fact that during the interview several times he is unable to remember the incident or surrounding circumstances.[21] The accused contends in his submissions that, 'it is plain during the course of the interview that Mr Couzens does not recall the incident' and in support of that proposition refers to the statement of the accused that 'I don't know if I've done it or not'.[22]
[21] ts 114, 123 (video record of interview 10 March 2016).
[22] Appellant's submissions dated 26 April 2017 [22].
Those comments must be read in the context of the accused offering differing explanations as to what may have happened. The accused does give a version of the relevant events.[23] Later in the interview when challenged by the officers, the accused states that he doesn't remember the incident. I do not consider that the accused was confused at those portions. Rather, the accused gave versions of the events which will be assessed by the trier of fact.
[23] ts 18 ‑ 19 (video record of interview 10 March 2016).
Further, the accused relies upon questioning conducted towards the end of the interview in support of the contention that he was confused. I have reviewed the questioning and I do not consider there is a sufficient basis from that line of questioning to support the contention of involuntariness in respect to the accused.

Mental health issues

The submissions of the accused contend that the accused's mental health issues impaired his capacity to understand the interview. The reference to mental health issues must be understood with reference to the accused's statement during his interview that he has had past medical issues including depression. There is no evidence that the accused was suffering from any mental health issues during the interview. The accused does not suggest that to be the case. The accused appeared to be a person who was responding to the questions with clear answers. The accused provided a detailed outline of the events. I do not consider that the accused's self‑disclosed history of mental health issues has any bearing on whether the interview was voluntary.

Request for legal representation

At the commencement of the interview, the accused expressed his willingness to be interviewed without legal representation.[24] The first request for legal representation was near the conclusion of the interview.[25] The officer stated that he intended to 'wrap it up'.[26] The officer then asked whether the interview 'has been conducted of your own free will?'.[27] To that question, the accused answered 'Yeah. I wanna speak to a lawyer, actually'.[28] The officer immediately stated that the interview was being finalised and arrangements to speak to the lawyer will be made.[29] The officers continued to complete the interview process. The accused continued to make comment. The officers continued to finalise the interview.
[24] ts 5 (video record of interview 10 March 2016).
[25] ts 128 (video record of interview 10 March 2016).
[26] ts 128 (video record of interview 10 March 2016).
[27] ts 128 (video record of interview 10 March 2016).
[28] ts 128 (video record of interview 10 March 2016).
[29] ts 129 (video record of interview 10 March 2016).
I do not consider that the conduct of the officers has led to any unfairness. The interview was completed in a timely manner upon the accused expressing the desire to speak to a lawyer. As I have observed, the first time the accused requested to speak to a lawyer was when the officers informed the accused that the interview was being finalised. The police are not bound to accept the initial position of a suspect given that interviewing officers are entitled to ask further questions to clarify all the accused's position to determine whether a refusal applies to all questions or only to a particular topic: The State of Western Australia v Smith [2010] WASC 279 [11].
After carefully reviewing the contentions of the accused, I consider that the State has established to the requisite standard that the interview was voluntary. I now turn to the accused's contention that the interview was unfair.

Relevant law - unfairness discretion

In circumstances where an interview is found to be voluntary, it is prima facie admissible. In circumstances where there is no breach of the Criminal Investigation Act 2006 (WA) that renders the evidence inadmissible the onus is then on the accused to establish on the balance of probabilities that there is a substantial reason why the confession should be excluded in the exercise of the court's discretion.
There are three possible bases for discretionary exclusions. They are that it is unfair to the accused to admit the confession, that public policy considerations make the admission unacceptable or that the prejudicial effect of the evidence outweighs its probative value: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [52].
The unfairness discretion is not concerned with whether the police acted fairly or unfairly. The concern is whether it would be unfair to the accused to use his confession against him: Lee (154), Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10. The prime concern is the unreliability of the confession. Further, there may be concerns that the confession would not have been made at all if the interview had been conducted properly: Van Der Meer (20), Swaffield [71]. There are many factors that may be relevant to whether an interview was fair. Those factors include whether the person conducted the interview in circumstances where he was fatigued, had inadequate breaks or sustenance or was not able to understand and communicate properly. The inability to communicate may embrace a number of reasons including language issues or having a medical condition. In addition, a further factor may be whether the police persisted with questioning after a suspect has indicated a wish not to answer further questions: R v Ireland (1970) 126 CLR 321.
The accused appears to rely upon the combination of the following factors in support of the contention that the interview was unfair:
(1)The accused, though not under the influence of drugs or alcohol whilst undertaking the interview, claims he was suffering the effects of withdrawing from the use of those substances.
(2)The accused suffers from mental health issues.
(3)The accused appears tearful at some points during the interview and is sad at what has occurred.
(4)The accused requests to speak to a lawyer but the interview continues.
(5)The accused appears to be highly influenced by the suggestions put to him by the police.
(6)The manner in which a number of the questions were posed was unfair to the accused.
I have considered the first four points relied upon by the accused when dealing with the contention that the interview was involuntary. I do not consider that those contentions render the interview unfair.
The contention that the accused was influenced by suggestions put to him by the police that appears based on the following exchange:[30]
Officer: That, that, that's the difficulty that I'm having to understand is, I wouldn't be angry. I'd just say that isn't what I've done.
Accused: Well, that isn't what I've done.
Officer: But now, that's not that you're saying. You're, you're now just repeating what I've told you.
Accused: Yeah. What I think you're telling me to say.
[30] ts 130 (video record of interview 10 March 2016).
That may be the subject of editing. I do not consider that this part of the interview, in light of the entire interview, supports the contention that the interview, is unfair for the reason that the accused is open to suggestion. There is not a sufficient evidentiary basis for that proposition.
In respect to the contention that some of the questions posed to the accused were unfair, the State accepts that is so. The State accepts that some of the questioning in the final pages of the record of interview included expressions of opinion from the police officers concerning the nature and strength of the State evidence. The State had delineated those questions and has accepted that the questions and answers should be the subject of editing. I have reviewed the questions and answers and am in agreement with the State's proposed edits. The question remains, whether the questions even if excised, have served, in combination with the other factors identified by the accused, to render the interview unfair.

A number of those questions involve the police making comment including that the accused 'should do the right thing' by the deceased and stating that the denials of the accused was inconsistent with innocence.[31] Those comments have been accepted by the State as forming part of the interview that should be edited. However, I do not consider that those questions and answers render the interview unfair.
[31] ts 127 (video record of interview 10 March 2016).
The defence also refers to unfairness arising from the accused being informed by the police that the cause of the deceased's death was not methlyamphetamine but another cause. That statement does not constitute an attempt by the police to mislead the accused. The examining pathologist concludes that the cause of death was strangulation with methlyamphetamine effect. At the time of the interview the opinion expressed by the officer that the deceased did not die as a result of methlyamphetamine use was most understandable. Senior Constable Sanders in his statement recalls asking the accused what happened, to which the accused answered 'she hung herself'.[32] Further, Mr O'Neill, an attending paramedic in his statement recalls the accused stating that 'she had a rope around her neck and she had been using amphetamines'.[33]
[32] Prosecution brief of evidence, page 106 [19] ‑ [20].
[33] Prosecution brief of evidence, page 43 [15].
The accused also relies upon the questioning in respect to the proposed evidence of Mr Ryan‑Farrell.[34] That witness was present at the residence at the relevant time. The accused contends that the police positively mislead the accused by failing to put the statement of Mr Ryan‑Farrell accurately. I have reviewed that line of questioning and I find that it does not render the interview unfair. There are significant material differences between the recollections of the accused and Mr Ryan‑Farrell.[35]
[34] ts 105 ‑ 110 (video record of interview 10 March 2016).
[35] ts 82 ‑ 83 (direction hearing 25 July 2017).
I consider that the accused has failed to demonstrate to the requisite standard that the interview is unfair and should be excluded.

Objection to admission at page 131

The accused objects to the admission at page 131 of the transcript of interview. That part of the transcript reads as follows:
Officer: What you're saying is you [indistinct] you, you don't know whether you've done it. Is that your final position, Damien? You don't know what you've, that you, whether you've done it? Or---
Accused: No. I do-, I don't know what I'm capable of doing
Officer: Mmm.
Accused: When I'm under the influence of drugs and alcohol.
Officer: So it's possible you killed her?
Accused: Yes.
Officer: But you do -, are you saying it's possible but you don't have a recollection of it?
Accused: N-,n-,n-,nah. I'm saying I don't, I, when I'm under the influence of drugs and alcohol I dunno what I'll do.
Officer: Yeah. Well, in that you're no different from a lot of people, then.
Accused: Pardon?
Officer: You're no different from a lot of people.
Accused: Why's that?
Officer: You're no Lone Ranger. You're not the first person to be sitting in an interview room with me who's been under the influence of drugs and has done something that they regretted.
Accused: Yeah. I'm not gonna say that I, you know. I, I, I fucking yeah. I just don't remember it and that's the truth. It's just trying to piece things together and it's just not processing. (emphasis added)
I consider that the question 'so it's possible you killed her' is an unfair question. The accused is maintaining that he does not have a recollection. To postulate that it is a possibility is an invitation for the accused to speculate. I find that part of the interview, which part is reproduced above and is the highlighted portion, is inadmissible.

Conclusion

Accordingly, I have determined that the record of interview conducted with the accused on Thursday, 10 March 2016 is admissible. Further, the admission made at page 131 of the transcript, which is delineated above as the highlighted portion of the reproduced transcript, is inadmissible.
During the hearing of the application counsel for the State agreed that edits should be made to the transcript. Those edits were delineated on the transcript. Counsel for the accused stated that it was necessary to consider the edits after this application was determined. I understand from counsel's submissions during the directions hearing that it is anticipated that all other edits should be agreed and that orders were not being sought from the court.