The State of Western Australia v Glasfurd [No 3] - [2022] WASC 411

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GLASFURD [No 3] [2022] WASC 411
CORAM:   MCGRATH J
HEARD:   24 OCTOBER 2022
DELIVERED          :   6 DECEMBER 2022
FILE NO/S:   INS 3 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JAMIE ERIC GLASFURD
Accused

Catchwords:

Criminal law - Evidence - Admissibility of unrecorded admission - Whether reasonable excuse for absence of recording - Turns on own facts

Legislation:

Criminal Investigation Act 2006 (WA), s 115, s 118

Result:

Admission not audiovisually recorded admissible

Representation:

Counsel:

Prosecution	:	Mr B E F Tooker
Accused	:	Mr S D Freitag SC

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Smiddy-Brown Legal

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

Blum v The State of Western Australia [No 2] [2012] WASCA 40
Collins v The Queen (1980) 31 ALR 257
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Van Der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

MCGRATH J:

Introduction

The accused, Mr Glasfurd, is charged with one count of manslaughter contrary to s 280 of the Criminal Code (WA), one count of dangerous driving of a motor vehicle that was involved in an incident occasioning grievous bodily harm to another in circumstances of aggravation contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) and four counts of dangerous driving of a motor vehicle that was involved in an incident occasioning bodily harm to another in circumstances of aggravation contrary to s 59A(1)(b) of the Road Traffic Act.
Mr Glasfurd has pleaded not guilty to the six counts and will appear for his trial in February 2023.
The State of Western Australia applies that the State be permitted to lead evidence of an admission of the accused made to Detective First Class Constable Hamish Thomson in circumstances where the utterance was not audiovisually recorded.[1]
[1] Application by the State of Western Australia filed on 21 March 2022.
The accused does not oppose the application.[2]
[2] ts 12 (26/05/2022).
I am satisfied that the concession of the accused is properly made and that the utterance made by the accused to the police officer may be received in evidence at the trial. I have made this determination for the following reasons.

The State's case and issue at trial

The State's case is outlined in an amended statement of material facts dated 4 March 2022. The relevant paragraphs of the statement of material facts are as follows:
On Friday 20 August 2021 the accused, Jamie Eric Glasfurd, drove into the city and parked at the City of Perth multi-story car park on Pier Street. He arrived at about 12:30pm and parked his vehicle, a supercharged V8 Range Rover SUV registration number 1FAX947, on Level 7. He spent the afternoon in the city.
At 6:17pm that evening the accused returned to the multi-story car park. He had a partly filled beer bottle in his hand. It took him some time to work out how to pay for his ticket using the vending machines. He appeared unsteady on his feet. Eventually he paid for his ticket and caught the lift. He went one level too far (Level 8) and had to walk down to Level 7. He got into his vehicle at 6:25pm. About a minute later he reversed out and started to drive down to the ground level.
As he drove from level to level, his car would slow down for the corners and then rapidly accelerate and lurch forward in the straight sections of the car park. This pattern was repeated for most of the journey down to the ground level.
At 6:30pm the accused exited the multi-story car park in his Range Rover SUV. Initially he turned left and travelled north on Pier Street, but only for a short distance. He then mounted the raised median strip and conducted an illegal u-turn. When he got to the other side of Pier Street he straitened up his vehicle such that he was now facing north. The accused then accelerated heavily. His vehicle lurched forward and raced up the short hill towards the intersection of Pier Street and Murray Street, which is controlled by traffic lights.
The accused crossed through the intersections, narrowly missing a vehicle travelling west in the intersection, and mounted the footpath on the east side of Pier Street. After hitting the raised kerb on the south-east corner of the intersection his vehicle ploughed into the rear of a Toyota Corolla, registration number 1DFI833, which was parked outside "My Place" (a pub). The Toyota Corolla then crashed heavily into a crowd of people who were sitting and standing outside "My Place".
…
At the time of the collision with the Toyota Corolla it is estimated that the accused's Range Rover was travelling at between 90-96 km/h. The speed limit along this section of Pier Street is 40 km/h.
The accused was arrested at the scene by police and conveyed to Royal Perth Hospital to be treated for the serious injuries he received in the crash. At blood sample was obtained from the accused under the provisions of the Road Traffic Act 1974. Upon analysis it was determined that the accused had 0.05mg/L of methylamphetamine, 0.01mg/L of amphetamine and 0.004 grams of alcohol per 100ml of blood in his system.
Counsel for the accused submitted that it is expected that the six counts will be defended on the basis that the accused placed his foot initially on the accelerator of the vehicle, however, upon removing his foot the accused re‑applied his foot to the accelerator instead of the brake, being a 'pedal error'. Counsel for the accused stated that the defence is that the act of the accused, in placing his foot on the accelerator, was an unwilled act pursuant to s 23A of the Criminal Code.[3]
[3] Submissions of the accused filed on 21 October 2022 [3] - [4].

Evidence sought to be adduced by the State

The State seeks to adduce the utterance made by the accused to police officer Thomson as outlined in his statement signed on the 16 September 2021 at paragraph 27. In his statement, police officer Thomson outlines that he arrived at the vehicle incident scene at 7:05 pm on 20 August 2021. At the Pier Street vehicle incident scene, police officer Thomson was briefed by Sergeant Crogham who advised him that a black Range Rover had contravened a red traffic control light at the intersection of Murray Street and Pier Street at excessive speed and that, upon colliding with a white hatchback, the white hatchback was propelled into bystanders situated in Pier Street.
Police officer Thomson stated that he was advised by Sergeant Crogham that the driver of the black Range Rover was in an ambulance. Police officer Thomson conducted a walkthrough of the vehicle incident scene and spoke to various witnesses. Upon the arrival of the officers from the Major Crash Investigation Section, a briefing was conducted which resulted in Detective Senior Constable Wallace being appointed the designated investigating officer.
Subsequently, police officer Thomson attended Royal Perth Hospital. At that time police officer Thomson attended the trauma ward at Royal Perth Hospital and asked a nurse whether he could check if the accused had any seatbelt injuries. Accordingly, police officer Thomson and the nurse entered the hospital room and made observations regarding whether there were any seatbelt injuries. Police officer Thomson asked the nurse whether the neck brace could be removed from the accused. The nurse informed the accused that she proposed to take the neck brace from his neck. At that time, Mr Glasfurd responded 'what does it matter I just killed a man'.[4] Police officer Thomson recorded that statement of the accused in his notebook.
[4] Statement of Hamish Philip Thomson signed 23 September 2021 [27].
The State contends that that the statement of the accused constitutes an admission against interest.

Relevant legal principles

Section 118 of the Criminal Investigation Act 2006 (WA) (CIA) provides:
118. Admission in serious case inadmissible unless recorded
(1) In this section -
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
adult means a person who has reached 18 years of age;
child means a person who is under 18 years of age;
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.
(2) This section applies in respect of a suspect who is -
(a)a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or
(b)an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.
(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.
(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
Section 154 of the CIA provides:
154.Evidence obtained improperly
(1) In this section -
authorisation includes a warrant and an order.
(2)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; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
Further, s 155 of the CIA provides:
155.Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)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.
(3)In making a decision under subsection (2) 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 this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
Section 118(3) of the CIA provides that unrecorded admissions are prima facie inadmissible. There are limitations concerning the categories of admissions that fall within s 118(3) of the CIA. First, the subsection only applies to admissions made by a 'suspect' as defined in s 115 of the CIA, being a person suspected of having committed an offence whether or not he or she has been charged with the offence. Second, pursuant to s 118(4), there must be reasonable grounds for that suspicion. Third, s 118(3) only applies to admissions made to a police officer or a Corruption and Crime Commission officer.
There appears to be no dispute between the parties that the three limitations of s 118(3) of the CIA have been satisfied in this case. It is clear that the police officers attended the vehicle incident scene knowing that there had been collision involving the accused's vehicle and pedestrians. Police officer Thompson was told by another officer that the accused had infringed the traffic rules immediately prior to the incident. Accordingly, police officer Thomson had reasonable grounds for suspecting that the accused had committed an offence. Further, the accused's statement was made to a serving police officer.
The definition of the term 'reasonable excuse' in s 118(1) of the CIA is not, in its terms or effect, exclusive. There may be a reasonable excuse which does not fall within those matters referred to in the subsection.[5] Whether there is a reasonable excuse requires an examination of all the circumstances relevant to the making of the alleged admission.[6]
[5] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [55].
[6] Blum v The State of Western Australia [No 2] [2012] WASCA 40 [63].
An issue in this case is whether there was a reasonable excuse to not record the admissions for the reason that they were made when it was not practicable to make an audiovisual recording under s 118(1)(a). In Wright v The State of Western Australia, Blaxell JA stated that, consistent with the meaning of 'practicable', the issue whether a given task is practicable involves an enquiry as to the means and resources available to accomplish it.[7] Accordingly, Blaxell JA observed that the question of whether or not it was 'practicable' to record an admission will always involve a consideration of what resources (in terms of personnel and equipment) were available.[8] Other factors include the time that was available to organise those resources, the degree of expectation that an admission might be made and whether or not this justified the effort and cost involved in utilising the resources.[9]
[7] Wright v The State of Western Australia [148].
[8] Wright v The State of Western Australia [150].
[9] Wright v The State of Western Australia [151].
Section 155 of the CIA takes effect when any other section of the CIA determines that it is applicable to evidence which is otherwise inadmissible. Therefore, pursuant to s 118(3)(b)(ii) of the CIA, s 155 applies to the proposed evidence of the unrecorded admissions of the accused.
Section 155(2) of the CIA provides that the court may nevertheless decide to admit the evidence which is otherwise inadmissible if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In making such a decision, there are numerous factors the court must take into account, as outlined in s 155(3), as well as any other matter the court thinks fit.
Section 155 of the CIA does not impact upon the common law determination of the issue of whether a confession or admission was made voluntarily. In determining the admissibility of a confession or admission under s 155(2), the court must consider any objection that the confession or admission was involuntary. Therefore, a concurrent determination of the issue of voluntariness must be made. If a determination is made that the confession or admission was involuntary, the undesirability of admitting the evidence would necessarily outweigh the desirability of admitting the evidence. If a determination is made that the officer had a reasonable excuse under s 118(1) of the CIA, then the issue of voluntariness must still be considered.
The word 'voluntary' does not mean volunteered. Rather, it means made in the exercise of a free choice to speak or to be silent.[10] The issue of voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances of the case upon the will of the particular accused.[11]
[10] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149.
[11] Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J).
In this case, counsel for the accused did not contend that involuntariness, in respect of the accused's statement, was an issue at trial
If the admissions of the accused which were not audiovisually recorded are admissible for the reason that the officers had a reasonable excuse for not recording and the confession was voluntary, then circumstances may require a further determination as to whether the admissions should be rendered inadmissible in exercising the discretion under common law on the basis of unreliability or unfairness. There are three possible bases for discretionary exclusions. They are that it is unfair to the accused to admit the confession, that public policy considerations make the admissions unacceptable or that the prejudicial effect of the evidence outweighs its probative value.[12]
[12] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [52].
In determining whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his or her statement against them.[13] The discretion to exclude a voluntary admission on the basis of unfairness is not limited to cases in which the admission has been procured by unlawful or improper conduct on the part of the police but extends to other relevant factors. Unreliability is an important aspect of the discretion to exclude evidence on the ground of unfairness.[14]
[13] Van Der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656, 666 (Wilson, Dawson & Toohey JJ).
[14] R v Swaffield [54].

Assessment of application

I am satisfied that police officer Thomson was clearly aware that the accused was a suspect given the officer's previous attendance at the vehicle incident scene at Pier Street. The purpose of attending Royal Perth Hospital was not to conduct an interview with the accused, rather to assess whether the accused had any seatbelt injuries.
I am satisfied, on the balance of probabilities, that there is a reasonable excuse for the absence of an audiovisual recording of the utterance of the accused. I accept the State's submission that the utterance was a spontaneous statement by the accused, made in circumstances where the officer was not attending for the purpose of conducting an interview and did not ask any questions of the accused. The officer did not have an expectation an admission might be made and did not seek to ask questions of the accused. Given the spontaneous nature of the utterance, it was not practical to record the admission. I am mindful that the spontaneous admission was made at a hospital, being a location other than the police station.
Even if I had found that the officer did contravene s 118 of the CIA, I would be satisfied under s 155(2) that the evidence should be admitted because the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In making that finding, I am mindful that the seriousness of the offence weighs in favour of admitting the evidence, the contravention by the officer may be regarded as being at the lower end of seriousness given that it was not deliberate or reckless and that the admission has reasonably significant probative value.

Further, I am satisfied that the statement should not be excluded on the basis of any contention that the police acted unfairly. There is no contention by the accused that the statement is unreliable and should be excluded on the basis of unfairness.
Accordingly, the proposed evidence of police officer Thomson at paragraph 27 of his statement, signed on 16 September 2021, may be received into evidence. To the extent that the utterance of the accused amounts to an admission against interest will be a matter for the jury properly directed to assess.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
6 DECEMBER 2022