The State of Western Australia v Edmonds - [2016] WASC 84

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- EDMONDS [2016] WASC 84

CORAM: MARTINO J

HEARD: 14 MARCH 2016

DELIVERED : 14 MARCH 2016

FILE NO/S: INS 285 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
ZOE ELIZABETH EDMONDS
Defence

Catchwords:

Criminal law - Admissibility of interview of accused - Unfairness discretion - Public policy discretion

Legislation:

Nil

Result:

Interview inadmissible

Category: B

Representation:

Counsel:

Prosecution : Mr D T Carlson
Defence: Ms N Stewart

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: Natasha Stewart, Barrister

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

Foster v The Queen (1993) 67 ALJR 550
R v Ireland (1970) 126 CLR 321
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Van der Meer v The Queen (1988) 62 ALJR 656
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

MARTINO J: The accused is charged with armed robbery. The trial of the prosecution is listed to commence on 9 May 2016.
The accused objects to the admissibility of an electronic record of an interview of her conducted by police officers on 20 May 2015 and applies, pursuant to s 98(2) of the Criminal Procedure Act 2004 (WA), for an order before the trial commences that the record of interview be ruled inadmissible.

The State's case

The State's case is that in the afternoon of 20 May 2015 the accused and a co-accused Ben Mitchell were in a Mazda sedan on Spencer Street in Bunbury.
Mr Mitchell alighted from the Mazda and entered a pharmacy in Spencer Street. The accused parked the Mazda nearby on Francis Street.
Mr Mitchell approached the pharmacy counter and brandished a syringe. He handed a sheet of paper to an assistant in the pharmacy and said: 'I want what's on this list.'
The sheet of paper contained the word 'Cash', a list of medication and the word 'Now'.
Pharmacy staff gave Mr Mitchell medication and cash. He left the pharmacy and went to the Mazda where the accused was waiting for him. Several witnesses at the pharmacy followed Mr Mitchell. His movements were video recorded. Mr Mitchell entered the front passenger seat of the Mazda. One of the witnesses smashed open the passenger side window and took hold of Mr Mitchell's arm. The accused drove away, causing the witness to lose hold of Mr Mitchell's arm.
A short time later police officers located the Mazda travelling south on Bussell Highway in Gelorup. The accused and Mr Mitchell were in the car along with the stolen medication and cash. Mr Mitchell was driving.
The accused and Mr Mitchell were arrested. The accused was interviewed at the Bunbury police station approximately two hours after she was arrested. An interview of Mr Mitchell commenced but it did not proceed due to his intoxication from medication.
Mr Mitchell has pleaded guilty and the trial is to be of the accused alone.
The accused's counsel has informed me that at the trial she will admit that she drove the Mazda in which Mr Mitchell was a passenger.

Grounds of objection

The accused objects to the admissibility of the record of interview on the grounds that:
1.the contents of the interview are irrelevant;
2.she was under the influence of drugs or medication when she was interviewed; and
3.the manner in which the interview was conducted was unfair.
The accused does not contend that the interview was not voluntary.

Evidence on the hearing of the application

At the hearing of the application the accused gave evidence and the State called evidence from Detective Senior Constable Gareth Reed, one of the police officers who interviewed the accused.
The accused's evidence was that after she drove away and before she was arrested by police she consumed a mouthful of methadone. She gave evidence that after she was arrested she asked police for sanitary items as she had her period. They were given to her before the interview, but not immediately. She was hungry and tired and asked for food and coffee. She was not given food or coffee and all that she was given to drink was water. At the time she was suffering from anxiety and depression for which she was seeing a medical practitioner who prescribed medication. She was not sure what prescription medication she had taken before the interview, but it is likely that in the days prior to the interview she had taken more Valium than she had been prescribed. She said that in the interview she did not feel comfortable. She felt drowsy, nauseous and the methadone had affected her vision.
She did not tell the police officers that she had consumed methadone because she was involved in Family Court proceedings concerning the custody of her children and she was concerned that if she were to tell the police officers that she had consumed methadone that would be evidence in the custody proceedings.
Detective Reed gave evidence that the accused was arrested at approximately 2.45 pm and the interview took place at approximately 4.20 pm. He was not the arresting officer and he was not particularly involved with the accused prior to the interview. However he is confident that if the accused had asked for food, drink or sanitary items they would have been provided to her within a reasonable time.

The interview

A copy of the DVD containing the recorded interview was filed by the State and I watched the interview before the hearing of the accused's application.
The interview was conducted by Detective Senior Constable Reed and Detective Senior Constable Karl Perry. At the commencement of the interview Detective Reed asked the accused if she was under the influence of alcohol. She said that she was not. He then asked if she was under the influence of any drugs or medications. She said that she was not and that she had two Panadol that morning.
Detective Reed then asked the accused if she was suffering from any illness or injury. The accused said that she suffered from ongoing stress and anxiety for which she was being treated by a doctor. The doctor prescribed diazepam and mogadon which she took occasionally on an as need basis. She said that her medical practitioners were still trying to find the right anti‑depressant for her.
Detective Reed informed the accused of rights that she had, including a right to medical attention if she needed it, the right to call a family member or friend and the right to speak to a lawyer. The accused confirmed that she had spoken to a lawyer from the Bunbury Legal Aid office.
Detective Reed informed the accused that she was not obliged to say or do anything, but anything she did say would be recorded and may be given in evidence if she were charged with an offence. He asked the accused what that meant to her. She said that the video was evidence in the case of which she had been charged.
Detective Reed informed the accused that she had not been charged but that she had been arrested on suspicion of armed robbery. The accused said that what she meant was that the video would not need to be used unless it went to that charge and then trial stage.
Detective Reed then asked the accused where she thought the video could be played. She replied: 'Um, at music festivals.'
The accused smiled at Detective Reed. He then said: 'Alright. Let's try again.' The accused then said: 'Um, at, in the court of law.'
Detective Reed then informed the accused that her right to silence meant that she did not have to speak to the police officers about what had happened. He asked the accused if she understood that. She nodded her assent. He then asked her whether she had to answer a question if he asked it. She shook her head from side to side, indicating that she did not have to answer. He then asked whether she had to answer a question that Detective Perry asked. The accused made no response. After a short period she said: 'I'm enacting it right now.' She then laughed.
Detective Reed then asked the accused if she was happy that she understood that she did not have to speak to the police officers. The accused said that she was.
Detective Reed said that the accused was under arrest on suspicion of the armed robbery of the pharmacy and he asked if there was anything that she wanted to say about that matter. The accused answered: 'No' and then asked whether it was legal for whoever it was to kick and smash her car window. Detective Reed said that it was. The accused then asked the circumstance in which it was legal to do so. Detective Reed said it was part of a defence under the Criminal Code. The accused asked what the person was defending. Detective Reed said that they were trying to get back their property. The accused said that was interesting.
Detective Reed then asked the accused if she cared to tell him how that property came to be in her car. The accused replied: 'No.'
Detective Reed asked who Mr Mitchell was and she said that he was her boyfriend. He asked how long they had been together. The accused did not reply for a short period and then said that she did not want to answer the question. Detective Reed said that if she did not wish to answer a question she could say that she was not going to do so, so that they were not sitting in the interview staring at each other.
Detective Reed said to the accused that she had mentioned that her car window was smashed. He asked what her car was. The accused replied that it was not her car and that she had been lent it by Mr Mitchell's mother who was purchasing it from a neighbour. Detective Reed asked if she knew what kind of car it was and its colour. The accused said that it was a silver Mazda. He showed her a photograph and asked if it was the Mazda and the accused said that it looked the same.
Detective Reed asked if the photograph showed her in the driver's seat. The accused said that she did not know. He asked if she was driving the car on the day of the interview. She said that she was and asked who was driving the car when she was arrested. Detective Reed said that he believed Mr Mitchell was driving. The accused said that the person in the driver's seat in the photograph was probably Mr Mitchell because she did not move. Detective Perry then showed the accused a mobile phone. He informed the accused that a video had been taken which clearly showed Mr Mitchell run and jump into the car with the accused sitting in the driver's seat.
The accused responded: 'Oh, that's great. You've got evidence for that, then.'
The accused then answered 'No comment' to several questions.
Detective Reed said that she was a getaway driver in an armed robbery. He asked the accused if there was anything that she wanted to say in relation to that because all the accused was doing was toying with the police officers. The accused said that she was not toying with the police officers, that it was not a game but her life and that her opportunity lay in the hands of someone who could represent her. She said that she did not know what was happening, and that is all she could say, she did not know.
Detective Reed asked her what was happening.
The accused said that she was really scared.
Detective Reed asked what the accused thought was happening when Mr Mitchell got into the car with a great big tub full of medication.
The accused said that she did not know what was in the medication. All she knew was that there were three men who were extremely aggressive and smashing.
Detective Reed interrupted her and told her not to blame them for someone else's actions.
The accused said that she was not blaming anyone.
Detective Reed again interrupted her and said that they were allowed to do what they were doing. He said that the accused had her boyfriend going into the pharmacy.
The accused said that she did not know that.
Detective Reed asked the accused what she thought was going to happen when he covered his head with a blue mesh. The accused said that she did not know that.
Detective Reed asked 'Oh really?' The accused replied 'No.' The way that the question was asked indicated that it was more of an expression of disbelief than a question.
Detective Reed asked if she was present when the note was written. The accused said that she was not.
Detective Reed asked what she thought when Mr Mitchell came running out with the blue bit of cloth wrapped around his head. The accused said that her adrenalin was very, very high and there were three men chasing him, kicking the car and smashing the window. She was scared and fearful for her life.
The accused said that after she had driven off and before they were stopped by police she pulled over and asked Mr Mitchell what was going on. Detective Reed asked what he had said. The accused said that she was very scared and she could not remember. Detective Reed said he found that hard to believe and that she had a decent recall where it suited her, did not have a recall where it didn't suit her and that she was making it up off the top of her head as she went.
The accused said 'Wouldn't have a clue.'
Detective Reed said:
Because you're panicked. You're worried about the fact that you're gonna get, already in your head you're worried about the fact that you might get charged. So you're panicked at the moment so you're trying to make up a story to fit your situation. Okay.
A short time later Detective Reed asked:
So at what stage did it dawn on you that Ben had done the wrong thing? Where did you go after you left?
The accused answered:
Obviously when the man kicked the window in and he had this tub full of stuff.
She said that she was putting her foot to the floor because she wanted to get away from the guys who were smashing the car.
A short time later the accused said that it did not actually dawn on her at that minute that Mr Mitchell had done the wrong thing. She had someone smashing the car and kicking the car so she wanted to get away. If she had got out of the car she would have been assaulted by being kicked.
Detective Reed then said that the next reasonable thing was that while driving away she was going to ask questions of Mr Mitchell about what had happened. The accused said that not much came out of her mouth, she was shaking.
Detective Reed said:
Zoe, you're not going to drive away from there in a panic and not ask him what's happened. That's just completely irrational. It defies any reasonable logic.
Detective Reed then asked what Mr Mitchell had said when she asked him. The accused said that she could not remember. Detective Reed asked some questions about where the accused drove the car. He said that somewhere the accused and Mr Mitchell swapped sides. The accused agreed. Detective Reed then said: 'So how about you tell me the complete truth.'
Detective Perry said that the video that police had obtained showed that one person, not three people had attacked the car.
The police officers and the accused then had a discussion about whether it was legal for the person to do what he had done. The accused said her brother was in jail for trying to recover his property.
Detective Reed said: 'You don't know what you're talking about quite frankly.'
Soon afterwards Detective Perry said in a forceful manner:
Listen to me. I'm talking. He's trying to grab hold of Ben out of the window with the property. Okay. You're in the driver's seat. You drive away. There's no three guys attacking the car. So stop lying to me. The video is clear. There is no three guys attacking the car. The fact is you were in the car, waiting for your boyfriend in an armed robbery. He got in, you drove away. Unfortunately for you, people chased him and tried to grab him. You panicked and drove. Fine. You knew what was going on, so stop lying to me. Tell me the real story. Now, what really happened.
The accused said that she had told the police officers as much as she could and that there were three.
Detective Perry interrupted her and said: 'You haven't. No you haven't.'
A short time later the accused answered 'no comment' to two questions
Detective Reed then said: 'So it's not a full story, just the selective bits you wanna tell us.'
The accused said that she did not want tell them anything. Detective Reed said that she had made that clear, that was why she was only speaking when it suited her and that he got to talk to people who are lying to him every day and she was one of them.
Detective Perry then said that the interview was about to be finished and asked if there was anything she wanted to say. She said no.
Detective Reed then asked whether the accused used drugs. She said she did not. He then asked questions about Mr Mitchell's use of drugs, which the accused answered.
The accused said that she did not think that Mr Mitchell had morphine until after they had the box that had morphine in it.
The accused said she had looked at the boxes that were in the car after the armed robbery.
A short time later the accused told the police officers that Mr Mitchell had significant long standing health problems which resulted in him suffering from chronic pain for which he was receiving medical treatment.
Detective Reed said that the chronic pain seemed like a really good reason to do a stick up for morphine.
The accused provided further information about Mr Mitchell's condition and his medication. She said it was probably not relevant to the case.
Detective Perry said that it was, because Mr Mitchell was in pain and he had had his methadone. He asked if Mr Mitchell had any other means of pain relief. The accused said he had obtained a prescription for pain relief medication tramadol the previous day.
A short time later Detective Reed told the accused forcefully: 'Because this, this is clearly what happened.'
He then told the accused that Mr Mitchell committed the armed robbery for both cash and drugs and that the accused knew exactly what Mr Mitchell was doing. The accused said she was not going to comment.
Detective Reed said that it was not drugs that Mr Mitchell was after and that some of the drugs that he had demanded were not drugs that Mr Mitchell used.
A short time later Detective Reed said that throughout the whole interview the accused would talk about what was of benefit to her because she helped her partner do a stick up.
The accused then asked to end the interview as she had nothing else to say. Detective Reed said that she could say no comment.
A short time later the accused was asked questions about the items stolen by Mr Mitchell. The accused said that when the man kicked the windscreen the stolen items fell through the car. Detective Reed said:
No it didn't. Because the video shows that it didn't.' He then said that the accused was making stuff up as she went along.
The accused said that she did not want to answer any more questions because the police officers were scaring her.
The Detectives then asked the accused about some coins in her handbag. The accused said that police officers must have put them there. Detective Perry said: 'God, you're dreaming. You've been watching too much TV, woman.'
He showed her items found in her handbag and said that the items were stolen from the pharmacy. He then said:
Let's not beat around the bush. That's a fact. And I guarantee you, you do not carry cash around looking like that with Armaguard wrappers on it.
The accused replied: 'No way.'
A short time later the accused said that she was protecting herself from three men who were being violent.
Detective Perry said: 'You've already told that lie, so what else do you want to say?'
The accused said that it was not a lie.
The accused said that she did not put the coins in her bag and that police officers had done so.
Detective Reed said that was ridiculous and Detective Perry said: 'Now we know you're lying.'
Detective Reed said that people had been trying to tell him that excuse for fourteen years and not once had it been the case. He also said: 'We're back to making up stories.'

Shortly afterwards the accused said that when she and Mr Mitchell were on Bussell Highway the police were chasing them. She said that the people she had driven away from in Bunbury must have called the police because they regarded their property as more important than her property.
Soon afterwards Detective Perry said forcefully that she was telling him that despite the fact that Mr Mitchell had held up a pharmacy with a loaded syringe and she had helped him try to get away her biggest concerns were that people tried to grab Mr Mitchell and that the car window had been smashed.
A short time later Detective Reed held a video tape and said that it was the video from which the photograph of the Mazda had been taken. The accused asked to see the video. Detective Reed ignored her request.
He told her that she had admitted to being the driver.
The accused asked Detective Reed what he needed. Detective Reed said that he would really like to hear the truth, because he had not heard a lot of it so far.
Detective Reed then said to the accused that Mr Mitchell was in significant pain and he said that he thought that the best thing to do was to park as close as possible to the front door of the pharmacy so that Mr Mitchell did not have to walk too far.
The accused said she had gone to buy parts from a vacuum cleaner shop. Detective Reid asked what shop she was going to. The accused answered and said that she must have thought she was in Busselton. Detective Reed told the accused that she had gone back to making things up.
Detective Perry then asked how Mr Mitchell knew where to meet her. He said that it was not possible to see her car from the pharmacy and told the accused not to lie.
The accused said that she did not know how he knew where she had parked the car. Detective Reed said that her story did not make sense, that it was a story and that it was not the truth.
Detective Perry said: 'It's a clear lie. Absolute clear, blatant lie.' And: 'Let's not worry about the rubbish with the vacuum cleaner.' And: 'You explained to me a lie that you tried to get a vacuum but that's true.'
The accused said that she had parked in the shade.
Detective Perry said: 'No, now you're just lying. You're just lying.'
Detective Reed said the photograph showed that she had parked in the sun. Detective Perry said that the accused was not a very convincing liar.
The accused said that she did not believe that the people who had approached the car were acting lawfully. Detective Perry said that she could believe what she liked, because he did not believe what she was saying either. He also told her that there had been a plan to do the robbery and that the accused way lying to get herself out of it, but the bad news was that she was not going to get out of it.
Detective Perry said that she was an enabler and so a primary offender and that she was as equally as liable as Mr Mitchell.
The accused then answered no comment to several questions. Detective Perry said to Detective Reed: 'I'm bored with listening to her lies.'
Detective Reed said: 'Same here.'
He then asked if everything she had said had been said of her own free will. The accused answered yes.
Detective Reed then asked if anyone had made any threats to participate in the interview, made any promises to participate in the interview or whether she had any complaints about the way that the interview had been conducted.
The accused answered no to all of those questions.
Detective Reed then told the accused that she would be charged with armed robbery and that she or her lawyer could obtain a copy of the video recording of the interview.
The interview then came to an end.

Relevance

The accused admits in the interview that she drove Mr Mitchell to the location at which he alighted from the car and that she drove away after he returned to the car. She also admits that she knew that Mr Mitchell brought a significant amount of drugs to the car and that he was being chased. Those admissions are relevant to matters in issue in the prosecution, namely whether the accused assisted Mr Mitchell to flee from the scene knowing that he had committed an armed robbery. I rule that the contents of the interview are relevant.

Discretion to exclude

There are three bases on which evidence of a voluntary interview in which relevant admissions are made might be excluded in the exercise of the court's discretion to do so:[1]
1.it would be unfair to the accused to admit the evidence of the admissions;
2.that public policy considerations make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused; and
3.that the prejudicial effect of the interview outweighs its probative value.
[1] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [51] - [52]; Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [115].
The unfairness discretion is not concerned with whether the police officers have acted unfairly, but with whether it would be unfair to the accused to admit the evidence of the admissions. It relates to the accused's right to a fair trial.[2]
[2] Van der Meer v The Queen (1988) 62 ALJR 656 666; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [53] ‑ [54]; Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [116].
The public policy discretion arises out of the public interest in the protection of the individual from unlawful or unfair treatment. Convictions obtained by the aid of unlawful or unfair treatment may be obtained at too high a price. This discretion focuses on large matters of public policy.[3] The line between unfairness and policy may become blurred. It is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues.[4]
[3] R v Ireland (1970) 126 CLR 321, 334-335; Foster v The Queen (1993) 67 ALJR 550 554; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [57] - [60].
[4] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [57], [74]; Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [117].
The purpose of the power to reject evidence the prejudicial impact of which is greater than its probative value is to guard against a miscarriage of justice.[5]
[5] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [52], [64].

The admissibility of the interview

The accused contends that she was drowsy and under the influence of illicit substances and or prescription medication at the time of the interview. As I have noted earlier in these reasons the accused did not tell the police officers that she was under the influence of any drugs or medication. She gave evidence at this hearing that she consumed a mouthful of methadone prior to being arrested and that it is likely that she consumed some Valium. I have watched the interview carefully. At times there are suggestions of an inappropriate response, such as when she said that the video could be played at a music festival, however in giving that answer she appeared to be joking. Throughout the interview she seems to understand the questions and her answers. I do not regard the interview as being unfair by reason of the effect of any drugs or medication on the accused nor that any consumption of drugs or medication provides any public policy basis to exclude the evidence.
Nor do I regard any failure to provide food or drink or any delay in providing sanitary items as warranting the interview being excluded. The accused was provided with sanitary items before the interview. The interview was conducted approximately two hours after the accused was arrested. It commenced at approximately 4.20 pm. The accused did not appear to be unduly uncomfortable, distressed or tired in the interview.
However I have concluded that the way in which the interview was conducted does warrant the interview being excluded in the exercise of my discretion.
The State and the accused's counsel have conferred as to edits to the electronically recorded interview. Last Friday 11 March the State provided to me proposed edits to the interview. The State proposed that approximately half of the interview not be played. Today in the course of submissions counsel for the State informed me that when considering the interview further before the hearing he had decided that it was appropriate for there to be further edits, so that the interview cease being shown to the jury at the point where the accused asked to end the interview as she had nothing else to say.
The parts that the State proposes to remove from the interview includes the portions of the interview in which the police officers tell the accused that she was toying with the police officers, that she should not blame other people for what occurred, that she was lying and making up stories and that she was being selective in her answers.
Portions of the interview where the accused said that she did not know what was in the medication and that all she knew that there were three men that were extremely aggressive kicking the car and smashing the window and that she was scared and fearful for her life would remain in parts of the interview shown to the members of the jury.
However in my view those edits would not resolve the problem created by the way in which the interview was conducted. It is clear that the police officers became impatient with the accused. Despite the fact that at the commencement of the interview they had told the accused that she was free not to answer questions it is my view that by their comments and the forceful way in which they spoke to her the police officers made clear to the accused that from an early stage of the interview that they did not regard it as acceptable that she not answer the questions and that they did not believe many of the answers that she gave.
This began from when the accused answered no comment to some questions that the police officers asked.
Detective Reed completed his explanation of the accused's rights 6 minutes and 20 seconds after the interview began. At 13 minutes and 28 seconds into the interview he said:
Let me put it this way for you, Zoe. At the end of the day, you're a getaway driver in an armed robbery. Is there anything that you want to say in relation to that? Because, quite frankly, all you're doing is sitting there trying to toy with us and I'm not interested in sitting here …
Very soon after that the accused said that she did not know what was in the medications that Mr Mitchell had brought to the car and that all she knew was that there were three men who were extremely aggressive and smashing. Detective Reed interrupted her and told her not to blame them for someone else's actions.
From that time onwards the interviewing police officers made forceful adverse comments about the accused's answers to questions or her declining to answer questions throughout the interview.
In my view it would be quite artificial to delete all those comments from the interview. The jury would not then accurately be able to assess the circumstances in which the accused did provide the answers that she did.
In the interview the accused did say that she did not know what Mr Mitchell took to the car, that she was scared by three men who approached the car aggressively and damaged the car. Those parts of the interview could be seen by the jury, however, any assessment by the jury of what the accused said and the manner in which she said it would not be able to be made knowing all of the circumstances in which the accused said them.
The jury would not know that the accused said those things after the police officers had told her that she was toying with them, that she was blaming others for what had happened, that Detective Reed found what she had to say very hard to believe, that she had a decent recall where it suited her and did not have a recall where it did not suit her and that she was making it up off the top of her head as she was going.
It is my view that from the 13 minutes and 28 seconds into the interview the manner in which the interview was conducted was inappropriate and unfair because the police officers made clear to the accused effectively that they did not regard it as acceptable that she not answer questions and that they did not believe many of the answers that she gave.
I conclude that in conducting the interview in that way the police officers were unfair to the accused. It is also my view that in conducting the interview in this way the police officers were not acting fairly and that, for public policy reasons, the interview conducted in that unfair manner should be excluded.
Before 13 minutes and 28 seconds into the interview the accused made admissions that she knew that the Mazda had been damaged by people, that Mr Mitchell was her boyfriend and that she had driven the car at some time during the day. These are relevant admissions.
However it would not be fair to the accused to allow only that part of the interview to be admitted into evidence. That is because that is not all that the accused wanted to say. She wanted to say that she had driven from the scene to escape the people attacking the car. This has clear potential relevance to the charge as she was effectively saying that she drove away not to assist Mr Mitchell escape from the scene of the armed robbery but out of fear of damage to the car and to herself. The first time that she endeavoured to make those statements Detective Reed refused to allow her to do so, telling her not to blame them for someone else's actions.
The accused did get to say these things later in the interview and those parts of the interview could be seen by the jury, however, as I have said any assessment by the jury of what the accused said and the manner in which she said it would not be able to be made knowing all of the circumstances in which the accused said them.
I rule that the whole of the interview not be played at trial.