The State of Western Australia v Hart
[2017] WADC 29
•7 MARCH 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HART [2017] WADC 29
CORAM: BOWDEN DCJ
HEARD: 28 FEBRUARY 2017
DELIVERED : 7 MARCH 2017
FILE NO/S: BUN IND 162 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
EARL DEREK HART
Catchwords:
Admissibility of electronic record of interview - Voluntariness - Criminal Investigation Act 2006 (WA) - Failure to advise accused of offence he was suspected of having committed - Common law discretion - Public policy considerations
Legislation:
Criminal Investigation Act 2006 (WA)
Result:
Parts of electronic record of interview ruled inadmissible
Representation:
Counsel:
State of Western Australia : Ms C J Polglase with her Ms F M Clare
Accused: Ms M A Huber
Solicitors:
State of Western Australia : State Director of Public Prosecutions
Accused: Aboriginal Legal Service
Case(s) referred to in judgment(s):
Bunning v Cross (1978) 141 CLR 54
Cleland v The Queen (1982) 151 CLR 1
Collins v The Queen (1980) 31 ALR 257
George v Rockett [1990] HCA 20; (1990) 170 CLR 104
JWRL (a child) v The State of Western Australia [2009] WASC 285
Malgil v State of Western Australia [2008] WASC 290
McDermott v The King (1948) 76 CLR 501
Mukevski v The State of Western Australia [2010] WASCA 138
Narrier v The State of Western Australia [2014] WASC 21
Pohl (2014) QSC 277; (2014) 244 A Crim R 56
R v Arnott (2009) 26 VR 409
R v Ireland (1970) 126 CLR 321
R v Ostojic (1978) 18 SASR 188
R v Swaffield [1998] HCA 1; (1998) 192 CLR 158
R v Versac (2013) 220 A Crim R 569
Sinclair v The King (1946) 73 CLR 316
The State of Western Australia v Cox [2008] WASC 287
The State of Western Australia v Gibson (2014) WASC 240
Tofilau v The Queen (2007) 231 CLR 396
West Australia v Silich (2011) 43 WAR 285
Wright v State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
BOWDEN DCJ: Mr Hart is charged with one count of aggravated burglary and one count of stealing a motor vehicle.
The defence object to the admissibility of Mr Hart's electronic record of interview (EROI) conducted on 7 July 2016 on the basis that it was not voluntarily made and therefore inadmissible or alternatively if it was voluntarily made is inadmissible because of breaches of the Criminal Investigation Act 2006 (WA) (CIA) and if there were no such breaches or those breaches did not render it inadmissible it ought be excluded in the exercise of the common law discretion.
Evidence called at the directions hearing
The State called Senior Constable Mason, First-Class Constable Lawty and Acting Sergeant Griffiths. These officers are clearly conscientious police officers who gave evidence in a straightforward truthful manner.
All three officers had previously dealt with Mr Hart and said his demeanour on the day of the EROI was no different from any other occasion. The general effect of the officers' evidence was that Mr Hart was passive, softly spoken, mumbled when he spoke, did not look directly at the person he was speaking to and was hard to understand.
All three officers said they were experienced in dealing with people who were intoxicated or under the influence of illicit substances and each said that they did not smell alcohol or cannabis on Mr Hart and he did not appear to be intoxicated or under the influence of any illicit substances.
Senior Constable Mason has been a police officer for over 34 years and stationed at Collie for 15 years. He has conducted over 100 records of interview. He knew Mr Hart reasonably well and knew he had gone to high school.
On 7 July 2006 he arrested Mr Hart on suspicion of stealing a motor vehicle and breach of bail at approximately 9:40 am. When he arrested Mr Hart he cautioned him. Mr Hart was then taken back to the Collie Police Station and entered the lockup at around about 9:59 am. He was later taken from the lockup to the police station for the EROI and asked if he wanted to contact a lawyer. When Mr Hart said he did, he was taken back into the custody area to contact a lawyer, however Mr Hart changed his mind about contacting a lawyer and was taken to the interview room and the EROI was conducted at 10:39 am.
Senior Constable Mason was aware of the complaint that somebody had entered a house and stolen the keys to a vehicle from a bag inside the house and then used those stolen keys to steal the motor vehicle outside the house. He also knew that the police had reliable information that Mr Hart was seen in the stolen vehicle a few days after the alleged burglary.
Senior Constable Mason was aware that the burglary occurred in the early hours of the morning and that a witness had seen the vehicle outside one of Mr Hart's relatives' house around 4:10 am. That witness did not see the driver. Senior Constable Mason was aware that there were up to 10 people residing at that particular address.
Senior Constable Mason said that at the commencement of the interview he only suspected Mr Hart of stealing a motor vehicle and breaching his bail. He said he did not have a reasonable suspicion that Mr Hart was involved in the burglary because all he knew was that Mr Hart was seen in a stolen vehicle sometime after it had been stolen.
Senior Constable Mason said during the interview EROI Mr Hart spoke softly and mumbled, but did not slur his words and did not appear unsteady on his feet or have hazy or glazy eyes. He denied he had seen Mr Hart shut his eyes and agreed that twice Mr Hart put his head on the table and was asked to speak up. He told the court that if he believed Mr Hart was fatigued or intoxicated he would not have conducted the EROI.
During the interview Senior Constable Mason said he formed the reasonable suspicion that the accused was a suspect in the burglary but he was not able to say at what point he formed that suspicion.
At the relevant time First-Class Constable Lawty had been in the police force for four to five years and stationed at Collie for around about four years.
He confirmed Senior Constable Mason's evidence that Mr Hart was given his rights when arrested. He said that after Mr Hart was arrested inside his residence he was taken outside to the porch area where he told the police he needed medication for his stab wound, so the officers went inside and obtained that medication. Later when they were at the lock up Mr Hart requested his medication and First-Class Constable Lawty provided it to him and Mr Hart took one tablet.
Officer Lawty said he saw the stab wound on Mr Hart which was a small puncture wound that was scabbed over and not bleeding or oozing.
Constable Lawty said Mr Hart was calm and compliant and he did not see him sleeping during the interview, although he noticed that Mr Hart did a number of 'slow blinks' and close his eyes for a couple of seconds.
Acting Sergeant Griffiths had been a police officer for nine years and stationed in Collie for five years. His role was to assist with the custodial management of Mr Hart.
He said that when Mr Hart was brought into the lockup at 9:59 am he was asked a series of questions and the answers were recorded on page 3 of exhibit 1, a custody handover summary. In particular, Mr Hart said he was not a prohibited drug or solvent user. Mr Hart told the officer that he had a stab wound that occurred over a week ago and was being treated by a doctor. Acting Sergeant Griffiths said he offered medical assistance to Mr Hart who declined the offer, saying that he had already received treatment for the wound.
He agreed that accused people often do not answer truthfully when police officers ask them questions such as 'Are you using particular drugs?'
In addition to the three officers, the State tendered three exhibits. Exhibit 1 a custody handover summary, exhibit 2 the EROI and exhibit 3 the brief for the prosecution including the additional statement of Ms JJ.
Mr Hart did not call any evidence.
Voluntariness
The onus is on the State to prove on the balance of probabilities that confessional statements have been made voluntarily: Cleland v The Queen (1982) 151 CLR 1.
If a statement is not voluntary it is not admissible and no question of discretion arises: R v Lee (1950) 82 CLR 133.
If a statement is voluntarily, the onus is on the accused on the balance of probabilities to establish that the statement should be excluded in the exercise of the court's discretion, on the basis that if it is unfair to admit it or the admission of the evidence is contrary to public policy or the statements prejudicial effect outweighs its probative value.
To be voluntary an EROI must be made by the accused in the exercise of a free choice to speak or be silent: Tofilau v The Queen (2007) 231 CLR 396.
If the EROI is obtained because the accused's will is overborne, it is inadmissible and it does not matter by what means the will has been overborne. If the statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary: McDermott v The King (1948) 76 CLR 501, 511.
Voluntariness focusses upon the will of the accused whose age, background and psychological condition must be considered as well as the circumstances in which the EROI was made. A careful assessment of the effect of the circumstances upon the will of the accused must be made: Collins v The Queen (1980) 31 ALR 257.
Where admissions made by an accused are potentially very significant, the court should approach the burden of proof from the perspective that it must be completely satisfied that the statement is voluntary: The State of Western Australia v Cox [2008] WASC 287 [49] ‑ [50].
The questioning is not necessarily regarded as unfair if it is persistent: Malgil v State of Western Australia [2008] WASC 290. Of course the manner of questioning and the persistency are relevant to whether the accused's will has been overborne.
I am satisfied Mr Hart's will was not overborne.
Mr Hart was afforded his rights under the CIA. He was properly cautioned during the interview. He clearly understood that caution. When asked 'If I asked you 100 questions, how many do you have to answer?', Mr Hart replied 'None'. Later during the interview he exercised his right to silence by telling the police officers that he did not want to say anything more as he had already 'told them'.
Before admitting his role in the burglary, Mr Hart told the police officers that he met a tall 'fair bloke' wearing black pants and red shirt when walking at the park. He said that man took the car and was in the driver's side and Mr Hart got into the passenger's side and the man then dropped him over at the school.
Mr Hart denied that he knew how the vehicle was damaged or that he tried to set it on fire. He explained that his relatives had told him to give the car back.
He corrected propositions put to him that he did not agree with. For example, Senior Constable Mason put to him that he had grabbed the keys and Mr Hart responded that he never grabbed the keys.
I do not consider there was anything in the manner or style of the questioning that overborne the will of Mr Hart.
Mr Hart can neither read nor write. He had a stab wound from an event occurring over a week previously, which he said had become infected and required antibiotics. When asked if he had seen a doctor for that infection, Mr Hart replied 'no'. When asked if he wished to go to the doctor 'now' for the infection he replied 'yes' and Senior Constable Martin then said that he would arrange for him to do so 'a little bit later on' and asked Mr Hart if he was 'happy' for that to occur to which Mr Hart replied 'yes'. It is significant that when Mr Hart was asked if he had seen a doctor for the infection, he replied 'no'. When asked why, he replied that he was 'going to go yesterday but (indistinct)'.
Clearly any infection was not of such a nature that Mr Hart thought that it was imperative that he received medical treatment forthwith as is evidenced by his failure to seek such attention.
I am satisfied that Mr Hart did not required medical treatment for either the wound or the infection or that the wound or any infection associated with it meant that the EROI was not voluntarily made.
It is argued on Mr Hart's behalf that his level of intoxication due to either alcohol or substance ingestion was so great as to render the EROI involuntary.
I accept the officers' evidence that they are experienced with dealing with people who are intoxicated and Mr Hart did not appear to be under the influence of substances or alcohol and his demeanour was no different to his demeanour on other occasions. I am satisfied that Mr Hart was not under the influence of substances or alcohol.
Even if he was intoxicated, it could only result in the EROI being involuntary made when the degree of intoxication is so great that it deprives him of his understanding of what he was admitting to: Sinclair v The King (1946) 73 CLR 316, 336 (Dixon J) or if Mr Hart's mind had become so disordered and irresponsive that it would be dangerous to pay any attention to what he has said: R v Arnott (2009) 26 VR 409, 496 or in circumstances where Mr Hart was unaware of their surroundings or the identity of the questioner, of the gist of the questions and was incapable of choosing whether to speak or not: R v Ostojic (1978) 18 SASR 188 or did not understand what he was doing: Wright v State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1; Narrier v The State of Western Australia [2014] WASC 21.
These authorities and others were reviewed in West Australia v Silich (2011) 43 WAR 285 where Martin CJ stated:
The question of voluntariness is to be determined by asking whether on the balance of probabilities the appellant was so intoxicated at the time of the interview by police that he was incapable of choosing whether or not to participate in the interview or to understand the questions being asked and provide reasonable responses to those questions.
Even if Mr Hart was intoxicated or under the influence of substances, contrary to my findings, he clearly understood that he did not have to answer questions as is evidenced by telling the police in the latter part of the interview that he did not want to answer any further questions and he clearly understood the questions being asked of him and provided reasonable responses to them. Mr Hart was capable of telling the police his version of events. He was capable of disagreeing with propositions that were put to him. He was capable of subsequently changing his version and was capable of telling the police officers that he did not want to say any more.
In my view, a fair viewing of the interview shows that it was voluntarily conducted. I accept that Mr Hart mumbled and was difficult to hear. He put his head on the table on two occasions. He was asked to speak up but there is nothing, in my view, from looking at the interview that supports a suggestion that this will was overborne.
There is no merit in the submissions that fatigue, intoxication, substances or the stab wound or any associated infection effected Mr Hart's capacity to appreciating that he had a choice to speak or remain silent, or his capacity to exercising sufficient volition to give effect to what he knew were his rights. He understood the questions put to him and made appropriate responses.
I am satisfied that the EROI was voluntarily made.
Section 138 of the CIA
Section 138 of the CIA provides:
…
(2)In addition to the rights in section 137, an arrested person 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;
…
There is no requirement under s 138(2)(a) for Mr Hart be advised of the offence he is suspected of committing prior to the interview being commenced.
Pursuant to s 137(3)(b) an obligation is imposed on the officer in charge of the investigation, in this case Senior Constable Mason, to afford that right as soon as practicable after the accused's arrest. This is to be contrasted with the rights under s 138(2)(b) (caution) and s 138(2)(d) (interpreter) which provide that the accused is entitled to be informed of those rights before the interview commenced.
The question of whether a person is suspected of having committed an offence is not an act of formal decision making, it is a question of fact: The State of Western Australia v Gibson (2014) WASC 240.
Suspicion is a state of conjecture or surmise where proof is lacking. Facts which can be the basis of a reasonable suspicion may be insufficient to ground a belief. A suspicion must have some factual basis but it may be merely a positive of actual apprehension or mistrust or a slight opinion without sufficient evidence to establish it: George v Rockett [1990] HCA 20; (1990) 170 CLR 104; Gibson [38].
At the time of the EROI Senior Constable Mason knew that a motor vehicle had been stolen from a house in circumstances where the keys to the motor vehicle were in a bag inside the house and, he was aware that Mr Hart had been seen driving that vehicle some days after it had been stolen.
Senior Constable Mason said he had a reasonable suspicion that Mr Hart was suspected of having stolen the vehicle but not that he had committed the burglary. He admitted that during the EROI he formed a reasonable suspicion that Mr Hart had been involved in the burglary but he was not able to say precisely when he formed that view.
Even accepting that Senior Constable Mason did not have a reasonable suspicion at the start of the EROI that Mr Hart was a suspect in the burglary during the EROI, he asked the following questions:
Oh, okay. So the problem is that I've got Earl, is that the lady that had her car stolen, someone went inside her house and took her handbag which had the keys in it. (page 14 EROI 20:52)
…
Alright Earl, so as Constable Lawty says, we've got a statement off the lady that owns the car and house and a gentleman that saw the car outside 4 Butcher Street. So did you go round to the back of her house and gain – and gain – and get inside the house by an unlocked door, so did you gain entry into her house? (page 16 EROI 25:16)
…
..I put it to you, Earl, that you went inside the lady's house, found her handbag, took her handbag, took the keys from the handbag and then drove away around Collie. (page 17 EROI 26:20)
…
... But we've got evidence from the lady that owns the car that the keys were in the handbag which were inside her house. (page 17 EROI 27:57)
These propositions were put to Mr Hart when he was still maintaining his story about the tall fair‑headed stranger but after he had admitted that he was at the scene and had seen the keys and was in the vehicle shortly after it was stolen.
These questions were put by Senior Constable Mason because Mr Hart was a suspect to the burglary. By the time those questions were put, viewed objectively, Mr Hart was suspected of having committed the burglary and there were reasonable grounds for Senior Constable Mason to hold those suspicions.
I find as a matter of fact he was suspected of committing the burglary when those questions were put to him.
Senior Constable Mason had an obligation as soon as practicable to afford Mr Hart his right to be informed that he was suspected of having committed the burglary. There is no practical reason for that not being done immediately before those questions were put. It would have taken less than a minute to do so. It does not impose an onerous obligation on police officers.
In my view the failure from the point that I have referred to at page 14 EROI to put to Mr Hart that he was suspected of committing the burglary, is a failure to comply with s 138(2)(a) the CIA. Accordingly, the evidence was obtained improperly under s 154(2) CIA and the EROI is not admissible unless the State satisfies me that I should exercise my discretion to admit it into evidence pursuant to s 155 CIA.
In the exercise of that discretion, the following facts are relevant.
Mr Hart objects to the admission of that evidence.
Mr Hart is charged with the serious offence of aggravated burglary which carries a maximum penalty of 20 years' imprisonment and in some circumstances, a mandatory minimum period of imprisonment. The seriousness of the offence is however, just one of the factors to consider.
The contravention of the Act was a serious contravention. The police were investigating a serious offence. Compliance with the requirements of the CIA would have taken only a matter of minutes, if that. The CIA gives the accused rights and those rights should be afforded to him. Mr Hart was not informed of a matter which the legislation specifically provides that he should have been. Police officers must be aware of the importance of conducting EROI in a manner that complies with the CIA.
The failure to comply with the CIA was not deliberate or reckless. Recklessness involves officers understanding that there is a risk a result may occur and yet continuing onwards irrespective of that risk. The failure to comply did not arise from an honest and reasonable mistake of fact. During the EROI Senior Constable Mason formed the view that he reasonably suspected Mr Hart was involved in the burglary but he was not able to say at what point he formed that suspicion. I have found that as a matter of fact by page 14 EROI Mr Hart was a suspect and there were reasonable grounds for that suspicion. I find that it was an oversight on Senior Constable Mason's behalf that he failed to advise Mr Hart that he was a suspect in the burglary. It was an oversight due, no doubt, to momentary inattention on behalf of Senior Constable Mason and can properly be described as careless.
The probative value of the evidence is high. It is an admission by Mr Hart that he committed a serious offence. This is a significant but not determinative factor which favours the admission of the evidence. The probative value of the evidence only increases the need for there to be compliance with the CIA. The probative value of the evidence by itself does not justify the admission: s 155(4) of the CIA. I accept the reliability of the evidence obtained has not been affected. This is a matter of considerable significance which favours the admission of the evidence. Although a significant factor, it is not the only factor to consider. There are cases where reliable admissions have been excluded in the exercise of the discretion: JWRL (a child) v The State of Western Australia [2009] WASC 285.
It is also relevant to consider that Mr Hart's EROI is not the only evidence the State can rely upon to prove his guilt. Ms JJ says in her statement (part of exhibit 3) that she was with Mr Hart on the night in question and saw him go up to a house and disappear and then shortly thereafter heard a car engine start up and he pulled up next to her in a Mitsubishi vehicle and told her to get in. She says he confessed to her that he had broken into the house and stolen the car keys from inside.
The State say that Ms JJ is reluctant to give evidence, yet in another submission they say to me that I should consider her statement when I asses the reliability of Mr Hart's EROI. Reluctant or not Ms JJ can be compelled to attend court. Her evidence taken with the other evidence on the State brief is capable of establishing Mr Hart's guilt. His admission is not the only evidence that the State are able to rely on. This is a relevant factor to consider.
No one factor is given primacy over the others, all must be weighed together.
The officer's conduct was not intentional or reckless, it was a careless oversight that on occasions occur in police investigations. However, it was an oversight that ought not to have occurred. There is a public interest in bringing to justice those who commit serious offences however, the seriousness of the offence also means there is an obligation on the police to comply with the CIA. The officers could have easily complied with the legislative requirement. It would have taken them less than a minute. It is not an onerous obligation.
In my view the evidence ought not be admitted. I decline to exercise my CIA discretion to do so.
Common law discretion
If I am wrong in concluding that there was a contravention of the CIA then the common law general discretion enables a court to exclude evidence where it would be unfair to the accused to admit the evidence or where considerations of public policy lead a court to conclude it is unacceptable to admit that evidence or where its prejudicial value outweighs its probative value: R v Swaffield [1998] HCA 1; (1998) 192 CLR 158; Tofilau v The Queen. The onus is on Mr Hart to persuade me to exercise the discretion in his favour.
The unfairness discretion is concerned with the rights of Mr Hart and the public policy discretion is concerned with matters of public interest. The prejudicial/probative value discretion guards against a miscarriage of justice: R v Swaffield. The various considerations often overlap: Swaffield[74].
The unfairness discretion looks at the question of whether it would be unfair to Mr Hart to use this evidence against him. It is primarily concerned with Mr Hart’s ability to obtain a fair trial. It does not directly involve looking at the question of whether the interviewers acted unfairly.
The factors to consider in the exercise of this discretion cannot be developed in the abstract but take their meaning from the circumstances of the case: Bunning v Cross (1978) 141 CLR 54 (77); Mukevski v The State of Western Australia [2010] WASCA 138 [22]. The factors involved in considering the exercise of the discretion include those I have referred to in exercising the CIA discretion.
Any unfairness arises because the police questioned Mr Hart in an EROI about a burglary without advising him he was a suspect in that burglary and wish to use that EROI at the burglary trial. I have already found that the reliability of Mr Hart's answers was not affected.
The unfairness discretion often overlaps with the exercise of the public policy discretion. The public policy discretion involves striking a balance between the public interest in placing the court in possession of all relevant admissible evidence and the desirable goal of bringing convictions to wrongdoers with the competing considerations of not encouraging evidence to be obtained by inappropriate means and the public interest in protecting individuals from unfair treatment: R v Ireland (1970) 126 CLR 321; Bunning v Cross.
The public policy discretion is necessary to protect the process of the courts in administrating justice and also serves a policy of deterring such conduct by investigating authorities.
When considering the public policy discretion, in addition to the factors relevant to the CIA and unfairness discretion, consideration is also to be given as to whether such conduct is encouraged or tolerated by those in higher authority in the police force. In this regard there is no evidence one way or the other.
Fairness is relevant to the public policy discretion but not its focus. Considerations of public policy are engaged and fall to be applied in particular circumstances of the case. The weight to be given to the various factors such as the careless failure to advise Mr Hart that he was suspected of committing the burglary, the cogency of the evidence thereby obtained, the importance of the evidence in the proceedings, the nature and seriousness of the offence, the nature of the conduct, how easy it would be to comply with the law, whether such conduct is encouraged or tolerated by those in higher authority, are all to be weighed: Pohl (2014) QSC 277; (2014) 244 A Crim R 56; R v Versac (2013) 220 A Crim R 569.
At the end of the day if a person is suspected of committing an offence, even if that suspicion arises during the EROI, that person must be informed that he is suspected of committing that offence before the EROI proceeds any further. The public policy considerations in ensuring that police comply with the CIA, leads me to exclude the evidence: Pohl; R v Versac.
Conclusion
I find that the EROI was voluntarily conducted. However, s 138(2)(a) CIA was breached from the point I have referred to at page 14 of the EROI and I would not exercise my discretion to admit the evidence from page 14 (EROI 25:16) to half way down page 22 (EROI 34:14).
If s 138(2)(a) CIA was not breached, I find that the failure to advise Mr Hart that he was a suspect for the burglary was unfair and/or improper and for public policy reasons exercise my discretion to exclude the evidence from page 14 to half way down page 22.
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