The State of Western Australia v Gandy
[2015] WASC 382
•9 OCTOBER 2015
THE STATE OF WESTERN AUSTRALIA -v- GANDY [2015] WASC 382
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 382 | |
| 09/10/2015 | |||
| Case No: | INS:334/2014 | 9 JUNE 2015 | |
| Coram: | CORBOY J | 11/06/15 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Evidence of admissions admitted | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA STEPHEN GREGORY GANDY CHRISTIAN JOHN GOMIS JAYDEN ALBERT KETT STEVEN ROBERTS |
Catchwords: | Criminal law Evidence Whether unrecorded admissions should be admitted Section 118 and s 155 Criminal Investigation Act 2006 (WA) |
Legislation: | Criminal Investigation Act 2006 (WA), s 118, s 155 |
Case References: | The State of Western Australia v Yarran [2014] WASC 1 Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
STEPHEN GREGORY GANDY
First Defence
CHRISTIAN JOHN GOMIS
Second Defence
JAYDEN ALBERT KETT
Third Defence
STEVEN ROBERTS
Fourth Defence
Catchwords:
Criminal law - Evidence - Whether unrecorded admissions should be admitted - Section 118 and s 155 Criminal Investigation Act 2006 (WA)
Legislation:
Criminal Investigation Act 2006 (WA), s 118, s 155
Result:
Evidence of admissions admitted
Category: B
Representation:
Counsel:
Prosecution : Mr B Fiannaca SC & Mr D J Krueger
First Defence : Ms B Lonsdale
Second Defence : Mr J J Scudds & Mr S Scudds
Third Defence : Mr H Sklarz & Mr F Merenda
Fourth Defence : Mr S D Freitag & Ms N Erlandson
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
First Defence : Kate King Legal
Second Defence : Porter Scudds
Third Defence : Sklarz Lawyers
Fourth Defence : Legal Aid (WA)
Case(s) referred to in judgment(s):
The State of Western Australia v Yarran [2014] WASC 1
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
1 CORBOY J: Stephen Gregory Gandy, Christian John Gomis, Jayden Albert Kett and Steven Roberts were each charged that on 15 February 2014, at South Kalgoorlie, they murdered Beau John Davies. Mr Gandy and Mr Roberts were convicted of that charge following trial. Mr Kett and Mr Gomis were acquitted of the charge of murder but were found guilty of the unlawful killing of Mr Davies.
2 The State sought in its case against Mr Gandy to adduce evidence of admissions that he allegedly made to a police officer, Constable Anton, following his arrest. There was no audiovisual recording made of the admissions. Accordingly, evidence of the alleged admissions could not be admitted unless the State proved, on the balance of probabilities, that there was a reasonable excuse for the absence of an audiovisual recording or the court decided to otherwise admit the evidence under s 155 of the Criminal Investigation Act 2006 (WA) (CIA): s 118 CIA. Mr Gandy objected to the evidence of Constable Anton and a voir dire was conducted during the trial.
3 I ruled that the State should be permitted to adduce evidence of the admissions allegedly made by Mr Gandy. These are my reasons for that ruling.
Mr Gandy's arrest and subsequent interviews
4 Mr Davies was killed during the afternoon of Saturday, 15 February 2014. He was killed at his house in Ware Street, South Kalgoorlie. I found for the purpose of sentencing that Mr Gandy and his co-offenders had gone to Mr Davies' house to confront him about money that he owed to Mr Roberts, Mr Kett and Mr Gomis. I further found that Mr Gandy and Mr Roberts assaulted Mr Davies using, at least, a knife and a metal bar. Mr Davies' body was placed in a large bag and taken to Mr Roberts' house. Mr Davies' body was then dismembered by Mr Roberts and placed in a wheelie bin.
5 A person who had been residing at Mr Roberts' house, Ms Kearsley, contacted the police the following morning (16 February 2014). Mr Kett also contacted his former partner that morning and she telephoned the police. Shortly afterwards, Mr Kett surrendered himself to the police.
6 The police went to Mr Roberts' house as a result of the information provided from those sources. Mr Gandy was arrested shortly after 3.00 pm, Sunday 16 February 2014, on suspicion of having committed the offence of doing grievous bodily harm.
7 Detective Sergeant Martin and Detective Senior Constable Balia conducted an electronically recorded interview with Mr Gandy later that afternoon. At the commencement of the interview, Detective Sergeant Martin cautioned Mr Gandy and also advised him of his other rights under the CIA. He confirmed that Mr Gandy had been advised of those rights at the time of his arrest.
8 Mr Gandy informed the interviewing detectives that he was 'very high' on drugs and that he had been consuming drugs for some time (ts 4). He also stated that he had been drinking alcohol. He struggled to provide meaningful information about when he had last consumed methamphetamine and alcohol.
9 The interview contained admissions made by Mr Gandy. However, the State elected not to present evidence of the interview as it accepted that Mr Gandy had been affected by methamphetamine and alcohol at the time that the interview was conducted. The effect of methamphetamine and alcohol intoxication on Mr Gandy was apparent from aspects of his presentation and behaviour during the interview. However, Mr Gandy also stated that he understood what was being said to him by the interviewing detectives and he asked appropriate questions and gave responsive answers at times during his interview. I was satisfied that Mr Gandy had a general understanding of the rights conferred by the CIA prior to and during the interview; in particular, that he understood the meaning and effect of the caution.
10 Mr Gandy was interviewed again by Detective Sergeant Martin and Detective Senior Constable Bowyer on Monday, 17 February 2014, commencing at 6.07 pm. Mr Gandy had been taken to hospital since his first interview to receive medical attention for a swollen hand. He was again cautioned during the course of the interview and indicated on a number of occasions that he did not wish to make any comment. It was not easy to follow the exchanges between Mr Gandy and the interviewing detectives but Mr Gandy confirmed the effect of the caution that had been given to him. Mr Gandy's primary concern appeared to be that he had not understood the advice that he had been given by a lawyer that he had contacted after the first interview and he wanted to speak to a friend or family member.
The statements made to Constable Anton
11 Constable Anton was stationed at the Kalgoorlie Police Station as at 16 February 2014. He spoke to Mr Kett's partner when she telephoned the police station and, shortly afterwards, to Mr Kett. Constable Anton subsequently went to Mr Davies' house to assist in securing a crime scene.
12 Constable Anton was assigned on Monday, 17 February, to guarding Mr Gandy who was being held at the Kalgoorlie Police Station as an arrested suspect. Mr Gandy was asleep in a room at the station when Constable Anton commenced duty. Constable Anton agreed in cross-examination that the room was ordinarily used to interview children (ts 1295).
13 Mr Gandy was awoken at about 11.30 am by Detective Sergeant Martin so that he could be taken to hospital for treatment for his hand. Constable Anton accompanied Detective Sergeant Martin and Mr Gandy to the hospital. They returned to the police station at about 1.30 pm. Constable Anton resumed guarding Mr Gandy at the station until the second interview.
14 Constable Anton made a statement dated 22 February 2014 in which he stated, among other things:
61. During my time with Mr Gandy at the hospital and in the room, he made several comments without being questioned.
62. I recall Mr Gandy saying: 'I bashed that cunt pretty bad'. 'I did the crime, so I should do the time'. 'What happened was tragic but he had it coming to him. He ripped a lot of people off and a lot of people were looking for him.'
63. Mr Gandy also said that 'Jayden' was more involved than people think and that he 'organised the whole thing'.
15 It was the admissions allegedly made by Mr Gandy that were referred to in paragraph 62 of Constable Anton's witness statement that were the subject of the voir dire hearing.
Constable Anton's evidence
16 Constable Anton stated in the hearing that he had not made a contemporaneous note of the statements made to him by Mr Gandy. He subsequently made notes – he thought that most of the notes were made the following evening while he was on guard duty at Mr Roberts' house.
17 Constable Anton said that he could not recall where Mr Gandy had made the statements set out above; that is, whether in the room in which Mr Gandy was being guarded at the Kalgoorlie Police Station or at the hospital. There had been several 'smoke breaks' at the hospital and Constable Anton and Mr Gandy had spoken during those breaks. Constable Anton thought that most of his discussion with Mr Gandy had occurred at the hospital but he could not be certain:
I didn't question Mr Gandy at all while I was with him. I knew I shouldn't be. Detective Sergeant Martin spoke more to Mr Gandy than I did, as being a constable - a uniform constable, a murder is not something that I have anything to do with as far as investigating goes. I don't recall any specific questions being asked by Detective Sergeant Martin to bring those answers back if that makes sense. For instance, the first, that he bashed him, there was no question anywhere similar to 'what did you do', nothing like that. They spoke about having a few other accused in custody and that Detective Sergeant Martin was - was saying if Mr Gandy doesn't tell the investigating officers his involvement, the others have been talking and they won't know from his point of view what he's done, they can only go off what others have said and throughout - throughout the day they spoke about the incident and work and all sorts of sundry things and those - those quotes were brought up by Mr Gandy while talking (ts 1288).
18 When asked why he had not taken 'better notes of what [Mr Gandy] had told [him] on the day', Constable Anton said:
I considered – obviously I considered pulling my notebook out at the time that he said – said the things.
But him and I had decent rapport. We were getting along all right. I - I thought it would be awkward and stop all conversation if I, as soon as he said something that I thought was important, pulled out my notebook, wrote it down and put my notebook back in my pocket (ts 1294).
19 Constable Anton agreed that he did not at any time caution Mr Gandy or remind him of any caution that he may have been given earlier. He also did not say to Mr Gandy, for example, 'Look, you really need to be careful what you say to me because what you say needs to be recorded on video' (ts 1297).
The CIAand the relevant principles
20 Sections 118(3) and 118(4) of the CIAprovide that:
(3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a) the evidence is an audiovisual recording of the admission; or
(b) in the absence of an audiovisual recording of the admission -
(i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii) the court decides otherwise under section 155.
21 Section 118(1) provides that the term 'admission' means 'an admission made by a suspect to a police officer … whether the admission is by spoken words or by acts or otherwise'. The subsection further provides that the expression 'reasonable excuse' for the absence of an audiovisual recording of an admission includes:
(a) the admission was made when it was not practicable to make an audiovisual recording of it;
(b) equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c) the suspect did not consent to an audiovisual recording being made of the admission;
(d) the equipment used to make an audiovisual recording of the admission malfunctioned.
22 Section 115 of the CIAdefines a 'suspect' to mean 'a person suspected of having committed an offence, whether or not he or she has been charged with the offence'. There was no issue that Mr Gandy was an arrested suspect at the time that he made the alleged admissions to Constable Anton
23 Section 155 of the CIA provides that a court may decide to admit evidence notwithstanding a failure to comply with, in this instance, s 118 if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In deciding whether to admit evidence under s 155, the court must take into account:
(a) any objection to the evidence being admitted by the person against whom the evidence may be given;
(b) the seriousness of the offence in respect of which the evidence is relevant;
(c) the seriousness of any contravention of the CIAin obtaining the evidence;
(d) whether any contravention of the CIA in obtaining the evidence was intentional or reckless or arose from an honest and reasonable mistake of fact;
(e) the probative value of the evidence;
(f) any other matter the court thinks fit.
24 Section 155(4) provides that the probative value of the evidence does not, by itself, justify its admission.
25 The definition of 'reasonable excuse' is not in its terms or effect exclusive; that is, there may be a reasonable excuse that does not fall within any of the paragraphs of the definition: Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [55] (McLure P); [147] (Blaxell J). Blaxell J considered in Wright that the word 'practicable' in par (a) of the definition of 'reasonable excuse' required the court to consider the means and resources available to obtain an audiovisual recording. His Honour also considered that factors such as the time available to organise the resources, the expectation that an admission might be made and whether that justified the effort and cost involved in deploying the required resource were relevant.
26 In The State of Western Australia v Yarran [2014] WASC 1, Simmonds J set out a number of principles relevant to the application of s 155:
(a) the factors identified in s 155(3) are both mandatory and exhaustive;
(b) the burden of persuading the court to exercise the discretion under s 155(2) rests on the prosecution;
(c) disputed questions of fact relevant to the application of the factors identified in s 155(3) are to be determined on the balance of probabilities;
(d) questions concerning the fairness and reliability of admitting the evidence are relevant to s 155(3)(a);
(e) the greater the seriousness of the offence the more likely that the court will admit the evidence in its discretion;
(f) conversely, the more serious the contravention of the provisions of the CIA, the more likely it is that the court will exclude the evidence;
(g) the greater the probative value of the evidence, the more likely the evidence will be admitted.
Conclusion
27 Constable Anton's evidence that he and Mr Gandy were either at the Kalgoorlie Hospital or in a room at the Kalgoorlie Police Station when Mr Gandy made the alleged admissions was not disputed. The statements were made after Mr Gandy had been cautioned at the time of his arrest and during his interview with the investigating detectives. I have found that Mr Gandy understood the effect of the caution notwithstanding having been intoxicated by methamphetamine and alcohol. Although the statements were admissions, they were in the form of comments on what had occurred. The statements did not constitute an attempt to provide a factual account of the events for which Mr Gandy had been arrested.
28 I accept Constable Anton's evidence that he did not elicit the statements by questioning or prompting. It was not put to Constable Anton that he had asked Mr Gandy any particular question that had induced the alleged admissions or that he engaged in some particular form of conduct that was intended to elicit an admission. The alleged admissions, if made, were made spontaneously.
29 In my view, the State has proved, on the balance of probabilities, that there was a reasonable excuse for the admissions having not been recorded in an audiovisual form in the circumstances summarised above. It was not practicable to record the admissions in that form given their spontaneous nature and the circumstances in which they were made. There was no reason for the police to have anticipated that Mr Gandy might make admissions while resting in the children's interview room and, obviously, there were no recording facilities at the Kalgoorlie Hospital.
30 I would have decided, had it been necessary, that the State could adduce evidence of the admissions allegedly made by Mr Gandy pursuant to the discretion conferred by s 155 CIA. Self-evidently, the admissions had significant probative value if the jury accepted Constable Anton's evidence as they directly implicated Mr Gandy in the unlawful killing of Mr Davies in circumstances where there was no independent witness who could give evidence of what had occurred at Mr Davies' house. Further, Constable Anton did not deliberately contravene the CIA and any contravention was not so serious as to justify the exclusion of his evidence given its relevance and the seriousness of the charge that had been alleged against Mr Gandy. Constable Anton did not improperly procure the alleged admissions from Mr Gandy; they were made voluntarily.
31 Constable Anton was asked a number of questions about when he made a note of the statements allegedly made by Mr Gandy. Those questions were not relevant to the issue of whether there was a reasonable excuse for the lack of an audiovisual recording. The questions had some relevance to the assessment of the probative value of Constable Anton's evidence for the purpose of s 155. However, Constable Anton's evidence was that he had an independent recollection of the statements having been made. There was nothing inherently unreliable about the evidence that Constable Anton proposed to give or about the admissions allegedly made by Mr Gandy having regard to the subject matter of the admissions or the circumstances in which Mr Gandy spoke to Constable Anton.
2
1