The State of Western Australia v Gandy [No 2] - [2015] WASC 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- GANDY [No 2] [2015] WASC 386

CORAM: CORBOY J

HEARD: 8 & 14 MAY 2015

DELIVERED : 19 MAY 2015

PUBLISHED : 13 OCTOBER 2015

FILE NO/S: INS 334 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
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 arrested suspect was denied a reasonable opportunity to communicate with a lawyer - Whether admissions made voluntarily - Whether admissions were obtained unfairly or improperly - Section 138 of the Criminal Investigation Act 2006 (WA)

Legislation:

Criminal Investigation Act 2006 (WA), s 138, s 154, 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):

Wright v The State of Western Australia [2010] WASCA 199
Collins v The Queen (1980) 31 ALR 257
Ibrahim v The King [1914] AC 599
Pollard v The Queen (1992) 176 CLR 177
R v Lee (1950) 82 CLR 133
R v Swaffield (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
The State of Western Australia v Smith [2010] WASC 279
Tofilau v The Queen (2007) 231 CLR 396
Van der Meer v The Queen (1988) 35 A Crim R 232
Wendo v The Queen (1963) 109 CLR 559

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.
Three interviews were conducted with Mr Gomis following his arrest. Mr Gomis made admissions during the third interview. Accordingly, the State proposed to adduce evidence of the interviews as part of its case against him.
Mr Gomis applied to exclude the evidence (the Application). It was alleged that the detectives who dealt with Mr Gomis had contravened the Criminal Investigation Act2006 (WA) (CIA); further or alternatively, that his admissions had not been made voluntarily or had been unfairly or improperly obtained.
The Application was heard shortly prior to the commencement of the trial. I ruled that evidence of the interviews was admissible. These are my reasons for that ruling.

The arrest of Mr Gomis and his co‑offenders

Mr Davies was killed during the afternoon of Saturday, 15 February 2014. His body was dismembered and placed in a wheelie bin that evening. Mr Kett surrendered himself to the police the following day. Mr Roberts and Mr Gandy were also arrested on 16 February 2014. Mr Gomis was arrested at about 1.00 pm on Tuesday, 18 February 2014.
Detectives first interviewed Mr Kett in the evening of Sunday, 16 February 2014. The interview was concluded at 1.53 am on Monday, 17 February 2014. He was interviewed again that afternoon and also, on 19 February 2014.
Mr Kett implicated Mr Gomis and his co‑offenders in the killing of Mr Davies during his interviews. In particular, he informed detectives that Mr Gomis had been present at Mr Davies' house when Mr Davies had been killed and that, at one point, Mr Gomis had destroyed a hard disk drive from a computer. The hard disk drive contained film recorded by CCTV cameras located on the exterior of Mr Davies' house. It was assumed that Mr Kett and his co-offenders had been filmed as they arrived at, and entered, Mr Davies' house.
Detectives interviewed Mr Gandy on 16 and 17 February and Mr Roberts was interviewed in the evening of 17 February. Mr Roberts declined to participate in the interview. Mr Gandy effectively declined to participate in a recorded interview after considerable discussion with detectives. However, he did make some admissions during his first interview. There was also evidence presented in the trial that Mr Gandy had made some admissions concerning his involvement in the killing of Mr Davies while in custody. Those admissions were alleged to have been made during 17 February. There was no audio‑visual recording of the admissions; they were made to a police officer, Constable Anton, who had been responsible for guarding Mr Gandy. The admissions did not implicate Mr Gomis. However, Mr Gandy admitted that he had assaulted Mr Davies.
The prosecution brief contained two statements that had been provided by Ms Simone Kearsley prior to Mr Gomis' arrest. Ms Kearsley did not know Mr Gomis by name. She referred in her statements to a 'black haired boy' or 'dark haired boy'. However, it was apparent that this was a reference to Mr Gomis. Ms Kearsley's statements implicated Mr Gomis in events preceding and following the killing of Mr Davies.

The interviews

Mr Gomis was first interviewed on the evening of 18 February 2014, commencing at 6.58 pm. The interview was conducted by Detective Butcher and Detective Page. It was suspended at 7.37 pm.
Mr Gomis was again interviewed later that evening. The interview commenced at 10.21 pm and concluded at 11.15 pm. Detective Butcher and Detective Page also conducted that interview.
A third interview commenced at 12.20 am on 19 February. The interview was completed at 3.33 am. Detective Martin and Detective Page conducted the interview. Detective Martin had previously interviewed Mr Gandy. It was common ground that the third interview occurred after Detective Martin and Detective Page had spoken to Mr Gomis. Mr Gomis was attempting to rest in an interview room at the time. The conversations were not recorded.
Detective Martin and Detective Page gave evidence at the hearing of the Application about the circumstances in which the interviews with Mr Gomis were conducted and in particular, their discussions with Mr Gomis prior to the third interview. Mr Gomis also gave evidence and he called a legal practitioner, Brendon James Slattery, as a witness. Mr Slattery had a legal practice in Kalgoorlie in February 2014. He attended the Kalgoorlie Police Station during the evening of 16 February to speak to Mr Gandy.

The grounds for the application

Various allegations were made in submissions filed on behalf of Mr Gomis prior to the hearing of the Application: that Mr Gomis was denied a reasonable opportunity to communicate with a legal practitioner and with a friend or relative; that he was denied his right to silence; that he was misled by the interviewing detectives about the state of the investigation and the information that they had possessed; that the admissions that he had made in the interviews were not made voluntarily and that he had been treated improperly and unfairly.
In particular, it was alleged that:
(a)Mr Gomis had repeatedly told the detectives that he was tired, coming off drugs and was not in the right state of mind to be interviewed;
(b)Mr Gomis had not given a proper opportunity to sleep as he had been kept in an interview room without a pillow or mattress and with the lights in the room left on;
(c)Mr Gomis had exercised his right to communicate with a lawyer at the conclusion of the second interview but, after eleven hours in custody, he had abandoned that right and requested a further interview;
(d)Detective Martin and Detective Page had chosen to speak with Mr Gomis 'off camera' despite recording facilities being available;
(e)there had been no reason for the detectives to conduct the third interview late at night rather than wait for Mr Gomis to obtain legal advice in the morning;
(f)the detectives had falsely led Mr Gomis to believe in the first interview that his co-offenders had implicated him in the 'actual murder' of Mr Davies;
(g)the detectives had made statements to Mr Gomis in the first interview to the effect that he could be held in custody for a long time; that he was not free to leave; that the sooner he made a statement, the sooner he could be transferred to a cell where he could get some sleep or the detectives could consider whether to release him; that how long he would be held in custody would depend on 'whether he told the police a story'; that he would not be able to get a lawyer late at night; that a lawyer would not come to the police station; that a private lawyer would charge for advice; that a lawyer could not help him without further information; and that the detectives could not wait until the morning for Mr Gomis to participate in a further interview;
(h)Detective Martin had told Mr Gomis 'off camera' that Mr Gomis was a suspect in the murder of Mr Davies; that the sooner he made a statement, the sooner the detectives could consider whether to release him; that Mr Gandy and Mr Roberts had said that Mr Gomis had committed the murder; that the detectives would have to consider whether to charge Mr Gomis without the benefit of his account; that Mr Gomis 'was looking at 20 years' unless the detectives knew what had happened; that the detectives had extended his custody so that they could 'hold him for as long as it took'; that a lawyer could not help him; that a lawyer could not help him without knowing what the case was about; that the detectives were not going to wait until the morning so that Mr Gomis could communicate with a lawyer;
(i)the detectives had applied pressure to Mr Gomis to have him participate in an interview and to stop him from communicating with a lawyer and exercising his right to silence; and
(j)the detectives' conduct had been unfair and had frustrated Mr Gomis' right to communicate with a lawyer and/or his family and infringed his right to silence.

The first interview

Mr Gomis gave evidence that he had been cautioned at the time of his arrest shortly after 1.00 pm on 18 February. He was again cautioned at the commencement of the first interview and he was informed of his rights as an arrested suspect under s 137 and s 138 CIA. Mr Gomis confirmed that, although he had taken drugs recently, the effects had 'worn off' and he was 'not high' (ts 3). Mr Gomis stated in the Application hearing that he had understood the effect of the caution (ts 167). He also accepted that he had understood why there might be limitations on who he could contact while he was held in custody (ts 169).
Mr Gomis was particularly anxious to be informed about two matters in the first interview: the arrangements that might be made for him to obtain legal advice and his status as an arrested suspect. It appears that Mr Gomis thought that the detectives were obliged to organise legal representation for him. However, he was informed that arrangements would be made to enable him to call a lawyer of his choice and that the detectives could not advise him about who to contact. Mr Gomis indicated that he would require legal aid as he was unable to afford a 'private' lawyer.
Mr Gomis also indicated that he felt too tired to participate in an interview at that time. It was explained that he could not be placed in a cell to sleep as he had not been charged but he could rest in the interview room. Mr Gomis stated that he wished to rest before speaking to a lawyer. Detective Butcher warned him that it might become more difficult to contact a lawyer later in the night.
As to the allegations made in Mr Gomis' submissions about the first interview:
(a)Mr Gomis was not told that his co-offenders had implicated him in the 'actual murder' of Mr Davies. Mr Gomis stated that he did not feel in the right state of mind to answer questions. Detective Page responded by advising that the interview was an opportunity for him to give his account of what had occurred so that 'we can make our decisions based on your account'. Detective Page continued:
The, the trouble with this is is, we believe there is quite a few people involved, okay, and that have knowledge of what's going on and that. Now we have spoken to, what I believe is most of them. Um, I am not saying all because I don't know the full story and I wasn't there, okay. And as a result of our inquiries we are speaking to you. Um, but at the moment we have got other people's accounts, and we have forensic examinations going on to -
We can only base ours on that. People say things. People lie. Lots of different things. And I understand that. So, this is, this is really, you know, to give you an opportunity to say if you do know something to tell us (ts 15).
(b)Mr Gomis asked how long he could be held in custody without being charged. He was told that he could be held for six hours and that extensions could be obtained from a magistrate, provided that there were reasonable grounds for continuing to detain him. Multiple extensions could be granted so that it was possible that Mr Gomis could be held for 'a long time' (ts 16). He was also advised that he was being held in custody so that he was not free to leave (Mr Gomis replied that he understood that this was so) (ts 17).
(c)Mr Gomis stated that he wanted to obtain legal advice, but he did not know for how long he would be held in custody. Detective Page replied:
All right. And like I said, I can't give you a, a definitive time frame. Um, um, I guess we have to base it on our inquiries. And it's based on whether you talk to us and tell us a story, you know, or tell us your, sorry, I shouldn't say, tell us, you, you, you could give us a, um, an account, and then we can look at things. Um, if you want to go to sleep, if you, you know, depending on how long that is, we, we will owe - you know obviously it's going to take longer. Um, if it's the case you want to speak to us later on, you know what I mean, like - - - (ts 18).
(d)Mr Gomis was told that a private lawyer would charge (although, at later point he was told that it was not likely that a lawyer would charge before giving advice). He was informed that it would assist if his lawyer had an idea of the 'basic allegation' made against him. Detective Page also stated that, based on his experience, it was unlikely that a lawyer would come to the police station.
(e)At one point, Mr Gomis asked, 'What's the quickest way for me to get out of her?' Detective Page replied:
It doesn't, it doesn't work like that. It, I can't promise you there is a way to get out of here. You may get charged at the end of this. I mean at the end of the day you might speak to your lawyer, he might s [sic] - your lawyer might say don't speak to them, okay. We need to make a decision based on evidence, um, verbal, oral, people's testimonies, and physical evidence ‑ ‑ ‑
From there, and we make a decision. And it might be a case that, you know, we say to you, you are charged. I don't know. You might decide to - you want to speak to us, tell us certain things, um, because there is defences and, um, legal justification for certain things. That's not my choice and that. It's legislated that if such and such happens, ah, there is defences to things and that becomes a, so that removes any kind of, it changes the situation. But at the moment we have to base our decisions on what we know, and what we have been told. If there are certain things raised, like I say defences or justification and that, then we take that into account. And then sometimes that, you know, if something happens, there is reasons why. So we, I can't tell you (ts 24).
Mr Gomis responded by stating, 'I know what you are saying. I understand what you are saying'.
In my view, the statements made by Detective Page during the interview were not misleading or improper. His comments about obtaining legal advice accorded with common experience and were in response to questions put by Mr Gomis. It was not unfair or improper to suggest that it was in Mr Gomis' interests to provide his version of what had occurred or to explain that the detectives would be better placed to decide whether he was to be charged or released if he co-operated by giving his account of the relevant events.

The second interview

The second interview commenced with Mr Gomis confirming what had occurred since the first interview had concluded. An attempt had been made to contact the Kalgoorlie office of Legal Aid Western Australia. However, the office was closed. Mr Gomis had been given the telephone numbers of other lawyers; he had not attempted to contact another lawyer as he considered that he could not pay for their advice.
The detectives asked Mr Gomis some general questions about his possible involvement in the killing of Mr Davies. Mr Gomis' initial response suggested that he had not been involved. There was an exchange as to why he was not willing to participate in an interview if he had not been involved in Mr Davies' death. Mr Gomis indicated that he might be willing to be further interviewed in the morning, after he had spoken to a lawyer from Legal Aid.
At that point, the thrust of the questioning changed. Mr Gomis was advised that the detectives had spoken to a number of people and had obtained 'a lot of information' (ts 13). It was suggested that they knew who was present when Mr Davies was killed; that the detectives did not think that Mr Gomis had killed Mr Davies, but that he knew who had and that they believed that he had 'played some part at the start' and 'some part at the end' (ts 13). He was told that Mr Roberts and Mr Gandy had been charged with the murder of Mr Davies and that the detectives wished to clarify Mr Gomis' role as they believed that he had been present when Mr Davies had been killed.
Mr Gomis indicated that he would not make any comment at that time, although he added 'it doesn't mean that I won't later' (ts 16). He advised that he had still not slept well, that his state of mind was not good and he had not spoken to a lawyer.
The detectives persisted in attempting to persuade Mr Gomis to participate in an interview. The gist of the discussion between the detectives and Mr Gomis towards the end of the second interview was captured in the following exchanges:
Detective Page: Christian, it's not a case of whether you'll get away with it scot free. You understand that. You're in the shit. It just depends how deep it is. You know that. I'm not bullshitting you. You know that. Someone's died, mate.
Mr Gomis: Someone's died or someone got murdered?
Detective Page: Someone's been murdered.
Mr Gomis: I understand what you're saying.
Detective Page: You know exactly what's happened. You know exactly what's happened, mate. You know what is left behind. The police were there not long after you left. People, you walked past people as you left with a bag over your shoulder. Yeah. Shortly after the police came, so what was there when you left was still there in Hamilton Street.
Mr Gomis: Shortly after the police came?
Detective Page: Shortly after you left, the police turned up.
Mr Gomis: I understand what you're saying.
Detective Page: So not a lot changed. The bin's still there. The body's still there. The house in Ware Street didn't burn down. It's still there, not burnt at all. Everything insides still there.
Mr Gomis: I understand what you're saying (ts 24 ‑ 25).
Detective Page reiterated that he knew that Mr Gomis had been at Mr Davies' house and urged him to immediately contact a lawyer. The following exchange then occurred:
Mr Gomis: Would you blame me for wanting to wait to speak to a lawyer in the morning?
Detective Page: Mate, I, I wouldn't but I think we should ring and make phone calls. You should try and if that's what you wanna do, I'll get you a phone now and ring them now. Because I told you, worst case, based on that, worst case, and I'm not saying this is gunna happen, but you've been charged with the murder and you go down and you go into the lock up and then you're sitting in court. Well, what is a lawyer gunna do there? You're sitting in custody and charged. From - if you get charged with murder, the, the local courts here, the Magistrates Court can't deal with it. They send it up to the Supreme Court.
Mr Gomis: I understand.
Detective Page: Straight away. So I'm trying to avoid you being in this situation so if you want to speak to a lawyer, speak to one. Make some phone calls, mate.
Mr Gomis: What, well, do you think I'll [indistinct] gunna to achieve like calling a lawyer at this time of night? You were saying earlier it was too late.
Detective Page: That's not the point. No, it's not too late. It, it, it's easier to get them when its earlier. They're gunna be - it's 11 o'clock at night.
Detective Butcher: You'll still be able to get advice over the phone.
Detective Page: You still get advice. You'll still gunna speak to them, mate.
Mr Gomis: I just don't, I feel like I over the phone [portion of audio recording indistinct] I probably want someone here.
Detective Page: They're not gunna come and see you. I told you, the amount of times I could count on my hand - - -
Mr Gomis: They won't even come tomorrow?
Detective Page: Tomorrow where?
Mr Gomis: Tomorrow day time? I won't be able to get a lawyer out here, is that what you're saying?
Detective Page: I can't say categorically, I'm just saying it happens very, very rarely that they actually come in, you know what I mean. You, you can try. Why don't you - I'm not saying you can't. But you know as well as I do what the lawyer will say. And then you're in the exact same situation.
Mr Gomis: I don't actually know what the lawyer will say.
Detective Page: Once we turn these tapes off, mate, we may not turn them back on (ts 25 - 26).

Following a further discussion, Detective Page again urged Mr Gomis to contact a lawyer at that time. He stated, 'Speak to a lawyer. Move forward. Sort this out'. Mr Gomis responded by asking whether Detective Page was saying that he should call a lawyer now and see if the lawyer would talk to him in person tomorrow:
Detective Page: Speak to 'em on the phone and ask them at least. My point is you're not even trying to ask them. You're not interested in asking them but you're saying, yeh, I want a lawyer.
Mr Gomis: No, no, no, well, I definitely am interested in askin' 'em but you did say earlier today that a lawyer isn't gonna come out at this time of night. That's the impression I got.
Detective Page: I didn't say, I said, you can try and you haven't even tried. You haven't even spoken to them and made an appointment with them to come and see you tomorrow or, to see if they're available tomorrow, you know. That, and you're trying to make me think you're trying to sort this out and - - -
Mr Gomis: Yeh, yeh.
Detective Page: But you're not (ts 24).
The interview concluded with Detective Page saying:
Well, we'll get you a list of numbers, mate, and you can start at the top and work your way down. I, I don't care, you know. If you want to speak to someone, speak to them, see what they say, ask them if they'll come in. If they won't, ask them if they'll come in tomorrow (ts 30).
Mr Gomis stated that he was happy with that proposal.
It is apparent that Detective Page had become frustrated by this time with Mr Gomis' reluctance to contact a lawyer. However, the interview was concluded on the basis that Mr Gomis would speak to a lawyer in the morning and he could then decide whether he wished to participate in another interview. Mr Gomis was not pressed to give further details about his possible involvement in the killing of Mr Davies. Rather, Detective Page made it clear that the detectives possessed information that implicated Mr Gomis and that he should make a decision about providing a statement in that light. The information conveyed by Detective Page was not misleading having regard to the statements that had been made by Mr Kett and Ms Kearsley and by other witnesses such as Mr Lane (who saw a person matching Mr Gomis' description leaving Mr Roberts' house at lunchtime on Sunday, 16 February and who had provided a statement to the police by 18 February).

The conversations between the interviews

Mr Gomis stated in his evidence in the Application that he had been coming off drugs at the time of his arrest and that he had not sleep for some time. He felt exhausted and a little confused. He wanted to speak to a lawyer but:
I was told I had a right to a lawyer then every time I asked to speak to a lawyer, I was told things like I would need more information. I was also told I could speak to Legal Aid …
I was told a private lawyer would need money and I had made it clear to the police that I didn't have any money (ts 152).
Mr Gomis said that he was given the telephone numbers for some lawyers after the first interview had been terminated. He called the Kalgoorlie office of Legal Aid but the office was closed. He did not attempt to contact another lawyer as he could not afford to pay.
Mr Gomis stated that Detective Page had entered the interview room and spoken to him after the second interview. He had said that the police could apply to hold him in custody until he made a statement. He had also said that a lawyer would not come to the police station. Mr Gomis endeavoured to explain that he was exhausted.
Detective Martin had then entered the room and there was a discussion in which Detective Martin said that Mr Gandy and Mr Roberts had implicated Mr Gomis in the murder of Mr Davies. Detective Martin suggested that 'the sooner I were to make a statement the sooner he would be able to help me basically with my safety and also the safety of my family… also upon the decision of them charging me and/or releasing me' (ts 155). Mr Gomis decided to participate in a further interview following the discussion with Detective Martin.
Mr Gomis concluded his evidence-in-chief by explaining why he had decided to participate in the third interview when he had not spoken to a lawyer:
Mr Gomis:Well, I - I figured I'd been told that I couldn't get a lawyer at that time of night, a lawyer wouldn't come to see me, I had no money for a private lawyer. I was tired. I needed to go to sleep. I was just absolutely exhausted. I was also, like I say, in fear of my life and I felt like the police would offer me some assistance there because I didn't know what to do. I felt isolated in Kalgoorlie, I didn't know anyone, and the circumstances that had - that had happened prior, I was in fear.
Mr Scudds:Could I ask you this question? Why did you give up on refusing to talk to them?---Because I felt like I had no hope of speaking to a lawyer. I'd basically given up.
Mr Scudds: And do what - when you say you - you - we've heard evidence you decided to talk to them, what are - what was some of the other reasons why you decided to talk to them?
…
Mr Scudds:Can you tell us the reasons?---Well, I was told that the two Stevens had implicated me in a murder and the sooner I gave them a statement the sooner I'd either be free to go or they could decide to charge me.
Who told you that?---Both of the detectives, Page and Martin.
What else?---I was in fear of my family - family safety and also my safety.
Can I ask you this question? Did - did you believe you had a choice about giving a statement?---Well, they'd asked me a number of times if I wanted to exercise my rights and every time I asked for legal representation I'd been - it sort of - they just kept on talking and talking and I - I felt like I had - well I'd given up hope. I had no chance of getting any legal advice. I was just - I was stuck in Kalgoorlie, I had no one to - I couldn't call my family, I couldn't call a lawyer. I'd just given up hope on legal advice altogether (ts 156 - 157).
Detective Martin' evidence in the Application was to the following effect. He had entered the interview room after the second interview had concluded and inquired whether Mr Gomis wanted something to eat or drink. Mr Gomis asked 'what was going on with the other persons - the other person of interest in relation to the investigation' (ts 127). Detective Martin explained that he was not in charge of the investigation, but that he knew that Mr Gandy and Mr Roberts had been or were going to be charged and that Mr Kett had been released, at that point in time, without being charged. Mr Gomis asked what was to happen to him and indicated that he did not know whether he should speak with the police so as to tell his side of the story. Detective Martin explained that Mr Gomis did not have to participate in an interview if he did not wish and he could seek legal advice. However, Mr Gomis said shortly afterwards that he wanted to participate in an interview and that he would like Detective Martin to sit in. Detective Martin then informed Detective Page of what he had been told by Mr Gomis.
Detective Martin denied that he had said that Mr Gandy and Mr Roberts had implicated Mr Gomis in the murder of Mr Davies. He had not discussed the circumstances of Mr Davies' death with Mr Gomis 'off camera'. He also denied that he had told Mr Gomis that a lawyer could not help him; that he would not be able to get a lawyer late at night; that a lawyer could not help him without knowing about the case or that he, and Detective Page, were not willing to wait until the morning to conduct a further interview. Detective Page also denied in his evidence in the Application that he had made any of those statements between the second and third interviews to Mr Gomis.
Detective Page stated that Detective Martin had advised him that Mr Gomis wanted to speak further to the detectives. Detective Page then provided Mr Gomis with a list of lawyers and contact numbers as that was a reason why the second interview had been terminated. He told Mr Gomis there was 'not a lot of point' to conducting a further interview until he had contacted a lawyer. He handed Mr Gomis mobile phone, but Mr Gomis stated, 'No, no, I don't need to call a lawyer. I'm - I'm happy to - to tell you what happened' (ts 83). He stated that he wanted Detective Martin to be present during the interview.
Much of the cross‑examination of Detective Page was directed to whether he had given Mr Gomis a reaonable opportunity to communicate with a lawyer. Detective Page insisted that Mr Gomis had been given the names and contact details for lawyers, including the Legal Aid office in Kalgoorlie. However, Mr Gomis had not attempted to telephone a lawyer, apart from Legal Aid. Detective Page had been frustrated by Mr Gomis' inaction in circumstances where Mr Gomis had said that he wished to speak to a lawyer before deciding whether to participate in further interviews. Detective Page thought that Mr Gomis wanted a lawyer to sit in on any interview. However, that was something that had only rarely occurred in his experience.

The third interview

The third interview commenced with Mr Gomis stating that he had spoken to Detective Martin after the second interview 'in regards to my position in making a statement' (ts 2). The following exchange occurred:
Detective Page: Okay. Did he, um, in that time, did he ask you did you do this, and ask you, you know, particular questions about that, or was it about the circumstances in general, yeah?
Mr Gomis: Yeah, the circumstances - - -
Detective Page: Okay.
Mr Gomis: Of, um, other people, and the implications.
Detective Page: Okay. Was it, in that time was there any threats, promises or inducements made? Were you, did you feel that you were under pressure, or someone's trying to, I don't know, manipulate anything, or did - - -
Mr Gomis: No, no threats or promises, no.
…
Detective Page: So, so in that time you spoke to, um, Detective Martin, and just about the predicament you're in more than actually speaking about what happened, and who did what and [indistinct].
Mr Gomis: Oh, the predicament I'm in, and also I just wanted to clarify, um, the, the position [of] the other people that are involved as well (ts 2 ‑ 3).
Mr Gomis indicated that he wanted to say something further about the death of Mr Davies. However, he wished to ask a question before he made a statement:
Mr Gomis: Um, ah, and the other people involved, that have been, people that have made, um, confessions or statements against themselves, is that right?
Detective Page: There's people who have said things that have incriminated yourself, and in fairness to them, the same as if you were here, and someone else [asked] me, what did you say? I'm not going to tell him. Now, I'm sure you wouldn't want me to tell people what you said. Um, so I can't go into details. The same reason we're speaking to you, like, I wouldn't do that to you. I can't tell you exactly what they said, but I can tell you that people have made certain, um, have implicated themselves (ts 4).
Mr Gomis then provided an account of his involvement in the killing of Mr Davies that contained a number of admissions. It is not necessary to recount the details of those admissions. It is sufficient to note that the State accepted the truthfulness and reliability of a number of the statements made by Mr Gomis in his third interview. In particular, the State accepted that Mr Gomis had not inflicted any injury to Mr Davies and that he was criminally responsible for his act in aiding his co‑offenders by destroying a computer hard drive that may have contained CCTV film showing their arrival at Mr Davies' house prior to Mr Davies being killed.

The Criminal Investigation Act

Section 137(3)(c) CIA provides that an arrested person is entitled to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts.
Section 138(2) provides that an arrested suspect is entitled:
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect; and
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner.
Section 138(3) specifies that:
The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect -
(a)inform the suspect of his or her rights under s 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under s 137 and subsection (2).
Section 154(2) CIA provides that:
If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -
(c)the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155.
Section 155(1) states that s 155 applies if, under another section of the Act, a court may make a decision in relation to evidence that is not admissible in proceedings in the court. Section 155(2) provides that the court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. Section 155(3) specifies various matters that the court must take into account in making a decision under subsection (2). Section 155(4) provides that the probative value of the evidence does not, by itself, justify its admission.
It will be seen that s 154 is predicated on a purported exercise of power under the CIA - the thing relevant to the offence must be seized or obtained through or by the purported exercise of a power conferred by the CIA. So, for example, in Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1, it was alleged that an interview between the appellant and police officers and an audio-visual record of the interview had been obtained in breach of s 138 CIA while the appellant had been detained as an 'arrested suspect' - that is, as someone who had been detained pursuant to the power conferred by s 139(2)(c) CIA. McLure P concluded that the word 'material' for the purpose of the definition in s 5 of the expression 'thing relevant to an offence' was sufficiently wide to include information provided or statements made by a person in response to questions asked by a police officer [18]. Accordingly, the appellant's interview with the police and the audio-visual record of the interview were things relevant to the offence for the purpose of s 154(2) that had been obtained in the purported exercise of a power conferred by the CIA (the power to detain an arrested suspect under s 139(2)).
McLure P noted that s 138(2) and s 138(3) were interrelated. Subsection (2) identified the arrested suspect's rights and subsection (3) identified upon whom the duty fell, the scope of the duty and when the duty (to confer the rights) had to be exercised. Her Honour observed:
The proper construction of s 138(2)(c) is not without difficulty. What is relatively clear is that it is not the source of any duty imposed on police. Section 138(3)(a) is the source of the duty on police. The two provisions have to be read together to determine the scope of the duty on police in relation to a suspect's right under s 138(2)(c). The only express duty on police is to inform the suspect of his right to communicate with a lawyer. That is to be contrasted with the obligation of the officer in charge under s 138(3)(b) which is to afford the suspect his or her other rights under s 137 and subs (2). The word 'inform' means tell and the word 'afford' means supply or furnish. The word 'other' can only mean other than the provisions expressly referred to in s 138(3)(a), which includes s 138(2)(c). Accordingly, the officer in charge is under a duty to caution the suspect or if the suspect is unable to understand or communicate in English, to provide an interpreter. The only obligation of the officer in charge in relation to s 138(2)(c) is to inform the suspect of his entitlement to a reasonable opportunity to communicate with a legal practitioner. However, what is a reasonable opportunity will depend on all the circumstances, including the suspect's access to the means to communicate. Thus there is every practical incentive on police to permit access to the means necessary to facilitate communication.
Although the officer in charge is not obliged to supply or furnish an arrested suspect with any facilities (for example, a telephone or a telephone directory) which are reasonably necessary for the suspect to take advantage of his or her entitlement under s 138(2)(c) (namely, a reasonable opportunity to communicate or attempt to communicate with a legal practitioner), police must not by any act or omission prevent the suspect's exercise of that entitlement [29] ‑ [30]. (original emphasis)
McLure P further observed that once a police officer had discharged the duty of informing a suspect of his or her right to communicate with a lawyer, the onus was effectively cast on the suspect to exercise the right if he or she so desired. There was no duty on the police officer to cease questioning the suspect.
What is 'as soon as practicable after arrest' and what constitutes a 'reasonable opportunity' are matters of fact to be determined in the circumstances of each case. The reasonableness of an opportunity to communicate with a legal practitioner (and with a friend or relative) will be assessed from the time the suspect was informed of his or her right to communicate. However, it is a matter for the suspect as to whether he or she wishes to exercise the right. Accordingly, what is a reasonable opportunity will depend upon the suspect's attitude about communicating with a lawyer (or with a friend or relative).
In my view, the principles identified by McLure P (with whom Buss JA agreed) in Wright can be summarised as follows:
(a)section 154 and s 155 apply to s 137 and s 138 of the CIA;
(b)section 138(2) is to be read with s 138(3);
(c)accordingly, s 138(2)(c):
(i)is to be read with s 138(3)(a) - the obligation imposed by s 138(3)(a) is to inform (the obligation to afford imposed by s 138(3)(b) is in respect of the rights referred to in s 138(2)(a), s 138(2)(b) and s 138(2)(d));
(ii)does not impose an obligation on a police officer to provide an arrested suspect with any facilities (for example, a telephone or telephone directory) which are reasonably necessary for the suspect to take advantage of the entitlement;
(iii)however, a police officer must not by any act or omission prevent the suspect from exercising his or her entitlement;
(iv)what is a reasonable opportunity will depend on the circumstances - however, what is a reasonable opportunity will be assessed from the time that the suspect was informed of his or her right to communicate with a lawyer; and
(v)once a police officer has discharged the duty of informing an arrested suspect of his or her right to communicate with a lawyer, the onus is effectively cast on the suspect to exercise the right if he or she so desires; there is no duty on the police to cease questioning the suspect.

The opportunity for Mr Gomis to communicate with a lawyer

Mr Gomis stated in his evidence in the Application that he was first told of his entitlement to be given a reasonable opportunity to contact a lawyer when he was arrested at Mr Riddell's house (ts 151). He said that he had informed the arresting officer that he would like to call a family member and contact a lawyer, but he was told to wait. There may have been some suggestion in that evidence, and the submissions made on behalf of Mr Gomis, that the statement by the arresting officer that Mr Gomis had to wait was part of a course of conduct that was intended to, or did, deny Mr Gomis a reasonable opportunity to contact a lawyer. However, Mr Gomis indicated in the first interview that he had not exercised the right to make a call even though he had been at the station for some hours. Further, it was apparent from the questions that he asked in the interview that Mr Gomis had not wished to exercise his right to contact a lawyer immediately following his arrest. Rather, he wanted to know more about the right.
Mr Gomis was cautioned and advised of his rights under s 137 and s 138 CIA at the commencement of the first interview. He indicated that he would 'probably' like to speak to a lawyer, and initiated a discussion about the extent of his entitlement. He made it clear in the course of that discussion that he did not have funds to pay for a lawyer and, therefore, wanted to contact Legal Aid. The interview concluded on the basis that Mr Gomis would be given an opportunity to rest and to contact a lawyer.
It was apparent from the second interview that an attempt had been made to contact the Kalgoorlie office of Legal Aid. The office was closed and Mr Gomis had been given an opportunity to contact other lawyers but he had declined because of his concern about the cost. Mr Gomis confirmed those matters in his evidence in the Application.

Conclusion

There was considerable discussion, mostly recorded, between Mr Gomis and the investigating detectives prior to the third interview about Mr Gomis' right to communicate with a lawyer. I have reproduced in some detail excerpts from the transcripts of the interviews and the evidence that was given in the hearing of the Application in an attempt to convey the flavour of those discussions. Inevitably, they were not neatly organised around particular topics. It has been necessary to follow the twists and turns in the discussions to assess each of the allegations that were made by Mr Gomis - whether he was, in effect, denied a reasonable opportunity to communicate with a lawyer or with someone else; whether his will was overborne or whether the admissions that he made were unfairly or improperly obtained.
It is clear that Mr Gomis was informed of his right to communicate or attempt to communicate with a legal practitioner. It appears that, at least in the first interview, Mr Gomis thought that the detectives or 'the government' were obliged to provide him with a solicitor. I agree with the observation made by Detective Page that Mr Gomis apparently also thought that, as a matter of ordinary procedure, a solicitor would attend the police station to sit in the interviews with him. The detectives correctly informed Mr Gomis of the extent of their obligation. They also facilitated Mr Gomis exercising the right to communicate with a lawyer, if he chose, by providing him with a phone book and a list of telephone numbers for lawyers, including the telephone number for the Kalgoorlie office of Legal Aid. Mr Gomis made one phone call to that office but then chose not to call any other lawyer as he was concerned about the cost of obtaining advice. The fact that Mr Gomis was unable to afford 'private' advice did not cast any further obligation on the police.
I have carefully considered the manner in which the detectives continued to question Mr Gomis in the second interview when it became apparent that he wanted to speak to a lawyer at Legal Aid in the morning. I do not consider that they denied Mr Gomis a reasonable opportunity to communicate with a lawyer or that they behaved in an improper or oppressive manner by continuing to question him. As Detective Page observed in the interview, there had been a long period after Mr Gomis had been detained at the Kalgoorlie Police Station as an arrested suspect in which he could have contacted a lawyer. The first interview had been terminated so that Mr Gomis could speak to a lawyer but only one phone call had been made. The questioning in the second interview was intended to persuade Mr Gomis that it was in his interests to co-operate with the police by participating in an interview in which he could explain his knowledge of, and possible involvement, in the killing of Mr Davies. However, the interview concluded so that Mr Gomis could obtain legal advice if he wished. I accept Detective Page's evidence in the Application that he was frustrated by Mr Gomis' failure to contact a lawyer. That is borne out by the second interview in which Detective Page, effectively, implored Mr Gomis to attempt to speak to a lawyer.
There is no doubt that Detective Page wanted to complete interviewing Mr Gomis that night if possible. That was understandable given the seriousness of matters that were under investigation and the stage that the investigation had reached. However, the second interview concluded with Detective Page accepting that Mr Gomis was entitled to speak to a lawyer and that he would not do so until the next morning.
There was a conflict in the evidence between Detectives Page and Martin, on the one hand and Mr Gomis, on the other hand, about what occurred in interval between the second and the third interviews. It was difficult to reconcile Mr Gomis' evidence about what he alleged had occurred with the statements that he made in the third interview. He agreed in the interview that no threats or promises had been made and he did not refer to any further discussion about obtaining legal advice when he explained why he had indicated to Detective Martin that he had requested a further interview (it should be noted that Detective Martin's evidence that Mr Gomis had requested the interview was not disputed).
Mr Gomis had asked many questions about his rights and his position in the first and second interviews. He was polite but not unduly acquiescent. He indicated where he understood what was being put to him by the detectives and sought clarification when he was uncertain. He had a slightly flat, detached affect in all of the interviews that may have reflected his tiredness. However, his questioning was logical and his answers to questions were always responsive. He gave a detailed account of his involvement in the killing of Mr Davies in the third interview that was entirely coherent (he relied on that account at trial; he did not give evidence and he did not suggest that his account was untrue or that his admissions had been made involuntarily).
Having watched the interviews more than once and having repeatedly read the transcripts, I have concluded that Mr Gomis would have referred to any further discussion about obtaining legal advice at the commencement of the third interview if such a discussion had occurred. I am satisfied that the detectives did not prevent Mr Gomis from exercising his right to communicate with a lawyer, either in the interviews or by anything that they did or said 'off camera' between the second and third interviews.
That conclusion is, in my view, supported by what occurred with Mr Gandy. It was not in issue that the detectives had facilitated Mr Gandy contacting a solicitor. Mr Slattery had attended the Kalgoorlie police station for that purpose. The detectives had not continued to interview Mr Gandy once he had indicated that he wished to communicate with a lawyer. It is not immediately apparent why they would have adopted a different approach with Mr Gomis. Mr Kett had told the detectives that Mr Gandy and Mr Roberts had, together, killed Mr Davies. Mr Kett had not implicated Mr Gomis in the actual killing of Mr Davies. Ms Kearsley had made a number of incriminating accusations about Mr Gandy and Mr Roberts and had sought to downplay, or explain away, the involvement of Mr Kett and Mr Gomis. The incentive to obstruct Mr Gandy's right to communicate with a lawyer was, it would seem, far greater than for any dealings with Mr Gomis.
It was suggested in the cross‑examination of Detective Page that a decision had been made to release Mr Gomis if he did not participate in a further interview because of a lack of evidence to charge him. There was a note to that effect in the police operational records. However, Detective Page gave evidence that he was unaware of such a decision having been made. It is difficult to understand how a decision to that effect could have been made given the statements that had been obtained from Mr Kett and Ms Kearsley. The allegations put by Detective Page to Mr Gomis in the first and second interviews were consistent with the information that had been acquired by the investigating detectives at that point in time. The information provided a reasonable basis for suspecting, at least, that Mr Gomis had aided in the murder of Mr Davies or was an accessory after the fact of his murder.
I am not satisfied that Detective Martin and Detective Page deliberately communicated with Mr Gandy following the second interview in an attempt to induce him to participate in a further interview out of desperation to gather additional evidence or that they denied Mr Gomis a reasonable opportunity to communicate with a lawyer or sought to undermine his right to silence for that purpose.
It is necessary to make two further points. First, there was no evidence that Mr Gomis was denied an opportunity to contact either his parents or another family member.
Second, I am not satisfied that either Detective Martin or Detective Page told Mr Gomis that they were not prepared to wait until the morning for legal advice to be obtained. Again, I consider that Mr Gomis would have made some reference to that statement in the third interview if it had been made and it had precipitated his request for the interview to be conducted. Two questions would have arisen had I found that such a statement had been made: whether the statement constituted a denial of a reasonable opportunity for Mr Gomis to communicate with a lawyer in all of the circumstances that had occurred and, if so, whether the discretion to nevertheless admit the admissions made by Mr Gomis in the third interview ought to have been exercised under s 155 CIA. However, it is not necessary to further consider those questions, or the application of s 155 generally, given the findings that I have made.

Voluntariness

An admission made by an accused person out of court is not admissible in evidence unless it was made voluntarily. The word 'voluntary' and the relevant connection does not mean 'volunteered'. It means 'made in the exercise of a free choice to speak or be silent': R v Lee (1950) 82 CLR 133, 149. Lord Sumner observed in Ibrahim v The King [1914] AC 599:
The rule which excludes evidence of statements made by a prisoner, when they are induced by hope held out, or fear inspired, by a person in authority, is a rule of policy. A confession forced from the mind by the flattery of hope or the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it. It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it in the due administration of justice (610 ‑ 611).
Brennan CJ cited that passage in R v Swaffield (1998) 192 CLR 159, and continued, '[a]lthough unreliability has remained the raison d'etre of this rule of exclusion, the nature and effect of the inducement became the touchstone of its application (168). Similarly, it was said in Lee that the rules by which voluntariness was to be determined were:
(1) [A] statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure; and (2) that such a statement is not voluntary if it preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed (144).
The question of voluntariness is to be considered by reference to the effect of police conduct in all the circumstances on the will of the accused person; it is not to be assessed by the propriety or otherwise of the conduct. The propriety of police conduct goes to the discretion to exclude a statement that was made voluntarily.
The rules relevant to determining the voluntariness of a confession must be applied according to the age, background and psychological condition of the accused person and the circumstances in which the confession was made. Voluntariness is not to be determined by reference to some hypothetical standard; it requires a careful assessment of the effect of the actual circumstances of the case upon the will of the particular accused: Collins v The Queen (1980) 31 ALR 257, 307 (Brennan CJ).
The court does not attempt to determine the reliability of a confession allegedly made involuntarily when considering an objection to admissibility. Rather, it assesses the nature and effect of any inducement to make the confession in order to determine whether the confession was made because the will of the accused person was overborne by the conduct of a person or persons in authority: Swaffield [13] (Brennan CJ). In Tofilau v The Queen (2007) 231 CLR 396, Gummow and Hayne JJ observed:
Confessions made to someone now known or believed to be person in authority will thus fall to be considered under the test of basal voluntariness. Basal voluntariness is concerned with confessions made under compulsion. The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or remain silent. In this context, 'overborne' should be understood in the sense described by Dixon J as 'the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure'. It is necessary to focus upon the sufficiency of the compulsion.
The onus rests on the prosecution to establish, on the balance of probabilities, that a confession was made voluntarily: Wendo v The Queen (1963) 109 CLR 559.

Conclusion

The explanations given by Mr Gomis as to why he participated in the third interview without having spoken to a lawyer were set out above. In cross‑examination, Mr Gomis stated that he felt under pressure as he thought that he would not be released unless he made a statement (ts 171); that he was unable to speak to a lawyer until the next day; that he felt that he had to give the detectives a 'definite account' so that they could decide whether to charge him or release him and so that they could assess any risks to his safety (ts 193); and that he 'didn't want to go against the grain any more - I - I'd given up' (ts 193).
I am satisfied that Mr Gomis freely participated in the third interview and that the admissions that he made in the interview were given voluntarily. Again, I consider that Mr Gomis would have made some statement in the third interview that disclosed that he felt pressured or was acting under duress if that had been his true state of mind. I readily accept that Mr Gomis was in a difficult and stressful position. He had been arrested on suspicion of the murder of Mr Davies. He had been told that the police had evidence connecting him to the Mr Davies' death, even though the detectives did not believe that Mr Gomis was directly responsible for killing Mr Davies. I have already found that I am not satisfied that Detective Martin or Detective Page made any statement 'off camera' that could be construed as denying Mr Gomis an opportunity to communicate with a lawyer or that they indicated to him that they were not willing to wait until the next morning to conduct a further interview. It is not a threat to advise an arrested suspect that decisions may have to be made on information provided by others if the suspect does not participate in a recorded interview. It is also not a threat or an inducement to advise a suspect that the police hold information implicating the suspect in the commission of an offence. Although the detectives were obviously anxious to obtain a full account from Mr Gomis of his possible involvement in Mr Davies' death, it cannot be fairly concluded that they induced him to believe that he would not be released until he made a statement. Indeed, he (understandably) recognised at times in the second interview that it was unlikely that he would be released after he had concluded his dealings with the investigating detectives.
Mr Gomis was asked at the commencement of the third interview whether there were any threats, promises or inducements made in the discussion that had occurred between the second and third interviews. He replied, 'No, no threats or promises, no …' (ts 3). It was suggested that the omission of a reference to 'inducements' in this answer was significant. However, in my view, the repetition of the word 'no' was intended to convey that nothing in the nature of a threat, promise or inducement had been made. Again, it would be expected that Mr Gomis would have made some further statement if he had deliberately omitted to refer to 'inducements' in his answer. It should also be noted that Mr Gomis was asked at the commencement of the third interview whether he had been coerced into not ringing a lawyer or 'anything of that sort' and he replied, 'No' (ts 4).
Finally, in my view, the conclusion that Mr Gomis participated voluntarily in the third interview is supported by his demeanour in the interview and the manner in which he described his involvement in the killing of Mr Davies and its aftermath. Mr Gomis' account was given without hesitation. He answered the detectives' questions fully and without equivocation. He appeared tired but entirely in command of what he chose to say to the detectives.

Other grounds for excluding evidence of the interviews

The High Court identified in Swaffield three categories of cases where a voluntary statement may nevertheless be excluded in the exercise of a trial judge's discretion:
(a)where it would be unfair to the accused to admit evidence of the admission;
(b)where evidence of the admission should be excluded on public policy grounds;
(c)where the prejudicial effect of the evidence outweighs its probative value.
Toohey, Gaudron and Gummow JJ explained in Swaffield that the purpose of the fairness discretion is to protect the rights and privileges of the accused person; the purpose of the discretion to exclude an admission on public policy grounds is to protect the public interest and the purpose of the discretion to reject evidence where its prejudicial effect outweighs its probative value is to guard against a miscarriage of justice [52].
Where an admission has been made voluntarily, it is for the accused to establish, on the balance of probabilities, that evidence of the admission should be excluded on the ground of unfairness. The issue in respect of unfairness is not whether the accused has been treated unfairly, but whether the reception of the admission would be unfair to the accused in the conduct of his or her trial: Van der Meer v The Queen (1988) 35 A Crim R 232. Further, as Hall J observed in The State of Western Australia v Smith [2010] WASC 279:
Unreliability is an important factor in considering whether the discretion to exclude on grounds of unfairness should be exercised, but it is not the sole factor. Another basis for the exercise of discretion is if there has been some illegality or impropriety on the part of law enforcement officers: R v Swaffield. In considering whether to exercise the discretion, the public interest in placing otherwise relevant and admissible evidence before the jury is important.
Questioning by police is not to be regarded as unfair merely because it is persistent nor is there any impropriety in a police officer indicating that the truth of an answer is not accepted because it does not accord with earlier answers given by the accused or with what others have said …
Where a suspect during the course of an interview indicates a wish not to answer a question or to participate further in the interview, interviewing officers are entitled to ask further questions to clarify the accused's position [9] ‑ [11].

Hall J also noted in Smith that where an interview is both voluntary and reliable, an accused carried a high onus of establishing that there is unfairness that justified the exercise of the discretion to exclude. His Honour referred to R v Williams (1992) 8 WAR 265, 274, in support of that proposition. His Honour further noted that the weight to be given to the public interest in the conviction and punishment of a crime in the exercise of the discretion to exclude an admission will vary according to the heinousness of the alleged crime and the reliability and unequivocalness of the alleged confessional statement. Pollard v The Queen (1992) 176 CLR 177, 203, was cited in support of that proposition.
In Pollard, the High Court held that admissions made by an accused person were inadmissible because of the failure of the police to have cautioned the accused as they were required to do by statute. Deane J referred, in his reasons, to the judgment of Stephen and Aickin JJ in Bunning v Cross and continued:
As that passage makes plain, the principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not encourage by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process. As Stephen and Aicken JJ went on to point out, there are cases in which the question of unfairness to the particular accused does not play any significant part at all. In such cases it 'is not fair play that is called in question … but rather society's right to insist that those who enforce the law themselves respect it … a discretion exercisable according to the principles in Ireland's case serves this end whereas one concern with unfairness might often have little relevance to the question'. Ultimately, the question whether evidence of an incriminating statement procured by unlawful conduct on the part of investigating police should be excluded on grounds of public policy must be resolved by a balancing process. In that balancing of policy considerations, the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case.
In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other facts of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers (202 ‑ 203).
Deane J further noted that there may be a spectrum - at one end, there will be cases where there has been merely accidental and isolated non‑compliance with the law or some applicable judicially recognised standard of propriety by law enforcement officers, while at the opposite extreme are cases where an incriminating statement has been procured by the course of conduct on the part of the law enforcement officers which involved a deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Where non‑compliance has been merely accidental or isolated, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on a public policy grounds, particularly if the alleged offence is serious.

Conclusion

It will be apparent from the findings that have already been made that I am satisfied that the detectives did not improperly deny Mr Gomis a reasonable opportunity to communicate with a lawyer or with a family member. Further, I do not consider that Mr Gomis was unfairly or improperly coerced into participating in the third interview by any discussion that may have occurred after the second interview about obtaining legal advice or on related matters, such as the need to make decisions on whether to charge or release him.
There is one allegation that remains to be considered - whether Detective Martin had said that Mr Gandy and Mr Roberts had implicated Mr Gomis in the murder of Mr Davies. However, I am not satisfied that Detective Martin made any statement to that effect. There are three reasons for that conclusion.
First, it would be expected that Mr Gomis would have, at least, phrased his questions at the commencement of the third interview about the position of the other offenders differently had such a statement been made. That is, he would have directly referred to the assertion that Mr Roberts and Mr Gandy had implicated him in the murder of Mr Davies or he would have queried statements that had been made by Detective Page by reference to what he had been allegedly told by Detective Martin.
Second, Mr Gomis had been told in the second interview that the police had information that implicated him in the killing of Mr Davies. As has been noted, Detective Page told Mr Gomis that the detectives did not believe that Mr Gomis had actually killed Mr Davies, but that he had 'played some part at the start' and 'some part at the end'. The account that Mr Gomis provided in the third interview was consistent with the belief that the detectives claimed to have formed, as conveyed to Mr Gomis in the second interview. The detectives did not, at any point in the third interview, challenge Mr Gomis's account by suggesting that he had committed an act that had caused or contributed to the death of Mr Davies. Mr Gomis did not seek at any time to emphasise that he was not involved in the actual killing of Mr Davies by reference to any allegation made by Mr Gandy and Mr Roberts that he had been directly involved. The course of the third interview was inconsistent with the allegation that Mr Gomis had been told that Mr Gandy and Mr Roberts had implicated him in the murder of Mr Davies.
Finally, Mr Gomis indicated that he did not have a good recollection of what had occurred during the interviews or in the discussion with Detective Page and Detective Martin prior to the third interview. It is possible, in my view, that with the passage of time Mr Gomis has assumed that the statements made to him by Detective Page in the second interview were references to Mr Roberts and Mr Gandy having implicated him and that this formed one reason why he changed his mind and decided to request a further interview. That is, that he decided that he should give his account of what had occurred for the reasons that had been suggested by Detective Page and Detective Martin.
I am not satisfied that the court should exercise its discretion to exclude evidence of the admissions made by Mr Gomis having regard to the principles identified and explained in Swaffield, Pollard and Smith. The admissions were voluntarily made and apparently reliable. There was no impropriety by the detectives in their dealings with Mr Gomis.